{"id":174215,"date":"2011-02-10T00:00:00","date_gmt":"2011-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-s-achuthanandan-vs-r-balakrishna-pillai-ors-on-10-february-2011"},"modified":"2015-11-22T01:40:57","modified_gmt":"2015-11-21T20:10:57","slug":"v-s-achuthanandan-vs-r-balakrishna-pillai-ors-on-10-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-s-achuthanandan-vs-r-balakrishna-pillai-ors-on-10-february-2011","title":{"rendered":"V.S. Achuthanandan vs R. Balakrishna Pillai & Ors on 10 February, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V.S. Achuthanandan vs R. Balakrishna Pillai & Ors on 10 February, 2011<\/div>\n
Author: P Sathasivam<\/div>\n
Bench: P. Sathasivam, B.S. Chauhan<\/div>\n
                                                                           REPORTABLE \n\n\n                IN THE SUPREME COURT OF INDIA\n\n\n              CRIMINAL APPELLATE JURISDICTION\n\n\n               CRIMINAL APPEAL NO. 350 OF 2006\n\n\nV.S. Achuthanandan                                         .... Appellant(s)\n\n\n\n            Versus\n\n\n\nR. Balakrishna Pillai & Ors.                                .... Respondent(s)\n\n\n\n\n\n                              J U D G M E N T \n<\/pre>\n
P. Sathasivam, J.\n<\/p>\n
1)    The   challenge   in   this   appeal,   by   special   leave,   is   to   the <\/p>\n
legality   of   the   order   dated   31.10.2003   passed   by   the   High <\/p>\n
Court   of   Kerala   at   Ernakulam   allowing   Criminal   Appeal   Nos.\n<\/p>\n
822, 823 & 824 of 1999 filed by the accused setting aside the <\/p>\n
order   dated   10.11.1999   passed   by   the   Special   Judge <\/p>\n
Idamalayar   Investigations,   Ernakulam   in   C.C.   No.   1   of   1991 <\/p>\n
convicting   all   the   accused   for   the   offences   punishable   under <\/p>\n
Sections   120-B   and   409   of   the   Indian   Penal   Code   (in   short <\/p>\n
`IPC’)   and   Sections   5(1)(c)   and   5(2)   of   the   Prevention   of <\/p>\n
Corruption Act, 1947 (Act 2 of 1947) (hereinafter referred to as <\/p>\n
                                     1<\/span><\/p>\n
`the   P.C.   Act’)   and   sentencing   them   to   undergo   rigorous <\/p>\n
imprisonment.\n<\/p>\n
2)     Brief Facts:-\n<\/p>\n
(a)   Idamalayar Hydro Electric Power Project, a multi-purpose <\/p>\n
power   project   in   Kerala   was   conceived   and   completed   in   the <\/p>\n
year   1985.     The   project   report   was   approved   by   the   Central <\/p>\n
Water and Power Commission in 1973.\n<\/p>\n
(b)    After   the   completion   of   the   Dam,   the   remaining <\/p>\n
construction   work   relating   to   the   power   tunnel   and   surge <\/p>\n
shaft, which are integral part of the water conductor system of <\/p>\n
the project, was awarded on contract basis to one K.P. Poulose <\/p>\n
(A4),  as  per  the  decision  of  the  Kerala State  Electricity   Board <\/p>\n
(hereinafter   referred   to   as   the   “Board”),   on   19.11.1982.     The <\/p>\n
work relating to power tunnel was awarded at 188% above the <\/p>\n
Probable   Amount   of   Contract   (PAC)   and   the   work   relating   to <\/p>\n
surge   shaft   and   allied   works   at   162%   above   the   estimated <\/p>\n
amount   with   many   special   conditions,   as   requested   by   the <\/p>\n
contractor,   involving   heavy   financial   implications\/advantages <\/p>\n
to   him   at   the   expense   of   the   Board.     Further,   there   was <\/p>\n
inordinate delay in completion of the work.\n<\/p>\n
                                   2<\/span><\/p>\n
(c)    During   the   trial   run,   on   15.07.1985,   several   leaks   and <\/p>\n
cracks were noticed in the tunnel lining which was a matter of <\/p>\n
great public concern and caused considerable anxiety and fear <\/p>\n
among the public and State as well.  Discussions and debates <\/p>\n
were   held   in   this   regard   in   the   State   Legislative   Assembly.\n<\/p>\n
There  was  a  public  outcry  for  a judicial  probe in this  matter.\n<\/p>\n
Extensive   rectification   work   to   remedy   the   defects   in   the <\/p>\n
tunnel   lining   and   surge   shaft   was   undertaken   at   a <\/p>\n
considerable cost which was to the tune of Rs. 1.75 crore.\n<\/p>\n
(d)    On 02.08.1985, the Public Undertaking Committee of the <\/p>\n
State   Legislature   inspected   the   site   and   submitted   its   report <\/p>\n
recommending   a   judicial   probe.     The   State   Government <\/p>\n
appointed   a   sitting   Judge   of   the   Kerala   High   Court   as <\/p>\n
Commissioner   of   Inquiry   to   conduct   the   probe.                The <\/p>\n
Commission   recorded   its   enquiry,   collected   considerable <\/p>\n
evidence   and   submitted   its   report   in   June,   1988.     The <\/p>\n
Commission   came   to   the   conclusion   that   materials   placed <\/p>\n
before   it     prima   facie     disclosed   commission   of   offences <\/p>\n
punishable   under   I.P.C.   and   P.C   Act   against   persons <\/p>\n
responsible   for   the   same   and   recommended   for   investigation <\/p>\n
                                    3<\/span><\/p>\n
into   these   offences.     The   State   Government   accepted   the <\/p>\n
recommendations   and   constituted   a   special   team,   headed   by <\/p>\n
Superintendent   of   Police   for   Investigation.     The   report   of   the <\/p>\n
special   squad   was   filed   in   the   Court   of   Special   Judge   on <\/p>\n
14.12.1990 in Crime No. C.C. No. 1 of 1991.\n<\/p>\n
(e)     During   pendency   of   the   case,   an   application   for <\/p>\n
withdrawal   of   the   prosecution   against   accused   No.   5   –   G.\n<\/p>\n
Gopalakrishna   Pillai,   who   was   the   Secretary   to   the   Kerala <\/p>\n
Government,   Irrigation   and   Power   Department   was   made   by <\/p>\n
the   then   Special   Public   Prosecutor   on   24.08.1992   under <\/p>\n
Section   321   of   the   Code   of   Criminal   Procedure   (in   short <\/p>\n
`Cr.P.C.’) on the ground of absence of any material to sustain a <\/p>\n
successful prosecution of offences alleged against him.  At this <\/p>\n
stage,   the   appellant   herein   –   V.S.   Achuthanandan,   the   then <\/p>\n
Opposition   leader   in   the   Assembly,   in   public   interest,   filed <\/p>\n
statement of objections against the move for withdrawal of the <\/p>\n
case   against   G.   Gopalakrishna   Pillai   (A5).     After   full   fledged <\/p>\n
enquiry, the application filed by the Special Public Prosecutor <\/p>\n
was dismissed by the Special Judge on 16.10.1992.\n<\/p>\n
                                    4<\/span><\/p>\n
(f)    On   03.02.1993,   Criminal   Revision   Petition   No.   762   of <\/p>\n
1992, filed by the State against the order of Special Judge was <\/p>\n
allowed   by   the   High   Court.     On   the   strength   of   the <\/p>\n
observations made  in the order  of the  Kerala  High Court, the <\/p>\n
State   Government  took   the   decision   to  withdraw  the   criminal <\/p>\n
case against all other accused.\n<\/p>\n
(g)    The   appellant   challenged   the   above   order   of   the   High <\/p>\n
Court   in   Criminal   Appeal   No.   122   of   1994   before   this   Court <\/p>\n
which  set aside  the  order   of  the  High  Court  and  restored the <\/p>\n
order   of   the   Special   Judge   declining   consent   for   withdrawal <\/p>\n
[vide V.S. Achuthanandan vs. R. Balakrishna Pillai & Ors.,<\/a> <\/p>\n
(1994)   4   SCC   299].     Subsequently,   the   matter   was   further <\/p>\n
proceeded in the Court of Special Judge.\n<\/p>\n
(h)    During   trial,   Accused   No.   22,   Paul   Mundakkal   became <\/p>\n
insane and the case against him was allowed to split, Accused <\/p>\n
No.4 – K.P. Poulose, Contractor, died, Accused nos. 11 and 14 <\/p>\n
to   21   were   discharged   by   the   Court   of   Special   Judge   in   the <\/p>\n
final   report   holding   that   there   was   no  prima   facie  case   made <\/p>\n
against them.\n<\/p>\n
                                    5<\/span><\/p>\n
(i)    On   14.12.1995,   charges   were   framed   against   other <\/p>\n
accused  for   various   offences   under   Sections   120-B,   409,   430 <\/p>\n
and 201 IPC and Section 5(2) read with Section 5(1)(c) and (d) <\/p>\n
of the P.C. Act.  This order of the Special Judge was confirmed <\/p>\n
by  the   High  Court,   but  found  that  the  charge  under   the  P.C.\n<\/p>\n
Act   is   not   sustainable   against   A5   and   A8   for   want   of   proper <\/p>\n
sanction   as   per   the   orders   passed   in   Criminal   Revision <\/p>\n
Petitions filed by the accused in the High Court.   Charge was <\/p>\n
amended accordingly and the accused were rearranged as A1 <\/p>\n
to A11.  In the meantime, A7 died.\n<\/p>\n
(j)    The   Special   Court,   after   analyzing   the   oral   and <\/p>\n
documentary evidence on record, vide its judgment and order <\/p>\n
dated 10.11.1999 found R. Balakrishna Pillai (A1), P.K. Sajeev <\/p>\n
(A3)   and   Ramabhadran   Nair   (A6)   guilty   of   the   offences <\/p>\n
punishable   under   Section   120-B   and   409   IPC   and   Sections <\/p>\n
5(1)(c) and 5(2) of the P.C. Act read with Section 120-B of IPC.\n<\/p>\n
They   were   sentenced  to   undergo   rigorous   imprisonment   for   a <\/p>\n
period   of   five   years   for   the   offence   punishable   under   Section <\/p>\n
120-B   of   IPC   and   to   undergo   rigorous   imprisonment   for   a <\/p>\n
period   of  four  years   each  under   Section   409   IPC  and   Section <\/p>\n
                                     6<\/span><\/p>\n
5(2) of the P.C. Act read with Section 120-B IPC and to pay a <\/p>\n
fine   of   Rs.10,000\/-   each,   in   default,   to   undergo   simple <\/p>\n
imprisonment   for   one   year   each.         However,   A1,   A3   and   A6 <\/p>\n
were   acquitted   of   the   charges   under   Sections   161,   201   and <\/p>\n
430 IPC read with Section 5(1)(d) of the P.C. Act.   It was also <\/p>\n
directed   that   the   sentences   shall   run   concurrently.     Accused <\/p>\n
Nos. 2,4,5,8,9,10 and 11 were found not guilty of the offences <\/p>\n
and   they   were   acquitted   of   all   the   offences   with   which   they <\/p>\n
were charged.\n<\/p>\n
(k)    Aggrieved by the order of conviction and sentence, all the <\/p>\n
three   accused   i.e.   (A1),   (A3)   and   (A6)   filed   separate   appeals <\/p>\n
before   the   High   Court   of   Kerala   at   Ernakulam.     By   the <\/p>\n
common   impugned   judgment   dated   31.10.2003,   the   High <\/p>\n
Court   set   aside   the   conviction   and   sentence   of   all   the   three <\/p>\n
accused   and   acquitted   them   from   all   the   charges   levelled <\/p>\n
against them.\n<\/p>\n
(l)    Questioning   the   order   of   acquittal,   the   appellant   –\n<\/p>\n
V.S.   Achuthanandan,   filed   special   leave   petition   against   the <\/p>\n
common  impugned judgment  and,  this Court,  by  order   dated <\/p>\n
27.03.2006, granted leave to appeal.\n<\/p>\n
                                    7<\/span><\/p>\n
3)    Heard   Mr.   Shanti   Bhushan,   learned   senior   counsel   for <\/p>\n
the   appellant,   Mr.   U.U.   Lalit,   learned   senior   counsel   for <\/p>\n
R.Balakrishna   Pillai   (A1),   Mr.   Amarendra   Sharan,   learned <\/p>\n
senior counsel for P.K. Sajeev (A3), Mr. S. Gopakumaran Nair, <\/p>\n
learned   senior   counsel   for   Ramabhadran   Nair   (A6)   and   Mr. <\/p>\n
R.S. Sodhi, learned senior counsel for the State of Kerala.\n<\/p>\n
Submissions:\n<\/p>\n
4)     Mr.   Shanti   Bhushan,   learned   senior   counsel   for   the <\/p>\n
appellant after taking us through the entire materials relied on <\/p>\n
by   the   prosecution,   stand   taken   by   the   defence,   elaborate <\/p>\n
reasonings of the trial Court in convicting the accused and the <\/p>\n
reasonings   of   the   High   Court   in   acquitting   them,   raised   the <\/p>\n
following submissions:-\n<\/p>\n
i)  There was enough material to show that (A1) was very much <\/p>\n
interested         in         favour              of         (A3)         and         with         the <\/p>\n
connivance\/assistance of the Board officials, more particularly <\/p>\n
through (A6) Member of the Board, made the Board to accept <\/p>\n
the   tender   offered   by   K.P.   Poulose   (A4)   at   an   exorbitant   rate <\/p>\n
with various special conditions.\n<\/p>\n
                                             8<\/span><\/p>\n
ii)   The   criminal   breach   of   trust   has   been   committed   by   the <\/p>\n
accused in the following ways:-\n<\/p>\n
   (a) By awarding both the works of Idamalayar at a very high <\/p>\n
       and exorbitant rate with special conditions having heavy <\/p>\n
       financial implications.\n<\/p>\n
   (b) By reducing the retention and security amount.\n<\/p>\n
   (c) By allowing the contractor to return only fifty per cent of <\/p>\n
       the empty cement bags.\n<\/p>\n
   (d) By accepting the special condition for the sale of T & P <\/p>\n
       items (tools & plants) which could not be sold as per the <\/p>\n
       general conditions of the contract<\/p>\n
iii)     Contrary   to   the   norms   and   circulars\/procedures   of   the <\/p>\n
Board, in order to favour K.P. Poulose (A4), who was a friend of <\/p>\n
(A1), the Board has  accepted all the  conditions just  to favour <\/p>\n
(A1) and (A3).\n<\/p>\n
5)     Mr.   U.   U.   Lalit,   Mr.   Amarendra   Sharan   and   Mr.   S.\n<\/p>\n
Gopakumaran Nair, learned senior counsel appearing for (A1), <\/p>\n
(A3)   and   (A6)   respectively   supporting   the   ultimate   decision   of <\/p>\n
the High Court submitted that:\n<\/p>\n
                                   9<\/span><\/p>\n
i)   The outcome of the contract in  favour of K.P.  Poulose  (A4) <\/p>\n
was   based   on   a   “collective   decision”   by   the   Board   and   there <\/p>\n
was no external pressure from anyone including (A1).\n<\/p>\n
ii)     All   the   decisions   taken   were   in   terms   of   rules\/norms <\/p>\n
applicable   to   the   contract   including   accepting   special <\/p>\n
conditions.\n<\/p>\n
iii)     Mere   acceptance   of   higher   rate   would   not   amount   to <\/p>\n
criminality.\n<\/p>\n
iv)   There is no allegation that by awarding contract in favour <\/p>\n
of K.P. Poulose (A4), (A1) was monetarily benefited.\n<\/p>\n
v)   No material to show that there is any wrongful loss to the <\/p>\n
Board.\n<\/p>\n
vi)     Inasmuch  as the  High Court   acquitted  all  the   accused in <\/p>\n
respect   of   all   the   charges   on   appreciation   of   oral   and <\/p>\n
documentary   evidence,   interference   by   this   Court   is   very <\/p>\n
limited.     In   the   absence   of   perversity   in   such   conclusion, <\/p>\n
normally,   this   Court   would   not   interfere   with   the   order   of <\/p>\n
acquittal.\n<\/p>\n
vii)     In   any   event,   inasmuch   as   the   State   has   not   challenged <\/p>\n
the   order   of   acquittal,   the   present   appellant   being   neither   a <\/p>\n
                                     10<\/span><\/p>\n
complainant   or   heir   nor   a   party   to   any   of   the   proceedings   is <\/p>\n
not   entitled   to   pursue   the   present   appeal.     Accordingly,   the <\/p>\n
appeal   is   not   maintainable   and   on   this   ground   liable   to   be <\/p>\n
dismissed without going into the merits of the claim.\n<\/p>\n
6)     We   have   carefully   analysed   the   materials   placed   by   the <\/p>\n
prosecution,   the   defence,   the   decision   and   reasonings   of   the <\/p>\n
trial   Court   and   High   Court   and   considered   the   rival <\/p>\n
contentions.\n<\/p>\n
Interference by this Court in an order of acquittal<\/p>\n
7)  Learned senior counsel for the respondents by drawing our <\/p>\n
attention to the reasoning of the High Court and in respect of <\/p>\n
all the charges leveled against acquitting them submitted that <\/p>\n
in   the   absence   of   perversity   in   the   said   decision,   interference <\/p>\n
by   this   Court   exercising   extraordinary   jurisdiction   is   not <\/p>\n
warranted.   It   is   settled   principle   that   an   Appellate   Court   has <\/p>\n
full power to review, re-appreciate and reconsider the evidence <\/p>\n
upon   which   the   order   of   acquittal   is   founded.     The   Code   of <\/p>\n
Criminal   Procedure   (in   short   `Cr.P.C’)   puts   no   limitation, <\/p>\n
restriction   or   condition   on   exercise   of   such   power   and   an <\/p>\n
Appellate   Court   is   free   to   arrive   at   such   conclusion,   both   on <\/p>\n
                                     11<\/span><\/p>\n
questions   of   fact   and   of   law.     An   Appellate   Court,   however, <\/p>\n
must   bear   in   mind   that   in   case   of   acquittal,   there   is   double <\/p>\n
presumption   in   favour   of   the   accused.     The   presumption   of <\/p>\n
innocence   is   available   to   a   person   and   in   the   criminal <\/p>\n
jurisprudence   that   every   person   shall   be   presumed   to   be <\/p>\n
innocent   unless   he   is   proved   guilty   by   a   competent   court   of <\/p>\n
law.     It  is   also   settled   law   that   if   two   reasonable   conclusions <\/p>\n
are   possible   on   the   basis   of   the   evidence   on   record,   the <\/p>\n
Appellate   Court   should   not   disturb   the   finding   of   acquittal <\/p>\n
recorded   by   the   trial   Court.     Keeping   the   above   principles   in <\/p>\n
mind,   let   us   discuss   the   charges   leveled,   materials   placed   by <\/p>\n
the prosecution in support  of those charges, reasoning of the <\/p>\n
Special   Court   convicting   the   accused   and   impugned   order   of <\/p>\n
the   High   Court   acquitting   all   the   three   accused   in   respect   of <\/p>\n
the said charges.\n<\/p>\n
Statutory Provisions<\/p>\n
8)     The Electricity (Supply) Act, 1948 (in short `the Act’) was <\/p>\n
in   force   at   the   relevant   time.     Section   5   of   the   Act   mandates <\/p>\n
each   State   to   constitute   State   Electricity   Board   for   the <\/p>\n
management   and   supply   of   electricity.     As   per   Section   78A, <\/p>\n
                                      12<\/span><\/p>\n
which   was   inserted   by   Act   101   of   1956   and   came   into   force <\/p>\n
w.e.f. 30.12.1956, in discharge of its functions, the Board shall <\/p>\n
be   guided   by   such   directions   and   questions   of   policy   as   may <\/p>\n
be given to it by the State Government.  As rightly pointed out <\/p>\n
by   Mr.   Shanti   Bhushan,   learned   senior   counsel   for   the <\/p>\n
appellant that except on policy matters, the State Government <\/p>\n
has no role in the affairs of the Board.   In view of the charges <\/p>\n
levelled   against   A1   who   was   the   Minister   for   Electricity, <\/p>\n
Government   of   Kerala,   we   adverted   to   these   statutory <\/p>\n
provisions.\n<\/p>\n
A1’s interference in the affairs of the Board:\n<\/p>\n
9)    It   is   the   case   of   the   prosecution   that   A1   while   he   was <\/p>\n
holding   office   of   the   Minister   for   Electricity,   Government   of <\/p>\n
Kerala   was   interfering   in   the   day-to-day   affairs   of   the   Board <\/p>\n
including   transfers,   promotions,   appointment   of   employees, <\/p>\n
granting electric connection to consumers by giving directions <\/p>\n
to   the   Board   officers.     It   is   also   alleged   that   A1   used   to <\/p>\n
interfere even in awarding of contracts of the Board during his <\/p>\n
period   as   Minister   for   Electricity.     One   of   the   main   charges <\/p>\n
leveled   against   A1   and   others   is   that   he,   in   his   capacity,   as <\/p>\n
                                      13<\/span><\/p>\n
Minister   for   Electricity   intended   to   settle   contracts   of   the <\/p>\n
Board in the name of his favourites or persons of his choice at <\/p>\n
exorbitant rates with the ulterior object of making illegal profit <\/p>\n
either to himself or to his favourites.  With regard to the above <\/p>\n
claim,   the   prosecution   has   produced   evidence   through <\/p>\n
Kuriakose Chennakkadan (PW-64), Jagannad Prasad (PW-66), <\/p>\n
Managing   Partner,   C.S.   Company,   Kottayam,   Alexander <\/p>\n
Vellappally   (PW-138),   Managing   Director,   Asian   Tech   and <\/p>\n
Kamalasanan   (PW-146),   Managing   Director   of   M\/s   We-Build.\n<\/p>\n
According to Kamalasanan (PW-146), though he was one of the <\/p>\n
tenderers for surge shaft work, quoted acceptable rates, could <\/p>\n
not get the contract work because of the interference of A1.  He <\/p>\n
deposed   that,   the   then   Chief   Engineer,   late   Bharathan <\/p>\n
recommended   his   work   for   acceptance   by   the   Board,   but   he <\/p>\n
was   further   told   by   Shri   Bharathan   that   he   should   meet   A6 <\/p>\n
and   also   to   give   5%   of  PAC   as   procuring   expenses  and   if   the <\/p>\n
said   amount   is   not   given,   the   work   could   not   be   awarded, <\/p>\n
hence he met A6 who told him that the rate quoted by him is <\/p>\n
very   low   and   advised   him   to   settle   whether   it   is   workable   or <\/p>\n
not.     He   further   deposed   that   at   the   time   when   A1   was   the <\/p>\n
                                     14<\/span><\/p>\n
Minister,   A6   was   a   Member   of   the   Board   who   was   very <\/p>\n
powerful having influence over the Minister.  According to him, <\/p>\n
the   voice   of   A1   is   reflected   through   A6   with   regard   to   the <\/p>\n
affairs of the Board.\n<\/p>\n
10)    Shri   Alexander   Vellappally   (PW-138),   Managing   Director <\/p>\n
of  Asian   Tech,   in  his  evidence  deposed  that he  was  asked  by <\/p>\n
A1   to   quote   for   the   Lower   Periyar   Project   Headrace   Power <\/p>\n
Terminal   in   1980-81   when   the   pre-qualification   system   was <\/p>\n
introduced   in   the   Board.     The   tender   of   Shri   Alexander <\/p>\n
Vellappally   was   qualified   and   the   lowest   when   it   was <\/p>\n
evaluated.     However,   he   was   informed   that   further   steps   for <\/p>\n
negotiation   and   discussion   regarding   the   acceptance   of   the <\/p>\n
tender   would   take   place   only   with   the   concurrence   of   the <\/p>\n
Minister.  He further deposed that he met A1 several times and <\/p>\n
also   sent   letters   to   him   and   one   letter   sent   by   him   to   A1   is <\/p>\n
marked as Ext. P-544.   According to him, though he was the <\/p>\n
lowest tenderer, the work was not awarded to him, but given to <\/p>\n
HCC.  He also explained that pre-qualification bid system was <\/p>\n
misused by the Board officers, more particularly, in the case of <\/p>\n
Lower Periyar Works.\n<\/p>\n
                                       15<\/span><\/p>\n
11)       The   next   witness   who   highlighted   the   above   issue   is <\/p>\n
Kuriakose   Chennakkadan   (PW-64).     According   to   him,   the <\/p>\n
Minister used to interfere in the award of contracts and when <\/p>\n
he met A6, he was asked to meet A1.  He also deposed that A1 <\/p>\n
was   interested   for   one   K.P.Poulose   (A4).     His   work   was <\/p>\n
terminated and it was re-tendered and awarded to K.P.Poulose <\/p>\n
(A4).\n<\/p>\n
12)       Jagannad Prasad (PW-66), Managing Partner of M\/s C.S.\n<\/p>\n
Company   deposed   before   the   Court   that   while   he   was   doing <\/p>\n
the   contract   work   of   a   tunnel   for   Kakkad   Hydro   Electric <\/p>\n
Project,   he   approached   the   Chief   Engineer   Bharathan,   who <\/p>\n
told   him   that   the   work   could   be   awarded   only   as   per   the <\/p>\n
directions of the Minister (A1).  He further deposed that he had <\/p>\n
executed a promissory note for Rs.5,30,000\/- in favour of one <\/p>\n
Yackochan,   who   acted   as   a   middle   man   for   the   commission <\/p>\n
payment.     He   informed   the   Court   that   this   contract   was <\/p>\n
terminated by the Board.\n<\/p>\n
13)       It was highlighted on the side of the appellant that it was <\/p>\n
during   that   period,   when   A1   was   Minister   for   Electricity,   the <\/p>\n
tender   process   of   Idamalayar   Tunnel   and   its   concrete   lining <\/p>\n
                                     16<\/span><\/p>\n
and  surge shaft  work was started.   It  is relevant to note  that <\/p>\n
R. Balakrishna Pillai (A1) was the Minister for Electricity from <\/p>\n
27.01.1980   to   21.10.1981,   26.05.1982   to   05.06.1985   and <\/p>\n
25.05.1986   to   25.03.1987.     The   tender   for   surge   shaft   was <\/p>\n
invited   and   awarded   to   one   E.M.   Varkey   at   21%   below <\/p>\n
estimated rate.   The estimated rate was Rs 74 lakhs for surge <\/p>\n
shaft.   However, the work was abandoned on 28.03.1981 due <\/p>\n
to labour strike.  Thereafter, tenders were invited again for the <\/p>\n
surge   shaft   and   four   persons   submitted   their   offers   for <\/p>\n
tenders.     The   lowest   rate   was   quoted   by   M\/s   We-Build   Pvt.\n<\/p>\n
Ltd. and the next lowest rate was by E.M. Varkey at 57% above <\/p>\n
PAC.  It is pointed out that though the work was recommended <\/p>\n
to   be   awarded,   the   Board   decided   to   re-tender   the   work.\n<\/p>\n
Accordingly, the tenders were invited  again and E. M. Varkey <\/p>\n
alone quoted for the work.   His tender was not accepted since <\/p>\n
he quoted exorbitant rate.  In the meanwhile, pre-qualification <\/p>\n
bid system was introduced in the Board which is evident from <\/p>\n
Ext.   P-576   dated   24.09.1981,   which   was   made   applicable   to <\/p>\n
Idamalayar   contract   works.     Thereafter,   tender   for   both   the <\/p>\n
works were invited by Shri Bharathan, the then Chief Engineer <\/p>\n
                                  17<\/span><\/p>\n
which   is  evident   from   Ext.  P-46  dated  05.06.1981.    However, <\/p>\n
the tender was cancelled by him which is also clear from Ext <\/p>\n
P-47   dated   22.10.1981.     The   Chief   Engineer   extended   the <\/p>\n
validity   of   the   tender   upto   29.04.1982   and   after   his   demise, <\/p>\n
the   then   Chief   Engineer   (PW-7)   extended   the   validity   upto <\/p>\n
30.06.1982. During that time, two tenders were received, one <\/p>\n
by   K.P.Poulose   and   other   by   Kuriakose   Chennakkadan   (PW-\n<\/p>\n
64),   quoting   special   conditions.     The   cover   containing   the <\/p>\n
conditions   and   deviations   was   opened   on   30.06.1982,   when <\/p>\n
K.P.Poulose   was   present   in   the   Board’s   Office.     However, <\/p>\n
Kuriakose,   the   other   tenderer   was   not   informed   and   later   on <\/p>\n
09.09.1982, K.P.Poulose was pre-qualified and Kuriakose was <\/p>\n
disqualified which, according to him, was without notice.  The <\/p>\n
contract for the balance power tunnel and concrete lining work <\/p>\n
of Idamalayar works was ultimately awarded to K.P.Poulose at <\/p>\n
188%   of   the   above   estimated   rate   and   the   surge   shaft   work <\/p>\n
was also awarded to him at 162% above the estimated rate.\n<\/p>\n
14)    It   is   clear   from   the   above   materials   that   the   process   of <\/p>\n
tendering   of   Idamalayar   works   was   interrupted   on   several <\/p>\n
                                      18<\/span><\/p>\n
occasions   mainly  by   the   Board  by  cancelling  the  tenders  and <\/p>\n
ordering   re-tender   and   by   extending   the   period   of   validity   of <\/p>\n
tenders more than once.  It was on the last date of extension of <\/p>\n
the   validity   of   the   tender   i.e.   on   30.06.1982,   K.P.Poulose <\/p>\n
appeared   and   submitted   his   tender   with   special   conditions <\/p>\n
which   was   later   accepted   in   the   Board’s   meeting   dated <\/p>\n
19.11.1982.     The   Special   Judge,   basing   reliance   on   Board’s <\/p>\n
resolution (Ex. P550(a)), has rightly concluded that there was <\/p>\n
inordinate   delay   in   awarding   the   work   which   reasoning   was <\/p>\n
not accepted by the High Court.   The materials placed clearly <\/p>\n
show   that   it   was   nearly   three   years   to   take   a   decision.     It   is <\/p>\n
also clear from the evidence of PWs 64, 66, 138 and 146 which <\/p>\n
clingingly   established   the   circumstances   under   which   A1 <\/p>\n
conceived   the   idea   for   fixing   contract   of   the   Board   at <\/p>\n
exorbitant rate in order to derive monetary benefits.  From the <\/p>\n
above,   the   contrary   conclusion   arrived   by   the   High   Court, <\/p>\n
according  to  us,  is  not  in  terms of  the   evidence  led  in  by  the <\/p>\n
prosecution.\n<\/p>\n
                                       19<\/span><\/p>\n
Whether   Idamalayar   contract   was   awarded   at   exorbitant <\/p>\n
rate causing loss to the Board<\/p>\n
15)    The basic stand of the prosecution is that A1 entered into <\/p>\n
criminal   conspiracy   to   award   the   disputed   contract   involving <\/p>\n
heavy   financial   gain   to   K.P.Poulose   (A4)   and   the   conspiracy <\/p>\n
and   abuse   of   power   by   certain   officials   enabled   the <\/p>\n
conspirators              to         earn         a               pecuniary             advantage              of <\/p>\n
Rs.2,39,64,253\/-,   in   addition   to   the   financial   loss   caused   to <\/p>\n
the Board.   It is the specific case of the prosecution that rate <\/p>\n
awarded   in   both   the   contracts   is   exorbitant.     It   is   not   in <\/p>\n
dispute that the contract was awarded at 188% above PAC in <\/p>\n
the   case   of   tunnel   work   and   162%   above   PAC   for   the   surge <\/p>\n
shaft   work.     Verification   of   Ext.   P-52(b)   shows   that   the <\/p>\n
sanctioned               estimate            for                  the         tunnel         work         was <\/p>\n
Rs.1,17,20,633.90.     On   the   other   hand,   the   accepted   tender <\/p>\n
amount   as   per   the   award   of   contract   was   Rs.2,45,80,796\/-\n<\/p>\n
which is clear from Ext P 52.  It is further seen as per Ext P-68 <\/p>\n
agreement, the sanctioned estimate for surge shaft was Rs. 74 <\/p>\n
lakhs and it was awarded for Rs.1,42,94,901\/-   The estimate <\/p>\n
for   floor   concreting   was   Rs.479.5     per   M3    and   the   estimated <\/p>\n
                                                  20<\/span><\/p>\n
rate for sides and arches was Rs.476.20 per M3.  All the above <\/p>\n
details   were   highlighted   in   the   evidence   by   PW-151   a <\/p>\n
competent   Engineer.     Likewise,   the   rate   for   floor   concreting <\/p>\n
awarded   to   K.P.Poulose   was   Rs.825.47   per   M3.     In   fact,   the <\/p>\n
calculations   made   by   PW-151   were   not  seriously   disputed   by <\/p>\n
the defence.\n<\/p>\n
16)    In   order   to   appreciate   the   stand   that   the   estimated   rate <\/p>\n
and   the   tender   quoted   by   K.P.Poulose   was   exorbitant   was <\/p>\n
demonstrated   by   Mr.   Shanti   Bhushan   by   taking   us   through <\/p>\n
the   estimated   cost   of   the   work   awarded   to   skilled   workers <\/p>\n
brought from Kulamavu and Moolamattom, who were awarded <\/p>\n
the tunnel driving work on piece rate basis.  It is seen that the <\/p>\n
tunnel   driving   work   was   awarded   to   them   at   the   rate   of   Rs.\n<\/p>\n
1,250\/-   per  M3  which  was  enhanced   later,  and  finally,  at the <\/p>\n
time,   when   the   workers   stopped   the   work,   the   rate   was   Rs.\n<\/p>\n
1,900\/-   per   M3.           This   is   clear   from   the   settlement <\/p>\n
memorandum   Ext.   P-212   signed   between   the   labourers   and <\/p>\n
the   Board.     This   fact   was   highlighted   in   the   oral   evidence   of <\/p>\n
PW-7,   Chief   Engineer   of   the   Board.     In   his   evidence,   he <\/p>\n
explained that the rate awarded to workers will be Rs. 2,500\/-\n<\/p>\n
                                     21<\/span><\/p>\n
per M3  including cost of materials.   PW-156, the Investigating <\/p>\n
Officer,   also   gave   evidence   on   the   basis   of   records   collected <\/p>\n
during   his   investigation.     Ext.P-52   agreement   shows   that   the <\/p>\n
estimated   rate   for   driving   one   meter   tunnel   was   Rs.   4,090\/-.\n<\/p>\n
Ext. P-19\/Contract Certificate of the Power tunnel shows that <\/p>\n
the amount paid to the contractor for 24 meters tunnel driving <\/p>\n
was   Rs.   2,39,961\/-.     It   was   highlighted   that   when   the   total <\/p>\n
work was done by the labourers at piece rate basis, they were <\/p>\n
given   Rs.   2,500\/-   only   per   M3.     The   remuneration   for   24 <\/p>\n
meters   driving   tunnel   would   come   to   only   Rs.60,000\/-   the <\/p>\n
difference i.e. Rs.1,79,961 (2,39,961-60,000) would show that <\/p>\n
the   tunnel   driving   work   was   given   to   K.P.Poulose   (A4)   at   an <\/p>\n
excessive rate.\n<\/p>\n
17)    It   is   pointed   out   that   there   is   enough   material   to   show <\/p>\n
that the labourers, who did the tunnel work, were prepared to <\/p>\n
carryout the balance work of the tunnel at the estimated rate <\/p>\n
of Rs. 4,090\/-.  At the relevant time, the representatives of the <\/p>\n
workers   made   a   representation   to   the   then   Minister   for <\/p>\n
Electricity,   namely,   R   Balakrishna   Pillai   (A1)   informing   him <\/p>\n
that they are prepared to do the tunnel work and allied works <\/p>\n
                                     22<\/span><\/p>\n
at   the   estimated   rate.                 Divakaran   Kutty   (PW-24), <\/p>\n
Vadayattupara Radhakrishnan (PW-33), Sasidharan Nair (PW-\n<\/p>\n
34) and Muraleedharan Pillai (PW-46) have given evidence that <\/p>\n
they represented before the Minister as well as the officials of <\/p>\n
the Board and informed their preparedness to do the work at <\/p>\n
the   estimated   rate   and   also   requested   for   absorption   in   the <\/p>\n
Board’s service.   In this regard, Mr. Shanti Bhushan, learned <\/p>\n
senior counsel appearing for the appellant heavily relied on the <\/p>\n
evidence of PW-46 who had gone to meet A1 along with (late) N <\/p>\n
Sreekantan   Nair   and   submitted   a   Memorandum   Ext.P-287 <\/p>\n
dated   01.06.1982.     It   is   relevant   to   note   the   response   of   the <\/p>\n
Minister (A1) for the above said request. PW-46 stated that A1 <\/p>\n
told them that there is no question of giving the works to the <\/p>\n
workers   and   he   wants   to   give   the   work   to   K.P.Poulose.     This <\/p>\n
instance   pointed   out   that   A1   had   personal   interest   in <\/p>\n
K.P.Poulose   and   had   decided   to   entrust   the   contract   to   him, <\/p>\n
though   at  that  time,   the   said   K.P.Poulose   did   not  submit   the <\/p>\n
tender for the work.   We have already noted that K.P. Poulose <\/p>\n
submitted his tender only on 30.06.1982 i.e. a month after the <\/p>\n
memorandum   dated   01.06.1982   submitted   by   PW-46.     In <\/p>\n
                                     23<\/span><\/p>\n
support of the same, the evidence of PW-122, T.M. Prabha, the <\/p>\n
then   President   of   the   Kerala  Construction   Labour   Union   that <\/p>\n
he met  A1 and  gave  representations  and requested  for  award <\/p>\n
of work to the workers at estimated rate and also absorption of <\/p>\n
the workers in the Board’s service on permanent basis is also <\/p>\n
relevant.     Here   again,   it   is   relevant   to   note   that   PW-122   was <\/p>\n
also   informed   that   there   is   no   question   of   awarding   work   to <\/p>\n
workers,   but   the   work   had   to   be   given   to   K.P.Poulose.   The <\/p>\n
evidence of PWs-46 and 122 and the statement made by A1 to <\/p>\n
both of them clearly show that K.P. Poulose was the contractor <\/p>\n
chosen   in   advance   by   A1   and   other   accused   who   were   also <\/p>\n
interested   in   him.     As   rightly   pointed   out   by   Mr.   Shanti <\/p>\n
Bhushan,   this   evidence   should   be   connected   with   the <\/p>\n
conspiracy to award the work to K.P.Poulose at exorbitant rate <\/p>\n
originated even prior to the submission of tenders to the work <\/p>\n
by K.P.Poulose and other tenderers.   The contrary conclusion <\/p>\n
arrived at by the High Court justifying the award at higher rate <\/p>\n
to   K.P.Poulose   cannot   be   legally   sustained.     The   Board   is <\/p>\n
empowered   with   the   authority   to   award   contracts   and   has <\/p>\n
discretion to accept and being an authority constituted under <\/p>\n
                                     24<\/span><\/p>\n
the Statute and a Pubic Undertaking is not expected to accept <\/p>\n
tenders at exorbitant rates with financial implications causing <\/p>\n
loss to the Board.  The Board is always expected to protect its <\/p>\n
financial interest while awarding contracts.  The Board mainly <\/p>\n
relied   on   the   labour   problem   that   was   prevailing   at   the <\/p>\n
relevant   time.     In   this   regard,   it   is   relevant   to   point   out   that <\/p>\n
the tender for the Idamalayar work was invited in March, 1982 <\/p>\n
and   four   persons,   namely,   Kamalasanan   (PW-146),   Managing <\/p>\n
Director,   We-Build,   C.K.   Verghese,   E.M.Varkey   and   V.A.\n<\/p>\n
Thankachan   submitted   tenders   vide   Exts.   P78   series   dated <\/p>\n
21.03.1982.   It is true that the tunnel workers went on strike <\/p>\n
on   20.04.1981   and   the   contractors   submitted   their   tenders <\/p>\n
when there was labour unrest.  However, the reason attributed <\/p>\n
for the delay cannot be accepted.  As rightly pointed out, there <\/p>\n
were   procedural   irregularities   and   omissions   by   the   Board <\/p>\n
authorities in the manner of dealing with tenders submitted by <\/p>\n
K.P.Poulose   and   Kuriakose,   which   ultimately   eliminated <\/p>\n
Kuriakose   from   the   scene,   keeping   K.P.Poulose   as   the   sole <\/p>\n
tenderer, qualified by pre-qualification Committee of the Board <\/p>\n
and hasty steps were taken by the Board in awarding contract <\/p>\n
                                       25<\/span><\/p>\n
in   favour   of   K.P.Poulose   in   the   meeting   held   on   19.11.1982 <\/p>\n
lead to the conclusion that the award of contract in favour of <\/p>\n
K.P.Poulose was an exorbitant one.   It is relevant to point out <\/p>\n
that   the   Special   Judge,   by   adverting   to   Ext   550(a)   expressed <\/p>\n
that the reasons stated by  the Board  in awarding  contract in <\/p>\n
favour of K.P. Poulose at exorbitant rates are not acceptable.\n<\/p>\n
No serious discussion by the Board<\/p>\n
18)    It   is   pointed   out   and   in   fact   taken   us   through   evidence <\/p>\n
that   there   was   no   serious   discussion   in   the   Board   meeting <\/p>\n
held   on   19.11.1982   and   the   minutes   of   the   Meeting   were <\/p>\n
prepared as dictated by A7, the then Chairman of the Board. It <\/p>\n
is   the   responsibility   of   the   members,   more   particularly,   full <\/p>\n
time   members   of   the   Board,   who   were   responsible   for   the <\/p>\n
scrutiny   of   the   deviations   and   conditions   suggested   by   the <\/p>\n
contractor   which   involved   huge   financial   implications   to   see <\/p>\n
that all transactions are beneficial to the Board and within the <\/p>\n
permissible   limit.     Mr.   Lalit   and   Mr.   Sharan,   learned   senior <\/p>\n
counsel   appearing   for   A1   and   A3   respectively   heavily <\/p>\n
contended   that   it   was   a   collective   decision   of   the   Board   and <\/p>\n
there was no external pressure from anyone including A1.  It is <\/p>\n
                                     26<\/span><\/p>\n
relevant   to   point   out   that   the   decision   ultimately   taken   for <\/p>\n
awarding   the   contract   with   special   conditions,   which   we   will <\/p>\n
discuss   in   the   later   paras,   as   suggested   by   the   contractor, <\/p>\n
involved huge financial implications at the risk and loss of the <\/p>\n
Board.     Though  the   High  Court   has  concluded   that  the  part-\n<\/p>\n
time   members   who   were   signatory   to   Ex550(a)   had   approved <\/p>\n
the   minutes,   subsequently,   the   Special   Court   made   a <\/p>\n
distinction   between   the   responsibility   of   full-time   members <\/p>\n
and   that  of   part-time   members  in   the   matters   of  awarding   of <\/p>\n
contract.     It   is   true   that   all   the   members   present   subscribed <\/p>\n
their   signature   in   the   minutes   in   awarding   contract   to <\/p>\n
K.P.Poulose.     It   was   highlighted   that   in   evidence,   A8,   the <\/p>\n
Financial   Adviser   to   the   Board,   in   his   report   has   stated   that <\/p>\n
the rates awarded to the contractor are very high.   The letters <\/p>\n
sent   by   A8   were   marked   as   Exs.   P-415   and   416.     It   is   also <\/p>\n
relevant   to   point   out   that   the   then   Law   Secretary,   Shri <\/p>\n
Viswanathan   Nair   also   conveyed   his   opinion   during   the <\/p>\n
meeting   of   the   Board   that   the   rates   are   exorbitant.     These <\/p>\n
aspects   were   taken   note   of   by   the   Special   Court   while <\/p>\n
considering the culpability of the accused and the High Court <\/p>\n
                                     27<\/span><\/p>\n
was   not   serious   about   their   views.     In   other   words,   the   High <\/p>\n
Court has concluded that the award of contract to K.P.Poulose <\/p>\n
was   a   collective   decision   of   the   Members   of   the   Board.     The <\/p>\n
High   Court   also   pointed   out   which   was   again   highlighted   by <\/p>\n
the   learned   senior   counsel   appearing   for   the   accused   that <\/p>\n
majority of the Members of the Board were highly qualified and <\/p>\n
responsible officers and it cannot be said that they were only <\/p>\n
mute witnesses to the decision of the Board.  In this regard, it <\/p>\n
is   relevant   to   point   out   that   the   Special   Court   has   rightly <\/p>\n
concluded   that  there   was  no  serious  discussion   in   the   Board <\/p>\n
Meeting   dated   19.11.1982   when   the   question   of   award   of <\/p>\n
contract   was   taken   up   and   the   minutes   of   the   meeting   were <\/p>\n
prepared as dictated by A7, the then Chairman  of the Board.\n<\/p>\n
The   then   Deputy   Secretary   of   the   Board,   R.   Sankaran   was <\/p>\n
examined   as   PW-140,   also   admitted   this   aspect   and   stated <\/p>\n
that   there   was   no   serious   discussion   in   the   meeting   held   on <\/p>\n
19.11.1982.     He   explained   that   Ex.550(a)   minutes   of   the <\/p>\n
meeting   is   a   reproduction   of   the   dictation   given   by   the <\/p>\n
Chairman of the Board (A7).\n<\/p>\n
                                     28<\/span><\/p>\n
19)    The High Court has pointed out that the prosecution has <\/p>\n
not produced any contemporaneous agreement for proving the <\/p>\n
rates   prevalent   during   the   relevant   period   of   award   of   the <\/p>\n
contract.     The   High   Court   found   that   the   contract   was <\/p>\n
awarded   at   188%   above   PAC   for   the   tunnel   work   and   162% <\/p>\n
above PAC for the surge shaft work.   It was pointed out from <\/p>\n
the   side   of   the   Board   that   the   estimate   rate   was   prepared <\/p>\n
taking into account the prevalent PWD rates for similar items <\/p>\n
of work like tunnel driving, concrete lining, earth work, cost of <\/p>\n
materials, labour charges, transportation charges of materials <\/p>\n
to   worksite   etc.     It   is   not   in   dispute   that   the   contractor   was <\/p>\n
also   given   opportunity   to   conduct   site   inspection   and   decide <\/p>\n
other   aspects   connected   with   the   execution   of   the   works   for <\/p>\n
submitting his tender rate.   Though contractor can also quote <\/p>\n
special   conditions   involving   financial   implications   and   other <\/p>\n
conditions   in   the   contract,   which   is   usually   settled   by <\/p>\n
negotiations,   but   the   general   conditions   of   contract   shall   not <\/p>\n
be   superseded   while   accepting   special   conditions   to   the <\/p>\n
detriment of the Board.  The Special Judge had noted that the <\/p>\n
rate   quoted   by   N.K.Kuriakose   (PW-30)   for   tunnel   driving   and <\/p>\n
                                      29<\/span><\/p>\n
surge shaft work was below 21.75% of the estimated rate and <\/p>\n
there   was   much   difference   in   the   rate   quoted   by   K.P.Poulose <\/p>\n
and Kuriakose.   It is further seen that the work was awarded <\/p>\n
to   Kuriakose   at   the   rate   of   Rs.   1,092.3   per   M3  for   sides   and <\/p>\n
arches.     The   work   awarded   to   Kuriakose   was   abandoned   by <\/p>\n
him   since   the   Board   did   not   provide   him   with   necessary <\/p>\n
materials  for  proceeding  with the  work as per the agreement.\n<\/p>\n
He   adduced   evidence   for   the   said   abandonment   and   also <\/p>\n
suffered loss in that regard for which Board was subsequently <\/p>\n
held   liable   and   he   was   paid   compensation   as   per   the   Court <\/p>\n
orders.     The   work   was   awarded   to   N.K.   Kuriakose   in   1979.\n<\/p>\n
The Special Court has pointed out that even though there was <\/p>\n
an   increase   of   25%   of   the   actual   rate   awarded   to   Kuriakose, <\/p>\n
still there was wide difference between the rates at which the <\/p>\n
two works were awarded and on this ground also, the Special <\/p>\n
Court   held   that   the   works   for   floor   concreting   and   for   sides <\/p>\n
and   arches   were   awarded   to   K.P.Poulose   at   a   higher   rate.\n<\/p>\n
However, the High Court disagreed with the conclusion of the <\/p>\n
Special Court.   In this regard, it is useful to refer Ext.P174(2), <\/p>\n
which   is   a   report   with   regard   to   the   rate   of   award   of <\/p>\n
                                      30<\/span><\/p>\n
Idamalayar   contract.     It   was   stated   in   the   report   that   the <\/p>\n
estimate was prepared with the scheduled rate of 1980 which <\/p>\n
had been enhanced by 25% on labour to obtain 1982 schedule <\/p>\n
and   the   work   was   awarded   after   the   enhancement   of   the <\/p>\n
scheduled   rates.     It   is   further   seen   that   the   estimate   was <\/p>\n
prepared   with   the   scheduled   rate   of   1980   for   the   purpose   of <\/p>\n
obtaining the rate of 1982 i.e. increase of 25% in the rate was <\/p>\n
given   in   1980.   The   High   Court   has   justified   the   increase   of <\/p>\n
25%   by   pointing   out   the   increase   mentioned   in   Ext.P299 <\/p>\n
which relates to contractor’s profit of 10%, overhead charges of <\/p>\n
10% and 5% for labour benefits.   Though the High Court has <\/p>\n
agreed   with   the   25%   increase   in   the   rate   of   1980-82,   no <\/p>\n
acceptable evidence was adduced over-riding the documentary <\/p>\n
evidence furnished by Ext.P-299 and P174(2).\n<\/p>\n
Award of contract to K.P. Poulose (A4)<\/p>\n
20)    It is the argument of Mr. Shanti Bhushan, learned senior <\/p>\n
counsel   for   the   appellant   that   the   tendering   process   adopted <\/p>\n
by the Board was with a view to eliminate other tenderers and <\/p>\n
to   choose   the   tenderer   of   their   choice,   namely,   K.P.Poulose.\n<\/p>\n
This   was   elaborated   by   pointing   out   that   Kuriakose   was <\/p>\n
                                    31<\/span><\/p>\n
disqualified   without   giving   him   adequate   opportunity   to <\/p>\n
present before the pre-qualification Committee and ultimately <\/p>\n
K.P.Poulose   was   declared   as   qualified.     In   the   said   meeting, <\/p>\n
only A6 and A7 were present and A8, and another member of <\/p>\n
the pre-qualificaton Committee was not present.   Pursuant to <\/p>\n
the   decision   that   Full   Board   meeting   should   be   held   on <\/p>\n
19.11.1982   to   decide   the   question   of   award   of   Idamalayar <\/p>\n
contract,   PW-7   was   directed   to   issue   notice   to   all   the <\/p>\n
tenderers.    The   materials   relied  on  by   the   prosecution   shows <\/p>\n
that on 18.11.1982, notices were issued to HCC, E.M.Varkey, <\/p>\n
Sunny   K.   Peter   and   K.P.Poulose.     It   is   seen   that   only <\/p>\n
K.P.Poulose was present on 19.11.1982.  Sunny K. Peter PW-4 <\/p>\n
sent a telegram on 19.11.1982 stating that he is not physically <\/p>\n
well.  HCC conveyed their inability to the Board by their letter <\/p>\n
which   was   received   in   the   office   of   the   Chief   Engineer   on <\/p>\n
22.11.1982   stating   that   there   was   no   sufficient   time   given   to <\/p>\n
attend   the   Board   Meeting   on   19.11.1982.     Without   verifying <\/p>\n
the   fact   that   whether   all   the   other   tenderers   were   ready,   a <\/p>\n
decision was taken on 19.11.1982 itself by accepting the offer <\/p>\n
of K.P.Poulose with special conditions.  As rightly pointed out, <\/p>\n
                                    32<\/span><\/p>\n
the Board being a statutory authority, ought to have waited for <\/p>\n
a   reply   from   the   other   tenderers   to   ascertain   whether   they <\/p>\n
actually   received   notices   and   reason   for   their   inability   to <\/p>\n
attend.  It was demonstrated that it was a pre-planned attempt <\/p>\n
to award the work to K.P.Poulose alone and the notices issued <\/p>\n
to   other   tenderers  were   in   the   form   of  an   ultimatum.     It   was <\/p>\n
also   pointed   out   that   for   the   negotiation   on   04.11.1982,   i.e. <\/p>\n
prior to 19.11.1982, held by PW-7, with the tenderers, in the <\/p>\n
office of the Board only K.P.Poulose and Sunny K. Peter were <\/p>\n
present.  It is further seen that E.M. Varkey and HCC were not <\/p>\n
invited.  The fact remains that PW-7 did not invite E.M.Varkey <\/p>\n
who   quoted   less   rate   and   HCC,   a   reputed   construction <\/p>\n
company   for  the   second   negotiation.    Though  a  telegram   was <\/p>\n
sent on behalf of  E.M.Varkey, one  of the tenderers that since <\/p>\n
he was away and request was made to fix another date, it was <\/p>\n
recorded   that   the   tenderer   had   already   lost   his   opportunity <\/p>\n
offered.  This has been demonstrated by the appellant that the <\/p>\n
Board was not prepared to allow the request of E.M. Varkey for <\/p>\n
a   discussion.     It   is   useful   to   refer   here   that   the   pre-\n<\/p>\n
qualification   Committee,   headed   by   A7,   gave   chances   to <\/p>\n
                                     33<\/span><\/p>\n
K.P.Poulose   to   correct   the   errors   and   mistakes   in   the   tender <\/p>\n
form submitted by him for the impugned works, on the other <\/p>\n
hand,   such   concession   was   not   afforded   to   the   other <\/p>\n
tenderers,   more   particularly,   E.M.   Varkey.     Both   Sunny   K.\n<\/p>\n
Peter   and   Kuriakose   were   examined   as   PWs-4   and   22 <\/p>\n
respectively.  The evidence of Kuriakose shows that he was an <\/p>\n
experienced  contractor, quoted 124% above  PAC  for  the work <\/p>\n
and   submitted   his   tender   on   30.06.1982.     According   to   him, <\/p>\n
he was not invited for any discussion.   He was disqualified on <\/p>\n
09.09.1982 and was not invited for being present for opening <\/p>\n
his deviations and conditions in the tender.  In the same way, <\/p>\n
the evidence of Sunny K. Peter PW-4 also highlighted  how he <\/p>\n
was   discriminated,   though   he   has   quoted   only   135%   above <\/p>\n
PAC,   he   was   not   given   opportunity   to   consider   the <\/p>\n
reasonableness of the rates quoted by him.  According to him, <\/p>\n
he   received   notice   only   at   2.40   p.m.   on   18.11.1982   and <\/p>\n
because   of   his   illness,   he   could   not   attend   the   meeting   on <\/p>\n
19.11.1982.    The fact remains, the Board has not considered <\/p>\n
his request and finalised the contract on 19.11.1982 in favour <\/p>\n
of K.P.Poulose.\n<\/p>\n
                                     34<\/span><\/p>\n
21)    Another aspect highlighted by the learned counsel for the <\/p>\n
appellant   relates   to   the   conduct   of   A1   with   regard   to <\/p>\n
settlement   of   labour   dispute.     The   evidence   shows   that   there <\/p>\n
was   labour   strike   in   the   tunnel   area   which   started   in   April, <\/p>\n
1981   and   continued   from   the   time   of   inviting   tenders   on <\/p>\n
05.06.1981   till   the   time   of   award   of   contract.     It   was <\/p>\n
highlighted that there was no effort on the part of A1 to settle <\/p>\n
the labour dispute before tendering process was initiated.   We <\/p>\n
have highlighted the Memorandum submitted by the labourers <\/p>\n
to A1 on several occasions requesting for settlement of labour <\/p>\n
problems.  It was not settled and the matter was kept alive till <\/p>\n
the   tender   was   fixed   in   the   name   of   K.P.Poulose   on <\/p>\n
19.11.1982.     It   was   only   after   the   award   of   the   contract,   A1 <\/p>\n
took   initiative   to   settle   the   labour   dispute,   more   particularly, <\/p>\n
when he came to know that K.P.Poulose cannot enter the site <\/p>\n
because of the obstruction of the workers to begin the contract <\/p>\n
work.  It is relevant to point out that PW-7 informed A1 and A6 <\/p>\n
more   than   once   that   in   case   the   labour   dispute   could   be <\/p>\n
settled   in   advance,   the   contract   could   be   awarded   at   a <\/p>\n
                                     35<\/span><\/p>\n
reasonable rate.   The evidence of PW-7 clearly shows that his <\/p>\n
request was not accepted by A1 and A6.\n<\/p>\n
22)   The evidence discussed  above show  that  the  rate quoted <\/p>\n
by   Sunny   K.   Peter   (PW-4)   vide   his   evidence   in   Court,   was <\/p>\n
135%   above   PAC,   which   was   less   than   188%   above   PAC, <\/p>\n
quoted by K.P. Poulose and approved by the Board.   The High <\/p>\n
Court failed to take note of the importance of evidence of PW-4 <\/p>\n
and   justified   the   action   of   the   Board   in   not   pursuing   the <\/p>\n
tender   submitted   by   Sunny  K  Peter   (PW-4)   with   a   lesser   rate <\/p>\n
on the ground that his tender is liable to be rejected since he <\/p>\n
wanted   an   arbitration   clause   in   the   agreement.     Further, <\/p>\n
though PW-4 has quoted lesser rate than K.P. Poulose, in his <\/p>\n
evidence,   he   has   highlighted   that   he   was   not   given   an <\/p>\n
opportunity to consider the reasonableness of the rate quoted <\/p>\n
by   him   i.e.   135%   above   PAC.     The   High   Court   has   not   only <\/p>\n
ignored his assertion but found that the rate quoted by him for <\/p>\n
the surge shaft work is not a lesser rate when compared to one <\/p>\n
quoted   by   K.P.   Poulose   i.e.,   188%   above   PAC.     Though   the <\/p>\n
Special Court has correctly found that Sunny K. Peter quoted <\/p>\n
less than the rate quoted by K.P. Poulose, the High Court, on <\/p>\n
                                    36<\/span><\/p>\n
erroneous   assumption   found   fault   with   the   finding   of   the <\/p>\n
Special Court which correctly appreciated prosecution case.\n<\/p>\n
Acceptance of Special Conditions & Concessions<\/p>\n
23)     With   regard   to   allegation   of   the   prosecution   that   certain <\/p>\n
Special   Conditions   were   accepted   by   the   Board   (Ex.   P588) <\/p>\n
involving   huge   financial   commitments   favourable   to   the <\/p>\n
contractor causing loss to the Board, it is relevant to mention <\/p>\n
that   one   of   the   special   conditions,   is   condition   No.   4   which <\/p>\n
relates to tools and plants sold to the contractor in violation of <\/p>\n
the   General   Conditions   of   the   contract.     These   special <\/p>\n
conditions   along   with   other   conditions   were   accepted   by   the <\/p>\n
Board   superseding   corresponding   agreement   provisions.     Ex <\/p>\n
P52 (c) is the general conditions of contract and instructions to <\/p>\n
the contractors issued by the Board.   Among various clauses, <\/p>\n
Clause E1-091 in Ex. P52(c) deals with tools and plants issued <\/p>\n
to   the   contractors.     This   clause   provides   that   the   Board   is <\/p>\n
bound   to   make   available   to   the   contractors   only   such   tools <\/p>\n
and   plants   listed   in   the   Schedule   attached   thereto,   that   too <\/p>\n
subject   to   availability.     Such  items   of   tools   and   plants   which <\/p>\n
are listed in Ex. P52 agreement marked as Ex. P52(d) shows 8 <\/p>\n
                                     37<\/span><\/p>\n
items   of   tools   and   plants   which   can   be   hired   out   to   the <\/p>\n
contractors   if   requested   on   the   specified   rates.   In   Ex.   P58, <\/p>\n
deviations and conditions submitted by the contractor as Item <\/p>\n
No   4,   stated   that   such   tools   and   plants   listed   in   Ex.   P52(d) <\/p>\n
shall be sold to him on outright sale at book value deducting <\/p>\n
depreciation   and   the   cost   may   be   recovered   on   prorata   basis <\/p>\n
from   his   bills.     The   full   Board,   in   its   decision   dated <\/p>\n
19.11.1982,   had   accepted   the   above   special   condition   of   the <\/p>\n
contractor.  It is relevant to point out that these items includes <\/p>\n
tipper   wagons   loco,   louder,   existing   truck   lines   and   pipes, <\/p>\n
items which can only be hired to the contractor as per clause <\/p>\n
E1-091   of   the   General   Conditions   of   the   contract.     It   is   the <\/p>\n
case of the prosecution that it was the decision of the Board to <\/p>\n
sell those items of tools and plants which includes very costly <\/p>\n
foreign imported materials.   The official examined on the side <\/p>\n
of the prosecution pointed out that there is no provision in the <\/p>\n
general conditions of the contract enabling the Board to effect <\/p>\n
sale   of   those   tools   and   plants   to   the   contractor.     However, <\/p>\n
certain materials belonging to the Board mentioned in Clause <\/p>\n
E1-093   and   not   covered   by   the   list   mentioned   in   Clause   E1-\n<\/p>\n
                                     38<\/span><\/p>\n
091 could be sold to the contractors if available to the Board.\n<\/p>\n
The   evidence   led   in   clearly   shows   that   the   sale   of   materials <\/p>\n
listed   in   Clause   E1-093   supersedes   the   general   conditions   of <\/p>\n
contract.     In   other   words,   it   is   clear   from   the   evidence   that <\/p>\n
those   materials   which   were   not   mentioned   in   the   Special <\/p>\n
Conditions were sold to the contractor on outright sale.  In this <\/p>\n
regard,   it   is   useful   to   refer   the   evidence   of   Udayabhanu <\/p>\n
Kandeth PW-136, Auditor attached to the Accountant General <\/p>\n
Office   which   shows   that   126   items   of   tools   and   plants   were <\/p>\n
sold to the contractor of which the cost of 117 items was Rs.\n<\/p>\n
16.5 lakhs.   The  Auditor of the  Board,  who was examined as <\/p>\n
PW-130,   also   explained   about   the   sale   of   tools   and   plants   to <\/p>\n
the contractor, which was not provided in the agreement.  It is <\/p>\n
clear from the evidence that the sale of tools and plants which <\/p>\n
could only be hired to the contractor as per the list in E1-091 <\/p>\n
was against the objections raised by A8, the Financial Advisor <\/p>\n
and   Chief   Accounts   Officer   of   the   Board   during   the   relevant <\/p>\n
period.     In   his   report,   A8   had   noted   that   the   financial <\/p>\n
implications   involved   in   the   sale   of   items   of   tools   and   plants <\/p>\n
were   not   considered   either   by   the   Board   or   by   the   officers   of <\/p>\n
                                      39<\/span><\/p>\n
the Board at the time when the full Board decided to sanction <\/p>\n
the   above   special   condition   No.   4   of   the   contract.     These <\/p>\n
aspects   have   been   duly   considered   by   the   Special   Court, <\/p>\n
namely, that the tools and plants which are only to be hired as <\/p>\n
per   Clause   E1-091   to   the   contractor,   however,   the   Board <\/p>\n
permitted   outright   sale   which   is   detrimental   to   the   financial <\/p>\n
interest   of   the   Board.     These   important   aspects   have   been <\/p>\n
overlooked   by   the   High   Court   while   upsetting   the   decision   of <\/p>\n
the Special Court.\n<\/p>\n
24)  In addition to the same, the prosecution has led in further <\/p>\n
evidence   to   show   that   the   contractor   was   favored   in   several <\/p>\n
aspects.        PW-128,   V.   Ramanarayanan,   Superintending <\/p>\n
Engineer,   in   his   evidence   has   stated   that   pental   placer,   an <\/p>\n
imported   item   not   included   in   the   list   for   issue   on   hire,   was <\/p>\n
sold to the contractor, the sale value of which was Rs. 4 lakhs <\/p>\n
and   according   to   him   only   lump   sum   recoveries   were   made <\/p>\n
from the CC bills of the contractor, instead of prorata recovery <\/p>\n
as provided in the agreement.  This also caused loss of interest <\/p>\n
on   the   sale   price   of   materials.     He   further   deposed   that   30 <\/p>\n
items   of   spares   were   issued   to   the   contractor   costing   Rs.   6 <\/p>\n
                                      40<\/span><\/p>\n
lakhs   and   when   he   calculated   the   total   value   of   spares   and <\/p>\n
materials   issued   to   the   contractor   it   came   around   Rs.   36 <\/p>\n
lakhs, out of which, only a portion was recovered by the Board <\/p>\n
from the contractor vide Ex P517-P519.  This witness has also <\/p>\n
pointed out that there were several items sold to the contractor <\/p>\n
without obtaining sanction of the Board.\n<\/p>\n
Return of empty cement bags by the Contractor<\/p>\n
25)    Another   special   condition   sanctioned   by   the   Board   in <\/p>\n
favour of the Contractor relates to the return of empty cement <\/p>\n
bags.  This special condition provided that the Contractor shall <\/p>\n
return only 50% of empty cement bags in good condition.  Ext.\n<\/p>\n
P-33, Audit Enquiry Report of Idamalayar Project Circle states <\/p>\n
that the Contractor had to return 65,100 empty cement bags, <\/p>\n
the   value   of   which   was   calculated   at   more   than   Rs.1   lakh.\n<\/p>\n
According to the Auditor, because of the special condition, the <\/p>\n
Board had sustained a loss of Rs.1,08,879.75.   The Financial <\/p>\n
Advisor   and   Chief   Accounts   Officer,   who   arrayed   as   A8,   had <\/p>\n
stated in Ext. P-416 that without evaluating the exact financial <\/p>\n
implications,   sanction   was   accorded   by   the   Board   to   the <\/p>\n
special condition regarding return of empty cement bags to the <\/p>\n
                                   41<\/span><\/p>\n
advantage of the Contractor for getting financial gain.  Though <\/p>\n
it is stated that the condition only provides for return of 50% <\/p>\n
empty   cement   bags   in   good   condition   and   for   the   remaining, <\/p>\n
the   rate   provided   by   the   general   conditions   of   contract   could <\/p>\n
be  realised   from  the  Contractor,  the  fact  remains,  the  special <\/p>\n
condition   which   we   are   concerned   does   not   provide   for   the <\/p>\n
realisation of value of the remaining unreturned cement bags.\n<\/p>\n
26)    With   regard   to   special   conditions,   the   High   Court   has <\/p>\n
held that inasmuch as there is a provision in tender to enable <\/p>\n
the Contractor to get special conditions, it cannot be said that <\/p>\n
the special conditions and deviations of the Contractor should <\/p>\n
not   be   accepted.     Here,   the   High   Court   has   missed   the   real <\/p>\n
issue as to whether all special conditions as requested by the <\/p>\n
Contractor   can   be   sanctioned   by   the   Board   in   violation   of <\/p>\n
general  conditions  of  contract,  which  is  the   standing order  of <\/p>\n
the Board applicable to all contracts and the policy adopted by <\/p>\n
the Board.   Simply because there is a provision to enable the <\/p>\n
contractor to suggest special conditions advantageous to him, <\/p>\n
it does not mean that the Contractor can suggest any special <\/p>\n
condition which involved financial implication to the detriment <\/p>\n
                                    42<\/span><\/p>\n
of   the   Board.       As   correctly   found   by   the   Special   Court,   the <\/p>\n
special condition No.4 relating to sale of tools and plants is a <\/p>\n
favour   done   by   the   Board   to   the   Contractor   for   obtaining <\/p>\n
financial gains at the risk of Board’s loss.   The Special Court <\/p>\n
has   substantiated   its   finding   on   the   point   based   on   evidence <\/p>\n
furnished by the auditors.  However, the High Court relying on <\/p>\n
Ext   D-28   provided   for   recovery   of   balance   50%   of   empty <\/p>\n
cement   bags   not   returned   or   returned   in   damaged   condition <\/p>\n
and   recovery   will   be   effected   as   stipulated   in   the   tender <\/p>\n
condition, erroneously concluded no loss could be sustained to <\/p>\n
the Board.  It is relevant to point out that the special condition <\/p>\n
No.10 clearly states that the contractor is bound to return only <\/p>\n
50% empty cement bags in good condition.   To make it clear, <\/p>\n
this condition supersedes the corresponding general condition <\/p>\n
of the contract.   Therefore, the Contractor is bound to return <\/p>\n
50%  of  empty cement bags  in good condition and  there is  no <\/p>\n
need to pay the price of balance 50%.   Accordingly, the Board <\/p>\n
can   act   only   on   the   basis   of   the   special   condition   No.10 <\/p>\n
regarding the return of empty cement bags and is not entitled <\/p>\n
to   recover   the   value   of   balance   50%   of   unreturned   cement <\/p>\n
                                     43<\/span><\/p>\n
bags.     The   contrary   conclusion   arrived   at   by   the   High   Court <\/p>\n
relating to return of empty cement bags cannot be accepted.\n<\/p>\n
Fixation of security and retention:\n<\/p>\n
27)    Yet   another   special   condition   involving   financial <\/p>\n
implications sanctioned to the Contractor is with regard to the <\/p>\n
fixation   of   security   and   retention   amount.     Special   Condition <\/p>\n
No.1 of Ext.P-588 deals with this subject.  It is the prosecution <\/p>\n
case   that   restriction   of   security   and   retention   amount   is   in <\/p>\n
violation of the provisions contained in the general conditions <\/p>\n
of   the   contract   and   it   is   a  favour   shown   to   the   Contractor   to <\/p>\n
make illegal gains at the expense of the Board.  Clause E1-008 <\/p>\n
of Ext. P52(c) is the provision relating to security deposit of the <\/p>\n
Contractor which states that for major works where the cost of <\/p>\n
construction exceeds Rs.25 lakhs, the security deposit should <\/p>\n
be 2% of the PAC.  In the case on hand, the PAC of Idamalayar <\/p>\n
contract   works   exceeds  Rs.25   lakhs.     There   is   no  dispute   for <\/p>\n
the same.   The security for both works should be fixed at 2% <\/p>\n
of   the   PAC.     Clause   E1-011   of   ExtP-52   is   the   general <\/p>\n
conditions of contract and instruction to the tenderers dealing <\/p>\n
with   retention   of   the   money   from   the   bills   payable   to   the <\/p>\n
                                      44<\/span><\/p>\n
Contractor.     As   per   this   clause,   from   each   bill   of   the <\/p>\n
Contractor   10%   should   be   deducted   towards   additional <\/p>\n
security.   However, the retention was not to exceed 5% of the <\/p>\n
PAC where cost of work exceeds Rs.25 lakhs.  Therefore, 5% of <\/p>\n
PAC   is   to   be   retained   as   retention   amount   for   both   these <\/p>\n
works.     In   this   regard,   it   is   relevant   to   refer   the   special <\/p>\n
condition.   In   the   case   of   tunnel   work,   the   retention   and <\/p>\n
security is limited to Rs.5 lakhs which is clear from Ext.P-71.\n<\/p>\n
Likewise, in the case of surge shaft, security is limited to Rs.1 <\/p>\n
lakh as evidenced by Ext.P-69.  This is also strengthened from <\/p>\n
the   evidence   of   PW-8   who   was   the   Executive   Engineer   in   the <\/p>\n
Idamalayar   project.     He   explained   that   the   security   amount <\/p>\n
and retention amount due from the contractor would come to <\/p>\n
Rs.12 lakhs.  Inasmuch as the PAC for both works would come <\/p>\n
to Rs.2,45,80,796\/-, the retention amount in the case of surge <\/p>\n
shaft   work   would   come   to   Rs.7.2   lakhs,   which   is   5%   of   the <\/p>\n
PAC.     PW-8   has   explained   that   the   restriction   of   retention <\/p>\n
amount   is   a   benefit   shown   to   the   Contractor.     In   Ext.P-65, <\/p>\n
report   of   PW-7,   also   calculated   financial   loss   that   will   be <\/p>\n
sustained   by   the   Board   in   limiting   security   and   retention <\/p>\n
                                    45<\/span><\/p>\n
amount   of   the   Contractor.     In   the   same   report,   PW-7   also <\/p>\n
mentioned the loss of interest for the same.   It is also pointed <\/p>\n
out  that  due to  restricting the  security and  retention amount <\/p>\n
as   per   the   special   condition   No.1,   sanctioned   to   the <\/p>\n
Contractor, the liquidated  damages payable by the contractor <\/p>\n
shall   not   exceed   the   whole   amount   of   retention   plus   security <\/p>\n
deposit.     The   result   of   restriction   of   security   and   retention   is <\/p>\n
that the liquidated damages payable by the Contractor is also <\/p>\n
automatically restricted accordingly.   In that event, the Board <\/p>\n
is   not   entitled   to   recover   any   amount   by   way   of   liquidated <\/p>\n
damages   even   if   the   Contractor   is   guilty   of   negligence   or <\/p>\n
default.     All   these   aspects   have   been   properly   scrutinized   by <\/p>\n
the   Special   Court.     No   doubt,   the   High   Court   relied   on   the <\/p>\n
evidence   of  Madhavan   Potti  (PW-5)   that  acceptance   of   special <\/p>\n
conditions   in  a  contract   is   a  normal  procedure.     In  the   same <\/p>\n
way, the High Court has also placed  reliance on the evidence <\/p>\n
of   Ramanarayanan   (PW-21)   that   reduction   of   security   and <\/p>\n
retention   amount   is   also   a   normal   procedure.     A   perusal   of <\/p>\n
Kerala   State   Electricity   Board   Tender   Regulations   show   that <\/p>\n
the reduction of security deposit is permissible only in the case <\/p>\n
                                      46<\/span><\/p>\n
of established firm\/Company and that the security deposit of a <\/p>\n
new  contractor  shall  not  be  reduced.    The course  adopted  by <\/p>\n
the Board is contrary to the condition contained in Regulation <\/p>\n
No.25(c)   of   the   Board’s   Regulations.     Though   the   High   Court <\/p>\n
has   observed   that   in   all   major   contracts,   it   is   an   accepted <\/p>\n
practice to put a ceiling on the security and retention amount <\/p>\n
and there is no acceptable evidence to support such a finding, <\/p>\n
we are unable to accept the observation of the High Court that <\/p>\n
“for   the   success   of   execution   of   major   contract   works, <\/p>\n
small   favours   are   inevitable”.     We   conclude   that   the   above <\/p>\n
observation   of   the   High   Court   is   based   on   a   general   opinion <\/p>\n
not supported by any material or evidence on record.\n<\/p>\n
Criminal Conspiracy<\/p>\n
28)    On   this   aspect,   the   Special   Court   has   analysed   the <\/p>\n
evidence of witnesses and considered the documents produced <\/p>\n
and   marked   by   the   prosecution   and   concluded   that   there   is <\/p>\n
sufficient   evidence   for   finding   that   a   criminal   conspiracy   was <\/p>\n
hatched   out   at   the   instance   of   A1   (R.Balakrishna   Pillai,   the <\/p>\n
then   Minister   for   Electricity)   and   P.K.   Sajeev   (A3)   who   was   a <\/p>\n
close associate and political ally of A1.  This was strengthened <\/p>\n
                                     47<\/span><\/p>\n
by   the   evidence   of   I.K.   Prabhakaran,   Assistant   Engineer, <\/p>\n
Quality Control, Idamalayar project who was examined as PW-\n<\/p>\n
21   and   other   witnesses.              Nobody   has   challenged   the <\/p>\n
relationship   between   A1   and   A3.     It   is   the   case   of   the <\/p>\n
prosecution that a conspiracy was hatched out at the instance <\/p>\n
of   A1   and   others   with   the   illegal   object   of   getting   the <\/p>\n
Idamalayar   project   fixed   on   one   among   themselves   at <\/p>\n
exorbitant rates and make illegal profits.  It is also the definite <\/p>\n
case of the prosecution that though the work was awarded in <\/p>\n
the name of K.P.Poulouse, one of the accused, it was actually <\/p>\n
executed   by   A3   and   another   accused   Paul   Mundakkal <\/p>\n
(deceased).   It has come in evidence that the amount of work <\/p>\n
was   invested   and   payments   were   made   by   Paul   Mundakkal <\/p>\n
and   A3.     As   rightly   observed   by   the   Special   Court,   the <\/p>\n
relationship between A1 and A3 is a relevant factor in arriving <\/p>\n
at   the   circumstances   leading   to   the   formation   of   the <\/p>\n
conspiracy.  The evidence led in normally show that A3 was an <\/p>\n
intimate   friend   of   A1   and   very   closely   moving   with   him   who <\/p>\n
was   the   Minister   for   Electricity   during   the   relevant   period.\n<\/p>\n
PW-21,   in   his   evidence,   has   stated   that   A3   was   an   active <\/p>\n
                                   48<\/span><\/p>\n
member and leader of Kerala Congress Party led by A1 at the <\/p>\n
time when works were allotted.  PW-3, who was a watchman of <\/p>\n
the  Inspection   Bungalow  at  Idamalayar   was  examined  on  the <\/p>\n
side   of   the   prosecution   has   stated   that   A1   and   A3   used   to <\/p>\n
come   and   stayed   in   the   Inspection   Bungalow.     He   further <\/p>\n
asserted   that   it   was   A3   and   the   deceased   Paul   Mundakkal, <\/p>\n
who   were   supervising   the   work   at   site.     In   addition   to   the <\/p>\n
evidence   of   PW-3,   the   evidence   of   PWs   6,   7   and   8   who   were <\/p>\n
Engineers   at   the   relevant   time   at   Idamalayar   worksite   and <\/p>\n
supervising   execution   of   works   corroborated   the   evidence   of <\/p>\n
PW-3.   PWs 24, 25 and 26 also supported the above claim of <\/p>\n
the prosecution.  PW-25, one of the workers at Idamalayar also <\/p>\n
deposed   that   he   was   working   with   A6,   who   was   managing <\/p>\n
Idamalayar   works.     PW-26,   another   worker   also   stated   that <\/p>\n
when he went to the house of A3, he saw A1 in his house.\n<\/p>\n
29)    The   prosecution   has   established   the   relationship   and <\/p>\n
friendship between A1 and A3 by placing acceptable evidence.\n<\/p>\n
The   nomination   of   A3   to   Board’s   Consultative   Council   was <\/p>\n
made at the instance of A1.  Under Section 16 of the Electricity <\/p>\n
(Supply)   Act,   1948,   the   Constituting   Authority   is   the   State <\/p>\n
                                     49<\/span><\/p>\n
Government.     The   evidence   led   in   by   the   prosecution   shows <\/p>\n
that A1 took initiative to include the name of A3 in the list of <\/p>\n
nominees   for   constituting   the   Consultative   Council.     The <\/p>\n
evidence   of   PWs   18,   27   and   51   and   Ext.180(c)   establish   the <\/p>\n
case of the prosecution.   The evidence further shows that the <\/p>\n
mandatory requirements contemplated under Section 16 of the <\/p>\n
Act regarding the constitution of Consultative Council was not <\/p>\n
adhered to by A1 who wanted to include A3 in the panel which <\/p>\n
states   that   the   State   Government   may   constitute   the <\/p>\n
Consultative   Council   considering   all   representatives   of   power <\/p>\n
generating  companies and  other  persons in  consultation with <\/p>\n
the   representative   bodies   of   various   interests,   namely, <\/p>\n
industry,   commerce,   agriculture,   transport   etc.     It   makes   it <\/p>\n
clear   that   consultation   with   the   representative   bodies   of <\/p>\n
various   interests   is   a   mandatory   condition   precedent   for <\/p>\n
appointment   of   a   Member   by   the   Government   in   the   Board’s <\/p>\n
Consultative   Committee.     But   in   the   case   on   hand,   from   the <\/p>\n
evidence, it is clear that there was no such consultation by the <\/p>\n
Government   before   making   nomination   of   A3   who   was   the <\/p>\n
Secretary of Kothamangalam Bus Owners Association.   It was <\/p>\n
                                   50<\/span><\/p>\n
pointed   out   that   usually   the   representatives   of   State   Level <\/p>\n
Organisers   representing   various   interests   alone   were <\/p>\n
nominated   after   consultation   by   the   Government   with   such <\/p>\n
bodies.     Admittedly,   A3   was   not   representing   any   State   Level <\/p>\n
Bus Owners Association.   This is evident from the evidence of <\/p>\n
PWs   31   and   16.     It   has   also   come   in   evidence   that   on <\/p>\n
30.07.1983,   in   a   Conference   held   on   Idamalayar   Inspection <\/p>\n
Bungalow,   attended   by   various   officers   of   the   Board   and <\/p>\n
others   connected   with   the   execution   of   Idamalayar   work,   A1 <\/p>\n
declared in public that A3 was his bosom friend and requested <\/p>\n
everybody to cooperate with him for the successful completion <\/p>\n
of the project work.\n<\/p>\n
30)     The   prosecution   has   established   the   relationship   of   A1 <\/p>\n
and   K.P   Poulose   even   before   awarding   of   contract.     In <\/p>\n
November   1982   itself,   A1   had   chosen   K.P.   Poulose   as <\/p>\n
prospective  contractor for execution  of the work which fact  is <\/p>\n
spoken   to   by   T.M.   Prabha   (PW-122)   and   also   by <\/p>\n
Muraleedharan   Pillai   (PW-46).     We   have   already   adverted   to <\/p>\n
the   evidence   of   PW-46   in   detail   in   the   earlier   paragraphs.\n<\/p>\n
Their evidence shows that when they met A1 requesting for the <\/p>\n
                                   51<\/span><\/p>\n
award of the tunnel driving work to the workers at Idamalayar, <\/p>\n
who   were   brought   from   Idukki,   Kulamavu   etc,   A1   told   them <\/p>\n
that   the   execution   of   the   Idamalayar   work   is   proposed   to   be <\/p>\n
given to K.P. Poulose.  This was on 29.06.1981 i.e. well prior to <\/p>\n
the execution of the contract, and indicate that there was prior <\/p>\n
contract between A1 and K.P. Poulose regarding the award of <\/p>\n
contract work at Idamalayer.\n<\/p>\n
31)  The role played by A3 in fixing the contract to K.P. Poulose <\/p>\n
is   also   relevant   to   infer   the   formation   of   agreement   between <\/p>\n
himself and A1, the Minister for Electricity. In addition to the <\/p>\n
same, the prosecution has adduced acceptable evidence that a <\/p>\n
company   by   name   Hydro   Power   Construction   Company   was <\/p>\n
registered as a partnership firm with K.P. Poulose as Managing <\/p>\n
Partner   and   A3   and   Paul   Mundakkal   as   Working   Partners.\n<\/p>\n
Further,   close   relatives   of   K.P.   Poulose,   A3   and   Paul <\/p>\n
Mundakkal were parties to the partnership deed.  The object of <\/p>\n
the   partnership   was   to   execute   the   Idamalayar   tunnel   work <\/p>\n
and   also   the   surge   shaft   work   in   the   name   of   the   Company.\n<\/p>\n
The said firm was an assessee under the income tax Act which <\/p>\n
is   evident   from   Ex.   P245,   the   income-tax   assessment   of   the <\/p>\n
                                    52<\/span><\/p>\n
firm in the year 1984-85 and 1985-86.   K.P. Poulose, A3 and <\/p>\n
Paul Mundakkal were submitting income tax returns and this <\/p>\n
is   evident   from   the   evidence   of   PW-123,   an   Income-tax <\/p>\n
practitioner.  In addition to the same, when A3 was questioned <\/p>\n
under Section 313 Cr.P.C., he admitted that he invested good <\/p>\n
amount for the work and visited the site to watch the progress <\/p>\n
of   the   work.     The   fact   that   A1,   while   as   a   Minister   for <\/p>\n
Electricity,   interfered   with   the   award   of   the   contracts   of   the <\/p>\n
Board were spoken to by PW-64, PW-66, PW-138 and PW-146 <\/p>\n
which we have already discussed in the earlier paragraphs.  It <\/p>\n
is also clear that A1 was awaiting for a probable contractor of <\/p>\n
his   choice   to   undertake   the   Idamalayar   works   at   exorbitant <\/p>\n
rates.\n<\/p>\n
32)   There was labour agitation prevailing at Idamalayar work <\/p>\n
site.   The workers brought from Moolamattom, Kulamavu etc. <\/p>\n
went on strike demanding execution of the work on piece rate <\/p>\n
basis   and   also   for   absorption   in   permanent   service   of   the <\/p>\n
Board.     At   the   time,   when   the   tendering   process   of   the   work <\/p>\n
was started by the Chief Engineer, Bharathan, strike situation <\/p>\n
was pending at Idamalayar which continued till the work was <\/p>\n
                                    53<\/span><\/p>\n
awarded in 1982.   It is in evidence that after execution of the <\/p>\n
agreement of the Idamalayar work by K.P. Poulose, there was <\/p>\n
obstruction   from   the   striking   workers   preventing   him   from <\/p>\n
entering   the   worksite   and   consequently   A1   interfered   and <\/p>\n
settled the labour dispute by awarding a compensation of Rs.\n<\/p>\n
11   lakhs   to   the   striking   workers   and   the   worksite   was   made <\/p>\n
clear   free   of   any   labour   unrest.     It   is   the   prosecution’s   case <\/p>\n
that   this   was   done   to   help   the   contractor,   a   party   to   the <\/p>\n
conspiracy   for   execution   of   the   work   and   make   illegal   profit <\/p>\n
therefrom.     The   evidence   of   PW-7,   Chief   Engineer   and   other <\/p>\n
witnesses   stated   that   the   awarding   of   Idamalayar   work   at <\/p>\n
exorbitant   rate   could   have   been   avoided   in   case   the   labour <\/p>\n
issue was settled earlier.  The prosecution has also highlighted <\/p>\n
labour   unrest   at   Idamalayar   which   was   kept   pending   at   the <\/p>\n
instance   of   A1   and   other   interested   parties   so   as   to   make   it <\/p>\n
appear that no contractor will come forward to undertake the <\/p>\n
contract,   so   much   so   that   there   is   possibility   of   choosing   a <\/p>\n
contractor   of   their   choice   for   the   execution   of   the   work   at <\/p>\n
exorbitant rate.\n<\/p>\n
                                      54<\/span><\/p>\n
33)   The  prosecution  has also  highlighted  that  to  achieve  the <\/p>\n
illegal   object   of   finding   the   contract   in   the   name   of   K.P.\n<\/p>\n
Poulose   at   exorbitant   rate,   the   pre-qualification   system   was <\/p>\n
introduced   by   the   Board   vide   order   Ex.   P576   dated <\/p>\n
24.09.1981.   This was after tendering process has started for <\/p>\n
the   Idamalayar   work.     One   Alexander   Vellappally,   who   was <\/p>\n
examined   as   PW-138,   explained   before   the   Court   that   pre-\n<\/p>\n
qualification   bid   system   was   misused   by   the   Board   to <\/p>\n
safeguard   vested   interest   by   choosing   contractors   of   their <\/p>\n
choice.     From   the   proceedings   initiated   by   the   Board   on <\/p>\n
19.11.1982,   passing   a   resolution   to   award   the   work   to   K.P.\n<\/p>\n
Poulose,   a   scheme   of   pre-qualification   bid   was   successfully <\/p>\n
operated   by   the   Board   authorities   at   the   instance   of   A1   for <\/p>\n
paving the way clear to K.P. Poulose to get the work at a very <\/p>\n
high rate.\n<\/p>\n
34)     With   regard   to   the   relationship   between   A1   and   A3,   the <\/p>\n
prosecution   has  relied  on the  evidence  of  PW-19,  receptionist <\/p>\n
of   the   Paramount   Tourist   Home   who   has   stated   that   A3   was <\/p>\n
occupying   a   room   on   17.11.1982   and   19.11.1982   on   rent   at <\/p>\n
Paramount   Tourist   Home.     Exs.   P185,   186   and   187   are <\/p>\n
                                    55<\/span><\/p>\n
registers maintained in the Tourist Home and relevant entries <\/p>\n
therein were marked and proved by PW-19.  According to him, <\/p>\n
A3,   took   a   room   in   the   Tourist   Home   at   11:50   a.m.   on <\/p>\n
17.11.1982 and vacated the room on 5:00 p.m. on 19.11.1982.\n<\/p>\n
The Special Court noted the significance of his stay during the <\/p>\n
above   period   at   Thiruvananthapuram.     A3,   in   all   probability, <\/p>\n
was at Thiruvananthapuram to meet A1 and also to meet PW-\n<\/p>\n
7,   Chief   Engineer,   A6   and   A7,   to   work   out   the   scheme   for <\/p>\n
getting the contract in favour of K.P. Poulose at a higher rate <\/p>\n
after   avoiding   other   tenderers.     It   is   further   evident   that   A3 <\/p>\n
took   the   room   on   17.11.1982   when   the   Full   Board   meeting <\/p>\n
was   considering   the   tender   of   K.P.   Poulose   and   left   the   room <\/p>\n
on   5:00   p.m.   on  19.11.1982   after   the   tender   was   awarded   to <\/p>\n
K.P. Poulose.   The close intimacy of A3 with A1 is well known <\/p>\n
and his influence over A1 might have persuaded A6 and A7 to <\/p>\n
fix   the   contract   on   K.P.   Poulose.     PW-7,   Chief   Engineer   has <\/p>\n
deposed before the Court that A3 met him on 04.11.1982 and <\/p>\n
requested   him   to   make   a   recommendation   for   awarding   the <\/p>\n
contract to K.P. Poulose.  A3 also told PW-7 that when A1 was <\/p>\n
talking over phone to PW-7, while in the office of the Chairman <\/p>\n
                                     56<\/span><\/p>\n
of   the   Board,   the   witness   was   present   in   the   chamber   of   A1 <\/p>\n
and asked PW-7 what was the difficulty in recommending the <\/p>\n
contract   even   after   A1   directed   him   to   do   so.     The   Special <\/p>\n
Court,   after   analysing  the  evidence   in  detail   found  that  A3  is <\/p>\n
the man behind the manuring for getting the contract awarded <\/p>\n
to K.P. Poulose.  K.P. Poulose, however, was only a benamidar <\/p>\n
and A3 and Paul Mundakkal were the beneficiaries though the <\/p>\n
work   was   awarded   in   the   name   of   K.P.   Poulose.     The <\/p>\n
prosecution   has   also   highlighted   and   proved   that   A1   was <\/p>\n
awaiting for a better contractor, who would quote higher rate, <\/p>\n
when PW-146 Kamalasanan, Managing Partner, We-Build was <\/p>\n
not  willing  to  quote  a higher   rate  as  desired  by   A1.     The  role <\/p>\n
played by A6 in the matter of hatching out the conspiracy and <\/p>\n
the   fulfillment   of   the   unlawful   object   is   proved   by   evidence, <\/p>\n
particularly,   from   the   evidence   of   PW-7.     From   the   above <\/p>\n
materials, it is clear that a criminal conspiracy among A1, A3 <\/p>\n
and A6 can be inferred.  A1, as Minister for Electricity is all in <\/p>\n
all dealing with the efforts of the Board including the awarding <\/p>\n
or   cancellation   of   the   contracts.     The   officers   and   the   Board <\/p>\n
members were under his pressure and fear which clearly seen <\/p>\n
                                    57<\/span><\/p>\n
from the statements of prosecution witnesses, namely, PWs 8, <\/p>\n
36, 60, 62, 138, 140, 64, 66 etc.  It is also relevant to point out <\/p>\n
that A6 and A7 avoided considering the request of PW-4 in his <\/p>\n
telegram sent to the Board.   We have already adverted  to the <\/p>\n
fact that it was Sunny K. Peter, PW-4, who quoted a lesser rate <\/p>\n
than   K.P.   Poulose.     He   quoted   only   135%   above   PAC.     By <\/p>\n
arranging the Board meeting on 19.11.1982, with short notice <\/p>\n
of   less   than   24   hours,   the   intention   was   to   avoid   other <\/p>\n
tenderers and to achieve the object of conspiracy to award the <\/p>\n
contract to K.P. Poulose who alone was present on 17.11.1982 <\/p>\n
and 19.11.1982.  The request of E.M. Varkey for fixing another <\/p>\n
date   for   participating   in   the   discussion   for   award   of   the <\/p>\n
contract   was   also   rejected.     From   these   materials,   as   rightly <\/p>\n
concluded   by   the   Special  Court,   it  leads   to   a  conclusion   that <\/p>\n
several out of way methods were adopted by the Board at the <\/p>\n
instance of A1 for achieving the object of conspiracy.\n<\/p>\n
35)   As   rightly   pointed   out   by   the   Special   Court,   the <\/p>\n
confirmation   of   Hydro   Power   Construction   Company <\/p>\n
consisting   of   A3,   A4   and   Paul   Mundakkal   and   their   close <\/p>\n
associates   and   relations   for   execution   of   Idamalayar   contract <\/p>\n
                                   58<\/span><\/p>\n
work,   A3   supervising   the   execution   of   the   contract   work   and <\/p>\n
the   visit   of   A4   at   the   worksite   only   on   rare   occasions,   the <\/p>\n
payment of wages to the labourers by A3 and Paul Mundakkal <\/p>\n
are   all   proved   various   circumstances   that   the   conspiracy <\/p>\n
among the accused continued to operate even after the award <\/p>\n
of   the   contract.     The   High   Court   failed   to   consider   various <\/p>\n
instances   and   materials   placed   by   the   prosecution   in   respect <\/p>\n
of charge relating to conspiracy.  According to the High Court, <\/p>\n
“the   proved   circumstances   are   not  sufficient   to  hold   that <\/p>\n
there   was   conspiracy   as   alleged   by   the   prosecution   or   as <\/p>\n
found by the Special Court.” Before us, it was demonstrated <\/p>\n
that several material aspects have not been considered by the <\/p>\n
High Court, for example, the stay of A3 at Paramount Tourist <\/p>\n
Home,   Thiruvananthapuram   on   the   crucial   dates   i.e.,   on <\/p>\n
17.11.1982   to   19.11.1982   has   not   been   considered   by   the <\/p>\n
High  Court   in the  correct  perspective.   As  pointed  out  by  the <\/p>\n
appellant,   the   High   Court   ought   to   have   found   that   the <\/p>\n
evidence relating to A3 at Paramount Tourist Home is only to <\/p>\n
bring out one of the circumstances leading to the formation of <\/p>\n
criminal   conspiracy   hatched   out   by   the   accused.     In   fact,   A3 <\/p>\n
                                     59<\/span><\/p>\n
has admitted his stay in his Section 313 Cr.P.C. statement at <\/p>\n
Thiruvananthapuram   on   those   dates,   hence,   finding   by   the <\/p>\n
High   Court   on   this   aspect,   faulting   with   the   Special   Court <\/p>\n
cannot   be   sustained.     Even   though,   the   High   Court   has <\/p>\n
admitted that A1 and A3 belonged to the same political party <\/p>\n
and close relationship exists between the two, the nomination <\/p>\n
of A3 in the Consultative Council of the Board as evidenced by <\/p>\n
Ex.P-180 was unfortunately not recognised by the High Court <\/p>\n
as  a material  evidence  proved by the  prosecution.   Insofar  as <\/p>\n
claim   of   PW-3   that   it   was   he   who   settled   the   bill   in   the <\/p>\n
inspection   bungalow,   the   perusal   of   his   entire   oral   evidence <\/p>\n
clearly supports the case pleaded by the prosecution insofar as <\/p>\n
the  close  association  between  A1 and  A3  during  their   visit  to <\/p>\n
the   worksite.     PW-7,   former   Chief   Engineer,   a   most   reliable <\/p>\n
witness was examined in the presence of A3 on 04.11.1982 in <\/p>\n
the   Board’s   office.   There   is   no   necessity   to   corroborate   or <\/p>\n
further   material  in addition  to the oral evidence  of PW-7.    As <\/p>\n
rightly analysed and concluded  by the Special Court, there is <\/p>\n
no infirmity in the evidence of PW-7 merely because there is no <\/p>\n
documentary evidence in respect of the presence of A3 at the <\/p>\n
                                    60<\/span><\/p>\n
Board’s meeting.  The evidence of PW-7 cannot be ignored.\n<\/p>\n
36)   The   High   Court   very   much   accepted   the   stand   of   the <\/p>\n
accused that it was a collective decision of the Board, we have <\/p>\n
already   discussed   the   reasons   stated   in   Ex   P-550(a)   for <\/p>\n
awarding contract in favour of K.P. Poulose at exorbitant rate.\n<\/p>\n
The reasons relied on by the Board exposes the omission and <\/p>\n
negligence   on   its   part   in   fixing   the   contract   with   PW-146 <\/p>\n
Kamalasanan or E.M. Varkey or with Kuriakose PW-22 or PW-\n<\/p>\n
4   Sunny  K.   Peter,   who  quoted   lower   rates   then   K.P.   Poulose.\n<\/p>\n
Even   before   us,   learned   senior   counsel   appearing   for   the <\/p>\n
accused   reiterated   that   it   was   a   collective   decision   of   the <\/p>\n
members of the Board to award the contract in favour of K.P.\n<\/p>\n
Poulose.     We   have   already   highlighted   the   reasoning   of   the <\/p>\n
Special Court relating to the important fact that contract  was <\/p>\n
awarded at exorbitant rate, reduction in retention and security <\/p>\n
amount,   return   of   50%   empty   cement   bags   and   also <\/p>\n
acceptance   of   special   conditions   for   the   sale   of   tools   and <\/p>\n
plants.     In   the   instant   case,   all   the   ingredients   of   criminal <\/p>\n
conspiracy   are   satisfied   for   convicting   A1,   A3   and   A6   for   the <\/p>\n
offence charged against them.\n<\/p>\n
                                     61<\/span><\/p>\n
Special mention about PW-7, retired Chief Engineer of the <\/p>\n
Board & PW-46<\/p>\n
37)    The   High   Court   as   well   as   learned   senior   counsel <\/p>\n
appearing for the accused commented the evidence of PW-7 by <\/p>\n
saying   that   there   are   inherent   improbabilities   and <\/p>\n
inconsistencies and his evidence is not cogent and convincing <\/p>\n
whereas   among   several   witnesses   examined,   prosecution <\/p>\n
heavily   relied   on   the   statement   of   PW-7,   a   retired   Chief <\/p>\n
Engineer.   He retired from service on March 1985.   He joined <\/p>\n
the service of the Board on July 1954 as Junior Engineer and <\/p>\n
prior to that he was in the Electricity Department.  It has come <\/p>\n
in evidence that he gained vast experience since he worked in <\/p>\n
various  projects such as Chakulam  project, Neriyamangalam, <\/p>\n
Idukki,   Kakakd   and   Idamalayar   project.     It   is   also   seen   from <\/p>\n
his   evidence   that   he   participated   in   four   major   projects.     He <\/p>\n
first   examined   on   the   side   of   the   prosecution   on   28.03.1996 <\/p>\n
and at that time he was 66 years old.  In this background, let <\/p>\n
us   test   his   evidence   as   discussed   in   the   earlier   part   of   our <\/p>\n
order.   The prosecution heavily relied on his evidence and, in <\/p>\n
fact,   Mr   Shanti   Bhushan   in   support   of   his   argument   mainly <\/p>\n
                                     62<\/span><\/p>\n
relied   on   the   evidence   of   PW-7.     By   his   rich   experience   and <\/p>\n
worked as a Chief Engineer at the relevant time, namely, when <\/p>\n
Idamalayar project was commissioned, PW-7 furnished all the <\/p>\n
details with reference to various documents such as his report, <\/p>\n
opinion, minutes of the meeting of the Board with reference to <\/p>\n
Idamalayar   project.     No   doubt,   all   the   three   senior   counsel <\/p>\n
appearing for the accused A1, A3 and A6 severely criticized his <\/p>\n
conduct   in   not  answering   many  of  the  questions   in  his  cross <\/p>\n
examination.     It   is   true   that   in   chief-examination,   PW-7 <\/p>\n
highlighted various aspects with reference to documents such <\/p>\n
as   opinion,   report   and   Board’s   proceedings   and   minutes <\/p>\n
thereon.  From the perusal of his cross-examination, it cannot <\/p>\n
be   concluded   that   he   didn’t   answer   or   elaborate   any   of   the <\/p>\n
question   put   by   the   counsel   for   accused.     It   is   true   that   for <\/p>\n
certain   questions   he   answered   that   he   has   to   verify   from   the <\/p>\n
records   and   for   certain   questions   he   didn’t   answer   or <\/p>\n
answered stating that  “he do not  remember”.   It  is relevant <\/p>\n
to point out that he retired from service in March 1985 and he <\/p>\n
was   called   upon   to   give   evidence   only   in   March   1996   nearly <\/p>\n
after 15 years of the commissioning of the Idamalayar project.\n<\/p>\n
                                      63<\/span><\/p>\n
If we consider all these aspects, there is no reason to reject his <\/p>\n
entire evidence as claimed by the respondents\/accused.  In his <\/p>\n
evidence, he has mentioned that on the submission of tender <\/p>\n
by K.P. Poulose, it was noted that he quoted 189% above PAC.\n<\/p>\n
Agreement submitted by K.P. Poulose has been marked as Ex.\n<\/p>\n
P-52 and in that Paul Mundakkal was signed as witness.  It is <\/p>\n
further   seen   that   as   Chief   Engineer,   he   sent   letters   to   K.P.\n<\/p>\n
Poulose   and   Kuriakose   who   was   another   persons   submitting <\/p>\n
tenders on 28.07.1982.  He made a note that the tender is not <\/p>\n
in  proper  form  and  it  contains  many  mistakes and  requested <\/p>\n
them   to   rectify   the   mistakes   within   a   time   schedule.     In   this <\/p>\n
regard, it is useful to refer his categorical statement which, he <\/p>\n
deposed   before   the   Court   that   “I   considered   it   as   a   special <\/p>\n
case because the engineer member Mr. Ramabhadran Nair <\/p>\n
(A6)   informed   me   that   Mr.   Balakrishna   Pillai   (A1)   has   a <\/p>\n
special   interest   to   award   this   work   to   Mr.   K.P.   Poulose <\/p>\n
(A4), hence the mistakes happened in the tender should be <\/p>\n
rectified   with   K.P.Poulose   himself   and   make   a <\/p>\n
circumstance to award the work to K.P. Poulose…”   About <\/p>\n
the   disqualification   of   tender   offered   by   Kuriakose,   PW-7 <\/p>\n
                                     64<\/span><\/p>\n
deposed   the   decision   was   taken   by   a   committee   because   he <\/p>\n
could not rectify the mistakes as directed by him.  In respect of <\/p>\n
a question  put to  PW-7 about  the response  of A6 and  A7,  he <\/p>\n
answered “they stated that they are happy in disqualifying <\/p>\n
Mr.   Kuriakose”.     It  is   also  seen  from   his   evidence   that   after <\/p>\n
noting that the rate quoted  by K.P. Poulose is higher rate, he <\/p>\n
forwarded   the   said   information   for   remarks   of   FA   and   CAO.\n<\/p>\n
He   also   asserted   that   A6   told   him   that   A1-Minister <\/p>\n
Balakrishna   Pillai   is   very   much   particular   to   award   both   the <\/p>\n
works   to   K.P.   Poulose.     It   is   further   seen   that   he   highlighted <\/p>\n
that   without   solving   the   problem   of   tunnel   workers   no <\/p>\n
contractor can do the work.  According to him, because of this <\/p>\n
reason   he   informed   A6   to   take   steps   to   solve   the   problem   of <\/p>\n
workers and in fact PW-7 met A6 at his office on 04.11.1982 at <\/p>\n
11:00   a.m.     When   the   issue   relating   to   labour   problem   was <\/p>\n
under   discussion,   according   to   PW-7,   the   P.A.   of   Board <\/p>\n
Chairman   Sankaran   Nair   approched   him   and   informed   that <\/p>\n
Minister   Balakrishna   Pillai   is   willing   to   talk   to   me   through <\/p>\n
telephone   of   the   Board’s   Chairman.     In   view   of   the   same, <\/p>\n
according   to   PW-7,   he   suddenly   entered   into   the   cabin   of <\/p>\n
                                      65<\/span><\/p>\n
Board’s   Chairman   which   is   the   next   room   and   took   the <\/p>\n
telephone.     He   introduced   himself   through   the   phone   and <\/p>\n
according   to   PW-7   “A1   asked   him   why   you   were   not <\/p>\n
recommended the tenders of Idamalayar tunnel and surge <\/p>\n
shaft to the Board.  I replied to A1 I am going to talk about <\/p>\n
it   with   the   contractor   today   and   I   am   having   same <\/p>\n
problem   in   this   matter.     There   is   only   one   tender <\/p>\n
submitted by   K.P. Poulose, the rate is very exorbitant, if <\/p>\n
the work is awarded without solving the problem of tunnel <\/p>\n
workers,   K.P.   Poulose   cannot   start   the   work.     A1   replied <\/p>\n
that you don’t look upon it, K.P. Poulose will purchase all <\/p>\n
these   workers,   we   granted   this   higher   rate   for   that   also, <\/p>\n
hence you recommend the Board to award both the works <\/p>\n
to K.P. Poulose without any delay.  Then the conversation <\/p>\n
was   concluded.     I   immediately   visited   the   room   of   A6.     I <\/p>\n
told   to   A6   about   the   call   of   Minister   and   my   reply   and <\/p>\n
difficulties.     At   that   time   A6   told   him   that   the   Minister <\/p>\n
directly  asked you, so you do it as he say.”   The following <\/p>\n
statement   is   also   relevant   about   the   conduct   of   A1   and   how <\/p>\n
much he was interested in awarding contract in favour of K.P.\n<\/p>\n
                                   66<\/span><\/p>\n
Paulose.   PW-7 deposed “the face of A1 shows much anger.\n<\/p>\n
He   explained   A1   that   if   tenders   are   invited   after   solving <\/p>\n
the problem of tunnel workers, rate will be reduced, that is <\/p>\n
profitable to the Board.  A1 replied with higher anger that <\/p>\n
I   know   how   to   look   after   the   Board,   I   do   not   want   any <\/p>\n
advice   from   your   people,   are   you   approaching   me   with <\/p>\n
intimate talks, after this, I had no talk anything about it.”\n<\/p>\n
It   is   further   seen   that   thereafter   a   note   was   sent   by <\/p>\n
Sreedharan   Pillai   and   Unnikrishnan   to   recommend   for <\/p>\n
awarding both the works to K.P. Poulose.  According to him, he <\/p>\n
received all the documents as per the direction of A1.  Though, <\/p>\n
several reports and minutes of the Board meeting were pressed <\/p>\n
into service by the respondents\/accused in order to strengthen <\/p>\n
their   case   that  all   important   decisions   accepting  the   contract <\/p>\n
in   favour   of   K.P.   Poulose   including   several   special   conditions <\/p>\n
etc.,   it   is   clear   that   due   to   the   pressure   of   A6,   the   then <\/p>\n
member   of   the   Board,   who   was   close   to   A1,   as   well   as   the <\/p>\n
desire of A1 in awarding the contract in favour of K.P. Poulose <\/p>\n
with higher  rate, PW-7 had no other option except to execute <\/p>\n
the directions of A6 and A1.\n<\/p>\n
                                     67<\/span><\/p>\n
38)    Another incident which is relevant about the performance <\/p>\n
of   PW-7   and   response   from   A1   and   A6,   in   his   evidence,   he <\/p>\n
explained that since the progress of both the works were very <\/p>\n
slow,   he   inspected   the   site   on   23.09.1983.     Due   to   slow <\/p>\n
progress   in   the   works,   he   castigated   Paul   Mundakkal   who <\/p>\n
conducted the works.  After few days, A3 and Paul Mundakkal <\/p>\n
came to his house and A3 told him that he is disturbing them <\/p>\n
without any reason by way of sending letters and reports, A3 <\/p>\n
further warned that if it continues, it will be harmful to them.\n<\/p>\n
He   also   informed   him   that   the   Minister   agreed   to   avoid <\/p>\n
concrete lining works of surge shaft but only PW-7 opposed it.\n<\/p>\n
He also assured that if PW-7 gives his consent, they are ready <\/p>\n
to give anything.   He further explained that he informed them <\/p>\n
that it is impossible for him because the technical design is his <\/p>\n
duty,   being   a   Chief   Engineer.     After   few   days   from   this <\/p>\n
incident, on 13.10.1983, he was transferred and appointed as <\/p>\n
an   Advisor   of   Electricity   Board   in   respect   of   Hydroelectric <\/p>\n
Projects.   He further explained that such a Post was not there <\/p>\n
and his transfer order was signed and taken on 13.10.1983 at <\/p>\n
8.00   p.m.   in   a   lodge   where   he   was   residing   at <\/p>\n
                                   68<\/span><\/p>\n
Thiruvananthapuram.     He   highlighted   that   for   the   post   of <\/p>\n
Advisor,   except   chair,   table,   no   other   facilities   including <\/p>\n
telephone   facility,   official   vehicle   steno   and   typist   were <\/p>\n
provided.     After   him,   A2   was   appointed   as   Idamalayar   Chief <\/p>\n
Engineer.  He also informed the Court that he believed that he <\/p>\n
was   transferred   due   to   the   difference   of   opinion   with   P.K.\n<\/p>\n
Poulouse, A3 and Paul Mundakkal <\/p>\n
39)    As regards the decision of the Board and his role, he has <\/p>\n
stated   that   the   Chief   Engineer   has   no   right   to   question   the <\/p>\n
Board’s   decision.     However,   he   clarified   that   when   he   was <\/p>\n
asked   to   give   his   opinion   or   report,   he   is   bound   by   the   said <\/p>\n
direction.   ExP-65 is the note submitted by him in connection <\/p>\n
with   the   work.     P-64   is   the   note   submitted   by   him   in <\/p>\n
connection   with   the   surge   shaft   work   which   is   also   dated <\/p>\n
06.11.1982.  Thereafter, in 1982, he was transferred <\/p>\n
40)    With   regard   to   his   financial   and   family   position,   he <\/p>\n
answered   that   he   built   two-storied   building   having   built-up <\/p>\n
area of  2700  sq.   ft. in  1965  after   taking  loan from  the   Board <\/p>\n
and he sold this building and property after his retirement.  He <\/p>\n
                                      69<\/span><\/p>\n
is having six daughters.   He constructed  a shop room having <\/p>\n
15 ft. length and 12 ft width.\n<\/p>\n
41)    The   analysis   of   the   evidence   of   PW-7   coupled   with   the <\/p>\n
other   prosecution   witnesses   and   other   notes   and   report <\/p>\n
prepared   for   the   Board   clearly   indicate   that   though   he <\/p>\n
reminded   that   certain   things   are   not   permissible,   because   of <\/p>\n
the fact that the beneficiaries of the contract are known to A1 <\/p>\n
and   A6,   he   has   no   other   option   except   to   prepare   notes   in <\/p>\n
such a way and ultimately the Board accepted the same.\n<\/p>\n
42)    We   have   already   pointed   out   the   statements   of   PW-46 <\/p>\n
who was a member of RSP, a political party.  According to him, <\/p>\n
the workers of Idamalayar have a Union.  The name of the said <\/p>\n
Union   is   Kerala   Construction   Labour   Union   and   he   was   the <\/p>\n
General   Secretary   of   that   Union.     In   his   evidence,   he   has <\/p>\n
informed the Court that the labourers who were doing tunnel <\/p>\n
work   in   Idamalayar   became   jobless   from   10.04.1981.     They <\/p>\n
were skilled labourers and had good experience from projects <\/p>\n
like   Idukki,   Kulanam   etc.     He,   as   the   President   and   others <\/p>\n
decided to file a memorandum before the Minister Balakrishna <\/p>\n
Pillai.     The   memorandum   was   prepared   in   the   letter   pad   of <\/p>\n
                                    70<\/span><\/p>\n
Kerala Construction Labour Union.  PW-46 and Srikantan Nair <\/p>\n
signed   the   said   memorandum.     It   has   also   come   in   his <\/p>\n
evidence   that   at   the   time   of   submission   of   his   memorandum <\/p>\n
PW-46   and   others   requested   the   Minister   to   give   work   to   the <\/p>\n
poor labourers at least on piece rate basis for which A1 replied <\/p>\n
“no question of giving work to the labourers.   It was given <\/p>\n
as   contract   to   K.P.   Poulouse….”     The   prosecution   has <\/p>\n
highlighted the above statement of PW-46 to the effect that A1 <\/p>\n
decided   and   determined   to   award   Idamalayar   contract   to <\/p>\n
group   of   persons   headed   by   K.P.Poulouse   and   not   to   the <\/p>\n
workers who prepared to work on piece-rate basis.\n<\/p>\n
About   maintainability   of   the   appeal   by   the   present <\/p>\n
appellant:\n<\/p>\n
43)    Mr.   Lalit   and   Mr.   Saran   at   the   end   of   their   arguments <\/p>\n
submitted that the appellant being a third party unconnected <\/p>\n
with   the   Board   or   the   State   is   not   entitled   to   challenge   the <\/p>\n
decision of the High Court acquitting the accused from all the <\/p>\n
charges levelled against them.   In support of the above claim, <\/p>\n
they   very   much   relied   on   the   decision   of   this   Court   dated <\/p>\n
23.07.2010   rendered   in   SLP   Criminal   No   2506   of   2009   –\n<\/p>\n
                                     71<\/span><\/p>\n
National   Commission   for   Women  vs.  State   of   Delhi   and  <\/p>\n
Another 2010 11 Scale 17.  In this case, one Sunita then aged <\/p>\n
21   years,   committed   suicide   by   consuming   Aluminium <\/p>\n
Phosphide   tablets   on   14.04.2003.     She   left   behind   a   suicide <\/p>\n
note   wherein   it   was   stated   that   she   had   taken   tuitions   from <\/p>\n
the   accused,   Amit,   at   her   residence   in   Rajgarh   Colony   and <\/p>\n
during   that   period   she   had   developed   a   deep   friendship   with <\/p>\n
him   leading   to   physical   relations   as   well.     The   accused   also <\/p>\n
held out a promise of marriage but later backed off.   She also <\/p>\n
stated in her suicide note that not only the accused continued <\/p>\n
to have sexual relation with her but also compelled her to have <\/p>\n
sexual   relation  with   others   as  well,   which   was  the   reason  for <\/p>\n
committing   the   suicide.       The   trial   Judge   relied   on   the   dying <\/p>\n
declaration, which was the suicide note, convicted the accused <\/p>\n
under Section 306 IPC and sentenced him to undergo rigorous <\/p>\n
imprisonment for 10 years with a fine of Rs.5000\/-   and also <\/p>\n
imprisonment   for   life   under   Section   376   IPC   and   a   fine   of <\/p>\n
Rs.5000\/-.     Questioning   the   above   order   of   conviction   and <\/p>\n
sentence,   the   accused   preferred   an   appeal   before   the   High <\/p>\n
Court.     The   High   Court   ultimately   found   that   as   the   case <\/p>\n
                                     72<\/span><\/p>\n
under Section 306 was not made out confirmed the conviction <\/p>\n
under   Section   376   IPC.     Taking   note   that   the   accused   had <\/p>\n
already   undergone   imprisonment   for   5   years   and   6   months <\/p>\n
and his entitlement for remission on account of his conduct in <\/p>\n
jail, his term of imprisonment for life has been modified to one <\/p>\n
that  of  period  already   undergone.       Neither   the   State   nor   the <\/p>\n
complainant   or   her   relatives   has   chosen   to   file   an   appeal   to <\/p>\n
this   Court.     However,   National   Commission   for   Women   (in <\/p>\n
short `NCW’)  filed  a  special leave petition  against the order of <\/p>\n
the High Court reducing the term of life imprisonment to that <\/p>\n
of   period   already   undergone   in   respect   of   the   conviction   and <\/p>\n
sentence awarded by the High court under  Section 376.   The <\/p>\n
question   in   that   case   was   whether   the   NCW   is   competent   or <\/p>\n
entitled   to   file   an   appeal   in   this   Court   against   the   conviction <\/p>\n
and   sentence   imposed   by   the   High   Court.     This   Court,   after <\/p>\n
adverting to the relevant provisions namely, Section 377 Cr.PC <\/p>\n
and other decisions and finding that neither the State, which <\/p>\n
is the complainant, nor the heirs of the deceased have chosen <\/p>\n
to file a petition in the High Court or in this Court dismissed <\/p>\n
the   SLP   filed   by   NCW   as   not   maintainable   and   revoked   the <\/p>\n
                                      73<\/span><\/p>\n
permission   to   file   SLP   vide   this   Court’s   order   dated <\/p>\n
02.04.2009.\n<\/p>\n
44)   In   the   above   referred   NCW’s   case,   admittedly   the <\/p>\n
complainant was the State and neither the State nor the heirs <\/p>\n
of the deceased filed any appeal\/petition before the High Court <\/p>\n
for   enhancement   of   punishment   or   challenged   the   same   by <\/p>\n
way of SLP before this Court.\n<\/p>\n
45)   In   our   case,   certain   special   features   exist.     Though   we <\/p>\n
discussed   earlier,   it   is   apt   to   quote   once   again.     During   the <\/p>\n
pendency of  the trial before the  special Judge, an application <\/p>\n
for   withdrawal   of   the   prosecution   only   against   G.\n<\/p>\n
Gopalakrishna Pillai – accused No.5 was made by the Special <\/p>\n
Public   Prosecutor   on   24.08.1992   under   Section   321   Cr.P.C.\n<\/p>\n
which was registered as Criminal Appeal No. 79 of 1992 in CC <\/p>\n
No. 1 of 1991.  The main ground for such withdrawal was that <\/p>\n
with   the   available   material   successful   prosecution   against   G.\n<\/p>\n
Gopalakrishna   Pillai   –   accused   No.   5   cannot   be   launched, <\/p>\n
hence, the trial against him will be unnecessary and the State <\/p>\n
also is of that opinion that the prosecution of A-5 may not be <\/p>\n
sustainable.     With   this   information,   the   Special   Public <\/p>\n
                                     74<\/span><\/p>\n
Prosecutor requested that by virtue of provisions contained in <\/p>\n
Section 321 of the CrP.C, necessary consent may be granted to <\/p>\n
withdraw   the   prosecution   against   the   5th  accused   –   G.\n<\/p>\n
Gopalkrishna   Pillai   and  the   said   accused  may   be   discharged.\n<\/p>\n
The   Special   Judge   considered   the   issue   at   length   and   after <\/p>\n
analyzing the entire material and finding that there are enough <\/p>\n
materials   to   proceed   against   A-5   refused   to   give   consent   for <\/p>\n
withdrawal.    This  was taken up by way of  revision before the <\/p>\n
High   Court.     The   High   Court   set   aside   the   aforesaid   order <\/p>\n
passed by the Special Judge in the revision filed by the State <\/p>\n
of   Kerala   represented   by   the   Superintendent   of   Police.     The <\/p>\n
said   order   of   the   High   Court   was   challenged   by   the   present <\/p>\n
appellant  namely,  V.S.  Achuthanandan,  to  this  Court   by   way <\/p>\n
of special leave petition.   After granting leave, the said special <\/p>\n
leave   petition   was   converted   into   Criminal   Appeal   No.   122   of <\/p>\n
1994.     After   adverting   to   the   elaborate   reasonings   of   the <\/p>\n
special Judge and the conclusion of the High Court, this Court <\/p>\n
concluded   that   “there   was   no   ground   available   to   the   High <\/p>\n
Court to set aside the well reasoned and justified order of the <\/p>\n
learned   Special   Judge   rejecting  the   application   of   the   Special <\/p>\n
                                   75<\/span><\/p>\n
Public Prosecutor and declining to give consent for withdrawal <\/p>\n
of prosecution.   We may also add that there is nothing in the <\/p>\n
impugned   order   of   the   High   Court   which   provides   any   legal <\/p>\n
basis   for   interfering   with   the   aforesaid   order   made   by   the <\/p>\n
Special Judge.   The High Court’s order must obviously be set <\/p>\n
aside.”  By setting aside the order of the High Court, this Court <\/p>\n
restored   the   order   of   the   Special   Judge   and   declined   to   give <\/p>\n
consent   for   withdrawal   of   the   prosecution   and   permitted   the <\/p>\n
Special   Judge   to   proceed   further.     It   is   not   in   dispute   that <\/p>\n
when   the   very   same   appellant,   namely,   V.S.   Achuthanandan <\/p>\n
filed special leave petition and later leave was granted, the very <\/p>\n
same   respondent-accused   parties   in   the   said   appeal   did   not <\/p>\n
raise   any   objection   as   to   the   maintainability   of   the   appeal   at <\/p>\n
the   instance   of   V.S.   Achuthanandan.     Further   though   the <\/p>\n
State   has  not  filed   any  appeal   against  the  impugned  order  of <\/p>\n
acquittal   by   the   High   Court   being   arrayed   as   one   of   the <\/p>\n
respondents   reported   by   a   senior   counsel   to   highlight   its <\/p>\n
stand,   in   fact,   Mr.   R.S.   Sodhi,   learned   senior   counsel   for   the <\/p>\n
State   highlighted   and   supported   the   ultimate   conviction   and <\/p>\n
sentence   imposed   by   the   Special   Judge   and   informed   this <\/p>\n
                                     76<\/span><\/p>\n
Court   that   if   this   Court   permits,   they   are   ready   to   file   an <\/p>\n
appeal   with   an   application   for   condonation   of      delay.     While <\/p>\n
appreciating   the   prayer   made   by   Mr.   R.S.   Sodhi,   we   are   not <\/p>\n
inclined to entertain such request at this stage.   However, the <\/p>\n
fact   remains   that   taking   note   of   the   importance   of   the   issue, <\/p>\n
allegations   against   the   Minister   and   higher   officials   of   the <\/p>\n
Board in respect of award of contract with the ulterior motive, <\/p>\n
the appellant approached this Court on earlier occasion when <\/p>\n
the   State   wanted   to   close   the   prosecution   against   all   the <\/p>\n
accused including the Minister based on the order of the High <\/p>\n
Court in respect of G. Gopalakrishna Pillai, A-5.  Further when <\/p>\n
the very same appellant filed special leave petition before this <\/p>\n
Court   and   later     leave   was   granted   by   this   Court   neither   of <\/p>\n
these   respondents   raised   any   objection   as   to   the <\/p>\n
maintainability of the petition.  On the other hand, a Bench of <\/p>\n
three Judges accepted the appellant’s claim and set aside the <\/p>\n
order   of   the   High   Court   based   on   which   the   Special   Judge <\/p>\n
proceeded further and ultimately convicted and sentenced A-1, <\/p>\n
A-3   and   A-6.     In   view   of   these   factual   details,   learned   senior <\/p>\n
counsel   for   the   respondents-accused   were   not   serious   in <\/p>\n
                                      77<\/span><\/p>\n
projecting   the   issue   relating   to   maintainability   as   their   first <\/p>\n
objection.     We   hold   that   the   decision   in  NCW’s   case   (supra) <\/p>\n
which was disposed of at the special leave petition stage is not <\/p>\n
applicable to the case on hand.\n<\/p>\n
46)   For   the  same  reasons,  the  decision  of  this  Court   in  Lalu  <\/p>\n
Prasad Yadav & Anr. Vs. State of Bihar & Anr., (2010)  5 <\/p>\n
SCC 1 is also not applicable to the case on hand since in the <\/p>\n
said decision, the question was whether the State Government <\/p>\n
(of Bihar) has competence to file an appeal from the judgment <\/p>\n
dated   18.12.2006   passed   by   the   Special   Judge,   CBI   (AHD), <\/p>\n
Patna, acquitting the accused persons when the case has been <\/p>\n
investigated   by   the   Delhi   Special   Police   Establishment   (CBI) <\/p>\n
and this Court held that the appeal at the instance of the State <\/p>\n
Government   is   not   maintainable.     In   view   of   the   special <\/p>\n
circumstances   highlighted   in   the   case   on   hand,   we   reiterate <\/p>\n
that   the   present   appeal   by   the   appellant   –   V.S.\n<\/p>\n
Achuthanandan   against   the   order   of   acquittal   by   the   High <\/p>\n
Court   is   maintainable.   Our   view   has   been   strengthened   by   a <\/p>\n
decision of this Court in K. Anbazhagan vs. Superintendent  <\/p>\n
of   Police   and   Others<\/a>  (2004)   3   SCC   767.     Accordingly   we <\/p>\n
                                    78<\/span><\/p>\n
reject the  contention  raised  by   the   learned  senior  counsel  for <\/p>\n
the respondents.\n<\/p>\n
Conclusion<\/p>\n
47)   The   analysis   of   the   materials   placed   by   the   prosecution, <\/p>\n
the plea of defence by the accused, the decision of the Special <\/p>\n
Court   and   the   reasoning   of   the   High   Court,   we   are   satisfied <\/p>\n
that   the   prosecution   has   established   the   following   aspects <\/p>\n
insofar as the accused (A1), (A3) and (A6) are concerned:-\n<\/p>\n
   a) By awarding both the works of Idamalayar at a very <\/p>\n
      high   and   exorbitant   rate   with   special   conditions <\/p>\n
      having heavy financial implications.\n<\/p>\n
   b)  By reducing the retention and security amount.\n<\/p>\n
   c) By   allowing   the   contractor   to   return   only   fifty   per <\/p>\n
      cent of the empty cement bags.\n<\/p>\n
Having arrived at such conclusion, we are of the view that the <\/p>\n
High   Court   failed   to   appreciate   in   its   proper   sense   the <\/p>\n
materials placed by the prosecution and brushed aside several <\/p>\n
important   items   of   evidence   adduced   by   the   prosecution.\n<\/p>\n
Equally,   we   are   unable   to   accept   the   conclusion   of   the   High <\/p>\n
                                    79<\/span><\/p>\n
Court, namely, “the proved circumstances are not sufficient <\/p>\n
to   hold   that   there   was   conspiracy   as   alleged   by   the <\/p>\n
prosecution”.     On   the   other   hand,   we   are   satisfied   that   the <\/p>\n
Special   Court   after   framing   various   points   for   consideration <\/p>\n
and   after   thorough   discussion   has   accepted   the   case   of   the <\/p>\n
prosecution   insofar   as   the   work   of   driving   the   surge   shaft, <\/p>\n
lining   the   surge   shaft,   balance   driving   the   power   tunnel   and <\/p>\n
other allied  works of  Idamalayar Hydro  Electric Power Project <\/p>\n
at   a  higher   or  exorbitant   rates   to   the   contractor  K.P.   Poulose <\/p>\n
and   the  accused   persons  have   abused  their   official   positions.\n<\/p>\n
The   Special   Court   has   also   accepted   the   prosecution   case <\/p>\n
founding   that   A1   along   with   K.P.   Poulose,   Paul   Mundakkal <\/p>\n
and   other   accused   persons   entered   into   criminal   conspiracy <\/p>\n
and rightly convicted them.   In our considered view, the High <\/p>\n
Court   committed   a   grave   error   in   acquitting   the   accused <\/p>\n
without   adverting   to   the   reliable   and   acceptable   evidence <\/p>\n
adduced by the prosecution.\n<\/p>\n
48)   Now,   coming   to   the   sentence   part,   it   is   relevant   to   note <\/p>\n
that   the   contract   was   awarded   to   K.P.   Poulose,   (since <\/p>\n
                                     80<\/span><\/p>\n
deceased) the fourth accused, as early as on 19.11.1982.  After <\/p>\n
various   agitations,   discussions   in   the   Assembly,   appointment <\/p>\n
of a Commission by the Government and based on the report <\/p>\n
of   the   Commission,   the   State   Government   initiated   a <\/p>\n
prosecution   which   resulted   in   C.C.   No.   01   of   1991   and   trial <\/p>\n
prolonged   upto   November   19,   1999.     Thereafter,   the   matter <\/p>\n
was   kept   pending   at   the   High   Court   from   1999   to   October <\/p>\n
2003, when the High Court pronounced its order acquitting all <\/p>\n
the accused and the matter was taken up to this Court by the <\/p>\n
present   appellant   initially   by   way   of   special   leave   petition   in <\/p>\n
2005,  leave  was granted  in  2006 and it was kept  pending till <\/p>\n
this   date,   we   feel   that   all   the   three   accused   have   undergone <\/p>\n
agony   of   these   proceedings   for   nearly   two   decades,   we   are   of <\/p>\n
the   opinion   that   ends   of   justice   would   be   met   by   awarding <\/p>\n
rigorous   imprisonment   for   one   year   with   fine   of   Rs.   10,000\/-\n<\/p>\n
each,   and   the   same   shall   be   paid   within   eight  weeks,  in <\/p>\n
default, to undergo simple imprisonment for one month each.\n<\/p>\n
49)  Before   winding   up,   it   is   our   duty   to   point   out   in   all   the <\/p>\n
cases   in   which   charges   relating   to   corruption   by   public <\/p>\n
                                       81<\/span><\/p>\n
servants   are   involved,   normally,   take   longer   time   to   reach   its <\/p>\n
finality.  The facts and figures, in the case on hand, which we <\/p>\n
have already mentioned clearly show that the contract relates <\/p>\n
to   the   year   1982   and   the   State   Government   initiated <\/p>\n
prosecution   in   1991,   however,   the   trial   prolonged   for   nearly <\/p>\n
nine   years   and   the   Special   Court   passed   an   order   convicting <\/p>\n
the accused only on 19.11.1999.   When the matter was taken <\/p>\n
up by way of appeal by the accused to the High Court even in <\/p>\n
1999   itself,   the   decision   was   rendered   by   the   High   Court <\/p>\n
acquitting all the accused only in 2003.  In the same manner, <\/p>\n
though   the   appellant   challenged   the   order   of   the   High   Court <\/p>\n
acquitting   all   the   accused   before   this   Court   even   in   2005,   it <\/p>\n
has   reached   its   finality   only   in   2011   by   the   present   order.\n<\/p>\n
Though the issue was handled by a Special Court constituted <\/p>\n
for the sole purpose of finding out the truth or otherwise of the <\/p>\n
prosecution   case,   the   fact   remains   it   had   taken   nearly   two <\/p>\n
decades to reach its finality.  We are conscious of the fact that <\/p>\n
the   Government   of   India,   Department   of   Law   &   Justice   is <\/p>\n
making   all   efforts   for   expeditious   disposal   of   cases   of   this <\/p>\n
nature   by   constituting   Special   courts,   however,   the   fact <\/p>\n
                                     82<\/span><\/p>\n
remains that it takes longer time to reach its destination.   We <\/p>\n
are of the view that when a matter of this nature is entrusted <\/p>\n
to a  Special  Court or  a regular Court, it is but proper  on the <\/p>\n
part   of   the   court   concerned   to   give   priority   to   the   same   and <\/p>\n
conclude the trial within a reasonable time.   The High Court, <\/p>\n
having   overall   control   and   supervisory   jurisdiction   under <\/p>\n
Article 227 of the Constitution of India is expected to monitor <\/p>\n
and even call  for  a quarterly report from the  court concerned <\/p>\n
for   speedy   disposal.     Inasmuch   as   the   accused   is   entitled   to <\/p>\n
speedy justice, it is the duty of all in charge of dispensation of <\/p>\n
justice   to   see   that   the   issue   reaches   its   end   as   early   as <\/p>\n
possible.\n<\/p>\n
50)    Considering all the materials and in the light of the above <\/p>\n
discussion,   we   agree   with   the   conclusion   arrived   at   by   the <\/p>\n
Special Court and hold that the High Court has committed an <\/p>\n
error   in   acquitting   the   accused   persons.                Accordingly, <\/p>\n
R. Balakrishna Pillai (A1), P.K. Sajeev (A3) and Ramabhadran <\/p>\n
Nair (A6) are awarded rigorous imprisonment for one year with <\/p>\n
fine  of  Rs.   10,000\/-   each,  and  the   same  shall   be  paid   within <\/p>\n
                                     83<\/span><\/p>\n
eight  weeks,  in   default,   to   undergo   simple   imprisonment   for <\/p>\n
one month each.   All the three accused are entitled remission <\/p>\n
for   the   period   already   undergone,   if   any,   by   them.     The <\/p>\n
criminal appeal is allowed to the extent indicated above.\n<\/p>\n
                                       ……………………………………J.\n<\/p>\n
                                            (P. SATHASIVAM) <\/p>\n
                                       …………………………………….J.\n<\/p>\n
                                        (DR. B.S. CHAUHAN)<\/p>\n
NEW DELHI;\n<\/p>\n
FEBRUARY 10, 2011<\/p>\n
                                 84<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V.S. Achuthanandan vs R. Balakrishna Pillai & Ors on 10 February, 2011 Author: P Sathasivam Bench: P. Sathasivam, B.S. Chauhan REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 350 OF 2006 V.S. Achuthanandan …. Appellant(s) Versus R. Balakrishna Pillai & Ors. …. Respondent(s) J U 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":[30],"tags":[],"class_list":["post-174215","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV.S. Achuthanandan vs R. 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