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Judgment
A.K. Rajan, J.—C.A.Nos.115 and 141 of 1992 are appeals against conviction. C.A.No.332 of 1993 is the appeal against acquittal of A.4.
Initially, 34 accused were charged u/s 5(2) read with 5(1)(d) of the Prevention of Corruption Act and 120-B, 109, 467, 477-A I.P.C. To
prove the charges, prosecution examined P.Ws.1 to 108, Exs.P.1 to P.886 and M.Os.1 to 24 were marked. On the side of the defence, Exs.D.1
to D.9 were marked. After considering the evidence on record, the Additional Chief Judicial Magistrate and Special Judge acquitted 19 accused;
15 accused were convicted. All the convicted persons have filed appeal challenging their conviction.
C.A.No.115 of 1992 has been filed by A.2, A.3 and A.5; C.A.No.116 of 1992 has been filed by A.18; C.A.141 of 1992 has been filed by
A.12 to A.17 and A.19 to A.22; C.A.142 of 1992 has been filed by A.1; the State filed C.A.No.332 of 1992 against the acquittal of A.4.
Pending appeal, A.1 and A.18 died; Therefore, C.A.No.142 of 1992 and C.A.No.116 of 1992 abated. A.22 is also dead, hence C.A.141 of
1992, in so far as the appeal filed by him, abates.
The facts of the case in brief is as follows:-
(i) A.1 was the Divisional Engineer, Highways Department, Kanyakumari; A.2 was the Assistant Engineer (Rural Roads); A.3, A.4 were the
Junior Engineers; A.5 was the Section Officer, A.6 was the Divisional Accountant in Rural works Division;/ A.7 was the Assistant in the Special
Division (Rural Roads), Thakkalai; A.8 was the draughtsman in the Divisional Office, Highways; A.9 and A.10 were the draughtsmen; A.11 was
the Assistant; A.12 to A.34 were the contractors.
ii) As per G.O.1212, dated 17.6.1972, an amount of Rs.28.39 lakhs was sanctioned for laying certain new road and improving certain roads. A.4
joined duty in the Special Division on 12.7.1972 and he was relieved on 18.4.1973. In the meanwhile, on 23.3.1973, to conduct a preliminary
enquiry, an order was passed by D.V.A.C. Thereafter, on 24.4.1973, a detailed enquiry was ordered. The detailed enquiry was conducted by
B.D.Jayaraman; he filed a report. Based on that, a complaint was registered on 27.11.1974; thereafter, investigation proceeded; for the purpose
of aiding in the investigation, D.V.A.C. requested the Chief Engineer to depute some officers for conducting checks; Accordingly, P.W.81 was
deputed. He took nearly 200 samples from various places between 22.3.1975 and 1.5.1976. They were sent to Highways Research Station for
testing; Test Report was received on 14.2.1977 from the Highways Research Station. After obtaining sanction, the prosecution was launched. In
all about, 131 charges were framed.
(iii) After trial, the trial Court
(a) acquitted all the accused of the charge u/s 120-B I.P.C.
(b) A.2 was found guilty of charges-2, 16, 20, 28, 32, 44, 48, 66, 70, 78, 82, 96 and 100 and was convicted u/s 5(1)(d) read with 5(2)(d) of the
Prevention of Corruption Act and was sentenced to undergo 2 years R.I. and imposed a fine of Rs.100/-; A.2 was also found guilty of the charge
Nos.30, 34, 38, 42, 46, 50, 80, 84 and 102, convicted for the offence u/s 477-A I.P.C. and was sentenced to undergo one year R.I.
(c) A.3 was found guilty of the charge Nos.2, 28, 32, 78 and 82, and convicted u/s 5(2) read with 5(1)(d) and sentenced him to undergo two
years R.I. and a fine of Rs.500/-; further, he was also found guilty of the charge Nos.30, 34, 38, 42, 80 and 84 and convicted u/s 477-A I.P.C.
and was sentenced to undergo one year R.I.
(d) A.5 was found guilty of the charge Nos.16, 20, 44, 48, 66, 70 and 100, convicted u/s 5(2) read with Section 5(1)(d) of the Prevention of
Corruption Act and was sentenced to two years R.I. and was imposed a fine of Rs.100/-; he was also found guilty of the charge Nos.46, 50 and
102, convicted u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and 477-A (three counts) I.P.C. and sentenced to one year
R.I.
(e) A.12 to A.22 were found guilty, convicted u/s 5(1)(d) read with 5(2) of the Prevention of Corruption Act and 109 and 477-A I.P.C. and were
sentenced to two years R.I. and were imposed a fine of Rs.100/-.
(f) Accused-4, 6 to 11, 23 to 29, 31 to 34 were found not guilty and were released.
The construction was done in the year 1972; the samples were taken between 22.3.1975 and 27.6.1975. These samples were sent for
chemical analysis; P.W.86, Research Assistant (Concrete), Highways Department, Guindy tested the cement content and sent his report,
Ex.P.628; He has spoken about the details as to how the test was conducted. He followed A.S.D.M. method for analysis. He has stated that he
would take representative samples for analysis and after analysis, he sent the report, Ex.P.628.
Criminal Appeal No.115 of 1992:
The counsel for the appellant submits that the construction work was done in the year 1972 and the samples were taken in 1975 and 1976; 3 to
3 1/2 years after construction. The quality of the sample would definitely vary and that would not conform to the standard; Even P.W.86 has
admitted this in the cross-examination. Therefore, the Test Report of the samples which were taken after 31/2 years cannot be the basis to arrive
at a conclusion that the construction was not done in accordance with the standards prescribed. Further, the counsel for the appellant submits that
the samples were taken only with the help of coolies using pickaxe, etc. Therefore, the result of test of such samples would not reflect the real
standard of construction. Therefore, on this ground also the conclusion arrived at by the trial Court finding the accused guilty is not sustainable. The
counsel submitted that the witness, P.W.86 has stated that under such circumstances, the entire block should be removed as a whole and should
be sent for analysis. Therefore, the counsel submitted that only when samples were taken in that manner, the test will reflect the real condition.
P.W.1 in his evidence has stated that the Departmental Manual does not specify the method of taking samples. Therefore, it cannot be faulted
merely because the samples were taken by coolies. The samples taken at various places were not used as such for testing. P.W.6 in his evidence
has stated, ""from the samples received for analysis, we will take representative samples"". Representative samples means the samples which would
be fit for analysis or which can be tested to find out the real combination. When the expert conducts a test, it should be presumed that he has taken
all precautions before testing a particular sample.
Therefore, taking of representative sample means and implies that the analyst had taken that portion of mortar that will represent the mortar used
for building the walls. Therefore, merely because coolies or unskilled labourers were used to take samples, it cannot be said that the test result will
not reflect the correct situation. Therefore, this argument of the counsel for the appellant is rejected.
Though number of charges were framed even with respect to laying of roads etc., the conviction is only on the basis of the test report of the
samples taken from the parapet walls constructed using random rubbles. The trial Court has convicted the accused only as it found the cement
mortar used for the construction did not satisfy the standards. With respect to other charges in respect of laying of roads etc., they were not found
against any of the accused; also there is no appeal against such acquittal.
The counsel for the appellant submitted that in so far as the charge u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act
against A.2 and A.3 only, Charge Nos.2 and 28 are framed; The samples were taken on 5.3.1976, that is after three and 3 1/4 years. The
corresponding ""M"" books are Exs.P.91 and 101; The estimate of loss was prepared in Ex.P.620 by P.Ws.81 and 83 who were staff members of
the Vigilance and Anti-Corruption Department, during the period when they prepared these estimates; therefore, Ex.P.620 is hit by Section 162
Cr.P.C., as they are also part of the investigation and therefore, that report cannot be relied upon to prove the charges against the accused;
Further, as admitted by P.W.81 that this report was not based upon Ex.P.628; that is the estimate of loss arrived at in Ex.P.620 is not based upon
the Analyst Report; therefore, Ex.P.620 cannot be relied upon. In support of his argument, the counsel relied upon the decision of the Supreme
Court in C. Chenga Reddy and Others Vs. State of Andhra Pradesh, . The Supreme Court held in that case, as follows:
This report is the sheet anchor of the prosecution case, but in our opinion, it could not have been relied upon as it was clearly inadmissible in
evidence and the opinion of the High Court to the contrary is not acceptable. P.W.12 Shri K.Ram Mohan Rao was serving in the Irrigation
Department when he was entrusted with the task of assisting the investigating officer of ACB during the investigation in this case. Perusal of
Ex.P.32 shows that he had been issued specific orders to report to the ACB and assist the investigating agency. He prepared his report Ex.P.12
during the course of the investigation and submitted it to P.W.19, the investigating officer on 30th June, 1984 after the FIR in this case. Ex.P.24,
was registered by P.W.19 on 17.5.1982. P.W.12 was examined by the investigating officer after he had submitted the report and his report, forms
a part of his statement recorded by ACB u/s 161 Cr.P.C. Under these circumstances, the observations contained in report Ex.P.11, which
technically and factually form a part of the statement of P.W.12, recorded during the investigation of the case by P.W.19 is, hit by Section 162
Cr.P.C.
The counsel also relied upon the decision in State of Himachal Pradesh Vs. Jai Lal and Others, where the Supreme Court has held that expert
evidence must show that the expert has skill and adequate knowledge of the subject. The Supreme Court has held,
An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the
necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the
application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested
becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness
depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.
Ex.P.620 is a report prepared by the person who was a member of D.V.A.C. He was an engineer in Highways Department; his services were
deputed to D.V.A.C. After preparing the Report, Ex.P.620, he was examined by Investigating Officer. The Supreme Court in the very same
paragraph has further held as follows:
No statement made by any person to a police officer during the course of investigation can be used for any purpose at any enquiry or trial in
respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting a witness as
provided u/s 145 of the Evidence Act. Admittedly, Ex.P.11 has not been used for any of the purposes envisaged by Section 145 of the Evidence
Act, but as a substantive piece of evidence. The opinion of the Courts below that the statement contained in Ex.P.11 was not hit by Section 162
Cr.P.C. on the ground that P.W.12 was an expert within the meaning of Section 45 of the Evidence Act and his report Ex.P.11 submitted to the
investigating officer was as such not hit by Section 162 Cr.P.C. is clearly erroneous as P.W.12 does not qualify as an expert within the meaning of
Section 45 of the Evidence Act. Even in his own deposition,he has nowhere stated about his technical ""qualifications, ""expertise"" or ""experience"" in
this particular field to render ""expert opinion"". There is no material on the record to show that P.W.12 possessed any particular skill which entitled
him to ""draw conclusions"" relevant to the matter entrusted to him by the investigating officer. We are, therefore, of the opinion that P.W.12 is not
an ""expert"" within the meaning of Section 45 Evidence Act and Ex.P.11 was hit by the bar of Section 162 Cr.P.C. and was inadmissible in
evidence and could not have been relied upon in the criminal trial to fasten criminal liability on the appellants.
From the above passage, it is clear, there was no material on record to show that that witness possessed any particular skill which entitled him to
draw conclusion relevant to matters entrusted to him. Therefore, it held, he was not an expert within the meaning of Section 45 of the Evidence
Act. But in the present case, P.W.81 was deputed to the D.V.A.C. only on the reason that he was an expert in that field where they wanted the
expert''s opinion in order to arrive at certain conclusions. Further, in the case before the Supreme Court, there was no material on record to show
that he possessed any particular skill to call him as an expert. But, in the present case, P.W.81 has stated that he was an expert in that field, as he
was holding the post of Divisional Engineer, Highways. Therefore, the evidence of P.W.81 will fall squarely within the definition of Section 45 of
the Evidence Act. Though P.W.81 has answered to some of the questions put in the cross-examination which may not be correct, yet such
answers are not on vital aspects. His evidence on important aspects is very clear and therefore, he is in the status of an expert witness. Therefore,
his evidence as well as his report, Ex.P.620 is not hit by Section 162 Cr.P.C. Therefore, the reliance placed on this report by the trial Court is not
illegal. Therefore, the estimate of loss given in Ex.P.620 is admissible in evidence. Further, P.W.81 has also stated that his estimate of loss is not
based only on Ex.P.628, the Analysis Report. The counsel for the accused submitted that since the work sheet accompanying the report, Ex.P.628
was not available in Court, they were greatly prejudiced while cross-examining that witness. Inasmuch as P.W.81 has stated that his report is not
based on Ex.P.628, the non-availability of the worksheet of the analysis will not affect the case. Even otherwise, the worksheet would be used for
the purpose of pointing out mistakes in calculations, if had been committed by the Analyst while arriving at the conclusions. A perusal of Ex.P.628
would show that even if he had erred in arriving at certain calculations, it may at the most be only marginal in the ultimate conclusion of finding the
proportion of cement used in which case at the most it can be said that is the actual amount of loss.
Against A.2 and A.5, Charge No.16 was held to be proved based on the ""M"" Book-883-A, Ex.P.171; Charge No.20 was held to be proved
based on ""M"" Book, Ex.P.113; Against A.2 and A.3, Charge No.32 was found proved based on Ex.P.114 (""M"" Book); in all these cases, the
samples were taken after 3 1/2 years. Against A.2 and A.5, Charge No.44 was held to be proved based on Ex.P.104, the ""M"" Book; and Charge
Nos.44 and 48 were held to be proved on the basis of Ex.P.179; Charge No.66 were found guilty of Charge No.78. All these charges relate to
offence u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. The counsel appearing for the accused contended that Ex.P.620 is
inadmissible and hence, there is no evidence to prove the exact loss sustained by the department. This argument is acceptable. To find out the
exact amount of loss, there is no evidence before the Court. But, the report, Ex.P.628 proves that the cement mortar did not conform to the
standard prescribed instead of 1:6 what was used was 1:11 to 1:19. From this, it is proved that loss has been caused to the department, the actual
amount of loss sustained may not be correctly arrived at, yet the fact that the State incurred loss is proved by Ex.P.628, Analyst Report which
proves that lesser percentage of cement was used. To hold that an offence u/s 5(2) read with 5(1)(d) of the Prevention of Corruption Act, it is not
mandatory to prove the actual amount of loss. Proof of actual loss or gain in not sine qua non, in case of offence u/s 5(2) read with 5(1)(d) of the
Act. Therefore, from Ex.P.628, it is proved that the department has sustained loss.
The counsel for the accused submitted that to prove an offence u/s under Section 5(1)(d), it is necessary to prove that the accused had
dishonest intention while he has committed the alleged act. In support of this proposition, the counsel relied upon the judgment in M. Narayanan
Nambiar Vs. State of Kerala, , the Supreme Court has held,
''Abuse'' means mis-use, i.e., using his position for something for which it is intended. That abuse may be by corrupt or illegal means or otherwise
than those means. The word, ''otherwise'' has wide connotation and if no limitation is placed on it, the words, ''corrupt'', ''illegal'', and ''otherwise''
mentioned in the clause become surplusage, for that construction every abuse of position is gathered by the clause. So some limitation will have to
be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say,
something savouring of dishonest act on his part. ..............
The juxtaposition of the word, ""otherwise"" with the words, ""corrupt or illegal means"" and the dishonesty implicit in the word, ""abuse"" indicate the
necessity for a dishonest intention on his part to bring him within the meaning of the clause.
He further relied on the case, Major S.K. KALE Vs. State of Maharashtra, , wherein it was held,
The abuse of position must necessarily be dishonest, so that it may be proved that the appellant caused deliberately wrongful loss to the Army by
obtaining pecuniary benefit for P.W.2.
The same view was followed in S.P. Bhatnagar Vs. State of Maharashtra, , the Head Note of which is as follows:
The abuse of position in order to come within the mischief of S. 5(1)(d) must necessarily be dishonest so that it may be proved that the accused
caused deliberate loss to the department. It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing
his position obtained any pecuniary advantage for some other person.
Therefore, to hold that the accused are guilty of the offence u/s 5(1)(d), the prosecution must prove the dishonest intention on the part of the
accused while discharging their dues, viz., while recording these, ""M"" books. But, there is no evidence to show that these entries were made in the
M"" books with such dishonest intention. Therefore, there is no evidence that the accused have done this act with dishonest intention and therefore,
the lower Court is not correct in holding that the offence u/s 5(1)(d) had been made out.
The learned counsel for the appellant further submitted that mere entries made in the ""M"" books or that the fact that the work was executed in
flagrant disregard of the relevant rules, the said disregard did not amount to any of the offence u/s 5(1)(d) of the Act. In support of his contention,
the learned counsel referred to the judgment of the Supreme Court in Abdulla Md. v. State (Union Territory of Goa) , wherein it has been held,
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.
Relying upon these decisions, the counsel submitted that beyond proving the fact that these entries were made in ""M"" books, no evidence is on
record to prove that it was done with dishonest intention. Therefore, the finding of the trial Court is liable to set aside on this ground also. As per
the rules, the Work Inspectors shall be at the spot where the work is executed. P.Ws.33, 37, 40 were all Road Inspectors attached to these
projects. They have stated in their evidence that they were not allowed to go to the spot when the work was in progress and they were given work
in the office of the accused-2 to 5. They have also stated that they were asked to certify that the work was done properly. Only based upon this
report given by the Road Inspectors, the ""M"" books have been entered by A.1 to A.4. The fact that the Road Inspectors were not permitted by
these accused who had the responsibility and authority to depute them to supervise the work while in progress proves the dishonest state of mind
on the part of the accused. It is not mere entry in ""M"" books disregard of the rules, but something more than that; it is the deliberate act not to find
out the defects, if any, during the execution of the work. Therefore, the evidence available on record satisfies the test laid down by the Supreme
Court in the above decisions. The report Ex.P.628 proves that the cement mortar did not conform to the standard prescribed, but lesser per
percentage cement was used, definitely, a loss has been caused to the department though not the amount of loss may not be correctly arrived at,
yet the factum that the State incurred loss can be arrived at. Therefore, the estimate, Ex.P.620 though cannot be taken in its entirety, still it shall be
taken that a loss has been sustained in view of the fact that Ex.P.628, Analyst Report proves that lesser percentage of cement was used.
The mere fact that P.Ws.81 and 83 serving in the Vigilance and Anti-corruption Department during a certain period or during the period when
the matter was being enquired by the department, it does not in any way hit by the provisions of Section 162 Cr.P.C. They have prepared this
estimate as an expert. Their service as Junior Engineer was only required for the purpose of preparation of this estimate by the department. Merely
because they were working on deputation in the D.V.A.C. department, their estimate cannot be rejected.
So far as A.2 and A.5 are concerned, Charge No.16, ""M"" book-883-A, Ex.P.171, this sample was also taken after 3 1/2 years. Regarding
Charge No.20-""M"" Book, Ex.P.113, sample was taken on 12.6.1976 after 3 1/2 years. Regarding a.2 and A.3, Charge No.32, Ex.P.114 is the
M"" Book. Wall was constructed on 14.2.1973; sample was taken on 12.6.1976 after 3 1/2 years. A.2 and A.5-Charge No.44, Ex.P.104 is the
M"" Book. A.2 and A.5, Charge Nos.44 and 48, P.179; A.2 and A.5, Charge No.66, P.198; A.2 and A.5, Charge No.70, P.157; A.2 and A.3,
Charge No.78. It was held to be proved for the offence u/s 5(2) read with (d) of the Prevention of Corruption Act.
Exs.P.91, 101, 171, 113, 253, 114, 104,179, 18, 102, 106, 97, 222 proved that A.2 has committed the offence specified u/s 5(2) read with
5(1)(d) of the Prevention of Corruption Act.
b) Exs.P.91, 101, 253, 244, 264, 260, 116, 118, 114, 106, 108, 234 and 247 proved the guilt of A.3.
c) Exs.P.171, 113, 104, 186, 179, 198, 102, 157 and 222 proved the guilt of A.5.
So these exhibits prove that measurement were recorded in the ""M "" books as if 1:6 mortar were used. The test report Ex.P.628 proves that it
was not of 1:6, but it varied from 1:11 to 1:23. For the reasons stated above, though the exact amount of loss has not been arrived at correctly, yet
due to the lesser ratio of the cement, it is not difficult to conclude that the loss has been incurred by the department.
The counsel for the appellant submitted that the witness himself has admitted that the original work-sheet was not available in the Court
records; not even a copy was available. Therefore, prejudice is caused to the accused, because of the non-furnishing of test report. It is true that
the original report sent to the Court is not found at the time of examination of witnesses. The reasons are not known. But, at the same time, it
cannot be accepted that it has caused prejudice to the accused. The witness has clearly stated that his conclusion is only on the basis of test
analysis; that is each sample has been tested and he has given that finding. There is a legal presumption that the analyst has given his finding, in
accordance with the test results. What is not available is the actual figures of the test analysis which were used for arriving at the conclusion. This
does not in any way said to have caused prejudice to the accused. Even today, if the accused are so desiress, they can take sample from the very
same parapet walls and send for analysis in which case, only the strength of the wall will be different, but the percentage of cement, in the mortar or
the sand cement ratio will not vary. Therefore, the argument that prejudice has been caused has no force.
The counsel for the appellants further pointed out that Ex.P.139, Test Check Report, dated 22.7.1974 was prepared by P.T. Jayaraman.
During the trial, he was not alive. Therefore, it was marked through another witness, P.W.13. This was objected to on the ground that the original
is not marked. This argument of the counsel for the appellant is acceptable as per the Evidence Act that only originals are to be marked as exhibits.
In case, the originals are not available, secondary evidence can be let in, as specified under the Evidence Act. But, no such evidence has been
adduced and hence, secondary evidence cannot be admitted in evidence. Though an objection has been raised while marking this evidence, that
was over-ruled by the trial Judge. Such an objection should have been sustained, in the absence of any explanation for marking the secondary
evidence. But, this does not in any way affect the case of the prosecution; test report of P.T.Jayaraman is not relied upon to prove the offence u/s
5(2) read with Section 5(d) of the Prevention of Corruption Act. Therefore, even excluding Ex.P.139, the prosecution case does not get
weakened for the reasons already stated that the fact that there was loss, is sufficient to prove the offence u/s 5(2) read with Section 5(i)(d) of the
Prevention of Corruption Act. Therefore, these exhibits referred to above prove that false measurements with respect to the ratio of cement mortar
used while constructing the parapet wall using random rubbles is proved.
The counsel for the appellant submitted that the learned Judge has found that inferior quality of cement was used. But, absolutely there is no
evidence to prove that the cement that was used was of inferior quality. This argument of the counsel for the appellant is acceptable. No one can
say about the quality of the cement unless it is tested. There is no proof of the cement having been sent for any test. In the absence of any such
finding in the test report, the finding that inferior quality of cement was used has no validity. But this finding of the trial Court, does not in any way
affect the result of the case. Out of over-enthusiasm, the learned Special Judge has stated that inferior quality of the cement was used. The test
report only says that cement mortar was not in accordance with the proportion prescribed. No test has been made to find out the strength of the
mortar. Therefore, the finding that inferior quality of the cement was used is not only unnecessary but also not supported by any evidence. The
learned Public Prosecutor submitted that bills were not produced by the Contractor to the Junior Engineer to show that quality cement was
purchased; it proves that the cement used were of inferior quality. This argument has to be rejected. Merely because a bill is produced, a bad
quality of cement cannot become a good quality. Further, as stated above, cement cannot be certified as good quality cement, unless it is tested in
the laboratory. The Junior Engineer has given certificate that good quality of cement was used. This certificate also worth nothing; therefore, this
part of the judgment is unnecessary.
It is not possible to assess the actual loss, because of the lesser ratio of cement was used in the construction for the reasons stated above.
Further, to prove the offence u/s 5(2) and (d) of the Prevention of Corruption Act, it is not necessary that actual loss should be proved. It is
sufficient if it proved that loss has been sustained by the department.
In so far as the offence u/s 477-A is concerned, the charge is that in the measurement books, false measurements and check measurements in
respect of the work stated above have been entered and therefore, it is an offence u/s 477-A. The measurement does not mean merely linear
measurements; it also means particulars of proportion of the cement mortar used. When the cement mortar used was not 1:6, but was varying from
1:11 to 1:23; the records contained particulars that cement mortar of 1:6 was used. Therefore, it amounts to an offence u/s 477-A I.P.C. Even
making a false entry into the books of accounts maintained in any department or office amounts to an offence u/s 477-A I.P.C. Merely entering
cement mortar was used 1:6 when in fact that was not the ratio that was used is sufficient to prove the offence u/s 477-A. All these measurement
books referred to above contains a statement that the cement mortar that was used was 1:6; but the test result proved that the standard ratio was
not used; the ratio ranged from 1:11 to 1:23. Therefore, making these entries in the ""M"" books constitutes and proves the offence u/s 477-A I.P.C.
The conclusion of the lower Court that the offence u/s 477-A has been made out cannot be said to be illegal. Therefore, the conviction of A.2,
A.3 and A.5 cannot be said to be illegal. Hence, it is confirmed.
Criminal Appeal No.141 of 1992:
The appellants, A.12 to A.17 and A.19 to A.21 were the contractors entrusted with the work of construction of these parapet walls. It is
proved from the above discussion that cement mortar of lesser ratio was used, but amount was collected for higher ratio. These amounts were
collected only by these contractors. Therefore, the accused-1 to 5, by illegal and corrupt means or by otherwise abusing their position enabled
these appellants to gain pecuniary advantage. Therefore, the offence u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act read
with Section 109 and 477-A I.P.C. is proved. The trial Court has rightly found these accused guilty of the said offence. For the reasons stated
supra, the conviction against these accused is confirmed.
C.A.No.332 of 1993: This is an appeal against acquittal of A.4. The learned Sessions Judge acquitted A.4 on the ground that sanction given
for prosecution of A.4 is not valid. The Public Prosecutor argued that the same sanction order was found to be valid with respect to other accused,
but only against A.4 it was held not valid. The learned Sessions Judge has held that the sanction order against A.4 is invalid on the ground that the
name of A.4 is not found in the F.I.R.; while F.I.R. was filed on the basis of the report by P.T. Jayaraman and when no acquisition was made
against A.4, it is not known as to what were the other materials placed before the sanctioning authority. Therefore, the entire facts were not placed
before the sanctioning authority before granting sanction. Therefore, the sanction order in so far as it relates to A.4 was held invalid. In Ex.P.860, it
is stated as follows:
And whereas on a careful consideration of the facts placed before them by the Director of Vigilance and Anti-corruption, Madras, the
Government of Tamil Nadu are satisfied that:-
(i) there is a prima facie case of criminal conspiracy against the said officials and others punishable u/s 120-B and offences u/s 5(1)(d) punishable
u/s 5(2) of the Prevention of Corruption Act for obtaining pecuniary advantage for themselves aided by the Contractors, and offences punishable
u/s 477-A and 477-A read with 109 I.P.C., and
(ii) that criminal proceedings should be initiated against them for the said offences and of any other offences.
Now therefore (1) in exercise of the powers conferred by Sections 196(2) and 197(1)(b) of the Code of Criminal Procedure, 1973, and Section
6(1)(b) of the Prevention of Corruption Act, 1947 (Central Act II of 1947), the Governor of Tamil Nadu hereby sanctions the prosecution of the
said officials (Tvl.V.N.Ramadoss Rao, K.Krishnan, P.G.Vijayakumar, V.P.Subramaniam, S.Johnson, D.Balasubramaniam, A.Natesan, J.Selvaraj,
S.Esakki, S.Sundaram, N.Kaliyugathumeyya Pillai, V.Amose, and Tmt.N.Parvathi) for the said offences and for any other offences punishable in
the said enactments for the said acts and for taking cognizance of the said offences by a Court of competent jurisdiction.
The above recital in the sanction order reveals what are the materials placed before the sanctioning authority, for the purpose of granting of
sanction for prosecution. The learned Sessions Judge has held, the sanction with respect to all other accused as valid, but held it is invalid only
against A.4. Merely because the name of an accused is not found in the F.I.R., it does not mean that he cannot be arrayed as an accused in that
case; after investigation, if any other person whose name is not mentioned in the F.I.R. is found to have been involved in that offence, that person
can also be arrayed as an accused. The F.I.R. is not the be-all and end-all of a case. The finding of the lower Court that because ones name is not
found in the F.I.R. the sanction order against him becomes invalid is not legally sustainable, to put it in mild words.
The counsel appearing for A.4 submitted that preliminary enquiry was conducted in the year 1972; subsequently, a detailed enquiry was also
conducted on 29.5.1973; with the assistance of Jayaraman, a report was filed on 22.7.1974. Only subsequent to that report, F.I.R. was filed.
Only thereafter, S.K.Subramaniam was appointed for super-checking on 6.12.1974. Super-checking was done on 25th December, 1975. A
report under Ex.P.418 was given on 14.5.1976. Sanction order was passed on 19.12.1979. A.4 was not implicated even after detailed report,
but only on the basis of the evidence of S.K.Subramaniam, his name was included as an accused. Further, the counsel submitted that
A.K.Subramaniam was inimically disposed of towards A.4 and therefore, the evidence of S.K.Subramaniam cannot be relied upon against A.4
and therefore, the acquittal of A.4 by the trial Court is correct and, it cannot be set aside. The learned Additional Public Prosecutor submitted that
P.W.81, S.K.Subramaniam during the cross-examination was not even suggested that he was inimically disposed of towards A.4. Therefore, the
argument of the counsel for A.4 cannot be accepted. Only in the statement u/s 313 Cr.P.C., A.4 has come forward with this plea that P.W.81 was
inimically disposed of towards A.4. In the absence of any such question put to P.W.81 when he was examined in the Court, the mere statement u/s
313 Cr.P.C. does not make it as evidence to prove the case of A.4. Therefore, there is no evidence to prove that A.4 was inimically disposed of
towards P.W.81; and hence the argument that that was the reason to implicate A.4 has no force.
The charges against A.4 are Charge Nos.1, 92, 94, 96, 98, 126 and 128; to prove the charges, the prosecution relies on the measurement
books 884-B, 882-B, 891-B and 9(1)(2)(b). In ""M"" book 912-B, A.4 has not signed. Therefore, he cannot be held responsible for the charges-
126 and 128. With respect to other charges, ""M"" books 884-B, 882-B and 891-B are relied upon. The counsel appearing for A.4 submitted that
the loss is attributable only to those who prepared the estimate and not those who executed the work. Further, there was difference in the
measurement made by P.W.81 and the measurement found in the records; the particulars found in the measurements are only post facto and
therefore, the particulars like 1:6 are only presumptions based on the report given by the Road Inspectors who were on the work spot. If the Road
Inspectors had reported the fact correctly, the engineers would not have recorded that wrong figures. Therefore, it is only the Road Inspectors
who should be held responsible for all these lapses and mistakes. The witnesses, P.Ws.33, 37 and 40, the Road Inspectors admitted that the Road
Inspectors are expected to be present at the time of execution of the work and they have a right to stop the work when they are of the opinion that
the work is not done in accordance with the standard; they have also stated that they were not allowed to go to the work spot by A.2 to A.5. But,
in fact, these Road Inspectors on whom such responsibilities are conferred cannot act against the dictates of their higher-ups. But the charges now
are only that the cement mortar containing less ratio of cement was used for construction. So far as that aspect is concerned, these ""M"" books,
884-B, 882-B, 912-B prove that A.4 had signed and certified that the cement mortar that was used was 1:6 ratio as prescribed by the
department. When the test report proves the cement mortar that was used was not 1:6, but it was between 1:11 and 1:23, the entry made by A.4
in ""M"" books are proved to be false; therefore, the offence u/s 477-A is proved beyond reasonable doubt. Because of the lesser rate of cement
used in the mortar, the department has incurred loss to that extent. Though the actual amount of loss has not been proved, it is proved that the
department has incurred loss which was gained by the contractors. Therefore, for the reasons stated above, the charge u/s 5(2) read with 5(1)(d)
of the Prevention of Corruption Act is also proved. That is, Charge Nos.92, 94, 96 and 98 are proved against A.4. The trial Judge was not right in
acquitting the accused No.4. Though the charge u/s 120-B has been held not proved against any of the accused, still the charges u/s 5(2) read with
Section 5(1)(d) of the Prevention of Corruption Act stand. It is not as if from the evidence of record, the conclusion that A.4 is not guilty of the
offence is also possible. That is, the conclusion arrived at by the trial Court is not plausible on the evidence on record. That A.4 was guilty of the
charges is the only conclusion plausible from the evidence on record. When a conclusion was not germane from the evidence on records such a
finding of the trial Court is perverse. Therefore, the acquittal of A.4 is liable to be set aside. Hence, the judgment of the trial Court acquitting A.4 is
set aside.
The counsel for the appellant/accused-2, 3 and 5 submitted that A.2, 3 and 5 have been dismissed from service; they are out of employment
from 1976 onwards.
Considering the long lapse of time, the sentence of imprisonment cannot be set aside.
The offence took place in the year 1972, 30 years have elapsed, considering the totality of the circumstances in the nature of the offence, this
Court is of the view that the sentence imposed on them be reduced to imprisonment till rising of the Court and in lieu of the remaining portion of
sentence of imprisonment, an additional fine of Rs.5,000/- in all may be imposed on A2, A3 and A5; an additional fine of Rs.5,000/- on A12 to
A17 and A19 to A21 be imposed.
In so far as A4 is concerned, he was not arrested during investigation along with A2, A3 and A5. Therefore, considering the fact that the
offence took place in the year 1972, this Court is of the view that it is sufficient to impose a sentence of imprisonment till rising of the Court, in
addition to a fine of Rs.5,000/-.
The appellants may serve the sentence and pay the fine before the trial Court on or before 30th September 2002, in default, they are liable to
serve three months imprisonment.
In result, C.A.No.332 of 1993 is allowed and C.A.Nos.115 and 141 of 1992 are dismissed.