BY AD vs SRI.C.P.SAJI

BY ADVS. SRI.C.P.SAJI AHALYA PRAKASH K.V. 4 Crl.Appeal Nos.2373, 2374 and 2377 of 2010 RESPONDENT/COMPLAINANT: STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SMT REKHA S, SR PUBLIC PROSECUTOR SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG) THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 19.03.2025, ALONG WITH CRL.A.2373/2010 AND CONNECTED CASES, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING: 5 Crl.Appeal Nos.2373, 2374 and 2377 of 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 CRL.APPEAL NO. 2377 OF 2010 AGAINST THE JUDGMENT DATED 15.11.2010 IN CC NO.113 OF 2008 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM APPELLANTS/1ST ACCUSED & ADDL.APPELLANT: 1 2* P.T.KARUPPAN (DIED)* (FORMER EXECUTIVE OFFICER, KARIMANNOR PANCHAYAT), S/O.THAMMI,VATTAKKATTIL HOUSE, KOLANGATHIKKARA, CHALLUSSERY,THRISSUR DISTRICT. KARTHIAYANI W/O. LATE P.T KARUPPAN , VATTAKATIL HOUSE KOLANGATTUKARA, CHOOLLISSERY ,THRISSUR DISTRICT. *IMPLEADED AS PER ORDER DATED 05.10.2023 IN CRL.M.A. 1/2023. BY ADVS. SRI.C.P.SAJI AHALYA PRAKASH K.V. 6 Crl.Appeal Nos.2373, 2374 and 2377 of 2010 RESPONDENT/COMPLAINANT: STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. SMT REKHA S, SR PUBLIC PROSECUTOR SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG) THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 19.03.2025, ALONG WITH CRL.A.2373/2010 AND CONNECTED CASES, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING: 7 Crl.Appeal Nos.2373, 2374 and 2377 of 2010 P.G. AJITHKUMAR, J. ----------------------------------------------------------- Crl.Appeal Nos.2373, 2374 and 2377 of 2010 ----------------------------------------------------------- Dated this the 28th day of March, 2025 JUDGMENT The appellant was the 1st accused in C.C.Nos.111 of 2008, 112 of 2008 and 113 of 2008 on the files of the Court of Enquiry Commissioner and Special Judge, Kottayam. The Special Court convicted him for the offences under Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and Sections 409 and 477A of the Indian Penal Code, 1860 (IPC) in all the cases. He was accordingly sentenced also. The common judgment rendered by the Special Court in that regard is under challenge in these appeals filed under Section 374(2) of Code of Criminal Procedure, 1973 (Code).

2. The appellant was the Executive Officer (rechristened as Secretary), Karimannoor Panchayat during 1992-1993. Alleging that he hatched a conspiracy with the other accused arraigned in the respective cases for committing 8 Crl.Appeal Nos.2373, 2374 and 2377 of 2010 misappropriation of money allocated for maintenance of various roads in the Panchayat and in furtherance of their conspiracy, various amounts were misappropriated in connection with maintenance work carried out to three roads in the Panchayat. Each of these cases relates to separate incidents. Details of the calendar cases corresponding to the appeals are tabulated below: Crl.Appeal No. C.C.No. Road Misappropriated amount 111/2008 Mannarathara- Kottakkavala Rs.27,937.90 112/2008 Unichikkavala- Mulappuram Rs.48,604.00 113/2008 Manakkappadam- Harijan Colony Rs.17,688.40

3. Sri.M.Gopala Pillai, who was the 3rd accused in C.C.No.112 of 2008 and 2nd accused in C.C.No.113 of 2008 expired before commencement of the trial. When charges were framed and read over, the appellant and the other co-accused denied. At the common trial, PWs.1 to 15 were examined and Exts.P1 to P74 besides Exts.X1 and X1(a) were marked on the side of the prosecution. The accused were questioned under Section 313(1)(b) of the Code. He denied the incriminating circumstances appeared against him in 9 Crl.Appeal Nos.2373, 2374 and 2377 of 2010 evidence. The appellant filed a statement. He maintained that the respective works were carried out under the supervision of Engineers, who were responsible for the same and also to make good loss, if any, occasioned to the Panchayat in relation to the works. The Engineers measured the works and certified. Based on such measurement and certification, amounts were released. The appellant did not have any technical knowledge in the matter. When the Engineers certified satisfactory execution of the works, who were duly paid remuneration, the appellant cannot be held responsible. Accordingly, he maintained that he was innocent and falsely implicated in these cases. Although no document was produced, DW1 was examined on the side of the appellant. The Special Court, after considering the evidence on record, found the appellant alone guilty and convicted him. The findings of the Special Court leading to his conviction are assailed in these appeals.

4. The appellant expired. His wife got impleaded as additional 2nd appellant. Crl.Appeal Nos.2373, 2374 and 2377 of 2010 10

5. Heard the learned counsel for the appellant, the learned Special Public Prosecutor (Vigilance) and the learned Senior Public Prosecutor.

6. The appellant was the Secretary of Karimannoor Panchayat during the relevant period. That fact is not disputed. In order to prosecute him, sanction under Section 19(1) of the PC Act has been accorded. Ext.P72 is the order of sanction. The fact that he entered into agreements with the 2nd/3rd accused in regard to the execution of the road works in question, and he disbursed the estimated amount are also not in dispute. The allegation of the prosecution is that although the maintenance work of all the three roads were carried out, the quantum of work was much less than the estimated cost. The case of the prosecution is that the excess amounts in that regard were misappropriated by the appellant. Although it was alleged that the appellant in connivance with the Engineers, who were put in charge of supervision of the works, did the misappropriation, the Special Court found that the role of the Engineers was not established. They were thus acquitted. The Crl.Appeal Nos.2373, 2374 and 2377 of 2010 11 details of the roads, amount misappropriated and relevant documents are tabulated below: Crl.Appeal No. C.C.No. Road Misappropriate d amount Agreements (Exhibits) Agreement between 111/2008 Mannarathara- Rs.27,937.90 P32(b) A1 & A2 Kottakkavala 112/2008 Unichikkavala- Rs.48,604.00 P33(k) A1 & A3 Mulappuram 113/2008 Manakkappadam- Rs.17,688.40 P34(a) A1 & A2 Harijan Colony

7. Estimates for the maintenance work of the aforementioned three roads were got prepared through the expert Engineers, who are arraigned as accused in these cases. The aforementioned estimates were considered by the Panchayat Committee. Ext.P40 is the minutes book of the Panchayat. Respective decisions of the committee to carry out work of the aforesaid three roads are proved by PW5, who was a U.D.Clerk in the Panchayat. The Panchayat Committee further decided to entrust with the appellant the responsibility of executing the work and with the respective Engineers to supervise and certify completion of the works. Exts.P32(b), P33(k) and P34(a) are the agreements concerned. Crl.Appeal Nos.2373, 2374 and 2377 of 2010 12

8. PW2 is the complainant. He raised a general allegation that the works in question were done not as stipulated in the estimate and there was under-expenditure. In the investigation, it was concluded that the allegations were proved. PW1 and PW8, who were the contractors for supply of materials for the work, were cited to prove non supply of the requisite quantity of materials and that the works were not carried out in terms of the estimate. These witnesses, however, did not support the prosecution case. They stated that they supplied materials by resiling from their statements before police. PW10 even stated that a part of the amount he received towards the cost of the materials was remitted back since he could not supply materials corresponding to that amount in time. Ext. X1 and X1(a) are the documents evidencing such repayment.

9. The prosecution wanted also to prove that the measurements recorded in the respective M-Books were not accurate. In order to prove that fact and also the deficiencies in the work, a report was called for from PW4. He was an Crl.Appeal Nos.2373, 2374 and 2377 of 2010 13 Assistant Executive Engineer in the Public Works Department (PWD). He, after inspecting the respective roads with reference to the M-Books, prepared Exts.P37, P38 and P39 reports. He quantified the quantum of the work carried out in each of the roads. After assessing the value of such works, the difference from the estimated amounts has been projected as the amount misappropriated. Thus, the prosecution essentially based on the evidence of PW4 and Exts.P37, P38 and P39 to prove that the appellant had misappropriated the amounts alleged in the charge.

10. Going by the case of the prosecution, PWs.1 and 8 received amounts for supply of materials, but they did not supply any such materials. In their name, documents were prepared and the amounts were misappropriated by the appellant. However, for proving that allegation, there is no evidence inasmuch as PWs.1 and 8 did not support the case of the prosecution. While examining in court, they maintained that they had supplied materials and carried out the works in terms of the quotation and received money towards the cost Crl.Appeal Nos.2373, 2374 and 2377 of 2010 14 of such materials and work. Their evidence is not therefore available in order to prove the charge against the appellant.

11. The Special Court after considering the evidence of PWs.1 and 8 in detail held that they were not speaking truth in court. When they deposed against the case of the prosecution by resiling from their statements under Section 161 of the Code, it may be able to say that they were not speaking truth in court. However, their evidence cannot totally be ignored. It is to be noted that the documents produced by the prosecution, particularly, Exts.P41 to 58, which are cheques for making payment to the said witnesses, show that they actually received the amount in respect of the road works in question. Various receipts issued by them are also available on record. They deposed in court that they had supplied materials and carried out the work. When the said version of these witnesses is supported by the documents produced by the prosecution, their evidence cannot simply be brushed aside saying that they resiled from the statement given in police. Crl.Appeal Nos.2373, 2374 and 2377 of 2010 15

12. The prosecution has no case that work of the three roads in question were not carried out. Respective M- Books, Exts.P35 and P36, carry the measurements of the works. Of course, the entries therein are said to be incorrect. The actual quantum of work done is said to be as assessed by PW4 in Exts.P37, P38 and P39. PW4 examined the roads after elapsing more than a year after completion of the work. On account of such a delay, the possibility of soil erosion and causing changes to the exact measurement, particularly of the mud roads, cannot be ruled out. All the same, even on accepting the entire evidence of PW4 as true and reliable, can the appellant be convicted based on that evidence?

13. Going by the case of the prosecution, each of the said three works was to be carried out under the supervision of the expert Engineer, who also had prepared the estimate. They are retired Engineers. They, being the experts in the field, were engaged not only to prepare the estimate, but also to supervise the works. Crl.Appeal Nos.2373, 2374 and 2377 of 2010 16

14. Of course, they, accused Nos.2 and 3 in C.C.Nos.111 of 2008 and 112 of 2008 and accused No.3 in C.C.No.113 of 2008 denied having any role in the execution of the works. The Special Court gave undue emphasis to the said denial. One of the reasons which impelled the Special Court to cast entire responsibility on the appellant is that the role of Engineers was not duly proved and they denied having any involvement in the work. It may be noted that PW5, a staff member in the Panchayat, deposed before the court that the agreements, Exts.P32(b), P33(k) and P34(a) were executed in his presence. Of course, he could not identify the accused Sri.Krishnan Marar before the court. The other Engineer Sri.Gopala Pillai was no more. The failure of PW5 to identify Sri.Krishnan Marar before the court cannot have the effect of discarding his evidence concerning execution of the agreements. Not only in the agreements, but in the M-Books also, the Engineers subscribed indicating that they have supervised and certified the works. The Special Court took the view that the engineers would have signed the M-Books Crl.Appeal Nos.2373, 2374 and 2377 of 2010 17 inadvertently. Such an inference is against the evidence on record, particularly of the oral testimony of PW5 and the aforementioned agreements. In the absence of concrete evidence to prove that the Engineers did not have any role in execution of the work and certification of completion, such an inference is not possible. The clauses contained in the respective agreements that the responsibility for ensuring due completion of the work would be that of the Engineers derive much importance in that context. In such a state of affairs, the finding of the Special Court that the Engineers had no liability in the defects or deficiency in the works definitely has an adverse effect on the prosecution against the appellant.

15. As stated, evidence of PWs.1 and 8 makes it probable that they supplied materials and carried out the works and also they received the cost. As pointed out above, due execution of the work has been certified by the respective Engineers in the M-Book. When they are the persons held responsible as per the agreements and the works were seen executed, the only evidence, which can be relied upon by the Crl.Appeal Nos.2373, 2374 and 2377 of 2010 18 prosecution to prove the allegations against the appellant is the reports of PW4.

16. What PW4 noticed during his inspection and deposed in the court can be termed as primary evidence. But, that part of his reports, which refers to the quality of the work and sufficiency of the materials used, is based on the impression he gathered from the data he collected. That part of his report can have the value of an opinion and not of his oral evidence. The prosecution has to depend essentially upon the opinion part of the evidence tendered by PW4 to prove the charge. The same, however, cannot be a substitute for the substantive evidence. An opinion has to be considered in the light of the other evidence and if the opinion goes in tandem to the substantive evidence brought on record, the court can conclude that the fact in question has been proved. But when opinion alone is available regarding a particular disputed fact, the court is disabled from entering a finding that the fact has been proved, especially in a criminal prosecution. Crl.Appeal Nos.2373, 2374 and 2377 of 2010 19

17. The prosecution could not bring in any evidence regarding inadequate use of materials for the road works. Whereas, the evidence of PWs.1 and 8, to a certain extent, proves otherwise. The fact that PW8 repaid Rs.5,644/- as the unspent part of the amount of materials he received from the Panchayat renders confidence to his evidence. In such circumstances, the opinion of PW4 alone is insufficient to establish that sufficient materials were not used to carry out the works and the stipulated volume of work was not done.

18. As pointed out above, the respective Engineers have the responsibility of ensuring due performance of the work. But they were absolved from criminal liability for want of evidence. The appellant, being the Secretary of the Panchayat, need not have technical know-how about the road works. True, he was empowered by the Panchayat Committee to execute the road works. All the same, his responsibility cannot be viewed in isolation of the role assigned to the Engineers as per the written agreements. Hence, the lapse on the part of the appellant in the execution of the work can be Crl.Appeal Nos.2373, 2374 and 2377 of 2010 20 termed as a procedural lapse alone. Unless the prosecution is able to show that the appellant had obtained pecuniary advantage for himself or any other person, he cannot be held responsible for an offence under Section 13(1)(d) of the PC Act.

19. In C.Chenga Reddy v. State of A.P. [(1996) 10 SCC 193] the contract was awarded in violation of the regulations. It was considered whether in the absence of circumstances sufficient to prove the guilt of criminal misconduct could there be a conviction. The following observations are relevant: “22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their Crl.Appeal Nos.2373, 2374 and 2377 of 2010 21 innocence. In Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu), [1980] 3 SCC 110, under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the concerned officials and contractors, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. xx xx”

20. The said view was reiterated by the Apex Court in C.K.Jaffer Sharief v. State (through CBI) [(2013) 1 SCC 205]. Unless the prosecution is able to establish that the accused has obtained some material thing or pecuniary advantage as a sequel to the misconduct by misusing his official position, a conviction for the offence under Section 13(1)(d) of the PC Act is not possible. The same principle is applicable to the offence under Section 420 of the IPC as well.

21. As held by the Apex Court in Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Crl.Appeal Nos.2373, 2374 and 2377 of 2010 22 Diu) [(1980) 3 SCC 110], a suspicion, however strong, is not enough to convict an accused. It was held: “24. Learned counsel for the State sought to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as items (a) to (e) in paragraph 9 and items (i) and (iii) in paragraph 10 of this judgment. Those findings were affirmed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be restated here, that they were correctly arrived at. But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant Rules of the G.F.R. and even of ordinary norms of procedural behaviour of Government officials and contractors in the matter of execution of works undertaken by the Government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.”

22. The findings of the Special Court are to the effect that in the light of the evidence tendered by the prosecution, the probability was in favour of the appellant’s misappropriating the amounts corresponding to the short- supply of the materials and less work executed. It is thus seen Crl.Appeal Nos.2373, 2374 and 2377 of 2010 23 that the findings of guilt rendered by the Special Court are not based on proven facts, but on inferences. The conviction of the appellant therefore cannot be sustained. Accordingly, the conviction of the appellant in these cases are set aside. On reversing the impugned common judgment of the Court of Enquiry Commissioner and Special Judge, Kottayam, the appellant is acquitted in C.C.Nos.111 of 2008, 112 of 2008 and 113 of 2008. The appeals are allowed. Sd/- P.G. AJITHKUMAR, JUDGE