{"id":122541,"date":"2002-11-01T00:00:00","date_gmt":"2002-10-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balagovindarajulu-vs-state-rep-by-the-inspector-of-on-1-november-2002"},"modified":"2017-04-25T17:02:09","modified_gmt":"2017-04-25T11:32:09","slug":"balagovindarajulu-vs-state-rep-by-the-inspector-of-on-1-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balagovindarajulu-vs-state-rep-by-the-inspector-of-on-1-november-2002","title":{"rendered":"Balagovindarajulu vs State Rep. By The Inspector Of … on 1 November, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Balagovindarajulu vs State Rep. By The Inspector Of … on 1 November, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 01\/11\/2002\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE MALAI.SUBRAMANIAN\n\nCRIMINAL APPEAL NO.248 OF 1996\nand\nCA.Nos 249 and 255 of 1996\n\n\n1. Balagovindarajulu                   .. Appellant\/A1 in CA248\/1996\n\n1. K. Bhuvanendran\n2. R.M. Palaniswami                     ..Appellants\/ A3 & A6 in CA 249\/1996\n\n1. C. Thangapandi\n2. R. Rajendran\n3. S. Raju\n                        ..Appellants\/ A2,A4 & A5 in CA 255\/1996\n\n-Vs-\n\nState rep. By the Inspector of Police\nVigilance and Anti Corruption\nCoimbatore (crime No.6\/AC\/86\/CB)     .....Respondent\n\nAppeal filed under Section 374(2) of  Cr.P.C.    against  the  conviction  and\nsentence  passed by the learned Additional Special Judge\/I Additional Sessions\nJudge cum Chief Judicial  Magistrate,  Coimbatore  in  Special  Calendar  Case\nNo.5\/89 dated 14.3.1996.\n\n\n!For appellants 2,4 and 5 .. Mr.R.  Shanmugasundaran\nin C.A.No.255\/86            Senior Advocate for\n                            Mr.S.N.  Thangarai and\n                            M.  Mugundan\n\nFor 1st appellant in ..  Mr.K.  Asokan.Sr.  Counsel\nC.A.No.248\/96 for Mr.Sundar Mohan\n\nFor appellants 3 and 6 in\nC.A.No.255\/96 ..  Mr.A.  Balaguru for\nMr.P.S.  Venkatasubramanian\n\n^For respondents ..  Mr.E.  Raja\n                Addl.  Public Prosecutor\n:JUDGMENT\n<\/pre>\n
        The  accused  1  to  6 in Special Calendar Case No.5\/89 on the file of
\nAdditional Special  Judge\/I  Additional  Sessions  Judge  cum  Chief  Judicial
\nMagistrate, Coimbatore were convicted and sentenced to undergo R.I for 3 years
\nand  to  pay  a fine of Rs.3,000\/- each, in default to suffer R.I for 6 months
\nfor offence punishable under Sec.477-A IPC; to undergo R.I for 3 years and  to
\npay  a  fine  of  Rs.3,000\/-  each,  in default to suffer R.I for 6 months for
\noffence punishable under Sec.420 IPC and to undergo R.I for 3 years and to pay
\na fine of Rs.3,250\/-, in default to  suffer  R.I  for  6  months  for  offence
\npunishable  with 5(2) read with 5(1)(d) of Prevention of Corruption Act, 1947.
\nThough they were convicted for offences punishable under Sec.120-B  read  with
\nSec.47  7-A, 420 and 5(2)read with 5(1)(d) of Prevention of Corruption Act, no
\nseparate sentences were imposed for that offence.  The sentences were  ordered
\nto  run concurrently except the default sentence for non payment of fine which
\nhas to run consecutively.  The 1st accused challenging  the  above  conviction
\nand  the sentence has filed C.A.No.248\/96; 2nd, 4th and 5th accused have filed
\nC.A.No.255\/96 and 3rd and 6th accused have filed 249\/96.  Since all the  three
\nappeals  arise  out  of  a  single  judgment, the following common judgment is
\npronounced on appeal.  For convenience, the appellants will be referred to  as
\naccused  1  to 6 in the same order in which they were arrayed before the trial
\ncourt.  They were convicted on an allegation that  A.1  to  A.6  being  public
\nservants entered into a criminal conspiracy between May 1983 and April 1985 to
\ncheat  the  TWAD  Board  by  claiming  amounts  more than actually due for the
\nexecution of the work relating to the supply of Siruvani water  to  Bharathiar
\nUniversity  and  Maruthamalai  Temple Adivaram in Coimbatore area by recording
\nfalse measurement in the measurement book  relating  to  those  works  and  by
\nabusing their position as public servants have obtained pecuniary advantage to
\nthe tune  of Rs.55,846.82 for themselves and for the approvers T.  Guruswami \u2013
\nP.W.14, P.  Sivakaminathan \u2013 P.W.15.  The brief facts required to  dispose  of
\nthe appeal are as follows:\n<\/p>\n
        2.   The  1st accused was the Executive Engineer, TWAD Board, Siruvani
\nSpecial Division   II, Coimbatore from 22.8.83 to  30.4.85;  2nd  accused  was
\nthen  the  Assistant Executive Engineer in Special Division III between 2.1.80
\nand 31.7.83 and in Special Division II from 31.7.83 to  21.2.85;  3rd  accused
\nwas  the  Assistant Executive Engineer in Special Division \u2013 II from 1.10.1983
\nto 30.4.1985; 4th accused was the Junior Engineer in Special Division III from
\n1.2.82 to 31.7.83 and in Special Division  II  from  31.7.83  to  6.8.85;  5th
\naccused  was  the  Assistant Engineer in Division No.II from 6.10.82 to 5.6.84
\nand 6th accused was the Assistant Engineer in the same Division from 8.9.83 to
\n30.4.85.  The TWAD Board resolved to approve Coimbatore Water  Supply  Augment
\nScheme  with  Siruvani  as  source,  for  extending water supply to Bharathiar
\nUniversity and Maruthamalai Temple Adivaram.    Technical  sanction  was  also
\naccorded by  Chief Engineer, Madras.  The TWAD Board also granted approval for
\nthe same.\n<\/p>\n
        3.  The above scheme was divided into two:   1)  Laying,  joining  and
\ntesting  of  250  mm  class  10  AC  pipes  from  common pump house to sump at
\nBharathiar University; 2) Laying, joining and testing of 100 mm dia mtr  class
\n15  AC  pipes  from  sump  at  Bharathiar  University  to  Maruthamalai Temple
\nAdivaram.  Tenders were invited.  The tender of P.W.14 Guruswami was  approved
\nand Ex.P.15  Work  Order was awarded to him for the first work.  The tender of
\nP.W.15 Sivakaminathan was approved and Ex.P.8 work order was  awarded  to  him
\nfor the  second work.  Besides these work orders, certain portions of both the
\nworks were covered under various written understandings Exs.P.23 to Ex.P.37.\n<\/p>\n
        4.  The 1st accused, formerly Executive  Engineer;  the  2nd  accused,
\nAssistant  Executive  Engineer  and the 4th accused,Junior Engineer along with
\nP.W.14 Guruswami entered into a criminal conspiracy to cheat the TWAD Board by
\nclaiming amounts more than actually payable and  the  2  nd  and  4th  accused
\nprepared  fictitious trial pit particulars and recorded false measurements and
\ncheck measurements in the measurement books.  The 1st accused passed the bills
\nwithout any super check.  The work was also conveniently split up into several
\nparts so as to bring the value of each work within the financial competency of
\nthe sanctioning authority.    Insofar  as  the  work  relating  to  Bharathiar
\nUniversity,  the  4th  accused  made  measurements  and  the 2nd accused check
\nmeasured the same.\n<\/p>\n
        4.  A.1, A.2, A.3, A.5 and A.6 entered into a criminal conspiracy with
\nP.W.15 to cheat the TWAD Board by claiming more amounts actually  payable  for
\nthe  execution  of  the  work  viz.,  supply of Siruvani Water to Maruthamalai
\nTemple  by  recording  false  measurements  and  check  measurements  in   the
\nmeasurement book.    A.5  and  A.6  recorded  the  measurements  in respect of
\nMaruthamalai Temple.  A.2 and A.3 check measured the same and A.1  passed  the
\nbill without  any  super  check.  They have also violated by taking some works
\nunder written understandings even  for  the  reach  covered  within  the  main
\nagreement.  The written understanding Exs.P.25 and P.26 were granted in favour
\nof P.W.14 without terminating the main agreement.\n<\/p>\n
        5.  They have also committed malpractice in the classification of soil
\nto be excavated.  Air pit walls were included for payment of bills though they
\nwere not  originally covered under the agreement.  During measurement, the 3rd
\naccused has wrongly noted the thickness of the slabs as 18 cms while the  same
\nis actually 15 cms.\n<\/p>\n
        6.   A preliminary enquiry was taken up by the Department of Vigilance
\nand Anti-Corruption and the Deputy Superintendent of Police, who conducted the
\nsecret enquiry sent his report dated 17.11.84 to the Director of Vigilance and
\nAnti Corruption, Chennai.  Thereafter, P.W.37 \u2013 Inspector of Police, Vigilance
\nand Anti-Corruption, Coimbatore was asked by the  Director  of  Vigilance  and
\nAnti Corruption  to  make  a detailed enquiry against the 2nd accused.  P.W.37
\nsought the assistance of a retired Executive Engineer by name Ayyavu, who  was
\noriginally working in the Department of Vigilance and Anti-Corruption.  P.W.37
\nreceived a  report  from  the  said  Ayyavu  on  4.11.85.  After verifying the
\nreport, P.W.37 submitted a detailed report to the Director  of  Vigilance  and
\nAnti-Corruption on  26.1.86.    On the direction of the Director, Vigilance, a
\ncase was registered against A.1 to A.6, P.W.14 and  P.W.15  for  the  offences
\npunishable  under Secs.120-B, 167, 420,477-A and 109 IPC and Sec.5 (1)(d) read
\nwith 5(2) of Prevention of Corruption Act, 1947.  P.W.37 made  a  request  for
\nthe  technical assistance of an Executive Engineer and accordingly, P.W.28 Mr.
\nPurushothaman, who was then working as Executive Engineer,  P.W.D  (Buildings)
\nat  Coimbatore was appointed under Ex.P.62, Proceedings of the Chief Engineer,
\nP.W.D( General), Madras-5.\n<\/p>\n
        7.  P.W.28 was instructed to find out the extent of substandardness in
\nthe execution of the above work and the boosted up false measurements recorded
\nby  the  Officials  by  carrying  out  super  check  of  the  suspected  work.
\nAccordingly, P.W.28  received the documents from P.W.37.  Since the pipe lines
\nwere laid underneath the earth, the services of P.W.29 \u2013  Assistant  Engineer,
\nTWAD  Board, Coimbatore was also utilised for digging model pits in accordance
\nwith the sketches prepared for the pipe lines.  P.W.29 dug 60 pits  to  enable
\nP.W.28 to ascertain the classification of the soil and the measurements of the
\nsand bedding.  P.W.28 along with P.W.27 in the presence of accused 2,3,4,5 and
\n6 commenced  his  work  on  9.4.88.    He  then super-checked the measurements
\nrelating to sand bedding and also noted the  classification  of  the  soil  in
\nEx.P.23 report   along  with  Ex.P.64  measurement  book.    When  the  actual
\nmeasurements taken by him were  compared  with  the  estimation  of  the  work
\nallotted  insofar  as  Bharathiar University agreement No.11 is concerned, the
\nloss to the Government was  estimated  as  Rs.33,745.21  and  with  regard  to
\nMaruthamalai Temple  Agreement  No.4,  the loss was Rs.20,988.70.  P.W.28 gave
\nhis report to P.W.37 on 18.10.88.  P.W.37 collected  certain  other  documents
\nfrom different Departments.\n<\/p>\n
        8.   On  24.11.88,  P.W.37 arrested P.W.15 at 10.00 a.m and questioned
\nhim.  Exs.44 Savings Accounts Pass Book and  Ex.P.45  pocket  note  book  were
\nseized.  Then  P.W.15  was  released  on bail.  A requisition was given to the
\nChief Judicial Magistrate, Coimbatore for recording a statement under  Sec.164
\nCr.P.C from  P.W.15.  The statement of P.W.15 was recorded and he was tendered
\npardon.  On 10.2.89 at about 10.00 a.m, P.W.14 was arrested and questioned.  A
\nrequest was made to record a statement under Sec.164 Cr.P.C from P.W.14.   The
\nsaid statement  was  also  recorded  and  he  was also tendered pardon.  After
\ncompleting investigation P.W.37 submitted his  final  report  to  Director  of
\nVigilance and  Anti-Corruption  along  with  all  the  records.   The Director
\nforwarded the same to the Managing Director, TWAD Board for according sanction
\nto prosecute the accused.  Sanction was accorded under Ex.P.82.    Thereafter,
\nP.W.37 filed a final report against all the accused before the Court.\n<\/p>\n
        9.   When the trial Court questioned the accused under Sec.313 Cr.P.C,
\nthey denied their complicity in the commission of the offence and no witnesses
\nwere examined on their side.\n<\/p>\n
        10.  There is no dispute that A.1  to  A.6  were  concerned  with  the
\nexecution  of  the  work  relating  to  supply of Siruvani water to Bharathiar
\nUniversity and Maruthamalai Temple Adivaram in Coimbatore area.  There is also
\nno dispute that during the relevant period, the 1st accused was the  Executive
\nEngineer;  2nd and 3rd accused were the Assistant Executive Engineers, 5th and
\n6th accused were the Assistant Engineers and the  6th  accused  was  a  Junior
\nEngineer in  TWAD  Board,  Coimbatore.    Two  schemes  were  drafted; one for
\nBharathiar University and the other for Maruthamalai Temple Adivaram.   P.W.2,
\nwhile  working  as  Drafts Man in Siruvani Augmentation of Water Supply Scheme
\nduring the period 1.2.80 to 31.7.83, on the instructions of the then Executive
\nEngineer Mr.N.  Natarajan, prepared tender schedule Ex.P.13 to take water from
\nSiruvani Pump House to Bharathiar University.  The  comparative  Statement  is
\nEx.P.14.  Tender Notification is Ex.P.15.  Ex.P.16 is the acceptance letter of
\nP.W.14.  This work was approved by S.  Natarajan, the then Executive Engineer.
\nWith regard to the above aspect, there is no dispute by any of the appellants.\n<\/p>\n
        11.  The scheme relating to taking water from Bharathiar University to
\nMaruthamalai  Adivaram  was  prepared  by  P.W.1,  a senior Drafts Man of TWAD
\nBoard.  The same was prepared  on  the  instructions  of  the  then  Executive
\nEngineer S.   Natarajan.    The  detailed  estimate is Ex.P.1 and the same was
\nprepared by the Executive Engineer Varadamani, Assistant  Executive  Engineer,
\nChennai.  Ex.P.3  is  the  concerned register.  According to P.W.1, P.W.15 the
\nlowest bidder was given the work allotment.  P.W.1 would say that A.1 has also
\napproved the tender.  Ex.P.12 Entry in the register was also countersigned  by
\nthe 3rd accused.    Ex.P.12  was  prepared  by  the  6th accused.  There is no
\ndispute with regard to the above aspects also.  The  only  contention  of  the
\nlearned Senior  Counsel  Mr.R.  Shanmugasundaram, who appeared for 2nd,4th and
\n5th accused is that out of  Rs.6,000\/-,  only  Rs.4,500\/-  was  given  to  the
\nContractor and the remaining Rs.1,500\/- has not been given.\n<\/p>\n
        12.  Insofar as A.3 and A.6 are concerned, the allegation against them
\nis  that  as per the agreement, the slabs for covering the pits should have 18
\ncms thickness, whereas as per Ex.P.10 measurement books, it was only 15 cms.\n<\/p>\n
        13.  The learned senior counsel Mr.K.  Asokan appearing  for  the  1st
\naccused  contends  that  the  only  allegation against the 1st accused is that
\nwithout making super check he signed the bills.  He drew my attention  to  the
\nevidence  of  P.W.1,  who  would say that the work was allotted to P.W.15 only
\nlegally.  Of course, there is no dispute at all insofar as  the  allotment  is
\nconcerned.  The learned senior counsel points out that P.W.4, Accounts Officer
\nduring  the  course of his cross examination admits that super check has to be
\ndone by the Executive Engineer only when the estimate  of  work  exceeds  Rs.1
\nlakh.   Admittedly,  in  this  case  the  work  allotment  for  P.W.14 was for
\nRs.90,135.30, while the work estimate for P.W.15 is Rs.84,993\/-.   Since  both
\nthe  estimates run below Rs.1 lakh, the learned senior counsel contends on the
\nbasis of the admitted evidence  of  P.W.4  that  the  1st  accused  cannot  be
\nfastened with  any  liability for not conducting super check.  This contention
\nseems to be well founded.  P.W.7, Junior Engineer also admits that  there  was
\nno  audit  objection  and  no  remarks  of  inspection  also  by  the superior
\nauthorities insofar as the pipe line work are concerned.  The  learned  senior
\ncounsel  brings  to  the  attention  of  this  Court  regarding the absence of
\nsanction to prosecute the 1st accused.  Ex.P.82 the sanction  order  filed  in
\nthis case reads this:\n<\/p>\n
“Whereas  it is now found that the sanction proceedings in respect of Thiru.A.
\nBalagovindarajulu is void ab initio for want of  competence  of  the  Managing
\nDirector, TWAD Board, to accord sanction in respect of him”.\n<\/p>\n
        14.   No  other  sanction order was produced to prove the according of
\nsanction to prosecute the 1st accused.  Of course Ex.P.81, Order of TWAD Board
\ndated 13.7.89 reads that sanction was accorded  for  prosecution  of  the  1st
\naccused also.    Subsequently,  the  sanctioning  authority  came  to know his
\nincompetency and therefore, the second sanction order Ex.P.82 dated 8.7.92 was
\nmade.  Therefore, virtually, there  was  no  sanction  to  prosecute  the  1st
\naccused at  all.   The 1st accused, being an Officer of the Government, can be
\nremoved only by the State Government.  No sanction order was obtained from the
\nState Government to prosecute him.  On these contentions, the  learned  senior
\ncounsel Mr.K.  Asokan seeks acquittal of the 1st accused.\n<\/p>\n
        15.   Insofar  as  1st accused is concerned, besides non filing of any
\nsanction order, admittedly he was not responsible for super check.   The  only
\nallegation  against him is that he failed to do super check of the work before
\npassing the bills.  When he is not expected to do the super check legally,  he
\ncannot be  fastened  with  any  liability.    The  final bill has not yet been
\nsanctioned to either of the Directors viz., P.W.14 and P.W.15.  The  Executive
\nEngineer  can  inspect  the  work  given at the time of execution of the first
\nfinal bill and in case any malpractice was found during the execution  of  the
\nwork,  he  is empowered to refuse sanction of bills for the work which was not
\ndone.  That stage admittedly has not reached.  More  over  ,  the  absence  of
\nsanction  to  prosecute  the  1st accused was challenged even before the trial
\ncourt, P.W.36, the Managing Director of TWAD Board in  his  cross  examination
\nhas  admitted  that  he  did not issue the sanction order to prosecute the 1st
\naccused.  Moreover, P.W.35, Chairman and Managing Director of TWAD  Board  who
\nwas  in  Office  prior  to P,.W.36, though would say he is empowered to accord
\nsanction to prosecute the 1st accused, the contents of Ex.P.82  nullifies  his
\nevidence.   Since  Ex.P.82  categorically  speaks that sanction proceedings in
\nrespect of the 1st accused is void ab initio for want  of  competence  of  the
\nManaging  Director,  TWAD Board to accord sanction in respect of him and since
\nthe question of sanction was raised even at  the  trial  stage  itself  ,  the
\nabsence of sanction order in this case has necessarily caused prejudice to the
\n1st accused.    Therefore,  I  am of the view that the 1st accused both on the
\nground of absence of sanction and on the ground that he is not  legally  bound
\nto super check the above works, is entitled to an acquittal.\n<\/p>\n
        16.   Before  entering  into  the  factual  matrix  with regard to the
\nallegation against A.2 to A.6, certain legal objections raised by the  learned
\nsenior counsel Mr.R.  Shanmugasundaram, deserve consideration.\n<\/p>\n
        17.  The first and foremost attack was on the validity of the sanction
\norder Exs.P.81  and  P.82.    The  learned  senior counsel submits that in the
\nabsence of sanction under Sec.197 Cr.P.C, conviction  of  the  appellants  for
\noffences punishable  under Secs.477-A, 420 and 120-B IPC is bad.  According to
\nhim, sanction accorded under Sec.19 of the Prevention of Corruption  Act  1988
\nalso  is  bad, since the accused were charged for the offence punishable under
\nSec.5(2) read with 5(1) (d) of Prevention of Corruption  Act,1947.    He  made
\ndistinction  between  sanction  under  Sec.197 and sanction under Sec.6 of the
\nPrevention of Corruption Act, 1947 and according  to  him  a  single  sanction
\norder will not serve the purpose.\n<\/p>\n
        18.   Ex.P.81  dated 13.7.89 was later modified by Ex.P.82 dated 8.7.9\n<\/p>\n
2.  Though in Ex.P.81, sanction was accorded to prosecute all the  accused  by
\nthe  then  Managing  Director,  it  was  later  found  out  that  the sanction
\nproceedings in respect of the 1st accused  is  void  ab  initio  for  want  of
\ncompetence  of the Managing Director, TWAD Board to accord sanction in respect
\nof him.  Another sanction proceedings was issued.  Though the  learned  senior
\ncounsel  contends  that, according sanction under the Prevention of Corruption
\nAct alone is insufficient to prosecute the  accused  for  offences  punishable
\nunder  Indian  Penal  Code,  both  the  sanction  orders  only reveal that the
\nsanctioning authority was conscious of the prosecution against the accused for
\noffences punishable under Secs.120-B read with 477-A and  420  IPC  and  under
\nSecs.477A and 420 IPC also.\n<\/p>\n
        19.   Sec.197  Cr.P.C  is  a general provision, not confined to Indian
\nPenal Code alone.  Any Public Servant accused of any offence alleged  to  have
\nbeen  committed  by  him while acting or purporting to act in discharge of his
\nofficial duty, can be prosecuted  only  after  a  sanction  to  prosecute  was
\naccorded  by either the Central Government or State Government as the case may
\nbe.  Moreover, sanction is required to prosecute a public servant who  is  not
\nremovable  from  office  except  by the Government or with the sanction of the
\nGovernment.  The accused 2 to 5 can be removed from service  by  the  Managing
\nDirector cum  Chairman of the TWAD Board.  This part of evidence of P.W.35 and
\nP.W.36 is not challenged.  None of the accused except the 1st accused  took  a
\nplea  that  he  was  not  removable  by  any  competent  authority  except the
\nGovernment.  Since admittedly, A.2 to A.5 are not  public  servants  removable
\nfrom  office  either by the Government or with the sanction of the Government,
\nSec.197 Cr.P.C is not at all helpful to them.  This position  is  strengthened
\nby a  ruling  of  the  Apex Court reported in 1998 SCC (Crl) 1265 (Mohd.  Hadi
\nRaja vs State of Bihar).  The relevant passages are hereunder:
\n“It is to be noted  that  though  through  the  contrivance  or  mechanism  of
\ncorporate  structure,  some  of  the  public  undertakings  are performing the
\nfunctions which are intended to be performed by  the  State,  ex  facie,  such
\ninstrumentality  or  agency being a juridical person has an independent status
\nand the action taken by them,  however  important  the  same  may  be  in  the
\ninterest  of the State cannot be held to be an action taken by or on behalf of
\nthe Government as such within the meaning of Section 197 Cr.P.C”\n<\/p>\n
                ……….\n<\/p>\n
“The importance of the public  undertaking  should  not  be  minimised.    The
\nGovernment’s  concern  for  the  smooth functioning of such instrumentality or
\nagency can be well appreciated but on the plain language of Section 197 of the
\nCode of Criminal Procedure, the protection by way of sanction is not available
\nto the officers of the public undertaking because being a juridical person and
\na distinct legal entity, such instrumentality stands on  a  different  footing
\nthan the government departments.\n<\/p>\n
It  is  also to be indicated here that in 1973, the concept of instrumentality
\nor agency of State was quite distinct.  The interest  of  the  State  in  such
\ninstrumentality or  agency  was well known.  Even then, the legislature in its
\nwisdom did not think it necessary to expressly include the  officers  of  such
\ninstrumentality  or  the government company for affording protection by way of
\nsanction under Sec.197 Cr.P.C.\n<\/p>\n
It will be appropriate to notice that  whenever  there  was  a  felt  need  to
\ninclude  other  functionaries  within the definition of “public servant”, they
\nhave been declared to be “public  servants”under  several  special  and  local
\nacts.    If   the   legislature   had  intended  to  include  officers  of  an
\ninstrumentality or agency for bringing  such  officers  under  the  protective
\numbrella of Section 197 Cr.P.C, it would have done so expressly.\n<\/p>\n
Therefore,  it  will  not  be just and proper to bring such persons within the
\nambit of Section 197 by liberally construing the provisions  of  Section  197.
\nSuch  exercise of liberal construction will not be confined to the permissible
\nlimit of interpretation of a statute by a Court of  law  but  will  amount  to
\nlegislation by court.\n<\/p>\n
Therefore,  in our considered opinion, the protection by way of sanction under
\nSection 197 of the Code  of  Criminal  Procedure  is  not  applicable  to  the
\nofficers  of  government  companies  or the public undertakings even when such
\npublic undertakings are “State” within  the  meaning  of  Article  12  of  the
\nConstitution on account of deep and pervasive control of the Government”.\n<\/p>\n
        20.   Insofar  as the other contention is concerned, it has to be seen
\nwhether sanction accorded under the new Act is bad inasmuch as the prosecution
\nwas launched under the repealed Act.  In this case, the First Information  was
\nlaunched  on  11.6.86 and after investigation final report was filed according
\nto P.W.37 only on 6.10.89.  The new Act came into force on 9.9.88.  Though the
\nfinal report was filed after coming into force of the new Act by no stretch of
\nimagination, the accused could be prosecuted for the  offence  under  the  new
\nAct.   They  can be prosecuted for the offence which was in the statute at the
\ntime of commission of the offence and they cannot  be  prosecuted  for  a  new
\noffence or  a  different  offence  by virtue of the repealing act.  But at the
\nsame time, Sec.30 of the New Act saves anything done or any  action  taken  or
\npurported  to  have  been  taken  or  done under or in pursuance of the Act so
\nrepealed shall insofar as it is not inconsistent with the  provision  of  this
\nAct,  be  deemed  to  have  been  done  or  taken under or in pursuance of the
\ncorresponding provision of the Act.  This provision only means that any action
\ntaken under the old  Act  shall  be  deemed  to  have  been  taken  under  the
\ncorresponding provision  of  this  Act.    The  Supreme  Court  considered the
\napplicability of Sec.19(3) of 1988  Act  to  the  cases  initiated  under  the
\nrepealed Act.   In the case of Central Bureau of Investigation vs V.K.  Sehgal
\nand<\/a> another reported in 1999 SCC (Crl)  1494,  the  Apex  Court  has  held  as
\nfollows:\n<\/p>\n
“Moreover, the present prosecution was launched under the 1947 Act, but by the
\ntime  the  case  reached  final  stage  in  the trial court, the 1 947 Act was
\nrepealed by the Prevention of Corruption Act, 1988 ( hereinafter  referred  to
\nas “the  1988  Act”)  which came into force on 9.9.19 88.  The prosecution and
\nthe trial thereafter continued by virtue of sub-section (2) of Section  30  of
\nthe 1988  Act.  In view of Section 6 of the General Clauses Act, 1897, “unless
\na different intention appears” in the 1988 Act the repeal of the 1947 Act will
\nnot affect any penal liability incurred or any legal proceedings or remedy  in
\nrespect of  any  right  acquired  under the 1947 Act.  However, if a different
\nintention can be discerned from the 1988 Act,  such  intention  will  have  an
\noverriding effect.    It  is said in sub-section (2) of Section 30 of the 1988
\nAct that any action taken under or in pursuance of the repealed  Act  will  be
\ndeemed  to  have been taken under the corresponding provisions of the new Act.
\nUnlike the 1947 Act, there is  in  Section  27  of  the  1988  Act  a  special
\nprovision regarding appeal and revision by virtue whereof the powers of appeal
\nand  revision  of  the  High Court conferred by the Code of Criminal Procedure
\nshall be “subject to the provision of” the 1988 Act.  Section 19(3) (a) of the
\n1988 has made a further inroad into the powers of the appellate court over and
\nabove the trammel contained in Section 465  of  the  Code.    Thus  the  legal
\nposition  to  be  followed,  while  dealing  with the appeal filed against the
\nconviction and sentence of any offence mentioned in 1947 Act, is that no  such
\nconviction  and  sentence shall be altered or reversed merely on the ground of
\nabsence of sanction, much less on the ground of  want  of  competency  of  the
\nauthority who  granted the sanction.  So from any point of view the High Court
\ncommitted an error in setting aside the conviction and sentence passed on  the
\naccused, on the ground of want of a valid sanction to prosecute”.\n<\/p>\n
Therefore,  it  is idle to contend that Sec.19 of Prevention of Corruption Act
\ncannot be invoked by the Prosecuting Agency in this Case.  Therefore, sanction
\naccorded under Sec.19 of the Act does not suffer from any infirmity.\n<\/p>\n
        21.  The learned senior  counsel  attacked  the  very  sanction  order
\nitself on  the  ground of non application of mind.  He relies on the ruling of
\nthe Apex Court reported in A.I.R.1979 SC 677 (Mohd.  Iqbal Ahmed vs  State  of
\nAndhra  Pradesh),<\/a>  wherein  the  Apex  Court has been pleased to hold that the
\ngrant of sanction is not an idle formality or an acrimonious  exercise  but  a
\nsolemn  and  sacrosanct  act  which  affords protection to Government servants
\nagainst frivolous prosecutions and must therefore be  strictly  complied  with
\nbefore any prosecution can be launched against the public servant concerned.\n<\/p>\n
        22.   As against this ruling, the learned Additional Public Prosecutor
\nrelies on another ruling of the Apex Court reported in 1998 SCC Crl  644(State
\nof Orissa vs Mrutunjaya Panda),wherein the Apex Court<\/a> has been pleased to hold
\nthat  there  shall be a finding as to whether the irregularity in the sanction
\nhas occasioned a failure of justice.  As held by the Supreme Court in 1999 SCC
\n(Crl)1494(Central  Bureau  of  Investigation  vs   V.K.Sehgaland<\/a>   another),no
\nfinding,  sentence  or  order  passed  by a Special Judge shall be reversed or
\naltered by a Court in Appeal,confirmation or revision on the ground of absence
\nof or any error,omission or irregularity in the sanction unless a  failure  of
\njustice has  in fact been occasioned in this case.  I could not see any reason
\nto hold that the sanction order was  irregular.    The  sanctioning  authority
\nconsidered  the  report  of the Director, Vigilance and AntiCorruption and all
\nthe other connected records and that is very much  explicit  in  the  preamble
\nitself.   Therefore,I  see  no  reason to uphold the contention of the learned
\nsenior counsel.  Moreover, Sec.6(1) is more or less verbatim  reproduction  of
\nSec.19(1)  except for the sections of the offences and therefore, no prejudice
\ncould be said to have been caused merely because  sanction  was  not  accorded
\nunder Sec.19  of  the  Act.   The offence under Sec.5(2) read with 5(1)(d) has
\nbeen split up into 3 sub clauses under Sec.13(1)(d) and the term by  otherwise
\noccurring in  Sec.5(1)(d)  is  absent  in  the  new  provision.  If instead of
\ncharging  the  accused  under  Sec.5(1)(d),   they   were   prosecuted   under
\nSec.13(1)(d),  then  the  prosecution  will stand vitiated because of the vast
\ndifference between the ingredients of  both  the  provisions.    But  sanction
\naccorded  under  Sec.19  of  the Act by virtue of the above ruling of the Apex
\nCourt cannot be questioned at this stage in the appeal.  Moreover, by the time
\ninvestigation was completed since the new Act came into force, the sanctioning
\nauthority on the date of sanction cannot accord sanction  under  the  old  Act
\nwhich was  not  in  existence  at  all.    Insofar  as  the penal provision is
\nconcerned, it is the date of the offence that is crucial; like wise insofar as
\nthe sanction is concerned, the date of sanction is crucial.    Therefore,  the
\npower cannot be traced under the old Act.  On this ground also, I am unable to
\nuphold the contention of the learned senior counsel that sanction is bad.\n<\/p>\n
        23.   The  next  attack by the learned Senior counsel is misjoinder of
\ncharges.  According to him, A.1, A.2 and A.4 alone are concerned in the scheme
\nrelating to water supply to Bharathiar University, whereas  under  the  second
\nscheme relating to water supply to Maruthamalai Temple Adivaram, A.1, A.2,A.3,
\nA.5  and  A.6  were responsible and therefore, there is misjoinder of charges.
\nAccording to him the misjoinder of persons cannot be cured under Sec.465 also.
\nIn support of his contention, he relies on a ruling of the Apex Court reported
\nin 1992 SCC Crl 572 (K.T.M.S.  Mohd.  And Another vs Union  of  India),wherein
\nthe  Apex  Court  held  that  on  the  allegation  of the complaint, the third
\nappellant could not be jointly indicted for the above conspiracy charges since
\nthe first and the second appellants are stated to have  conspired  by  sending
\nthe  letter  of  retraction  and  by  giving  a false statement retracting the
\nearlier statements which are not the case qua  with  the  appellants  and  the
\nallegation against the third appellant that he along with the appellants 1 and
\n2  conspired  to  cause  false  entries in the account books and wilfully made
\nfalse statement before the Income Tax Officer.  On these facts,  it  was  held
\nthat  putting  the  3rd  appellant  in joint trial with appellants 1 and 2 for
\nconspiracy without any specific allegation or acceptable evidence  to  connect
\nthe  3rd  appellant  with  the  activities  of  appellants 1 and 2 amounted to
\nmisjoinder of charges which includes misjoinder of parties.    Of  course,  in
\nthis  case  with regard to the first part of the scheme, A.1, A.2 and A.4 were
\nsaid to have been involved while  in  the  second  part  of  the  scheme  A.1,
\nA.2,A.3,A.5 and  A.6 were said to have involved.  All the appellants belong to
\na single Unit viz., TWAD Board.  Evidence has been let in with regard  to  the
\npart played  by each and every accused separately.  A.1 and A.2 are the common
\naccused in both the parts of the scheme.  P.W.28 in  his  report  Ex.P.63  has
\ncategorically mentioned both the parts of the scheme separately and calculated
\nthe loss  to the Government separately.  Therefore, it cannot be said that any
\nprejudice has been caused by joint trial of these accused.  Moreover, such  an
\nobjection was not taken before the trial Court.  The Supreme Court in AIR 1963
\nSC  1850 in the State of Andhra Pradesh vs cheemalapati Ganeswara Rao has held
\nthat even if it is assumed that there has been  a  misjoinder  of  charges  in
\nviolation  of  the  provisions of Ss.233 to 339 of the Cr.P.C., the High Court
\nwas incompetent to set aside the conviction of the respondents without  coming
\nto  the  definite  conclusion  that  misjoinder  had  occasioned  a failure of
\njustice.  In this case also, the learned senior counsel could not  say  as  to
\nhow failure of  justice  had occasioned.  The Supreme Court in A.I.R.  1989 SC
\n937 in the case of Prem Chand vs State of Haryana has held that  though  there
\nis  misjoinder  of  charges on account of a joint trial of two appellants with
\none Ravi Shankar, no objection to the joint trial has been raised by these two
\nappellants either at the trial stage or at the appellate stage or even  before
\nthis  Court,  nor the appellants had shown any prejudice having been caused to
\nthem by such a trial.  Having held so, they have further held that however, as
\ncontemplated under Sec.464 Cr.P.C in the absence  of  proof  that  failure  of
\njustice  has  occasioned  by  the  joint  trial,  the finding and the sentence
\nrecorded by the competent Court cannot be said to be invalid.  Therefore,  the
\ncontention of the learned senior counsel has to be only rejected.\n<\/p>\n
        24.  Turning to the facts of the case, the star witness is P.W.28.  He
\nwas  asked  to ascertain the classification of the soil and the extent of sand
\nbedding.  He has submitted a detailed report Ex.P.63 showing the loss  to  the
\nGovernment.  The  total  loss to the Government seems to be Rs.54,733.91.  The
\npipe line was laid for a distance of 5 \u00bd kms.    The  learned  senior  counsel
\nquestions the  report submitted by P.  W.28 on the ground that no reasons were
\ngiven to arrive at the loss on each  head  and  insofar  as  sand  bedding  is
\nconcerned, no length or height has been given.  He further submits that P.W.28
\nis not expected to examine earth work, but he has also examined the earth work
\nand ascertained  certain  loss.   Insofar as earth work is concerned, the loss
\nappears to be Rs.3,491.79 + Rs.2910.93 + Rs.13,355.35.  While calculating  the
\nextent  of  sand  bedding, he has also gone into the defect in the earth work.
\nEven if the loss with regard to the earth work is deducted, there was  a  loss
\nof nearly  Rs.35,000\/-.    With  regard to the classification of soil and sand
\nbedding, the learned senior counsel submits that P.W.29 did  not  approve  the
\nfindings of P.W.28 and lab test was also not conducted.  He also questions the
\nexpertise of  P.W.28.    P.W.28  was  an  Executive  Engineer  in Public Works
\nDepartment.  He has put 52 pits with  the  help  of  P.W.29  for  measurement.
\nMerely  because he has admitted that P.W.29 has not signed in the report given
\nby him, it cannot be said that the measurements are wrong.    It  is  not  the
\nevidence of  P.W.29  that he disputed the measurements made by P.W.28.  Though
\nP.w.29 has admitted in his cross examination that some of the accused objected
\nto the method of measurement and said that one  side  of  the  pit  cannot  be
\nmultiplied into  two, still he has admitted that P.W.28 properly measured.  It
\nis the further contention of the learned senior counsel  that  P.W.28  himself
\nhas  admitted  in  his  report  that no over payment was made on the work as a
\nwhole and therefore, there cannot be said to  be  actually  any  loss  to  the
\nGovernment.   May  be  that  final  payment has not been made, but the accused
\nhaving been parties to estimate of the work and execution of  the  same,  they
\nare responsible  for  the  loss.  The learned Sessions Judge found besides the
\nmalpractice in the classification of soil, air pit was included for payment of
\nbills which was not originally covered under the agreement.\n<\/p>\n
        25.  The learned trial Judge held that conspiracy angle  of  the  case
\nhas  been  proved  on  the  ground  that except two tenderers viz., P.W.15 and
\nP.W.16, there were no other tenderers and P.W.15 is the cobrother  of  P.W.16.
\nThere  appears to be an admission by P.W.16 that his tender was also filled up
\nby P.W.15, his co-brother.  As rightly held by the learned trial Jduge, direct
\nevidence to establish the criminal conspiracy is seldom available and  it  has
\nto be  gathered  from the facts and circumstances of each case.  In this case,
\nthe measurement of the work in Bharathiar  University  was  done  by  the  4th
\naccused and  the  same  was  check measured by the 2nd accused.  In respect of
\nMaruthamalai Temple Adivaram work, the measurement was recorded by A.5 and A.6
\nand check measured by A.2 and A.3.   The  consequential  loss  caused  to  the
\ngovernment is indicative of conspiracy hatched by the accused.  Insofar as the
\nlaying  of the pipe is concerned, the contractors have to excavate the soil to
\nmake trenches.  Thereafter, after laying the pipe line, new soil has to be put
\nover the pipes.  Payments will be made for the changed soil.  Sand bed has  to
\nbe provided  for a particular extent.  Inspite of providing sand bed according
\nto the measurement, if sand bed is provided for lesser extent, malpractice  is
\nproved.  P.W.28 is not inimical towards any of the accu sed.  Therefore, there
\nis nothing to doubt his evidence or report.\n<\/p>\n
        26.   According  to  Ex.P.15 agreement awarded in favour of P.W.14 for
\nlaying pipes to a distance of 3190 mts, he had laid pipes for 2933 mts.   Even
\nwhile  the  main agreement was in force, some of the works covered by the main
\nagreement were taken up under  the  written  understandings  as  indicated  in
\nExs.P.23,24 and  25.   Once the main agreement is in force, no second contract
\ncan be entered into with the same contractor.  Written understanding is also a
\nwork order.  Written understandings can be resorted to only when that  portion
\nof  the  work  is not covered by the agreement, but it is not so in this case.
\nP.Ws.11 and 12, who are the technical Assistants serving  in  the  TWAD  Board
\nhave  stated that the written understandings were prepared on the direction of
\nthe 2nd accused.  The amount was also sanctioned only by the  2nd  accused  on
\nthe  recommendations made by the 4th accused insofar as execution of work done
\npursuant to the written understanding.  Therefore, it is clear  that  A.2  and
\nA.4  in  connivance  with  P.Ws.15  and  16  have  acted with a common design.
\nP.Ws.17, 18 and 21 to 24 who were job workers employed by P.W.14  stated  that
\nthey have not entered into any written understandings of their own.  When they
\nare  only  coolies working under P.W.14 and written understandings were proved
\nto be make believe, the fault lies only on A.2 and A.4.\n<\/p>\n
        27.  Insofar  as  Maruthamalai  Temple  Adivaram  work  is  concerned,
\nmeasurement  were  recorded by A.4 and A.5, and check measured by A.3 and A.6.
\nP.W.3  a  Junior  Assistant,  P.W.7  \u2013  the  Accounts  Officer,  P.W.8   \u2013   a
\nSuperintendent  deposed  that  A.4  made  necessary  entries for recording the
\nmeasurement of the work on various dates and  A.2  check  measured  the  same.
\nP.W.9  spoke to the fact that A.5 recorded the measurements as per the entries
\nin  Ex.P.22  Measurement  Book  on  various  dates  and  A.3   also   recorded
\nmeasurements on  various  dates.    P.W.10  also  deposed  about  recording of
\nmeasurement by A.5.  He speaks that  A.2  made  necessary  entries  for  check
\nmeasuring the same.   A.6 also, according to P.  W.10 recorded the measurement
\nin Ex.P.10 \u2013 Measurement Book on various dates  and  A.3  check  measured  the
\nsame.\n<\/p>\n
        28.   The  learned  Sessions  Judge  found  that the evidence of P.W.7
\ndiscloses that A.6 was hand  in  glove  with  the  contractors  since  he  had
\nprepared  a  letter  No.236\/85  dated  6.4.85  part of Ex.P.41 that extras and
\nomissions can be met out within the main agreement itself.  The  entries  made
\nin Ex.P.41  also  strengthens  the  evidence of P.W.7.  Though the slabs to be
\nfixed must have the thickness of 18 cms, actually they were of 15 cms alone as
\nper the measurement, whereas the measurement book shows that they were 18 cms.
\nIt shows that A.6 had deliberately made false entries in the measurement  book
\nregarding  the  thickness  of  the  R.C.C  cover slab and it was A.3 who check
\nmeasured the same.  The learned Sessions Judge has given various details  with
\nregard to  the parts played by the appellants 2 to 6.  The actual total amount
\nof contract to P.W.14 is Rs.90,135.20, while for P.W.15 Rs.84,993\/-;  but  out
\nof  this  amount,  the  loss  caused to the TWAD Board appears to be more than
\nRs.50,000\/-.   That  only  shows  that  substandard  work  was  done  by   the
\ncontractors in  connivance  with  the  appellants  2  to  6.    Though the 1st
\nappellant has to be acquitted  on  technical  grounds,  there  is  nothing  to
\ninterfere with  the conviction of the appellants 2 to 6.  The learned Sessions
\nJudge also had discussed the evidence in detail to hold the appellants  guilty
\nand  I  see  no  reason  to interfere with her findings except insofar the 1st
\nappellant is concerned, who is entitled to an acquittal on technical grounds.\n<\/p>\n
        29.  In the result, the appeal in C.A.248\/96 filed by the 1st  accused
\nis  allowed and he is acquitted and the conviction and the sentence in respect
\nof him stand set aside.  The fine amount, if any,  paid  by  the  1st  accused
\nshall be  refunded  to him.  Since he is acquitted on technical grounds, he is
\nnot entitled to any emoluments for the period during which he has  not  worked
\non the  principle  of  “No  Work  No  Pay”.  Insofar as the accused 2 to 6 are
\nconcerned, the appeals in C.A.No.249 \/96 and 255\/96 stand dismissed and  their
\nconviction including the sentence stand confirmed.\n<\/p>\n
                                                                1.11.2002<\/p>\n
sr
\nIndex:yes
\nWeb site:  yes<\/p>\n
        On the   oral   representation  of  Mr.R.    Shanmugasundaram,  Senior
\nAdvocate, Leave granted to A2 to A6 under Article 134-A of the Constitution of
\nIndia to appeal against this judgment in the Supreme Court of India.\n<\/p>\n
                                                        1.11.2002
\nkv
\nTo\n<\/p>\n
1.  The Additional Special Judge\/I Addl.Sessions Judge-
\ncum-Chief Judicial Magistrate, Coimbatore\n<\/p>\n
2.  The Principal Sessions Judge, Coimbatore\n<\/p>\n
3.  The Public Prosecutor, High Court, Chennai\n<\/p>\n
4.  the Inspector of Police, Vigilance and Anti-Corruption,
\nCoimbatore<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Balagovindarajulu vs State Rep. By The Inspector Of … on 1 November, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01\/11\/2002 CORAM THE HON’BLE MR.JUSTICE MALAI.SUBRAMANIAN CRIMINAL APPEAL NO.248 OF 1996 and CA.Nos 249 and 255 of 1996 1. Balagovindarajulu .. Appellant\/A1 in CA248\/1996 1. K. Bhuvanendran 2. R.M. Palaniswami […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-122541","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nBalagovindarajulu vs State Rep. 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