IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 486 of 1998()
1. THOMAS
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
Dated :10/01/2007
O R D E R
J.B. KOSHY, J.
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Crl. Appeal Nos. 486 & 490 of 1998
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Dated this the 10th day of January, 2007
Judgment
Accused, five in number, were charge-sheeted
under section 13 (2) read with section 13 (1) (c) and (e)
of the Prevention of Corruption Act, 1988 and sections
409 and 120-B of the Indian Penal Code. The allegation
was regarding cutting and removal of rubber trees from an
estate called ‘Koduman Estate’ belonging to the
Plantation Corporation of Kerala Limited, a Government
undertaking. An agreement for cutting and removal of
rubber trees was entered into by the Plantation
Corporation and A2 from ‘C’ Division of Block No.9. Date
of agreement was 15.2.1994. During February and March,
1994 first accused was the Field Executive of ‘C’
Division, Block No.9 of Koduman Estate. Fifth accused
was the Estate Manager of that estate. Third and fourth
accused are brothers of the second accused who was
awarded contract for cutting and removing the slaughter
tapping of rubber trees of other blocks in ‘C’ Division.
It is also the case of the prosecution that they are
doing the work in partnership. Second accused has
Crl.A.Nos.486 & 490/98 2
remitted a sum of Rs.13,67,311/- by various occasions
towards the value of 3,250 rubber trees, but, removed
5,024 rubber trees on the basis of Ext.P1 agreement and
first and fifth accused allowed accused 2 to 4 to cut and
remove 1,774 rubber trees worth Rs.6,92,592/- for which
value was not paid. It is the case of the prosecution
that accused Nos.1 and 5 committed criminal breach of
trust and criminal misconduct in respect of 1,774 rubber
trees at Rs.6,92,592/- and accused Nos.2 and 4 had got
undue pecuniary advantage amounting to the above amount
because of the abuse of office by accused Nos.1 and 5 in
pursuance of the criminal conspiracy. Ext.P1 is the
agreement.
2. At the time of tender, 10% of the total bid
amount was remitted as can be seen from clause 2 of the
agreement. Clause 3 deals with schedule for payment as
well as cutting and removing of rubber trees. Clause 3
of Ext.P1 is as follows:
“3. The purchaser has also remitted an
amount of Rs.4,41,438/- (Rupees Four lakhs
forty one thousand four hundred thirty eight
only) being 20% of the total consideration
against cash receipt No.1786 dated 14.2.1994
as an advance towards the total
consideration. He has also remitted interest
Crl.A.Nos.486 & 490/98 3
of Rs.81,594.55. The balance purchase price
of Rs.17,65,752/- (Rupees seventeen lakhs
sixty five thousand seven hundred and fifty
two only) shall be paid by the purchaser in
ten monthly instalments on or before the
dates shown hereunder and the purchaser
shall cut and remove the trees from the
scheduled property as shown hereunder:-
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Date on or Amount of No.of trees
before as Instalment to be cut
applicable (Rs.) and removed
to similar (Nos.)
contracts
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1. 25.06.1993 (5%) 88,288/- 254 2. 25.07.1993 (5%) 88,288/- 254 3. 25.08.1993 (5%) 88,288/- 254 4. 25.09.1993 (5%) 88,288/- 254 5. 25.10.1993 (10%) 1,76,576/- 508 6. 25.11.1993 (15%) 2,64,864/- 762 7. 25.12.1993 (15%) 2,64,864/- 762 8. 25.01.1994 (20%) 3,53,144/- 1010 9. 25.02.1994 (10%) 1,76,576/- 508 10. 10.03.1994 (10%) 1,76,576/- 508 ---------- ----- Total 17,65,752/- 5074
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It can be seen from the above that 30% of the amount
already paid was adjusted towards five instalments and
the total amount including the above 30% of the total
value of 5,074 trees. The agreement was executed on
15.2.1994. The agreement contemplates cutting and
removing of 3250 rubber trees. There is no case for the
Crl.A.Nos.486 & 490/98 4
prosecution that the cutting and removing of trees
started before the date of agreement. Therefore, it can
be seen that the schedule was not followed by both
parties. If it was according to the schedule, 80% of the
work would have been over by 25.1.1994. The agreement
was executed only on 15.2.1994. It was executed only by
A2 and the complainant. The trial court found that A3 and
A4 are not involved in the matter as they are not parties
to the contract and the contract is only with A2 and A3
and A4 were acquitted. The trial court found that A5 is
the manager of the estate. It is only a general
supervision and there is no evidence to connect with any
criminal conspiracy or breach of trust. Accordingly, he
was also acquitted. No appeal has been filed by the
State against the acquittal of A3, A4 or A5.
3. PW1, former General Manager of the
Plantation Corporation, deposed that first and fifth
accused were the field executive and estate manager
respectively during the period. PW2 deposed that he was
the senior manager of Koduman Group of Estates and
accused No.5 was the estate manager. PW3 Personnel
Officer was also examined to prove the same. PW4 who was
the confidential assistant to the General Manager was
Crl.A.Nos.486 & 490/98 5
examined to show that first accused was the field
executive of ‘C’ division of Koduman estate. Evidence of
PWs 6 and 9 were mainly relied on by the prosecution.
PW6 is the field assistant of Koduman estate, ‘C’
Division during the period 1993-94. There were 3,300
trees and the trees were removed during the year 1993.
He also deposed that the people who are taking contract
will have to get in touch with the field executive. On
one day, A1 came late to the office and stated that he
has allowed to remove the trees believing that value of
the trees would be remitted and he committed a mistake in
believing him. The other employees also started hue and
cry. He further deposed that he is not aware the date
when A1 came late to the office. He also stated that
during the period when trees were cut and removed, A5
also came to the place. He again deposed that about 48
gate passes were written by him and other passes were
written by A1. He further deposed that he could not
count the trees and A1 was entrusted the charge to count
the trees. He deposed as follows:
Crl.A.Nos.486 & 490/98 6
He also deposed that trees were removed from other
division also. But, according to him, the trees were
earlier counted and passes were given so that trees
cannot be removed unauthorisedly.
4. PW9 is another witness relied on by the
prosecution. He was the field executive and he stated
that A1 was the field executive for block No.9 of ‘C’
Division and trees were counted. According to him, work
order was to cut 3,000 trees, but, the entire trees were
cut and the matter was reported. PW9 also deposed that
the entire trees were cut, but, some of the trees were
there at that time. He further deposed that he handed
over charge to PW6. He did not give any record as the
number of trees in the estate at the time of handing over
charge. It has come out in evidence that as per the
record there were 5074 trees in Block No.9 of ‘C’
division and A1 was the field executive and A2 was the
contractor to cut and remove the trees. According to the
prosecution, the entire trees by 1993-94, but, full
amount was not paid and there was a shortage of payment
for 1,774 trees. It is the contention of A1 that he has
reported the matter that the amount was not paid as per
schedule of 10.3.1994 by Ext.D3 letter. By Ext.D3
Crl.A.Nos.486 & 490/98 7
letter, he noticed that the entire amount as per the
schedule was not paid. Despite Ext.D3, A5 did not take
any action. In fact, he subsequently enquired with the
contractor. Evidence of PW9 shows that the matter was
reported and the entire trees were cut, but, some of the
cut trees were not yet removed. It is the case of A2
that, as per the schedule, nine months’ time is there to
cut and remove the trees. According to him, even though
it is the case of the Corporation that there was 5,074
trees in ‘C’ division of 9th block, actually, the trees
were much below in number. He also filed a civil case
stating that number of trees available to cut and remove
was less. According to his defence, amount has been paid
for the entire trees and if at all any amount is due on
the basis of Ext.P1 agreement, it is only a civil
liability. Apart from the fact that at the time of
giving pass, A2 talked to A1, there is no evidence of
criminal conspiracy between A1 and A2. Without the
knowledge of A5, it would not have happened and if A2 had
conspiracy with A1, he would not have written Ext.D3
letter to A5. However, against acquittal of A5, no
appeal has been filed. Totality of evidence shows that
there was a real dispute between the management as well
Crl.A.Nos.486 & 490/98 8
as A2 contractor regarding the number of trees and
regarding the amount payable. Contending that full
amount was not paid, A2 filed a case before the Munsiff’s
Court alleging that there were shortage of trees and
claiming damages. Management has also filed a case.
Finally, a joint petition was filed in O.S. No.597 of
1994 filed by the plaintiff Corporation along with O.S.
No. 278 of 1994 and 442 of 1994. In the joint petition
it is stated that as follows:
“1. The parties have settled the above
suits out of court and all the three suits
may be dismissed as not pressed.
2. Half the court fee paid may be
refunded to the respective plaintiffs in
the three suits.
In the above circumstances, it is
prayed that this compromise may be recorded
accordingly and a decree passed in
accordance therewith.”
Here, the matter was compromised and civil disputes were
over. Decree was also passed accordingly.
In the above circumstances, it cannot be stated
that A2 has received any undue amount against the
contractual provisions or A1 has entered into criminal
conspiracy with A2. In these circumstances, I am of
Crl.A.Nos.486 & 490/98 9
opinion that the charges against A1 and A2 are also not
proved. Hence, conviction and sentence on A1 and A2 are
set aside and appeals are allowed and the accused are
acquitted.
J.B.KOSHY
JUDGE
vaa
Crl.A.Nos.486 & 490/98 10
J.B. KOSHY, J.
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CRL.APPEAL Nos.486 &
490/98
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Judgment
Dated:10th January, 2007