State of Kerala vs T.G. Nadesan and Others

P. Ubaid, J.—1. A judgment of acquittal of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur in C.C. No. 11 of 2000, dated 27.09.2005 is under challenge by the State. The respondents 1 to 5 herein faced trial before the learned trial Judge on the allegation of misappropriation of huge amount from public funds as part of a conspiracy made by them in connection with the construction of cairns forming the boundary of vast area of forest land within the Thodupuzha Forest Range in 1996-1997. The first respondent was the Forest Range Officer, Thodupuzha range at that time. The second respondent was the Divisional Forest Officer, Kothamangalam, the third respondent was the Forester, Kulamavu Section, the 4th respondent was the Forester, Peringassery Section, and the 5th respondent was the Convener cum Contractor who took up the construction of the cairns under 11 estimates prepared by the department. Though 13 estimates were prepared, work covered by two estimates was excluded. The total amount alleged to have been misappropriated is Rs. 3,15,084/-. Out of this amount, Rs. 1,60,990/- is the amount alleged to have been paid in excess for the works not done, and the amount of Rs. 1,54,094/- is the amount actually appropriated by the accused, according to the prosecution. The whole prosecution is based on a report of inspection submitted by the Assistant Executive Engineer, PWD (I & B), Sub Division, Thodupuzha on the request of the Forest department. On the basis of the report of enquiry, the VACB, Idukki registered FIR on 29.05.1998, and after investigation the VACB submitted final report in Court.

All the five accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them under Section 13(2) read with Section 13(1)(c) and 13(1)(d) of Prevention of Corruption Act, 1988 and under Sections 120B, 409, 468, 471 and 477A IPC. The prosecution examined 19 witnesses in the trial court, and proved Exts. P1 to P46 documents. When examined under Section 313 Cr.P.C., all the five accused denied the incriminating circumstances, and took a definite stand that nothing was in fact paid in excess to the contractor, and that none of them had appropriated any amount from public funds as alleged by the prosecution. No witness was examined from the side of the defence, however Ext. D1 was marked. On an appreciation of the entire evidence, the trial court found that the prosecution does not have a consistent and believable case, and that even the reports submitted by the main witness, forming the basis of the whole prosecution, are mutually inconsistent and contradictory. The trial court also found that there is absolutely no material to prove the alleged criminal conspiracy or forgery. On a close scrutiny and examination of the whole evidence, the learned trial Judge found that what is proved at the most is some defects or irregularities in the construction works. Finding that there is no satisfactory evidence to prove the guilt alleged, the learned trial Judge acquitted all the five accused by judgment dated 27.09.2005.

Pending this appeal the respondents 1 and 2 (the original accused Nos. 1 and 2) died, and the fact of death was recorded in the proceedings. The learned counsel for the other accused, and also the learned Public Prosecutor were heard. The learned Public Prosecutor submitted in support of this appeal that the evidence was not properly and legally appreciated by the learned trial Judge, and that the evidence adduced by the prosecution will unerringly prove the guilt of the accused. On the other hand, the defence submission is that in the absence of proper and satisfactory evidence, the trial court came to the right conclusion and finding that the alleged offences stand not proved.

As already observed, the whole prosecution is based on some inspection reports submitted by PW 9. The prosecution relies mainly on his evidence, and also the evidence of PW 4 to PW 6. Ext. P13 to Ext. P22 are the reports submitted by PW 9 after inspection of the whole forest area with the help of the forest officials, and Ext. P3 and Ext. P24 are the abstracts of the details regarding such inspection. The VACB conducted an enquiry, and later proceeded for investigation, on the basis of the reports of inspection submitted by PW 9.

PW 4 is the witness who made inspection and physical verification within the Kulamavu and Peringassery sections of the Thodupuzha Forest Range. He stated in evidence that he had not made inspection as expected, and that he could inspect only some portions within the Karimbinkayam and Willanthandu areas. This means that much value cannot be attached to his evidence or report. That is the case with the reports submitted by the PW 5 and PW 6 also. PW 5 stated in evidence that he could inspect only the places mentioned in the Ext. P4(a) and Ext. P4(h) Mahazars. Those areas are Karimbinkayam and Vettilakkodithandu areas. The evidence of PW 6 is also that he inspected only the Peringassery section. Whatever be the evidence of PWs 4 to 6, or their reports, everything is covered by the subsequent report of inspection made by PW 9, who claims to have inspected the whole area. Now let me see what is the evidence of PW 9, and what is the report submitted by him.

PW 9 stated in evidence that he made inspection with the assistance of a Vigilance Inspector and a Forester. According to him, the whole area was identified by the Forester Sri Sasindran, and all the cairns were also shown to him by the Forester Sri Sasindran. However, his reports and evidence will show that the entire forest division was not inspected by him, and he had not actually conducted physical verification of all the cairns constructed within the total area covered by the estimates. He claims to have made inspection on six different dates with the active assistance of the forest officials including the Forester, Sri Sasindran. The different reports submitted by him are quite inconsistent and contradictory, as found by the trial court. The prosecution has no explanation why the said Forester Sasindran was not examined as a witness during trial. It is submitted that he is not even cited as a witness by the prosecution. It has come out in evidence that before PW 9 made site inspection, some cairns were disbanded by PW 4 during his inspection. The details of this do not find a place in the report submitted by PW 9. His evidence also shows that he had not in fact inspected the areas covered by the Exts. P17 to P22 reports fully. What is discernible from his evidence is that he conducted site inspection in some areas within the forest range, and he probably relied on some other materials or reports to submit the Exts. P17 to P22 reports regarding the whole area.

The prosecution alleged excess payment of Rs. 1,60,990/- on the ground that only 366 cairns were in fact put up, whereas the accused effected payment for 577 cairns. Here assumes the importance of the evidence given by PW 10 and PW 12. It is pertinent to note that these two witnesses were not cross-examined by the learned Public Prosecutor. The report and evidence of PW 9 is that he could not see any cairn at the Uppukunnu area. But the definite evidence of PW 12 is otherwise, that so many cairns were constructed within the area. PW 12 is a prosecution witness, whose evidence is against the evidence of PW 9. PW 10 is an another witness who is definite that he had seen some cairns constructed within the Paramada and Uppukunnu areas. There is no reason why the evidence given by PW 10 and PW 12 should be disbelieved. The evidence given by these two prosecution witnesses is contrary to what PW 9 stated. In short, the prosecution does not have any definite and consistent evidence, proving the actual number of cairns put up, or that the forest department had not in fact put up 577 cairns as claimed by them, and as covered by the estimate. The prosecution relies mainly on the evidence of PW 9 and his reports. His evidence shows that he had not in fact conducted site inspection, or physical verification in the whole area. This means that the report submitted by him cannot be accepted as complete. PW10 and PW12 are definite regarding the construction of cairns at some areas, and their evidence is quite against that of PW9, that in those areas he could not find anything.

As regards the criminal conspiracy alleged by the prosecution, the learned trial Judge found thus in paragraph 37 of the impugned judgment;

"37. The prosecution has got a case that the accused 1 to 4 as Forest officials entered into criminal conspiracy with the 5th accused, for the purpose of committing criminal misappropriation of public fund. The prosecution has not adduced any direct or circumstantial evidence to substantiate its case regarding alleged conspiracy among the accused persons. The 1st accused was the Range Officer of Thodupuzha Forest Range. He was working under the 2nd accused, the Divisional Forest Officer, Kothamangalam, Thodupuzha Forest Range would come under the Kothamangalam Division. The 1st accused was authorized to prepare the estimate and other details for construction of cairns in Kulamavu and Peringassery sections of Thodupuzha Forest Range. He also authorized to mark the area or location for erecting the cairns in those forest sections. Accordingly, the 1st accused had done everything for the construction of cairns in the said two forest sections. The estimate prepared by the 1st accused was forwarded to the 2nd accused and he accorded the sanction. There is nothing indicative of any sort of conspiracy among the accused 1 and 2 in preparing and sanctioning estimates for construction of the cairns. The letter dated 21.03.1997 issued by the 2nd accused to the 1st accused would show that the 2nd accused had no collusion with the 1st accused in the matter of construction of cairns. xxx"

I also find that the prosecution has in fact alleged criminal conspiracy without any basis or material. The prominent allegation is that excess payment was made by the accused for some cairns which were not actually constructed. But the evidence adduced by the prosecution is not sufficient to satisfactorily prove the allegations. When the prosecution relies on the evidence of PW 9 and his reports, what is actually proved is that he had not in fact made inspection and physical verification in the whole area.

As regards the circumstances of the accused during the period of construction, and also the possibilities of some defects or irregularities in the process of construction which could be explained away, the learned trial Judge found thus in paragraph 41 of the judgment;

"41. There can be no doubt that there occurred some minor defects, irregularities and omissions on the part of the accused persons in connection with the execution of the work for construction of cairns in Kulamavu and Peringassery sections under Thodupuzha Forest Range. It is come out in evidence that the Kulamavu and Peringassery sections under Thodupuzha Forest Range are vast areas having more than 160 Sq.Kms. The forest boundaries of those sections are having a length of more than 100 Kms. Most of those areas are having no motorable access and one has to travel miles together to reach some of those areas. The Thodupuzha Forest Range is having 4 forest sections, like Peringassery and Kulamavu sections. The 1st accused was the Range Officer of the Thodupuzha Forest range consisting of 4 forest sections. PW 19, the Investigating Officer has admitted the fact that in one section there was only one Forester, two Forest Guards and one or two Forest watchers. Thus, the forest staff available in forest sections could not effectively discharge their official functions of protecting the vast forest land. Over and above the forest protection duty, it will be practically impossible for a forester to closely watch and supervise construction of cairns in various areas of the forest section. The 1st accused as Forest Range Officer was having his office at Thodupuzha. He has to attend his official duties as Forest Range Officer over and above his duty in connection with the protection of forest areas under his forest range. It is pertinent to note, at this juncture, that the 1st accused is not having civil engineering qualification or experience in supervising civil works. So, the 1st accused as Forest Range Officer and the accused 3 and 4 as Foresters might have committed inadvertent omissions, defects and minor irregularities in getting the work of construction of cairns executed. But there is nothing indicative of any illegal affairs like criminal conspiracy for the purpose of committing criminal misappropriation of funds among the accused person. The inadvertent omissions, mistakes or other minor irregularities occurred in the discharge of their duties as Forest Range Officer and Foresters cannot be equated or treated as an act with dishonest and fraudulent intention for the purpose of obtaining unlawful gain and for causing wrongful loss to the Government. The prosecution has not succeeded in establishing beyond reasonable doubt the alleged criminal conspiracy among the accused 1 to 5 for the purpose of committing criminal misappropriation of public fund in connection with the construction of cairns in Kulamavu and Peringassery sections under Thodupuzha Forest Range, during 1996-97. There is also nothing on record to infer that the accused 1 to 4 as public servants abused their position for the purpose of obtaining undue pecuniary advantage for themselves or for any other person. Hence, these points are found against the prosecution and in favour of the accused persons."

On an examination of the entire materials, I find that the entire evidence adduced by the prosecution in the court below was properly and legally analysed and appreciated by the learned trial Judge, and the trial court came to the right finding that the prosecution does not have any consistent and believable evidence to prove the guilt alleged against the accused. When excess payment of Rs. 1,60,990/- is alleged, misappropriation otherwise, of Rs. 1,54,094/- is also alleged. The prosecution does not have satisfactory details or documents proving such dishonest misappropriation. What is prominently alleged and sought to be proved is excess payment for the works not done. But on this aspect, the evidence adduced by the prosecution is not complete and satisfactory. On the basis of incomplete reports of physical verification as regards the actual number of cairns constructed, the accused cannot be found guilty. I find that the five accused were rightly found not guilty by the learned trial Judge. As observed and found by the trial court, what is at the most proved is some irregularities in the construction process for which the concerned officials can be proceeded against in departmental action. For a prosecution and finding under the Prevention of Corruption Act, or even under the provisions of Indian Penal Code, clear and satisfactorily evidence is required. Mere, laps on the part of officials cannot be the subject matter of prosecution under the PC Act. I find no merit in this appeal, and it is liable to be dismissed.

In the result, this Court is reasoned to dismiss the Criminal Appeal brought by the State.