{"id":76881,"date":"2011-01-24T00:00:00","date_gmt":"2011-01-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-t-joseph-vs-superintendent-of-police-on-24-january-2011"},"modified":"2016-01-02T22:22:41","modified_gmt":"2016-01-02T16:52:41","slug":"k-t-joseph-vs-superintendent-of-police-on-24-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-t-joseph-vs-superintendent-of-police-on-24-january-2011","title":{"rendered":"K.T.Joseph vs Superintendent Of Police on 24 January, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
K.T.Joseph vs Superintendent Of Police on 24 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 117 of 2002()\n\n\n1. K.T.JOSEPH, RTD. EXDECUTIVE OFFICER,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SUPERINTENDENT OF POLICE, V.A. C.B.,\n                       ...       Respondent\n\n2. PUBLIC PROSECUTOR,\n\n                For Petitioner  :SRI.M.V.BOSE\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :24\/01\/2011\n\n O R D E R\n             M.Sasidharan Nambiar, J.\n            ---------------------------\n            Crl.A.Nos.117 & 120 of 2002\n            ---------------------------\n\n                     JUDGMENT\n<\/pre>\n
    Accused 1, 3 and 4 in C.C.No.25\/1999 on the<\/p>\n
file of Special Judge (Vigilance), Thrissur are the<\/p>\n
appellants  in  Crl.A.No.120\/2002.  Second  accused<\/p>\n
therein is the appellant in Crl.A.No.117\/2002. All<\/p>\n
the accused were convicted and sentenced for the<\/p>\n
offences under Sections 13(1)(c) and 13(1)(d) read<\/p>\n
with Section 13(2) of Prevention of Corruption Act<\/p>\n
and Sections 409, 468, 471, 477A and 120B of Indian<\/p>\n
Penal Code. Charge against the appellants was that<\/p>\n
while first appellant was the President of the<\/p>\n
Panchayat, second appellant, Executive Officer and<\/p>\n
appellants 3 and 4, Ward members and they were<\/p>\n
functioning as the Convener and Members of the<\/p>\n
committee  formed  by   Vannappuram  Panchayat   to<\/p>\n
execute  work,  out  of  Rs.84,000\/-  received  for<\/p>\n
construction of a play ground at Pattayakkudy under<\/p>\n
Eleven Point Programme, pursuant to the conspiracy<\/p>\n
CRA 117&120\/02            2<\/span><\/p>\n
between them, they misappropriated Rs.30,564\/- and<\/p>\n
also forged documents and falsified the accounts<\/p>\n
and thereby committed the offences.\n<\/p>\n
     2.   All  the  accused   pleaded  not   guilty.<\/p>\n
Prosecution examined seventeen witnesses and marked<\/p>\n
thirty exhibits. Exhibits X1 and X2 were also<\/p>\n
marked. After closing the prosecution evidence,<\/p>\n
appellants were questioned under Section 313 of<\/p>\n
Code of Criminal Procedure. When they were called<\/p>\n
upon to adduce evidence, at their instance, a<\/p>\n
retired Engineer was appointed to assess the work<\/p>\n
executed. He submitted Exhibit X1 report. He was<\/p>\n
examined as DW1 on their side, apart from DWs 2 and<\/p>\n
3. Exhibit D1 statement was also marked.<\/p>\n
     3. On the evidence, learned Special Judge found<\/p>\n
all the accused guilty and convicted and sentenced<\/p>\n
them. Appellants would contend that learned Special<\/p>\n
Judge did not properly appreciate the evidence and<\/p>\n
though reliance was placed on the evidence of PWs<\/p>\n
1, 2 and 10, there is no evidence as to the exact<\/p>\n
CRA 117&120\/02             3<\/span><\/p>\n
quantum of work executed and there is also no<\/p>\n
evidence      to   prove   that  any   amount   was<\/p>\n
misappropriated. It was pointed out that Exhibit<\/p>\n
P18 file contains the relevant Government Orders<\/p>\n
which provide for execution of works under Eleven<\/p>\n
Point Programme by paying charges applicable to<\/p>\n
local areas and in such circumstances, based on<\/p>\n
1986 PWD Schedule, quantum of work should not have<\/p>\n
been   valued    or  assessed  and  based  on  that<\/p>\n
assessment, there cannot be a finding that the<\/p>\n
difference in the amount was misappropriated. It<\/p>\n
was     pointed     out   that   entire   case   of<\/p>\n
misappropriation was built up based on the fact<\/p>\n
that stones used for constructing the retaining<\/p>\n
wall were taken from the rocks which were blasted<\/p>\n
from the property, even though the estimate provide<\/p>\n
for    using    stones  brought  from  outside  for<\/p>\n
constructing the retaining wall providing separate<\/p>\n
rate for that work. It was also pointed out that<\/p>\n
when estimate provide for blasting of rocks of<\/p>\n
CRA 117&120\/02              4<\/span><\/p>\n
115m3,    PWs 1, 2 and 10 wrongly estimated the<\/p>\n
quantity     of  rocks  blasted  as  225.8m3 and   the<\/p>\n
subsequent estimate prepared for completing the<\/p>\n
balance work show that two rocks of the four rocks,<\/p>\n
shown in the original estimate, are yet to be<\/p>\n
blasted and therefore, the stones which could have<\/p>\n
been obtained by blasting the rocks would be less<\/p>\n
than 115m3 as originally assessed and therefore,<\/p>\n
based    on    the  assessment,   the  conviction   is<\/p>\n
unsustainable.\n<\/p>\n
     4. Learned Public Prosecutor pointed out that<\/p>\n
excluding the cost of construction of the Stadium,<\/p>\n
which   was    never  constructed,  the  estimate  was<\/p>\n
Rs.94,954\/-     and  Rs.84,000\/-   has  already   been<\/p>\n
admittedly     received  by  the  appellants.  It   is<\/p>\n
pointed    out  that  Exhibit   P18  file  shows  that<\/p>\n
balance work left by the appellants was estimated<\/p>\n
and the estimate of that work was Rs.40,000\/- and<\/p>\n
if  so,    the   total  amount  would  be  Rs.84,000\/-<\/p>\n
already spent plus Rs.40,000\/- to be spent for the<\/p>\n
CRA 117&120\/02            5<\/span><\/p>\n
remaining work and it far exceeds the estimate of<\/p>\n
Rs.94,954\/- and therefore, it is clear that there<\/p>\n
is misappropriation. Learned Public Prosecutor also<\/p>\n
pointed out that Exhibit P20 file, proved through<\/p>\n
PW10, shows that actual measurement of the rocks to<\/p>\n
be blasted was taken and noted as Item No.4 in the<\/p>\n
detailed estimate prepared at that time, seen at<\/p>\n
Page No.5 of the file and as per that estimate,<\/p>\n
there were four boulder stones, having a total<\/p>\n
measurement of 231m3 and though it was reduced to<\/p>\n
115m3, based on which final estimate was approved,<\/p>\n
evidence of PWs 1 and 10 establish that after<\/p>\n
appellants left the work, when the property was<\/p>\n
inspected to measure out the work executed, 60m3<\/p>\n
scattered blasted rocks were found after using the<\/p>\n
remaining part for constructing a portion of the<\/p>\n
retaining wall and from the measurement of the<\/p>\n
retaining     wall,  it is   clear  that  for   its<\/p>\n
construction,    stones obtained from  the  blasted<\/p>\n
rocks, namely, 225.8m3, were used and it correspond<\/p>\n
CRA 117&120\/02             6<\/span><\/p>\n
to the measurement of the rocks to be blasted as<\/p>\n
noted in Exhibit P20 and in such circumstances,<\/p>\n
cost of     the work executed, as assessed by PW10 by<\/p>\n
calculating the cost at 47.85\/m3 for the work of DR<\/p>\n
masonry for retaining wall, though PW3 assessed it<\/p>\n
at 211.15\/m3 on the presumption that work for the<\/p>\n
retaining wall was carried out using stones brought<\/p>\n
from outside, is correct and if so, it is clear<\/p>\n
that    the    work   actually  executed   was   only<\/p>\n
Rs.53,710\/- as assessed by PW1 and therefore, the<\/p>\n
finding     that  balance  out  of   Rs.84,000\/-  was<\/p>\n
misappropriated is perfectly correct.<\/p>\n
     5. Exhibit P3 is the file maintained by PWD<\/p>\n
regarding execution of the work, including the<\/p>\n
estimate, verification of execution of the work<\/p>\n
made on the request of the office bearers elected<\/p>\n
subsequently and the estimate of the cost of the<\/p>\n
work executed. Exhibit P19 is the file maintained<\/p>\n
by the Panchayat regarding the said work. Exhibit<\/p>\n
P20 is the file maintained by PWD showing the<\/p>\n
CRA 117&120\/02             7<\/span><\/p>\n
estimate     and  further assessment made  by   PW10<\/p>\n
regarding the said work. Exhibit P6 is the book<\/p>\n
issued to Assistant Engineer, Local Work Section,<\/p>\n
Thodupuzha,     wherein, details  of the  work  were<\/p>\n
noted. Exhibit P19 shows that based on Exhibit P19<\/p>\n
(f) resolution to construct a play ground in the<\/p>\n
property gifted by Kairali Arts and Sports Club to<\/p>\n
the   Panchayat    under Exhibit  P19(e)  agreement,<\/p>\n
Panchayat     decided  to construct a  play  ground.<\/p>\n
Exhibit      P19(a)   shows   that  on    28.12.1988<\/p>\n
administrative sanction was granted for carrying<\/p>\n
out the work at an estimated cost of Rs.1,10,000\/-.<\/p>\n
The estimate so approved provide for Rs.94,954\/-<\/p>\n
for site levelling, filling up and constructing<\/p>\n
retaining      wall   as  provided  in   Appendix-A,<\/p>\n
Rs.11,637\/- for construction of a stage as provided<\/p>\n
in Appendix-B, Rs.500\/- for excess cost of cement<\/p>\n
and Rs.2,909\/- for unforeseen items, thus, making a<\/p>\n
total of Rs.1,10,000\/-. Out of the works provided<\/p>\n
in Appendix-A, Rs.10,168\/- is for excavation in all<\/p>\n
CRA 117&120\/02             8<\/span><\/p>\n
classes of soil, except hard and medium rock, which<\/p>\n
require     blasting,  calculated at  the  rate   of<\/p>\n
Rs.184.87\/10m3 for 550m3. Second item is Rs.2,528\/-,<\/p>\n
being the cost of excavation in all classes of<\/p>\n
soil, except hard and medium rocks, which require<\/p>\n
blasting and using the spoil for filling under the<\/p>\n
basement at the rate of Rs.158\/10m3 for 160m3. Item<\/p>\n
No.3 is Rs.6,209\/- for blasting 115m3 hard rock<\/p>\n
(measured in solid), conveying blasted rock and<\/p>\n
stacking      for  measurements  at  the   rate   of<\/p>\n
Rs.539.99\/10m3. Fourth item is construction of D.R.<\/p>\n
masonry for retaining wall of 177m3, at the rate of<\/p>\n
Rs.211.16\/m3, namely Rs.37,375\/-. Fifth item is<\/p>\n
R.R. in C.M. 1:8 for the top course of retaining<\/p>\n
wall including painting the exposed faces, during<\/p>\n
the   course    of construction, namely Rs.5,447\/-,<\/p>\n
estimated at Rs.363.11\/m3 for 15m3. Sixth item is<\/p>\n
plastering C.M. 1:4 15mm thick one coat floated<\/p>\n
hard and trowelled smooth for top of retaining wall<\/p>\n
at  the    rate  of  Rs.194.50\/m2 for 50m2,  namely,<\/p>\n
CRA 117&120\/02              9<\/span><\/p>\n
Rs.973\/-. Seventh item is filling the low lying<\/p>\n
portion with contractors own earth and conveyed<\/p>\n
with   all    leads  and  lifts   involved,  including<\/p>\n
filling     to   profile   and   level  as   per   the<\/p>\n
instructions     of  departmental  officers  including<\/p>\n
consolidating by stone roller in 15cm layers etc.<\/p>\n
at  the    rate   of  Rs.47.85\/m3 for  150m3,  namely,<\/p>\n
Rs.7,178\/-.     Last item is bailing out water using 5<\/p>\n
HP  engine     and  pump  set  etc.  complete  as  per<\/p>\n
specification at the rate of Rs.153.63\/day for five<\/p>\n
days,   namely,    Rs.768\/-.  Thus,   Rs.94,954\/-  was<\/p>\n
worked out in the estimate.\n<\/p>\n
     6.   Exhibit    P18,  the   file  maintained   by<\/p>\n
Vannappuram Panchayat, shows the details of the<\/p>\n
works carried out under Eleven Point Programme.<\/p>\n
Decision of the District Panchayat dated 29.6.1988<\/p>\n
is seen at Page No.11. It shows the decision taken<\/p>\n
in the conference of Panchayat Inspectors held on<\/p>\n
19.5.1988.     Relevant   portion   of   the   minutes<\/p>\n
extracted     therein  provides  for  construction  of<\/p>\n
CRA 117&120\/02           10<\/span><\/p>\n
three or four play grounds in a Panchayat providing<\/p>\n
that each play ground must have an extent of not<\/p>\n
less than fifty cents and during that financial<\/p>\n
year,    at   least one  play  ground   should  be<\/p>\n
constructed by the Panchayat and work is to be<\/p>\n
executed under Eleven Point Programme. Page No.26<\/p>\n
of Exhibit P18 file shows Government Order (G.O.<\/p>\n
(Rt)No.3097\/88\/LAD.)  dated 16.9.1988  for   speedy<\/p>\n
execution of the work under Eleven Point Progamme.<\/p>\n
The Government order shows that Government ordered<\/p>\n
that in order to ensure speedy execution of the<\/p>\n
works under Eleven Point Programme and to achieve<\/p>\n
the targets in time, all Panchayats are permitted<\/p>\n
to execute construction works under Eleven Point<\/p>\n
Programme costing up to Rupees Two lakhs, directly<\/p>\n
by the Panchayat themselves without calling for<\/p>\n
tenders    and engaging Contractors. However,  the<\/p>\n
works   should   be executed under  the   technical<\/p>\n
guidance, advice and supervision of the Buildings<\/p>\n
and Local Works branch of Public Works Department.<\/p>\n
CRA 117&120\/02           11<\/span><\/p>\n
It further provides that Panchayat Committees may,<\/p>\n
if necessary, entrust execution of such works to<\/p>\n
Sub-committees of the Panchayats, consisting of the<\/p>\n
Panchayat President and at least two other members<\/p>\n
of the Panchayats, with the Panchayat Executive<\/p>\n
Officer as Convener, providing that the arrangement<\/p>\n
will remain in force till 31.3.1989. Page No.64 of<\/p>\n
Exhibit P18 file shows the subsequent Government<\/p>\n
Order (G.O.(Rt)No.4050\/88\/LAD.) dated 6.12.1988. By<\/p>\n
earlier      Government Order   dated    16.9.1988,<\/p>\n
Government ordered that while executing works under<\/p>\n
Eleven Point Programme directly by the Panchayats,<\/p>\n
cost of construction materials, transportation and<\/p>\n
labour will be paid at the rate prevailing in the<\/p>\n
local area. It shows that in the review meeting of<\/p>\n
the Eleven Point Programme held on 23.11.1988, the<\/p>\n
District Panchayat Officers have pointed out that<\/p>\n
the rates of materials, transportation and labour<\/p>\n
prevailing in the local area would be more than the<\/p>\n
rates provided in the estimate and the result would<\/p>\n
CRA 117&120\/02                   12<\/span><\/p>\n
be excess expenditure over the estimate. It also<\/p>\n
shows that Joint Director of Pancyats (Development)<\/p>\n
therefore requested in his note, which is read as<\/p>\n
third   paper    in    the    Government        Order,     that  in<\/p>\n
respect    of   the    works      under     the    Eleven     Point<\/p>\n
Programme ordered to be executed directly by the<\/p>\n
Panchayat     Committees\/Sub        Committees,        the   excess<\/p>\n
expenditure over the estimate may be sanctioned.<\/p>\n
Considering these aspects, Government Ordered that<\/p>\n
Government examined the proposal and are pleased to<\/p>\n
accept it. Accordingly Government Order (G.O.(Rt)<\/p>\n
No.3522\/88\/ LAD.) dated 22.10.1988 is modified as<\/p>\n
follows:\n<\/p>\n<\/p>\n
          “Excess expenditure over the estimate rates, if
\n          any, incurred by the Panchayat Committee\/Sub
\n          committee for the execution of works will be
\n          allowed on the basis of the valuation certificate
\n          given by the Engineer in charge of the works and
\n          on the request of the Panchayat. Such excess
\n          expenditure shall be sanctioned by the District
\n          Panchayat Officer.”\n<\/p><\/blockquote>\n
Page No.47 of Exhibit P18 file shows Government<\/p>\n
Order (G.O.(Rt)No.3522\/88\/LAD.) dated 22.10.1988,<\/p>\n
CRA 117&120\/02           13<\/span><\/p>\n
which was modified by Government Order (G.O.(Rt)No.<\/p>\n
4050\/88\/LAD.) dated 6.12.1988. G.O.(Rt)No.3522\/88\/<\/p>\n
LAD. shows that pursuant to G.O.(Rt)No.3097\/88\/<\/p>\n
LAD. dated 16.9.1988, Government issued further<\/p>\n
orders for successful execution of the works as<\/p>\n
contemplated in the said Government Order. Under<\/p>\n
the said Government Order, clause (vi) provides<\/p>\n
that   works   will  be  carried   out  under   the<\/p>\n
supervision of the Engineers of the Local Works<\/p>\n
Wing of P.W.D. and valuation of the works will be<\/p>\n
done by them reckoning the cost of materials and<\/p>\n
wages as per the directions in the Government<\/p>\n
Order. Peoples’ participation, if any, which shall<\/p>\n
necessarily be included in the actual cost of the<\/p>\n
works, will be shown separately. It is the said<\/p>\n
clause which was modified by G.O.(Rt)No.4050\/88\/<\/p>\n
LAD.   dated   6.12.1988,  providing  that   excess<\/p>\n
expenditure over the estimated rates incurred by<\/p>\n
the Panchayat consequent to the prevailing rates in<\/p>\n
the local area, which would be more than the<\/p>\n
CRA 117&120\/02           14<\/span><\/p>\n
estimated expenditure, is to be sanctioned by the<\/p>\n
District Panchayat Officer. Page No.34 of Exhibit<\/p>\n
P19 file shows that Deputy Secretary of Government<\/p>\n
informed the Panchayat President of Vannappuram<\/p>\n
Panchayat that the period for completing the works<\/p>\n
under Eleven Point Programme, though was 31.3.1989<\/p>\n
originally, was extended and the work could be<\/p>\n
executed without any time limit.\n<\/p>\n
     7.   Evidence of  PW1,   the  then   Assistant<\/p>\n
Executive Engineer and PW2, the then Executive<\/p>\n
Engineer and PW10, the then Assistant Engineer,<\/p>\n
establish that estimate was prepared based on the<\/p>\n
rates approved by PWD as prevailing in 1986. When<\/p>\n
Government Orders referred to earlier enable the<\/p>\n
Panchayat Committees\/Sub committees to pay wages at<\/p>\n
the rate prevailing in the local area, which would<\/p>\n
be in excess of the PWD rate, approved during the<\/p>\n
relevant period, based on the valuation of the<\/p>\n
works executed, calculating at the rate fixed by<\/p>\n
PWD during 1986, it cannot be found that the excess<\/p>\n
CRA 117&120\/02          15<\/span><\/p>\n
amount,     if  any, spent   was   misappropriated.<\/p>\n
Government Orders specifically provide not only for<\/p>\n
paying wages at the rate prevailing in the local<\/p>\n
area,    but   also approving   the   said   excess<\/p>\n
expenditure over the approved estimate. Therefore,<\/p>\n
based on the expenditure estimated at the PWD rate<\/p>\n
alone, it is not possible to find that there was<\/p>\n
misappropriation.\n<\/p>\n
     8. Learned Special Judge, on a petition filed<\/p>\n
by the defence, appointed DW1, a retired Engineer,<\/p>\n
to value the work and submit the report at the<\/p>\n
stage of defence evidence. DW1 estimated the cost<\/p>\n
of the work and submitted Exhibit X1 report. It is<\/p>\n
not known under what provision, learned Special<\/p>\n
Judge could appoint a commission, like DW1, to<\/p>\n
estimate the expenses for the work executed and<\/p>\n
direct the Commissioner to submit a report at the<\/p>\n
stage of defence evidence. The said order of the<\/p>\n
learned Special Judge is apparently beyond the<\/p>\n
scope of defence evidence provided under the Code<\/p>\n
CRA 117&120\/02           16<\/span><\/p>\n
of Criminal Procedure and therefore, evidence of<\/p>\n
DW1, based on his inspection and Exhibit X1 report,<\/p>\n
can only be ignored.\n<\/p>\n
     9. Learned Special Judge relied on the evidence<\/p>\n
of   PWs    1, 2 and   10  and  found  that  though<\/p>\n
Rs.84,000\/- was received by the appellants for<\/p>\n
execution of the work, as estimated by PWD, only<\/p>\n
Rs.53,710\/- was spent for execution of the work and<\/p>\n
therefore, there is misappropriation. Question is<\/p>\n
whether that estimate made by PWs 1, 2 and 10 could<\/p>\n
be accepted or not. Evidence of PW10 shows that in<\/p>\n
view of the request of the new office bearers of<\/p>\n
the Panchayat Committee, he estimated cost of the<\/p>\n
work executed and prepared a detailed valuation<\/p>\n
statement shown in Exhibit P3 file. As per the said<\/p>\n
assessment, total cost of the work executed is<\/p>\n
Rs.78,010\/-. Evidence of PW10 is that though the<\/p>\n
estimate was made by Assistant Executive Engineer,<\/p>\n
he was not examined. Evidence of PW2 shows that<\/p>\n
after   receipt  of  the  report  so  received,  he<\/p>\n
CRA 117&120\/02             17<\/span><\/p>\n
verified the details and reduced the amount to<\/p>\n
Rs.53,710\/-. Evidence of PW2 with Exhibit P3(d),<\/p>\n
the details of valuation, establish that though<\/p>\n
PW10 assessed the cost of D.R. masonry for the<\/p>\n
retaining     wall  of  265.44m3  at  the rate   of<\/p>\n
Rs.211.16\/m3, it was re-calculated at the rate of<\/p>\n
Rs.47.85\/m3,    finding  that rate  of Rs.211\/- is<\/p>\n
applicable only when the retaining wall is not<\/p>\n
constructed with the stones obtained from blasting<\/p>\n
the rocks and the stones used were obtained on<\/p>\n
blasting the rocks and hence, the rate provided in<\/p>\n
the   estimate,    namely  Rs.47.85, alone can   be<\/p>\n
calculated.    Thus,  Rs.56,050.31  was reduced  to<\/p>\n
Rs.12,701\/-. Similarly, filling with Contractors<\/p>\n
own earth and rubble, estimated at Rs.47.85\/m3 for<\/p>\n
1217.16m3 was modified to 1140.78m3, at the rate of<\/p>\n
Rs.270.09\/10m3. Thus, Rs.58,241.10 was reduced to<\/p>\n
Rs.30,811\/-. That modification was measurement of<\/p>\n
Item No.1 from 309.97m3 to 309.95m3 and rate from<\/p>\n
Rs.5,730.78 to Rs.5,730\/-, including the deduction<\/p>\n
CRA 117&120\/02            18<\/span><\/p>\n
at 1\/11, being the profit of the Contractor, which<\/p>\n
will not be available when the work is executed by<\/p>\n
the Panchayat Committee. Total cost was worked at<\/p>\n
Rs.56,858\/-.   Deducting   Rs.258\/-, calculated   at<\/p>\n
Rs.100\/10m3 of 225.8m3 of solid rocks and Rs.889.65,<\/p>\n
being the expenses for stacking charges, total<\/p>\n
amount of Rs.78,010\/- was reduced to Rs.53,710\/-.<\/p>\n
Entire deductions were made mainly based on the<\/p>\n
quantity of the stones obtained from blasting the<\/p>\n
rocks.\n<\/p>\n
     10. As stated earlier, the estimate provide<\/p>\n
for, as Item No.3, blasting four boulder stones,<\/p>\n
having a measurement of 115m3. The estimate also<\/p>\n
provide for construction of masonry retaining wall,<\/p>\n
using both departmental rubble and rubble taken<\/p>\n
from    outside.   When   the   rate  payable    for<\/p>\n
constructing the retaining wall using departmental<\/p>\n
rubble     is  Rs.47.85\/m3,  construction   of   the<\/p>\n
retaining wall using the rubble taken from outside<\/p>\n
is Rs.211.16\/m3. The estimate show that the stones,<\/p>\n
CRA 117&120\/02            19<\/span><\/p>\n
which were estimated as available by blasting the<\/p>\n
four boulder rocks was 115m3, which is shown as<\/p>\n
Item   No.3.    So,  Item No.4,  D.R.  masonry  for<\/p>\n
retaining wall is estimated at Rs.211.16\/m3     for<\/p>\n
177m3. As Column No.9, D.R. masonry for retaining<\/p>\n
wall using departmental rubble is estimated at<\/p>\n
Rs.47.85\/m3 for 150m3.   It is not explained at the<\/p>\n
time   of    evidence how this  150m3 stones  found<\/p>\n
available by blasting 115m3 boulder stones would<\/p>\n
become 225.8m3 of     stones. Though learned Public<\/p>\n
Prosecutor, relying on the relevant estimate seen<\/p>\n
in Page 5 of Exhibit P20, pointed out that total<\/p>\n
measurement of four boulder stones would be 231m3<\/p>\n
and therefore, the estimate made by PWs 1 and 2 is<\/p>\n
to   be   accepted,  Exhibit P20  shows  that  said<\/p>\n
estimate was not accepted and 231m3 measurement of<\/p>\n
four boulder stones was reduced to 115m3. Moreover,<\/p>\n
even if it is taken that 231m3 measurement taken<\/p>\n
was correct, it is the total of the measurements of<\/p>\n
four boulder stones shown therein, namely,    No.1-<\/p>\n
CRA 117&120\/02             20<\/span><\/p>\n
200m3,   No.2-10m3,   No.3-3m3  and No.4-18m3,  which<\/p>\n
together make 231m3. Exhibit P3(f), the estimate of<\/p>\n
the remaining work to be executed subsequently,<\/p>\n
shows   that    the  work  to  be completed  includes<\/p>\n
blasting of hard rocks of two boulder stones. First<\/p>\n
is having a measurement of 90m3 and the second 30m3,<\/p>\n
which together constitute 120m3. Therefore, even if<\/p>\n
it is taken that 231m3 rocks are to be blasted,<\/p>\n
Exhibit P3(f) shows that 120m3 still remained to be<\/p>\n
blasted. Therefore, the blasted quantity of rocks<\/p>\n
could only be 231m3 – 120m3 = 111m3. Evidence of PW1<\/p>\n
is that if rock is blasted, the stones available<\/p>\n
would be less than the quantity of the rock. True,<\/p>\n
evidence of PWs 2 and 10 is to the effect that<\/p>\n
blasting     the  rocks  available would be   50%  in<\/p>\n
excess. Even if that be so and 111m3 rock was<\/p>\n
blasted, the available stones would be round about<\/p>\n
150m3, as shown in the original estimate.    If that<\/p>\n
be so, estimate made by PWs 1 and 2 that 265.44m3<\/p>\n
stones used for D.R. masonry for retaining wall is<\/p>\n
CRA 117&120\/02          21<\/span><\/p>\n
the stones obtained by blasting the rocks cannot be<\/p>\n
accepted. If that be so, as estimated by PW10, the<\/p>\n
cost should be Rs.56,050\/-, instead of Rs.12,701\/-,<\/p>\n
as assessed by PWs 1 and 2. Similarly, evidence of<\/p>\n
PWs 1 and 2 show that measurement of filling with<\/p>\n
contractors own earth was reduced from 1217.16m3 to<\/p>\n
1140.78m3. Neither PW1 nor PW2 has given evidence<\/p>\n
as to how the said deduction was made. Though<\/p>\n
Exhibit     P20 file shows   some  calculation   by<\/p>\n
correction, it is not explained by any witness.<\/p>\n
Therefore, based on these deductions, it is not<\/p>\n
possible to hold that cost of D.R. masonry for<\/p>\n
retaining wall is less than what was estimated by<\/p>\n
PW10.\n<\/p>\n
     11. It is also to be borne in mind that no<\/p>\n
evidence was adduced by the prosecution as to how<\/p>\n
the quantum of the amount was worked out either in<\/p>\n
the original estimate or while calculating the work<\/p>\n
executed. As stated earlier, Government had given<\/p>\n
sanction for execution of the work by paying the<\/p>\n
CRA 117&120\/02            22<\/span><\/p>\n
charges available in the respective local areas.<\/p>\n
Government also authorised the District Panchayat<\/p>\n
Officers     to  approve  and sanction  the  excess<\/p>\n
expenditure so incurred. In the absence of any<\/p>\n
evidence as to the charge at which the estimate was<\/p>\n
prepared     or  for  fixing the  quantum  of  work<\/p>\n
executed, contention of the defence that the work<\/p>\n
should be valued at the rate available in the local<\/p>\n
area, which would exceed the PWD rate, cannot be<\/p>\n
rejected.     If so,  on  the evidence,  it is  not<\/p>\n
possible to hold that cost of the work executed by<\/p>\n
the Committee, consisting of appellants, was less<\/p>\n
than Rs.84,000\/-, received by them for execution of<\/p>\n
the work.\n<\/p>\n
     12. Though prosecution has a case that the<\/p>\n
wages paid and the receipts shown in the muster<\/p>\n
rolls are not correct and witnesses were examined,<\/p>\n
all those witnesses, except PW7, turned hostile to<\/p>\n
the prosecution. Even the evidence of PW7 would not<\/p>\n
establish     any forgery  or falsification of  the<\/p>\n
CRA 117&120\/02             23<\/span><\/p>\n
accounts. PW7 deposed that he is the son of Pappan.<\/p>\n
The witness was asked with regard to the entires in<\/p>\n
the muster rolls, evidencing the payment, showing<\/p>\n
the name of PW7. But, name of the father shown in<\/p>\n
the   same    is  Paru.  PW7  was not  asked  whether<\/p>\n
Kuttappan, son of Paru, shown therein, is himself.<\/p>\n
PW7 admitted his signature in one entry. There,<\/p>\n
father   is    shown  as  Pappan. Therefore,  in  the<\/p>\n
absence of any evidence that Kuttappan, son of<\/p>\n
Paru, is PW7, based on the evidence of PW7 that it<\/p>\n
is not his signature, it is not possible to hold<\/p>\n
that said Kuttappan was not engaged or did not work<\/p>\n
or    did     not   receive   any  wages.   In   such<\/p>\n
circumstances,     learned  Special  Judge  was   not<\/p>\n
justified     in   finding  either  that   appellants<\/p>\n
misappropriated the amount or forged the receipts<\/p>\n
or muster rolls or falsified the accounts or used<\/p>\n
the forged one as genuine. In any event, when there<\/p>\n
is definitely a doubt as to the exact quantum of<\/p>\n
the work executed, appellants are entitled to get<\/p>\n
CRA 117&120\/02             24<\/span><\/p>\n
at    least     the  benefit   of   doubt.   In  such<\/p>\n
circumstances, conviction of the appellants cannot<\/p>\n
be sustained.\n<\/p>\n
     Appeals     are  allowed.   Conviction   of  the<\/p>\n
appellants by Special Judge (Vigilance), Thrissur<\/p>\n
in C.C.No.25\/1999 and the sentence awarded are set<\/p>\n
aside. Appellants are found not guilty of the<\/p>\n
offences under Sections 13(1)(c) and 13(1)(d) read<\/p>\n
with Section 13(2) of Prevention of Corruption Act<\/p>\n
and Sections 409, 468, 471, 477A and 120B of Indian<\/p>\n
Penal Code. They are acquitted. Bail bonds executed<\/p>\n
by   them     stand  cancelled.  If  appellants   have<\/p>\n
deposited any amount as directed by this Court for<\/p>\n
suspending     the  sentence,  they are  entitled   to<\/p>\n
withdraw the same.<\/p>\n
\n\n\n24th January, 2011       (M.Sasidharan Nambiar, Judge)\ntkv\n\nCRA 117&120\/02     25\n\n\n\n\n                    M.Sasidharan Nambiar, J.\n\n                  ----------------------------\n\n                  Crl.A.Nos.117 & 120 of 2002\n\n                  ----------------------------\n\n                            JUDGMENT\n\n\n\n                       24th January, 2011\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court K.T.Joseph vs Superintendent Of Police on 24 January, 2011 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 117 of 2002() 1. K.T.JOSEPH, RTD. EXDECUTIVE OFFICER, … Petitioner Vs 1. SUPERINTENDENT OF POLICE, V.A. C.B., … Respondent 2. PUBLIC PROSECUTOR, For Petitioner :SRI.M.V.BOSE For Respondent : No Appearance The Hon’ble MR. Justice […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-76881","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK.T.Joseph vs Superintendent Of Police on 24 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-t-joseph-vs-superintendent-of-police-on-24-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.T.Joseph vs Superintendent Of Police on 24 January, 2011 - 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