{"id":142877,"date":"2007-01-10T00:00:00","date_gmt":"2007-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thomas-vs-state-of-kerala-on-10-january-2007"},"modified":"2017-12-28T08:55:51","modified_gmt":"2017-12-28T03:25:51","slug":"thomas-vs-state-of-kerala-on-10-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thomas-vs-state-of-kerala-on-10-january-2007","title":{"rendered":"Thomas vs State Of Kerala on 10 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Thomas vs State Of Kerala on 10 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 486 of 1998()\n\n\n\n1. THOMAS\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.B.RAMAN PILLAI\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice J.B.KOSHY\n\n Dated :10\/01\/2007\n\n O R D E R\n<\/pre>\n
                                J.B. KOSHY, J.\n<\/p>\n
                       —————————-\n<\/p>\n
                Crl. Appeal Nos. 486 & 490 of 1998<\/p>\n
                       —————————-\n<\/p>\n
            Dated this the 10th day of January, 2007<\/p>\n
                                   Judgment<\/p>\n
             Accused,   five   in   number,   were   charge-sheeted<\/p>\n
under section 13 (2) read with section 13 (1) (c) and (e)<\/p>\n
of   the   Prevention   of   Corruption   Act,   1988   and   sections<\/p>\n
409   and   120-B   of   the   Indian   Penal   Code.     The   allegation<\/p>\n
was regarding cutting and removal of rubber trees from an<\/p>\n
estate       called         ‘Koduman         Estate’         belonging         to         the<\/p>\n
Plantation   Corporation   of   Kerala   Limited,   a   Government<\/p>\n
undertaking.     An   agreement   for   cutting   and   removal   of<\/p>\n
rubber   trees   was   entered   into   by   the   Plantation<\/p>\n
Corporation and A2 from ‘C’ Division of Block No.9.  Date<\/p>\n
of   agreement   was   15.2.1994.   During   February   and   March,<\/p>\n
1994   first   accused   was   the   Field   Executive   of   ‘C’<\/p>\n
Division,   Block   No.9   of   Koduman   Estate.     Fifth   accused<\/p>\n
was the Estate Manager of that estate.   Third and fourth<\/p>\n
accused     are   brothers   of   the   second   accused   who   was<\/p>\n
awarded   contract   for   cutting   and   removing   the   slaughter<\/p>\n
tapping  of  rubber  trees  of  other  blocks  in  ‘C’  Division.\n<\/p>\n
It   is   also   the   case   of   the   prosecution   that   they   are<\/p>\n
doing   the   work   in   partnership.                    Second   accused   has<\/p>\n
Crl.A.Nos.486 & 490\/98                        2<\/span><\/p>\n
remitted   a   sum   of   Rs.13,67,311\/-   by   various   occasions<\/p>\n
towards   the   value   of   3,250   rubber   trees,   but,   removed<\/p>\n
5,024   rubber   trees   on   the   basis   of   Ext.P1   agreement   and<\/p>\n
first and fifth accused allowed accused 2 to 4 to cut and<\/p>\n
remove   1,774   rubber   trees   worth   Rs.6,92,592\/-   for   which<\/p>\n
value   was   not   paid.     It   is   the   case   of   the   prosecution<\/p>\n
that   accused   Nos.1   and   5   committed   criminal   breach   of<\/p>\n
trust and criminal misconduct in  respect of 1,774 rubber<\/p>\n
trees   at   Rs.6,92,592\/-   and   accused   Nos.2   and   4   had   got<\/p>\n
undue   pecuniary   advantage   amounting   to   the   above   amount<\/p>\n
because of the abuse of office by accused Nos.1 and 5 in<\/p>\n
pursuance   of   the   criminal   conspiracy.     Ext.P1   is   the<\/p>\n
agreement.\n<\/p>\n
             2.  At the time of tender, 10% of the total bid<\/p>\n
amount   was   remitted   as   can   be   seen   from   clause   2   of   the<\/p>\n
agreement.     Clause   3   deals   with   schedule   for   payment   as<\/p>\n
well   as   cutting   and   removing   of   rubber   trees.     Clause   3<\/p>\n
of Ext.P1 is as follows:\n<\/p>\n
                        “3.   The   purchaser   has   also  remitted   an<\/p>\n
             amount   of   Rs.4,41,438\/-   (Rupees   Four   lakhs<\/p>\n
             forty one thousand four hundred thirty eight<\/p>\n
             only) being   20% of the total consideration<\/p>\n
             against cash receipt No.1786 dated 14.2.1994<\/p>\n
             as         an         advance         towards         the         total<\/p>\n
             consideration. He has also remitted interest<\/p>\n
Crl.A.Nos.486 & 490\/98                3<\/span><\/p>\n
             of Rs.81,594.55.  The balance purchase price<\/p>\n
             of   Rs.17,65,752\/-   (Rupees   seventeen   lakhs<\/p>\n
             sixty   five  thousand  seven  hundred  and  fifty<\/p>\n
             two only) shall be paid by the purchaser in<\/p>\n
             ten   monthly   instalments   on   or   before   the<\/p>\n
             dates   shown   hereunder   and   the   purchaser<\/p>\n
             shall   cut   and   remove   the   trees   from   the<\/p>\n
             scheduled property as shown hereunder:-<\/p>\n<\/blockquote>\n
             ——————————————–<\/p>\n<\/blockquote>\n
             Date on or         Amount of     No.of trees\n\n             before as          Instalment    to be cut\n\n             applicable           (Rs.)       and removed\n\n             to similar                         (Nos.)\n\n             contracts\n\n<\/pre>\n
             ——————————————–<\/p>\n<\/blockquote>\n
             1. 25.06.1993 (5%)    88,288\/-        254\n\n             2. 25.07.1993 (5%)    88,288\/-                 254<\/span>\n\n             3. 25.08.1993 (5%)    88,288\/-        254\n\n             4. 25.09.1993 (5%)    88,288\/-                  254<\/span>\n\n             5. 25.10.1993 (10%) 1,76,576\/-                  508<\/span>\n\n             6. 25.11.1993 (15%) 2,64,864\/-                  762<\/span>\n\n             7. 25.12.1993 (15%) 2,64,864\/-                  762<\/span>\n\n             8. 25.01.1994 (20%) 3,53,144\/-                 1010\n\n             9. 25.02.1994 (10%) 1,76,576\/-                  508<\/span>\n\n          10. 10.03.1994 (10%) 1,76,576\/-                    508<\/span>\n\n                                      ----------       -----\n\n                   Total              17,65,752\/-           5074\n\n<\/pre>\n
             ——————————————–<\/p>\n<\/blockquote>\n
It   can   be   seen   from   the   above   that   30%   of   the   amount<\/p>\n
already   paid   was   adjusted   towards   five   instalments   and<\/p>\n
the   total   amount   including   the     above     30%   of   the   total<\/p>\n
value   of   5,074   trees.     The     agreement   was   executed   on<\/p>\n
15.2.1994.      The   agreement   contemplates   cutting   and<\/p>\n
removing of 3250  rubber trees.   There is no case for the<\/p>\n
Crl.A.Nos.486 & 490\/98                 4<\/span><\/p>\n
prosecution   that   the   cutting   and   removing   of   trees<\/p>\n
started  before  the  date  of  agreement.    Therefore,  it  can<\/p>\n
be   seen   that   the   schedule   was   not   followed   by   both<\/p>\n
parties.  If it was according to the schedule, 80% of the<\/p>\n
work   would   have   been   over   by   25.1.1994.     The   agreement<\/p>\n
was executed only on 15.2.1994.   It was executed only by<\/p>\n
A2 and the complainant. The trial court found that A3 and<\/p>\n
A4 are not involved in the matter as they are not parties<\/p>\n
to   the   contract   and   the   contract   is   only   with   A2   and   A3<\/p>\n
and A4 were acquitted.   The trial court found that A5 is<\/p>\n
the   manager   of   the   estate.            It   is   only   a   general<\/p>\n
supervision and there is no evidence to connect  with any<\/p>\n
criminal   conspiracy   or   breach   of   trust.     Accordingly,   he<\/p>\n
was   also   acquitted.     No   appeal   has   been   filed   by   the<\/p>\n
State against the acquittal of A3, A4 or A5.\n<\/p>\n
             3.        PW1,   former   General   Manager   of   the<\/p>\n
Plantation   Corporation,   deposed   that   first   and   fifth<\/p>\n
accused   were   the   field   executive   and   estate   manager<\/p>\n
respectively  during  the  period.   PW2  deposed  that  he  was<\/p>\n
the   senior   manager   of   Koduman   Group   of   Estates   and<\/p>\n
accused   No.5   was   the   estate   manager.     PW3   Personnel<\/p>\n
Officer was also examined to prove the same.  PW4 who was<\/p>\n
the   confidential   assistant     to   the   General   Manager   was<\/p>\n
Crl.A.Nos.486 & 490\/98                  5<\/span><\/p>\n
examined   to   show   that   first   accused   was   the   field<\/p>\n
executive of ‘C’ division of Koduman estate.  Evidence of<\/p>\n
PWs   6   and   9   were   mainly   relied   on   by   the   prosecution.\n<\/p>\n
PW6   is   the   field   assistant   of   Koduman   estate,   ‘C’<\/p>\n
Division   during   the   period   1993-94.     There   were   3,300<\/p>\n
trees   and   the   trees   were   removed   during   the   year   1993.\n<\/p>\n
He   also   deposed   that   the   people   who   are   taking   contract<\/p>\n
will   have   to   get   in   touch   with   the   field   executive.     On<\/p>\n
one   day,   A1     came   late   to   the   office   and   stated   that   he<\/p>\n
has allowed to remove   the trees believing that value of<\/p>\n
the trees would be remitted and he committed a mistake in<\/p>\n
believing  him.     The  other  employees  also  started  hue  and<\/p>\n
cry.   He   further   deposed   that   he   is   not   aware   the   date<\/p>\n
when   A1   came   late   to   the   office.   He   also   stated   that<\/p>\n
during   the   period   when   trees   were   cut   and   removed,   A5<\/p>\n
also came to the place.   He again   deposed that about 48<\/p>\n
gate   passes   were   written   by   him   and   other   passes   were<\/p>\n
written   by   A1.     He   further   deposed   that   he   could   not<\/p>\n
count the trees and A1 was entrusted the charge to count<\/p>\n
the trees.  He deposed as follows:\n<\/p>\n
Crl.A.Nos.486 & 490\/98                 6<\/span><\/p>\n
He   also   deposed   that   trees   were   removed   from   other<\/p>\n
division   also.     But,   according   to   him,   the   trees   were<\/p>\n
earlier   counted   and   passes   were   given   so   that   trees<\/p>\n
cannot be removed unauthorisedly.\n<\/p>\n
             4.   PW9   is   another   witness   relied   on   by   the<\/p>\n
prosecution.     He   was   the   field   executive   and   he   stated<\/p>\n
that   A1   was   the   field   executive   for   block   No.9   of   ‘C’<\/p>\n
Division  and  trees  were  counted.     According  to  him,  work<\/p>\n
order was to cut 3,000 trees, but, the  entire trees were<\/p>\n
cut   and   the   matter   was   reported.     PW9   also   deposed   that<\/p>\n
the   entire   trees   were   cut,   but,   some   of   the   trees   were<\/p>\n
there   at   that   time.     He   further   deposed   that   he   handed<\/p>\n
over   charge   to   PW6.     He   did   not   give   any   record   as   the<\/p>\n
number of trees in the estate at the time of handing over<\/p>\n
charge.     It   has   come   out   in   evidence   that   as   per   the<\/p>\n
record   there   were   5074   trees   in   Block   No.9   of   ‘C’<\/p>\n
division   and   A1   was   the   field   executive   and   A2   was   the<\/p>\n
contractor to cut and remove the trees.  According to the<\/p>\n
prosecution,   the   entire   trees   by   1993-94,   but,   full<\/p>\n
amount   was   not   paid   and   there   was   a   shortage   of   payment<\/p>\n
for 1,774 trees.   It is the contention of A1 that he has<\/p>\n
reported   the   matter   that   the   amount   was   not   paid   as   per<\/p>\n
schedule   of   10.3.1994   by   Ext.D3   letter.              By   Ext.D3<\/p>\n
Crl.A.Nos.486 & 490\/98                  7<\/span><\/p>\n
letter,   he   noticed   that   the   entire   amount   as   per   the<\/p>\n
schedule   was   not   paid.     Despite   Ext.D3,   A5   did   not   take<\/p>\n
any   action.     In   fact,   he   subsequently   enquired   with   the<\/p>\n
contractor.     Evidence   of   PW9   shows   that   the   matter   was<\/p>\n
reported and the entire trees were cut, but, some of the<\/p>\n
cut   trees   were   not   yet   removed.     It   is   the   case   of   A2<\/p>\n
that, as per the schedule, nine months’ time is there to<\/p>\n
cut and remove the trees.   According to him, even though<\/p>\n
it   is   the   case   of   the   Corporation   that   there   was   5,074<\/p>\n
trees   in   ‘C’   division   of   9th   block,   actually,   the   trees<\/p>\n
were   much   below   in   number.     He   also   filed   a   civil   case<\/p>\n
stating  that  number  of  trees  available  to  cut  and  remove<\/p>\n
was less.  According to his defence, amount has been paid<\/p>\n
for   the   entire   trees   and   if   at   all   any   amount   is   due   on<\/p>\n
the   basis   of   Ext.P1   agreement,   it   is   only   a   civil<\/p>\n
liability.     Apart   from   the   fact   that   at   the   time   of<\/p>\n
giving   pass,   A2   talked   to   A1,   there   is   no   evidence   of<\/p>\n
criminal   conspiracy   between   A1   and   A2.     Without   the<\/p>\n
knowledge of A5, it would not have happened and if A2 had<\/p>\n
conspiracy   with   A1,   he   would   not   have   written   Ext.D3<\/p>\n
letter   to   A5.     However,   against   acquittal   of   A5,   no<\/p>\n
appeal   has   been   filed.     Totality   of   evidence   shows   that<\/p>\n
there   was   a   real   dispute   between   the   management   as   well<\/p>\n
Crl.A.Nos.486 & 490\/98                       8<\/span><\/p>\n
as   A2   contractor   regarding   the   number   of   trees   and<\/p>\n
regarding   the   amount   payable.                      Contending   that   full<\/p>\n
amount was not paid, A2 filed a case before the Munsiff’s<\/p>\n
Court   alleging   that   there   were   shortage   of   trees   and<\/p>\n
claiming   damages.     Management   has   also   filed   a   case.\n<\/p>\n
Finally,   a   joint   petition   was   filed   in   O.S.   No.597   of<\/p>\n
1994   filed   by   the   plaintiff   Corporation   along   with   O.S.\n<\/p>\n
No. 278 of 1994   and 442 of 1994.   In the joint petition<\/p>\n
it is stated that  as follows:\n<\/p>\n
                   “1. The parties have settled the above<\/p>\n
             suits   out   of   court   and   all   the   three   suits<\/p>\n
             may be dismissed as not pressed.<\/p>\n<\/blockquote>\n
                   2.     Half   the   court   fee   paid   may   be<\/p>\n
             refunded   to   the   respective   plaintiffs   in<\/p>\n
             the three suits.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                   In   the   above   circumstances,   it   is<\/p>\n
             prayed that this compromise may be recorded<\/p>\n
             accordingly         and         a         decree         passed         in<\/p>\n
             accordance therewith.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Here,  the  matter  was  compromised  and  civil  disputes  were<\/p>\n
over.  Decree  was also passed accordingly.\n<\/p>\n
             In the above circumstances, it cannot be stated<\/p>\n
that   A2   has   received   any   undue   amount   against   the<\/p>\n
contractual   provisions   or   A1   has   entered   into   criminal<\/p>\n
conspiracy   with   A2.     In   these   circumstances,   I   am   of<\/p>\n
Crl.A.Nos.486 & 490\/98                9<\/span><\/p>\n
opinion   that   the   charges   against   A1   and   A2   are   also   not<\/p>\n
proved.   Hence, conviction and sentence on A1 and A2 are<\/p>\n
set   aside   and   appeals   are   allowed   and   the   accused   are<\/p>\n
acquitted.\n<\/p>\n
                                                    J.B.KOSHY<\/p>\n
                                          JUDGE<\/p>\n
vaa<\/p>\n
Crl.A.Nos.486 & 490\/98    10<\/span><\/p>\n
                                      J.B. KOSHY, J.\n<\/p>\n
                                ————————–\n<\/p>\n
                                   CRL.APPEAL Nos.486 &<\/p>\n
                                          490\/98<\/span><\/p>\n
                                ————————–\n<\/p>\n
                                        Judgment<\/p>\n
                                 Dated:10th January, 2007<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Thomas vs State Of Kerala on 10 January, 2007 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 […]<\/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":[8,21],"tags":[],"class_list":["post-142877","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThomas vs State Of Kerala on 10 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thomas-vs-state-of-kerala-on-10-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thomas vs State Of Kerala on 10 January, 2007 - 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