Varghese Mathew and Others vs State of Kerala

J.B. Koshy, J.—Appellants herein question the conviction and sentence against them in Crl. Case No. 1 of 1997 passed by the Enquiry Commissioner and Special Judge, Thiruvananthapuram u/s 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and u/s 120B of Indian Penal Code. First accused in the above case was then Superintending Engineer, KIP Circle, Kollam, from 5.10.1990 till his retirement on 30.4.1991. Second accused was a contractor. Third accused was former Executive Engineer (13.7.1990 to 25.3.1994), fourth accused was former Assistant Executive Engineer (22.3.1989 to 22.12.1991), fifth and sixth accused were former Assistant Engineers, seventh accused was the former Chief Engineer from 2.2.1990 to 31.12.1991 and eighth accused was the Superintending Engineer who took charge after the retirement of the first accused from 3.5.1991 to 16.1.1992. The second accused undertook the contract for the formation of Left Bank (LB) main canal Ch.51184 to 53000 Part I and Part II of Kallada Irrigation and Tree Crop Development Project (in short KIP). The allegations are with respect to the payments made to the second respondent contractor for removal of surplus earth from canal side and making payment for the same treating as an extra work. Since the main contention is that none of the allegations made in the charge framed were proved, allegations in the charge sheet have to be examined. They are:

Firstly that you the first among you was Superintending Engineer, Kallada Irrigation Project from 5.10.1990 to 30.4.1991 the second among you was contractor who had undertaken the work relating to Kallada Irrigation and Tree Crop Development Project - Formation of L.B. Main Canal from ch.51184 m to 53000 m including C.D. works Part I and II combined, as per agreement No. 1/SE.KCQ/87-88 dated 27.5.1987, the third among you was the Executive Engineer, Kallada Irrigation Project from 13.7.1990 to 25.3.1994, the fourth among you was the Asst Executive Engineer, Kallada Irrigation Project from 22.3.1989 to 22.12.1991, the fifth among you was Asst. Engineer, Kallada Irrigation Project Section No. 34 from 11.12.1989, the sixth among you was Asst. Engineer, Kallada Irrigation Project Section No. 36 from 27.3.1990 to 28.5.1993, the seventh among you was Chief Engineer, Kallada Irrigation Project from 2.2.1990 to 31.12.1991 and the eighth among you was Superintending Engineer, Kallada Irrigation Project from 3.5.1991 to 16.1.1992 and as such the first and third to eighth among you were public servants and that while working so, the 1st and 3rd to 8th among you who was in charge of the execution and supervision of the work of Kallada Irrigation Project abused your office land all of you criminally conspired with the 2nd among you and that knowingly that the work undertaken by the 2nd among you would include the earth work excavation and deposit of the surplus earth at the specified dumping yard of 1 acre 16 cents of land in Sy. No. 71/A & 4735/A Kottamkara Village at the rate of Rs. 18/ m3 and that the 2nd among you knowing that the excavated earth should be dumped at the above dumping yard, dumped some surplus earth in the paddy field of 2nd among you, measuring 1 acre 181/4 cents of land in Sy. Nos. 346/5, 346/15-A, 346/7,346/15-B, 346/6 and 346/16 of Neduvathoor Village and had the advantage of using the surplus earth and filling the paddy field and made a petition dated 2.4.1991 falsely claiming that 75718 m3 of surplus earth was dumped at his own dumping yard and that it amounts to an extra item of work and that Jie should be paid extra at the rate of Rs. 109/m3 and that the 1st and 3rd to 6th among you knowing that as per the terms of the work agreement the 2nd among you had to dump the excavated surplus earth at the dumping yard specified and that the dumping of the extra earth at the yard of the 2nd among you was in violation of the terms of the agreement and knowingly that the 2nd among you was in violation of the terms of the agreement and knowingly that the 2nd among you was not entitled to any extra payment for he having the advantage of utilizing the surplus earth for filling his own paddy field in violation of the terms of the agreement, the 3rd among you suppressing the availability of the dumping yard as per the terms of agreement falsely reported on 26.4.1991 that the 2nd among you had conveyed and dumped the excavated earth measuring 37329 m3 at the dumping yard as per the terms of agreement falsely reported on 26.4.1991 that the 2nd among you had conveyed and dumped the excavated earth measuring 37329 m3 at the dumping yard of the 2nd among you and that it amounted to extra work and the 4th among you prepared false note to that effect after suppressing the availability of the dumping yard as per the work agreement and that the 5th among you prepared a data providing a rate of Rs. 38.59/m3 and the 4th to 6th among you signed the data and submitted to the 1st among you and that the 1st among you in violation of the terms of the agreement and misusing Clause 32 of LCB specifications made a negotiation with the 2nd among you and illegally and hastily executed supplemental agreement on 30.4-1991 on the date of retirement of the 1st among you by awarding an amount of Rs. 33,59,610/- to the second among you for the above said item of work without obtaining the approval of the Chief Engineer and that the 7th and 8th among you in spite of the audit remarks of the Accountant General and report of the Ass. Engineer (CW31) approved the dumping of the excavated earth at the yard of the 2nd among you as an extra item of work and facilitated payment of a sum of Rs. 14,01,987/- and the 3rd among you prepared the bill for the said amount and payment was made and thereby caused pecuniary advantage of Rs. 14,01,987/- to the 2nd among you and consequent loss to the State and thereby committed an offence punishable u/s 13(2) r/w Section 13(1)(d) of P.C. Act, 1988 and within my cognizance.

Secondly, the 1st and 3rd to 6th among you on of about April, 1991 agreed with the 2nd among you and 1st, 7th and 8th among you also agreed with the 2nd among you to do an illegal act namely to award extra payment for the dumping of the earth excavated in connection with the work relating to Kallada Irrigation and Tree Crop Development Project - Formation of L.B. Main Canal from Ch.51184 m to 53000 m including C.D. works Part and II combined as per agreement No. 1/SE./KCQ/87-88 dated 27.5.1987 which provided dumping of the earth at the yard measuring 1 acre 16 cents of land in Sy. No. 71/Aand 473 5/A of Kottamkara Village and which did not provide for extra payment, the 2nd among you dumped the extra payment, the 2nd among you dumped the extra earth in violation of the terms of the work agreement at the paddy field of 2nd among you and had advantage of filling the paddy field using the excavated earth and that in pursuance of the illegal agreement subsequently entered the 1st and 3rd to 8th among you approved the said work, which was part of the terms of the work agreement of contract, as on extra item of work and the 1st among you on the basis of the reports and dates prepared by the 3rd to 6th among you, executed an agreement in between the 1st and 2nd among you for awarding extra payment for the dumping of the excavated earth and that the 7th and 8th among you approved the claim of the 2nd among you for extra payment in spite of the audit remarks and in spite of the report of Asst. Engineer (CW31) and the 3rd among you made payment of Rs. 14,01,987/- in pursuance of the agreement entered with the 2nd among you with the 1st and 3rd to 8th among you and thereby the 1st and 3rd to 8th among you committed an offence punishable u/s 13(2) r/w Section 13(1)(d) of P.C. Act, 1988, which is punishable with imprisonment for a term of two years or upwards and thereby you all committed an offence punishable u/s 120-B of I.P.C. r/w Section 13(2) r/w Section 13(1)(d) of P.C. Act, 1988.

A reading of the above charge sheet would show that Ext.P3 agreement provided for a dumping place for removal of the excess earth taken while construction of the irrigation canal. As per the above agreement, the earth removed from the canal gate has to be deposited in the bank or other places pointed out by the Government. Unfortunately, no dumping place was provided in the agreement as mentioned in the charge sheet. I have gone through Ext.P3 contract and its annexures. Nowhere in Ext.P3 dumping place for excess earth was provided. The contract in question was started in 1986 and competed in 1992. The claim of the contractor was that there were huge quantity of earth dumped out from the canal site. The canal for which work was executed was a lengthy canal running into 1816 metres and according to him earth taken for the purpose of constructing irrigation canal was not able to be deposited in the banks. If excess earth is put in the bank, due to raining it will come to the canal and there is limitations and there were problems in dumping land owners also objected to the same. Therefore, he had to purchase a land and then carried the earth by lorries. According to his contention, 75718 m3 of surplus earth was to be dumped and he claimed Rs. 109/- per m3 as extra charges incurred by him as Government did not provide a dumping yard. Even though it was contended by the prosecution that a nearby private school had a vacant land where earth can be dumped up. Admittedly, their consent letters were not produced before the court. There is no evidence to show that that land of school consistingof one acre 16 cents in Kottamkara Village was available for dumping the earth. Court below also found that in the contract such a place was to mentioned as a dumping place. Such statement in the charge sheet resulted in mere imagination. Not only that, incurring of transportation expenses cannot be avoided because of the length of the canal even if dumping could have been done at that place. Finally as provided under the contract Superintending Engineer was asked to negotiate and first accused Superintending Engineer negotiated and figure of Rs. 90/- per m3 was arrived at as the cost for removal of earth to be paid to the contractor for the extra work done against claim for Rs. 109/- per m3. Matter was informed to higher-ups. Some audit objections arose. Finally, the matter was referred to the High Level Committee which is marked Ext.P2(b) and the High Level Committee found that it is actually an extra item of work. The High Level Committee consisted of Secretary to Government, Irrigation Department, Additional Secretary to Government, Finance Department, Additional Secretary to Government Law Department, three Chief Engineers of various projects. On the basis of the decision of the High Level Committee, the Secretary to Government, Irrigation Department, wrote to the Assistant General as follows:

As per the initial level calculation for the above work, the earth work cutting and filling quantities are 76508.33 m3 and 30089.859 m3 respectively as the excess quantity of cut earth available due to formation of canal in 45619.371 m3. As per calculation the total quantity of earth that can be accommodated on the sides of the canal is 8200.69 m3. Hence the quantity of surplus earth to be conveyed outside the canal reach is 37329.68 m3. Since there was no departmental dumping yard, the surplus earth had to be conveyed to contractor''s own dumping year at 9 k.m. So the conveying and disposing of the excess soil was treated as an extra item under Clause 32 of LCB conditions.

Government also by Ext.P2(b) informed the Accountant General that since Rs. 90/- per m3 appears to be on the high side and they will be re-negotiating the matter. Finally, the Superintending Engineer wrote to third accused for giving a report and third accused with the assistance of Accused No. 4, 5 and 6, after getting their reports, made a report showing the quantity of solid taken, amount of soil actually dumped in the contractor''s own place, distance and other material factors relevant for the purpose. In the final report Ext.P30 it was also recommended the rate to be paid as Rs. 38.59 per m3 and quantity is only 37,329 rri3 and, therefore, an amount Rs. 14,01,987/- was paid to the contractor. Essence of the charge was that the amount of Rs. 14,01,987/- was paid illegally to second accused thereby he got pecuniary advantage because of the connivance of the accused and thereby State lost huge amount. The contractor filed arbitration claim for insufficiency of the amount granted in this case.

Exts.P29 and 30 files show that accused Nos. 3, 4, 5 and 6 only made the factual reports asked by their superiors. By any stretch of imagination, we cannot say they are part of any conspiracy as there is no evidence against them. The quantity measured was reported by them. There is no case for the prosecution that the quantity measured was incorrect or rate suggested was highly excessive, but, the charge was that dumping place with rates for dumping was mentioned in the contract and that is not an extra work. But, as already held, the dumping place other than sides of banks was not mentioned in the contract. Accused 4 to 6 only submitted facts after verification as required by their superiors. There is also no allegation that they got any pecuniary benefit. Therefore, I am of the view that no case is made out against Accused Nos. 3, 4, 5 and 6. Accused No. 5 died during the pendency of the appeal.

Now, we will come to the role of Accused No. 7 who was the Chief Engineer for the period of 2.2.1990 to 31.12.1991. The Chief Engineer on getting instructions of the Government for re-negotiations in view of the High Level Committee for re-negotiations in view of the High Level Committee decision stopped payment and thereafter data was collected from the subordinate officers regarding actual quantity of earth dumped, place where earth dumped, cost of transportation etc. and recommended that the payments can be made at the 1986 rates, that is, when the agreement was entered into for extra work. This is proved by Exts.P21, P25 and P27. Need for treating that as an extra work and payment for the same was actually approved by the High Level Committee and the decision of the High Level Committee cannot be overtaken by A7. In fact, he called report from Accused Nos. 3, 4, 5 etc. so that no loss would be caused to the Government. There is no allegation that A7 has made any pecuniary gain out of this transaction. There is also no evidence to show that A7 participated in any sort of conspiracy with A1 or A2. In any event, it cannot be stated that Accused No. 7 had any role in the alleged criminal conspiracy. Prosecution failed to prove any of the offences alleged against the seventh accused.

Accused No. 8 is the Superintending Engineer who took charge on 3.5.1991 after the supplemental agreement was made. Therefore, he cannot have any conspiracy in making the supplemental agreement or deciding to pay for extra items by A1 and after retirement of A1. The only allegation against him to connect with the charges is that in Ext.P26 letter written by him, he did not mention about the audit objection. In fact, Ext.P26 letter itself would show that it is only a reply to the Chief Engineer in response to the audit objection and by any stretch of imagination one can come to the conclusion that he suppressed the audit objection and he took part in the criminal conspiracy for getting illegal gratification by Accused Nos. 1 and 2. In a charge of criminal conspiracy there cannot be an accessory after that fact. There is no allegation that he got any pecuniary gain or he acted to benefit A2 unlawfully. Hence, no case is made about A8 also. Therefore, charge against him was also not proved.

Finally, the question is with respect to charges framed against A1 and A2. A1 died during the pendency of the appeal. Though it can be stated that allegations against him was also for considering the liability of A2, the role of Al also has to be considered. Evidence in this case shows that dumping yard was no provided in the contract. It is an admitted case also that Government did not point out any dumping place as per the agreement. Soil had to be excavated for construction of canal. Soil had to be excavated for construction of canal. The High Level Committee also found that dumping of solid was an additional work as it was not included in the original contract. The Superintending Engineer was authorised to make negotiations as per Ext.P3 agreement itself and to make supplemental agreements. It is true that he made the supplemental agreement on the eve of his retirement subject to concurrence of Government. Payments were made subsequently. There is no evidence to show that he got any illegal benefit or monetary benefit by this transaction. There is no reliable evidence or conclusive material to prove that A1 had any dishonest intention in causing pecuniary benefit to A2. Assuming that first accused departed from the normal procedure, in view of the decision of the High Level Committee and the fact that the very basis of the charge that dumping yard and rate for dumping are fixed in the original contract was found to be incorrect, it cannot be sated that there is any corruption or oblique intention on the part of A1. Even if it is stated that he has violated some of the procedures, it will not attract offence under the Prevention of Corruption Act as held by the Apex Court in Major S.K. KALE Vs. State of Maharashtra, and C. Chenga Reddy and Others Vs. State of Andhra Pradesh, . In Abdulla Mohammed Pagarkar v. State it was decided by the Hon''ble Apex Court as follows:

Now this is hardly a proper approach to the requirements of proof in relation to a criminal charge. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to bring out, beyond all reasonable doubt, that....

In Chenga Reddy''s case, Hon''ble Supreme Court after finding that even if there are codal violations and irregularities by ignoring various circulars and departmental orders unless the ingredients of offences charged were not proved beyond reasonable doubt, accused cannot be convicted. The very basis of the charges were not proved by the prosecution in this case. None of the ingredients of charges under the Prevention of Corruption Act or Section 120-B IPC were proved. It is true that the supplemental agreement was made for paying Rs. 90 per m3 to the contractor, but, later, after the second checking what was paid was only Rs. 38.59 and charge is only for paying that amount for the quantity which is measured by Accused Nos. 3 to 6 and there is no case that those measurements are not correct. Therefore, it cannot be stated that there was any criminal conspiracy or by corruption or illegal means or by abusing the position of public servant. Accused Nos. 1 and 2 to 9 obtained for themselves of for A2 pecuniary advantages so as to attract the ingredients of offence u/s 13(1)(d) as stated in the allegation. Mere suspicion, however strong, cannot be a ground for punishment. Ingredients of offence charged against accused Nos. 1 and 2 on the basis of allegations were not proved at all.

Therefore, I acquit the accused and allow the appeals. If the fine amount is paid that should be returned to the accused.