IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 117 of 2002()
1. K.T.JOSEPH, RTD. EXDECUTIVE OFFICER,
... Petitioner
Vs
1. SUPERINTENDENT OF POLICE, V.A. C.B.,
... Respondent
2. PUBLIC PROSECUTOR,
For Petitioner :SRI.M.V.BOSE
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/01/2011
O R D E R
M.Sasidharan Nambiar, J.
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Crl.A.Nos.117 & 120 of 2002
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JUDGMENT
Accused 1, 3 and 4 in C.C.No.25/1999 on the
file of Special Judge (Vigilance), Thrissur are the
appellants in Crl.A.No.120/2002. Second accused
therein is the appellant in Crl.A.No.117/2002. All
the accused were convicted and sentenced for the
offences under Sections 13(1)(c) and 13(1)(d) read
with Section 13(2) of Prevention of Corruption Act
and Sections 409, 468, 471, 477A and 120B of Indian
Penal Code. Charge against the appellants was that
while first appellant was the President of the
Panchayat, second appellant, Executive Officer and
appellants 3 and 4, Ward members and they were
functioning as the Convener and Members of the
committee formed by Vannappuram Panchayat to
execute work, out of Rs.84,000/- received for
construction of a play ground at Pattayakkudy under
Eleven Point Programme, pursuant to the conspiracy
CRA 117&120/02 2
between them, they misappropriated Rs.30,564/- and
also forged documents and falsified the accounts
and thereby committed the offences.
2. All the accused pleaded not guilty.
Prosecution examined seventeen witnesses and marked
thirty exhibits. Exhibits X1 and X2 were also
marked. After closing the prosecution evidence,
appellants were questioned under Section 313 of
Code of Criminal Procedure. When they were called
upon to adduce evidence, at their instance, a
retired Engineer was appointed to assess the work
executed. He submitted Exhibit X1 report. He was
examined as DW1 on their side, apart from DWs 2 and
3. Exhibit D1 statement was also marked.
3. On the evidence, learned Special Judge found
all the accused guilty and convicted and sentenced
them. Appellants would contend that learned Special
Judge did not properly appreciate the evidence and
though reliance was placed on the evidence of PWs
1, 2 and 10, there is no evidence as to the exact
CRA 117&120/02 3
quantum of work executed and there is also no
evidence to prove that any amount was
misappropriated. It was pointed out that Exhibit
P18 file contains the relevant Government Orders
which provide for execution of works under Eleven
Point Programme by paying charges applicable to
local areas and in such circumstances, based on
1986 PWD Schedule, quantum of work should not have
been valued or assessed and based on that
assessment, there cannot be a finding that the
difference in the amount was misappropriated. It
was pointed out that entire case of
misappropriation was built up based on the fact
that stones used for constructing the retaining
wall were taken from the rocks which were blasted
from the property, even though the estimate provide
for using stones brought from outside for
constructing the retaining wall providing separate
rate for that work. It was also pointed out that
when estimate provide for blasting of rocks of
CRA 117&120/02 4
115m3, PWs 1, 2 and 10 wrongly estimated the
quantity of rocks blasted as 225.8m3 and the
subsequent estimate prepared for completing the
balance work show that two rocks of the four rocks,
shown in the original estimate, are yet to be
blasted and therefore, the stones which could have
been obtained by blasting the rocks would be less
than 115m3 as originally assessed and therefore,
based on the assessment, the conviction is
unsustainable.
4. Learned Public Prosecutor pointed out that
excluding the cost of construction of the Stadium,
which was never constructed, the estimate was
Rs.94,954/- and Rs.84,000/- has already been
admittedly received by the appellants. It is
pointed out that Exhibit P18 file shows that
balance work left by the appellants was estimated
and the estimate of that work was Rs.40,000/- and
if so, the total amount would be Rs.84,000/-
already spent plus Rs.40,000/- to be spent for the
CRA 117&120/02 5
remaining work and it far exceeds the estimate of
Rs.94,954/- and therefore, it is clear that there
is misappropriation. Learned Public Prosecutor also
pointed out that Exhibit P20 file, proved through
PW10, shows that actual measurement of the rocks to
be blasted was taken and noted as Item No.4 in the
detailed estimate prepared at that time, seen at
Page No.5 of the file and as per that estimate,
there were four boulder stones, having a total
measurement of 231m3 and though it was reduced to
115m3, based on which final estimate was approved,
evidence of PWs 1 and 10 establish that after
appellants left the work, when the property was
inspected to measure out the work executed, 60m3
scattered blasted rocks were found after using the
remaining part for constructing a portion of the
retaining wall and from the measurement of the
retaining wall, it is clear that for its
construction, stones obtained from the blasted
rocks, namely, 225.8m3, were used and it correspond
CRA 117&120/02 6
to the measurement of the rocks to be blasted as
noted in Exhibit P20 and in such circumstances,
cost of the work executed, as assessed by PW10 by
calculating the cost at 47.85/m3 for the work of DR
masonry for retaining wall, though PW3 assessed it
at 211.15/m3 on the presumption that work for the
retaining wall was carried out using stones brought
from outside, is correct and if so, it is clear
that the work actually executed was only
Rs.53,710/- as assessed by PW1 and therefore, the
finding that balance out of Rs.84,000/- was
misappropriated is perfectly correct.
5. Exhibit P3 is the file maintained by PWD
regarding execution of the work, including the
estimate, verification of execution of the work
made on the request of the office bearers elected
subsequently and the estimate of the cost of the
work executed. Exhibit P19 is the file maintained
by the Panchayat regarding the said work. Exhibit
P20 is the file maintained by PWD showing the
CRA 117&120/02 7
estimate and further assessment made by PW10
regarding the said work. Exhibit P6 is the book
issued to Assistant Engineer, Local Work Section,
Thodupuzha, wherein, details of the work were
noted. Exhibit P19 shows that based on Exhibit P19
(f) resolution to construct a play ground in the
property gifted by Kairali Arts and Sports Club to
the Panchayat under Exhibit P19(e) agreement,
Panchayat decided to construct a play ground.
Exhibit P19(a) shows that on 28.12.1988
administrative sanction was granted for carrying
out the work at an estimated cost of Rs.1,10,000/-.
The estimate so approved provide for Rs.94,954/-
for site levelling, filling up and constructing
retaining wall as provided in Appendix-A,
Rs.11,637/- for construction of a stage as provided
in Appendix-B, Rs.500/- for excess cost of cement
and Rs.2,909/- for unforeseen items, thus, making a
total of Rs.1,10,000/-. Out of the works provided
in Appendix-A, Rs.10,168/- is for excavation in all
CRA 117&120/02 8
classes of soil, except hard and medium rock, which
require blasting, calculated at the rate of
Rs.184.87/10m3 for 550m3. Second item is Rs.2,528/-,
being the cost of excavation in all classes of
soil, except hard and medium rocks, which require
blasting and using the spoil for filling under the
basement at the rate of Rs.158/10m3 for 160m3. Item
No.3 is Rs.6,209/- for blasting 115m3 hard rock
(measured in solid), conveying blasted rock and
stacking for measurements at the rate of
Rs.539.99/10m3. Fourth item is construction of D.R.
masonry for retaining wall of 177m3, at the rate of
Rs.211.16/m3, namely Rs.37,375/-. Fifth item is
R.R. in C.M. 1:8 for the top course of retaining
wall including painting the exposed faces, during
the course of construction, namely Rs.5,447/-,
estimated at Rs.363.11/m3 for 15m3. Sixth item is
plastering C.M. 1:4 15mm thick one coat floated
hard and trowelled smooth for top of retaining wall
at the rate of Rs.194.50/m2 for 50m2, namely,
CRA 117&120/02 9
Rs.973/-. Seventh item is filling the low lying
portion with contractors own earth and conveyed
with all leads and lifts involved, including
filling to profile and level as per the
instructions of departmental officers including
consolidating by stone roller in 15cm layers etc.
at the rate of Rs.47.85/m3 for 150m3, namely,
Rs.7,178/-. Last item is bailing out water using 5
HP engine and pump set etc. complete as per
specification at the rate of Rs.153.63/day for five
days, namely, Rs.768/-. Thus, Rs.94,954/- was
worked out in the estimate.
6. Exhibit P18, the file maintained by
Vannappuram Panchayat, shows the details of the
works carried out under Eleven Point Programme.
Decision of the District Panchayat dated 29.6.1988
is seen at Page No.11. It shows the decision taken
in the conference of Panchayat Inspectors held on
19.5.1988. Relevant portion of the minutes
extracted therein provides for construction of
CRA 117&120/02 10
three or four play grounds in a Panchayat providing
that each play ground must have an extent of not
less than fifty cents and during that financial
year, at least one play ground should be
constructed by the Panchayat and work is to be
executed under Eleven Point Programme. Page No.26
of Exhibit P18 file shows Government Order (G.O.
(Rt)No.3097/88/LAD.) dated 16.9.1988 for speedy
execution of the work under Eleven Point Progamme.
The Government order shows that Government ordered
that in order to ensure speedy execution of the
works under Eleven Point Programme and to achieve
the targets in time, all Panchayats are permitted
to execute construction works under Eleven Point
Programme costing up to Rupees Two lakhs, directly
by the Panchayat themselves without calling for
tenders and engaging Contractors. However, the
works should be executed under the technical
guidance, advice and supervision of the Buildings
and Local Works branch of Public Works Department.
CRA 117&120/02 11
It further provides that Panchayat Committees may,
if necessary, entrust execution of such works to
Sub-committees of the Panchayats, consisting of the
Panchayat President and at least two other members
of the Panchayats, with the Panchayat Executive
Officer as Convener, providing that the arrangement
will remain in force till 31.3.1989. Page No.64 of
Exhibit P18 file shows the subsequent Government
Order (G.O.(Rt)No.4050/88/LAD.) dated 6.12.1988. By
earlier Government Order dated 16.9.1988,
Government ordered that while executing works under
Eleven Point Programme directly by the Panchayats,
cost of construction materials, transportation and
labour will be paid at the rate prevailing in the
local area. It shows that in the review meeting of
the Eleven Point Programme held on 23.11.1988, the
District Panchayat Officers have pointed out that
the rates of materials, transportation and labour
prevailing in the local area would be more than the
rates provided in the estimate and the result would
CRA 117&120/02 12
be excess expenditure over the estimate. It also
shows that Joint Director of Pancyats (Development)
therefore requested in his note, which is read as
third paper in the Government Order, that in
respect of the works under the Eleven Point
Programme ordered to be executed directly by the
Panchayat Committees/Sub Committees, the excess
expenditure over the estimate may be sanctioned.
Considering these aspects, Government Ordered that
Government examined the proposal and are pleased to
accept it. Accordingly Government Order (G.O.(Rt)
No.3522/88/ LAD.) dated 22.10.1988 is modified as
follows:
“Excess expenditure over the estimate rates, if
any, incurred by the Panchayat Committee/Sub
committee for the execution of works will be
allowed on the basis of the valuation certificate
given by the Engineer in charge of the works and
on the request of the Panchayat. Such excess
expenditure shall be sanctioned by the District
Panchayat Officer.”
Page No.47 of Exhibit P18 file shows Government
Order (G.O.(Rt)No.3522/88/LAD.) dated 22.10.1988,
CRA 117&120/02 13
which was modified by Government Order (G.O.(Rt)No.
4050/88/LAD.) dated 6.12.1988. G.O.(Rt)No.3522/88/
LAD. shows that pursuant to G.O.(Rt)No.3097/88/
LAD. dated 16.9.1988, Government issued further
orders for successful execution of the works as
contemplated in the said Government Order. Under
the said Government Order, clause (vi) provides
that works will be carried out under the
supervision of the Engineers of the Local Works
Wing of P.W.D. and valuation of the works will be
done by them reckoning the cost of materials and
wages as per the directions in the Government
Order. Peoples’ participation, if any, which shall
necessarily be included in the actual cost of the
works, will be shown separately. It is the said
clause which was modified by G.O.(Rt)No.4050/88/
LAD. dated 6.12.1988, providing that excess
expenditure over the estimated rates incurred by
the Panchayat consequent to the prevailing rates in
the local area, which would be more than the
CRA 117&120/02 14
estimated expenditure, is to be sanctioned by the
District Panchayat Officer. Page No.34 of Exhibit
P19 file shows that Deputy Secretary of Government
informed the Panchayat President of Vannappuram
Panchayat that the period for completing the works
under Eleven Point Programme, though was 31.3.1989
originally, was extended and the work could be
executed without any time limit.
7. Evidence of PW1, the then Assistant
Executive Engineer and PW2, the then Executive
Engineer and PW10, the then Assistant Engineer,
establish that estimate was prepared based on the
rates approved by PWD as prevailing in 1986. When
Government Orders referred to earlier enable the
Panchayat Committees/Sub committees to pay wages at
the rate prevailing in the local area, which would
be in excess of the PWD rate, approved during the
relevant period, based on the valuation of the
works executed, calculating at the rate fixed by
PWD during 1986, it cannot be found that the excess
CRA 117&120/02 15
amount, if any, spent was misappropriated.
Government Orders specifically provide not only for
paying wages at the rate prevailing in the local
area, but also approving the said excess
expenditure over the approved estimate. Therefore,
based on the expenditure estimated at the PWD rate
alone, it is not possible to find that there was
misappropriation.
8. Learned Special Judge, on a petition filed
by the defence, appointed DW1, a retired Engineer,
to value the work and submit the report at the
stage of defence evidence. DW1 estimated the cost
of the work and submitted Exhibit X1 report. It is
not known under what provision, learned Special
Judge could appoint a commission, like DW1, to
estimate the expenses for the work executed and
direct the Commissioner to submit a report at the
stage of defence evidence. The said order of the
learned Special Judge is apparently beyond the
scope of defence evidence provided under the Code
CRA 117&120/02 16
of Criminal Procedure and therefore, evidence of
DW1, based on his inspection and Exhibit X1 report,
can only be ignored.
9. Learned Special Judge relied on the evidence
of PWs 1, 2 and 10 and found that though
Rs.84,000/- was received by the appellants for
execution of the work, as estimated by PWD, only
Rs.53,710/- was spent for execution of the work and
therefore, there is misappropriation. Question is
whether that estimate made by PWs 1, 2 and 10 could
be accepted or not. Evidence of PW10 shows that in
view of the request of the new office bearers of
the Panchayat Committee, he estimated cost of the
work executed and prepared a detailed valuation
statement shown in Exhibit P3 file. As per the said
assessment, total cost of the work executed is
Rs.78,010/-. Evidence of PW10 is that though the
estimate was made by Assistant Executive Engineer,
he was not examined. Evidence of PW2 shows that
after receipt of the report so received, he
CRA 117&120/02 17
verified the details and reduced the amount to
Rs.53,710/-. Evidence of PW2 with Exhibit P3(d),
the details of valuation, establish that though
PW10 assessed the cost of D.R. masonry for the
retaining wall of 265.44m3 at the rate of
Rs.211.16/m3, it was re-calculated at the rate of
Rs.47.85/m3, finding that rate of Rs.211/- is
applicable only when the retaining wall is not
constructed with the stones obtained from blasting
the rocks and the stones used were obtained on
blasting the rocks and hence, the rate provided in
the estimate, namely Rs.47.85, alone can be
calculated. Thus, Rs.56,050.31 was reduced to
Rs.12,701/-. Similarly, filling with Contractors
own earth and rubble, estimated at Rs.47.85/m3 for
1217.16m3 was modified to 1140.78m3, at the rate of
Rs.270.09/10m3. Thus, Rs.58,241.10 was reduced to
Rs.30,811/-. That modification was measurement of
Item No.1 from 309.97m3 to 309.95m3 and rate from
Rs.5,730.78 to Rs.5,730/-, including the deduction
CRA 117&120/02 18
at 1/11, being the profit of the Contractor, which
will not be available when the work is executed by
the Panchayat Committee. Total cost was worked at
Rs.56,858/-. Deducting Rs.258/-, calculated at
Rs.100/10m3 of 225.8m3 of solid rocks and Rs.889.65,
being the expenses for stacking charges, total
amount of Rs.78,010/- was reduced to Rs.53,710/-.
Entire deductions were made mainly based on the
quantity of the stones obtained from blasting the
rocks.
10. As stated earlier, the estimate provide
for, as Item No.3, blasting four boulder stones,
having a measurement of 115m3. The estimate also
provide for construction of masonry retaining wall,
using both departmental rubble and rubble taken
from outside. When the rate payable for
constructing the retaining wall using departmental
rubble is Rs.47.85/m3, construction of the
retaining wall using the rubble taken from outside
is Rs.211.16/m3. The estimate show that the stones,
CRA 117&120/02 19
which were estimated as available by blasting the
four boulder rocks was 115m3, which is shown as
Item No.3. So, Item No.4, D.R. masonry for
retaining wall is estimated at Rs.211.16/m3 for
177m3. As Column No.9, D.R. masonry for retaining
wall using departmental rubble is estimated at
Rs.47.85/m3 for 150m3. It is not explained at the
time of evidence how this 150m3 stones found
available by blasting 115m3 boulder stones would
become 225.8m3 of stones. Though learned Public
Prosecutor, relying on the relevant estimate seen
in Page 5 of Exhibit P20, pointed out that total
measurement of four boulder stones would be 231m3
and therefore, the estimate made by PWs 1 and 2 is
to be accepted, Exhibit P20 shows that said
estimate was not accepted and 231m3 measurement of
four boulder stones was reduced to 115m3. Moreover,
even if it is taken that 231m3 measurement taken
was correct, it is the total of the measurements of
four boulder stones shown therein, namely, No.1-
CRA 117&120/02 20
200m3, No.2-10m3, No.3-3m3 and No.4-18m3, which
together make 231m3. Exhibit P3(f), the estimate of
the remaining work to be executed subsequently,
shows that the work to be completed includes
blasting of hard rocks of two boulder stones. First
is having a measurement of 90m3 and the second 30m3,
which together constitute 120m3. Therefore, even if
it is taken that 231m3 rocks are to be blasted,
Exhibit P3(f) shows that 120m3 still remained to be
blasted. Therefore, the blasted quantity of rocks
could only be 231m3 – 120m3 = 111m3. Evidence of PW1
is that if rock is blasted, the stones available
would be less than the quantity of the rock. True,
evidence of PWs 2 and 10 is to the effect that
blasting the rocks available would be 50% in
excess. Even if that be so and 111m3 rock was
blasted, the available stones would be round about
150m3, as shown in the original estimate. If that
be so, estimate made by PWs 1 and 2 that 265.44m3
stones used for D.R. masonry for retaining wall is
CRA 117&120/02 21
the stones obtained by blasting the rocks cannot be
accepted. If that be so, as estimated by PW10, the
cost should be Rs.56,050/-, instead of Rs.12,701/-,
as assessed by PWs 1 and 2. Similarly, evidence of
PWs 1 and 2 show that measurement of filling with
contractors own earth was reduced from 1217.16m3 to
1140.78m3. Neither PW1 nor PW2 has given evidence
as to how the said deduction was made. Though
Exhibit P20 file shows some calculation by
correction, it is not explained by any witness.
Therefore, based on these deductions, it is not
possible to hold that cost of D.R. masonry for
retaining wall is less than what was estimated by
PW10.
11. It is also to be borne in mind that no
evidence was adduced by the prosecution as to how
the quantum of the amount was worked out either in
the original estimate or while calculating the work
executed. As stated earlier, Government had given
sanction for execution of the work by paying the
CRA 117&120/02 22
charges available in the respective local areas.
Government also authorised the District Panchayat
Officers to approve and sanction the excess
expenditure so incurred. In the absence of any
evidence as to the charge at which the estimate was
prepared or for fixing the quantum of work
executed, contention of the defence that the work
should be valued at the rate available in the local
area, which would exceed the PWD rate, cannot be
rejected. If so, on the evidence, it is not
possible to hold that cost of the work executed by
the Committee, consisting of appellants, was less
than Rs.84,000/-, received by them for execution of
the work.
12. Though prosecution has a case that the
wages paid and the receipts shown in the muster
rolls are not correct and witnesses were examined,
all those witnesses, except PW7, turned hostile to
the prosecution. Even the evidence of PW7 would not
establish any forgery or falsification of the
CRA 117&120/02 23
accounts. PW7 deposed that he is the son of Pappan.
The witness was asked with regard to the entires in
the muster rolls, evidencing the payment, showing
the name of PW7. But, name of the father shown in
the same is Paru. PW7 was not asked whether
Kuttappan, son of Paru, shown therein, is himself.
PW7 admitted his signature in one entry. There,
father is shown as Pappan. Therefore, in the
absence of any evidence that Kuttappan, son of
Paru, is PW7, based on the evidence of PW7 that it
is not his signature, it is not possible to hold
that said Kuttappan was not engaged or did not work
or did not receive any wages. In such
circumstances, learned Special Judge was not
justified in finding either that appellants
misappropriated the amount or forged the receipts
or muster rolls or falsified the accounts or used
the forged one as genuine. In any event, when there
is definitely a doubt as to the exact quantum of
the work executed, appellants are entitled to get
CRA 117&120/02 24
at least the benefit of doubt. In such
circumstances, conviction of the appellants cannot
be sustained.
Appeals are allowed. Conviction of the
appellants by Special Judge (Vigilance), Thrissur
in C.C.No.25/1999 and the sentence awarded are set
aside. Appellants are found not guilty of the
offences under Sections 13(1)(c) and 13(1)(d) read
with Section 13(2) of Prevention of Corruption Act
and Sections 409, 468, 471, 477A and 120B of Indian
Penal Code. They are acquitted. Bail bonds executed
by them stand cancelled. If appellants have
deposited any amount as directed by this Court for
suspending the sentence, they are entitled to
withdraw the same.
24th January, 2011 (M.Sasidharan Nambiar, Judge)
tkv
CRA 117&120/02 25
M.Sasidharan Nambiar, J.
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Crl.A.Nos.117 & 120 of 2002
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JUDGMENT
24th January, 2011
