High Court Kerala High Court

T.O.Abraham vs State Of Kerala on 15 June, 2009

Kerala High Court
T.O.Abraham vs State Of Kerala on 15 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 229 of 2009()


1. T.O.ABRAHAM,S/O LATE KURUVILA ONNOOTTAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,REPRESENTED BY PUBLIC
                       ...       Respondent

                For Petitioner  :SRI.V.N.ACHUTHA KURUP (SR.)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :15/06/2009

 O R D E R
                              THOMAS P. JOSEPH, J.
                             --------------------------------------
                               Crl.R.P.No.229 of 2009
                             --------------------------------------
                      Dated this the 15th day of June, 2009.

                                          ORDER

This revision is in challenge of order dated 25.11.2008 in Crl.M.P.No.192

of 2007 in C.C.No.15 of 2002 of court of learned Enquiry Commissioner and

Special Judge, Thiruvananthapuram. Petitioner who is accused No.2 pleaded

that he be discharged under Section 239 of the Code of Criminal Procedure (for

short, “the Code”). That petition did not find favour with the learned Special

Judge. Hence this revision.

2. I heard senior counsel for petitioner and Public Prosecutor who

appeared for respondent. Accused No.1 was the Superintending Engineer of the

Kallada project for the period from 6.7.1990 to 28.2.1991. Petitioner/accused

was the contractor for the work relating to K.I. & TCDP. Accused Nos.3 and 4

are officers subordinate to accused No.1 in the Public Works Department. Case

is that on the eve of retirement of accused No.1 on 28.1.1991, there was a

criminal conspiracy between accused and petitioner to make unlawful gain by

illegal means misusing certain clauses of LCB specifications. There was some

sort of negotiation between petitioner and accused No.1 as to the rates on

21.2.1991 regarding five items of work entrusted to the petitioner as per the

agreement. Following that, to facilitate payments not otherwise due to the

petitioner, supplemental agreement was executed on 25.2.1991 ignoring that

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petitioner was not eligible to get any such enhancement. Accordingly, wrongful

gain was made by petitioner and accused Nos.1, 3 and 4 and consequent loss to

the Government. Petitioner and accused Nos.1, 3 and 4 are therefore charged

for offences punishable under Sections 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act (for short, “the Act”) and Section 120B of the Indian

Penal Code.

3. Learned senior counsel submitted that there was nothing illegal in

petitioner requesting for and accused No.1 sanctioning excess payment which

were all done in accordance with the terms and conditions of the agreement

between the parties. Learned counsel submitted that in respect of four items,

petitioner had done excess work and in respect of one item he had done extra

work. Accordingly he made application before accused No.1 for payment for

such excess/extra work. Request made by the petitioner was referred to the

subordinate officers and appropriate reports were obtained by accused No.1

before supplemental agreement was executed. Learned counsel contends that

as per the prosecution case, conspiracy was made at three different levels,

between petitioner and accused No.1, then between petitioner and accused

Nos.1 and 3 and then again between petitioner and accused No.4. Further

contention is that respondent has no case that petitioner had not done

excess/extra work. There is also no case that petitioner was compensated for

the said excess/extra work he did. According to the learned counsel, it is only for

the reason that supplemental agreement was executed on the eve of retirement

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3

of accused No.1 that case has been registered against the petitioner and

others. Therefore, learned counsel contends that petitioner is entitled to

discharge. Learned Public Prosecutor submitted that supplemental agreement

was executed to facilitate extra/excess payment which otherwise petitioner was

not entitled or eligible. Learned Public Prosecutor also submitted that the excess

work allegedly done by the petitioner was not really an excess work but it was a

part of the agreement already entered into. It is also submitted by Public

Prosecutor that in respect of construction of flume canal with tie beam accused

No.1 negotiated with petitioner on 27.2.1991, ie., just on the previous day of his

superannuation and retirement and allowed a rate of Rs.11,750/- for total

quantity of 100 tones while actually petitioner was eligible to get only

Rs.7,500/-. To facilitate that accused No.1 ignored the notes put up by his

subordinates. It is stated that in connection with th excess work petitioner

allegedly did and which according to him enabled him to get excess payment,

witness No.9 has stated that petitioner was bound to do that work even as per

the original agreement. In that way a loss of Rs.7,01,380/- was caused to the

Government. The total loss thus caused to the Government is Rs.16,04,908.36.

4. At this stage, what is required to be considered is only whether

there is ground to presume that petitioner has committed the offence. A

discharge is possible only if the charge is groundless. It has been held time

and again that for framing charge it is sufficient that strong suspicion regarding

the commission of the offence is made out. Learned Special Judge referred to

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the documents produced before him and stated that it was against the office

notes put up by the subordinate officials that accused No.1 awarded payments

for the alleged excess/extra work. Learned Special Judge has also stated that

personal assistant to accused No.1 had put up a note that the Executive

Engineer has to be instructed to carry out the additional work through the present

agency and the matter has to be reported to the Chief Engineer. Further

observation made by the learned Special Judge is that records produced before

the court would reveal that for road crossing, bed width was increased and CC

1:3:6 making up etc. were treated as extra items and accused No.1 passed such

an order and directed petitioner to furnish the rates. The same were not

forwarded through the officials of the department but was seen directly given by

petitioner to accused No.1 and accordingly dealt with. So far as execution of

supplemental agreement is concerned, it is observed that in the negotiation

statement, the estimate rate was not noted and it could not be found out as to

how accused No.1 had fixed the rate and an excess payment of Rs.3,01,945/-

was allowed by accused No.1 in favour of petitioner. There are also facts and

circumstances stated by learned Special Judge which according to the Special

Judge was sufficient to frame charge against the petitioner. On going through

the order under challenge and hearing learned senior counsel for petitioner and

Prosecutor appearing for respondent I am not inclined to think the learned

Special Judge was not correct in observing as to the availability of materials for

framing charge against the petitioner. Ofcourse, the observations and findings

made by learned Special Judge are only for the purpose of framing charge. I

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do not find reason to interfere. However I make it clear that the observations

and findings made by learned Special Judge will be limited for the purpose of

framing charge against the petitioner.

With the above observation, this revision is dismissed.

Crl.M.A.No.680 of 2009 will stand dismissed.

THOMAS P.JOSEPH,
Judge.

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