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Judgment
The order dated 01.06.2026 in CMP No. 548/2023 in C.C.No.170/2016 on the files of the Enquiry Commissioner and Special Judge, Thalassery is under challenge in this Revision Petition. The Revision Petitioners are accused Nos.1, 2 and 5 before the Special Court.
Heard the learned counsel for the revision petitioners and the learned Public Prosecutor. Perused the order impugned as well as the case diary including statements of CW2, CW3, CW15 and CW22 and other witnesses and documents relied upon by the learned Public Prosecutor.
Here the prosecution alleges the commission of offences punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short 'PC Act') as well as under Sections 468,471 and 120B of the Indian Penal Code (for short 'IPC), by the accused No. 1 to 7. Out of which, accused No.3 and 4 died. Accused No.8 also died prior to filing of the final report.
The prosecution case to be discernible from the final report is that, Accused No.1 Sri.Androo Alan and Accused No.2 Sri.T-K.Chackochan, while working as Overseers, Block Panchayath, Sulthan Bathery, deceased Accused No.3 Sri.K.K.Thomas and deceased Accused No.4 Sri.B.Jayakumar, while working as Asst. Engineers, Block Panchayath, Sulthan Bathery, Accused No.5 Sri.V.M.Vijayan while working as Asst. Executive Engineer, LSGD, Sulthan Bathery, deceased Accused No.6 Sri.B.Sudhakaran and Accused No.7 Sri.Vargheese Mani, while working as Asst. Executive Engineers, DRDA, Wayanad, during the period from 22.04.2002 to 13-04-2006, abused their official position, hatched criminal conspiracy with Accused No.8 Sri.C.K.Thomas, Contractor, executed the work of Meenengadi-Purakkadi-Appad Road in a sub-standard manner and without executing the work properly at site and recorded false and inflated measurements by deceased Accused No.3 and 4 in the M-Book and Accused No.5, deceased Accused No.6 and Accused No.7 check measured the work causing loss of Rs.4,73,634/- to the Government and corresponding undue pecuniary advantage to themselves. Thus, it is alleged that accused persons have committed offences punishable under section 13(1)(d) rlw 13(2) of the Prevention of Corruption Act and under Sections 468,471 and 120B of the Indian Penal Code.
The learned counsel for the revision petitioners taken this court to the relevant paragraphs of the order and also in the discussions made by the learned Special Judge based on the statements of CW2, CW13, CW22, CW32 and also CW15. According to him, accused Nos.1 and 2 put up a specific case that they were not entrusted with the work of Meenengady-Purakkady-Appad Road and therefore, they have no role in the occurrence. According to him, even though the statement of CW2 would show that accused Nos.1 and 2 had supervised the work, the same not discernible from any of the documents. He submitted that, therefore the role of accused Nos.1 and 2 not at all made out, prima facie, to proceed further and in such view of the matter, the dismissal of discharge petition, filed by accused Nos.1 and 2 would require interference. He also argued that even though allegation against accused No.5 has been spoken by CW2, UD Clerk of the Block Panchayath Office that the M-Book had been check measured and signed by Accused No.5, Sri.V.M.Vijayan in page Nos.80 to 93 of level field book and signed by himself is insufficient to frame charge against A5. According to him, as held by the Apex Court in C.Chenga Reddy v. State of A.P [(1996) 10 SCC 193] in paragraph 22 total violations, irregularities, ignorance of various circulations and departmental orders issued from time to time would not be sufficient to find commission of offence under Section 13(1)(d) rlw 13(2) of the PC Act, 1988. In paragraph No.22 of the decision, the Apex Court held as under:
“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 innocence.
In Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu) 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 officials and contractors concerned, 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. That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the State may have suffered financially, particularly by allotment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them. We may reiterate that once the report, Ex. P-11, is ruled out of consideration as inadmissible, then it is not safe to rely on the mere impressions of the witnesses to hold the appellants guilty of the offences alleged against them. The prosecution has failed to establish that in 1979-80, no work of jungle clearance in the Gandipalem Project Division was undertaken and that false and fabricated documents were prepared with a view to misappropriate government funds. The prosecution has not even been able to establish that less work of jungle clearance was undertaken but payment was shown to have been made for excessive work and some amount out of the payments made for the work was thus misappropriated by the appellants in connivance with the contractors. The conviction and sentence imposed against the appellants (which had been reduced by the High Court to a token sentence) under the circumstances cannot be sustained and we accordingly accept the appeal and set aside their conviction and sentence. Fine paid by the appellants shall be refunded to them.”
The learned Public Prosecutor strongly opposed the contentions mainly relying on the statements of CW2 and CW15 as well as the statement of CW22, who found anomaly in the works done by showing exaggerate measurements in the M-Book, which would, in fact, resulted in financial loss to the tune of Rs.4,73,634/- to the Government. According to him, prosecution records would show the involvement of the revision petitioners/accused No.1,2 and 5 prima facie or a strong suspicion regarding their involvement could be found and in such a case discharge plea would not sustain. Therefore, the order impugned is liable to be confirmed. Before addressing the rival contentions, it is necessary to extract the matters considered by the learned Special Judge while disallowing the discharge.
Paragraphs 32 to 38 are relevant and the same are extracted hereunder:
“32.The main contention is that, Accused No.1 and 2 were not entrusted with the work of Meenengady-Purakkady-Appad road. Accused No.1 and 2 have no case that, they were not the Overseers of Sulthan Bathery Block panchayath during the period of Meenengady-Purakkady-Appad road work. This court has perused Ext.Q2, Q3 and Q4 attendance registers of Sulthan Bathery Block Panchayath. Q2 is the attendance register for the year 2004. Q3 is the attendance register for the year 2005. Q4 is the attendance register for the year 2006. The said documents would show that, Accused No.1 and 2 were the Overseers working in the Sulthan Bathery Block Panchayath.
33.This court has perused the statement of Sri.K.J.Joseph (CW2), UD Clerk, Block Panchayath office, Sulthan Bathery. He stated that, Accused No.1 and 2 were the Overseers, Accused No.3 and 4 were the Asst. Engineers and Accused No.5 to 7 were the Asst. Executive Engineers who were supervised, measured and check-measured the work. Accused No.3 and 4 were measured the work and make entry in the measurement book. He specifically deposed that, Accused No.l and 2 were the Overseers of the Sulthan Bathery Block Panchayath during 2004, 2005 and 2006. CW2 further stated that, Accused No.3 prepared level fie1d book and plotted sheets. The same has been check-measured and signed by Accused No.5 Sri.V.M.Vijayan in page No.80 to 93 of level field book. PW2 had produced the said documents to the investigating officer.
34.Smt.Shantakumari, CW13, LD Clerk, Property Alleviation unit, District Panchayath, Wayanad has produced true copy of the RTC of Accused No.5 to the investigating officer. She stated to the investigating officer that, Accused No.5 took charge as Asst. Executive Engineer on 01-02-2003. Sri.Sudeep.R.S (CW15) LD Clerk, Property Alleviation unit, Wayanad gave statement to the investigating officer that, Accused No.5, 6 and 7, Asst. Executive Engineers check-measured the work of Meenangadi-Purakkadi-Appad road. CW15 identified the signature of Accused No.5, 6 and 7 stating that, Accused No.5 had signed in page No.14, 18 and 49 in M-Book No. 10/01-02. Accused No.5 signed in page No.2, 3,4,8,9, 12, 17, 19, 21, 25, 36, 48, 50, 65 in M-Book No.45/2003-2004. The statement reveals that, CW15 identified the signature of Accused No.5 in the said M-Book.
35.Sri.N.S.Subramanian CW22, Executive Engineer, VACB Thiruvananthapuram had inspected Meenangadi-Purakkadi-Appad road work on 13-02-2008 and 15-02-2008 and prepared inspection report (Document M). The difference of the measurements of various works in the field and M-Book specifically detailed in his report. The Document-M report prima facie shows that, what is recorded in M-Books produced by the prosecution and what was seen in the field are different. CW23 P.Jayaram, Asst. Executive Engineer, PWD Roads Sub-division, Kalpetta, also accompanied CW22 also gave statement to the investigating officer regarding the difference of measurement of the said work as per M-Book and in the field. CW22 and CW23 stated that, they have verified work fi1e and M-book of the concerned work. According to the prosecution, all the accused hatched criminal conspiracy and Accused No.1 to 7 had committed criminal misconduct and consequence of that, Accused No.8 obtained pecuniary advantages. It is alleged that, Accused No.3 to 7 forged measurement book by recording false measurement of the road work and caused to release the money to Accused No.8. All these facts to be proved in a full-fledged trial.
36.Sri.M.K.Jayan CW32, Head Clerk, Poverty Alleviation unit, Wayanad had produced attendance registers to the investigating officer. He gave statement to the effect that, Accused No.5 was in charge of Asst. Executive Engineer till July 2004.
37.This Court is not intending to meticulously examine the entire statement and documents for the purpose of deciding this petition fiied by the accused u/ s 239 of CrPC. The peripheral analysis of the statement of CW2, CW15 , CW22 and CW 23 itself sufficient to prima facie conclude that, the charge alleged against the accused is not groundless. There is strong suspicion exists against the petitioners in order to frame charge against them for the alleged offences.
38.The discussion made above is only for the purpose of deciding whether there is any prima facie case exist against the petitioner, as alleged by the prosecution and not for considering the entire merit of the case which is to be done ordinarily after completing the full fledged trial. Whether there is any evidence to attract section 13(1)(d) rlw 13(2) of the Prevention of Corruption Act and Section 468, 471 and 120B of Indian Penal Code is to be decided only after full-fledged trial.”
On perusal of the statement of CW2, as pointed out by the learned Public Prosecutor, a total loss of Rs. 4,73,634/-was sustained by the Government and according to CW2, the work was supervised and measured by the Overseers, Androo Alan (A1) and T.K.Chackochan (A2), K.T.Thomas (A3) and B.Jayakumar (A4), Assistant Engineers, V.M.Vijayan (A5), B.Sudhakaran (A6) and Varghese Mani (A7), Assistant Executive Engineers. He had given statement of identifying the handwriting of the Assistant Engineers in the invoice in M-Book and identified their signatures therein. Regarding the role of A5, CW15 also given statement that Sri.V.M.Vijayan (A5), who held the charge of Assistant Executive Engineer put signatures in the M-Book No.10/01-02 in page Nos. 76, 77, 14, 18 and 41. His specific version is that Sri.V.M.Vijayan signed in page Nos.5,7,9,10,12,22 of M-Book No.24/04-05. He also stated that Sri.V.M.Vijayan signed in page Nos.71,72,73,79,80 and 82 of M-Book No.45/03-04.
The question falls for consideration is whether the plea of discharge raised by the revision petitioners is liable to succeed and the order impugned would require interference.
The legal points argued by the learned counsel for the revision petitioners based on the decision in C.Chenga Reddy's case (Supra) is absolutely correct and the same was rendered in an appeal against conviction, based on evidence. It is the well settled law that when considering plea of discharge, the matters to be considered by a court is to see whether the prosecution materials in toto would show commission of offences alleged in the final report prima facie. It is also equally well settled that in cases were a strong suspicion regarding the involvement of the accused could be found, then also discharge is liable to be rejected. Even though a mere suspicion is not sufficient to negate the plea of discharge.
Here the contentions raised by the revision petitioners No.1 and 2 are concerned, going by the statements of CW2 as well as CW15 and Exts.Q2, Q3 and Q4, it is seen that as per Ext.Q2, the attendance register for the year 2004 of Sulthan Bathery Block Panchayath, Q3, the attendance register for the year 2005 and Q4, the attendance register for the year 2006 that accused Nos.1 and 2 worked as Overseers in Sulthan Bathery Block Panchayath where accused Nos. 3 and 4 worked as Assistant Engineers and accused Nos.5 to 7 worked as Assistant Executive Engineers. It is discernible from the prosecution records that no other Overseers worked in the Block Panchayath during the relevant period. In such a case, the contention raised by the learned counsel for accused Nos.1 and 2 that they were not entrusted in the work of Meenengadi- Purakkadi-Appad Road could not be accepted for the reasons stated as follows. In fact, Overseers are the lowest strata of officers dealing with works in a Block Panchayath under the guidance of Assistant Engineers and supervised by Executive Engineers. Therefore, for each and every work, the Overseers are the first tier officers. Since Exts.Q2, Q3 and Q4 would show that during the period of misappropriation pertaining the work, accused Nos.1 and 2 held the post of Overseers in Sulthan Bathery Block Panchayath and the prosecution records do not show any other Overseers worked in the Block Panchayath to work as the first tier officers, the statement given by CW2, the UD Clerk of the Block Panchayath office stated that the accused Nos. 1 and 2 had supervised the work, would show their involvement in this work. Similarly, specific allegation against accused No.5 could be found in the statement of CW2 as he stated that the M-Book had been check measured and signed by Accused No.5, Sri.V.M.Vijayan in page Nos.80 to 93 of level field book and signed by himself is insufficient to frame charge against A5. CW15 gave statement to the investigating officer that, Accused No.5, 6 and 7, Asst. Executive Engineers check measured the work of Meenengadi-Purakkadi-Appad road. CW15 identified the signature of Accused No.5, 6 and 7 stating that, Accused No.5 had signed in page No.14, 18 and 49 in M-Book No.10/01-02. Accused No.5 signed in page No.2, 3,4,8,9, 12, 17, 19, 21, 25, 36, 48, 50, 65 in M-Book No.45/2003-2004. The statement reveals that, CW15 identified the signature of Accused No.5 in the said M-Book . Thus, prima facie involvement of accused No.5 could be found from the statement of CW2 and CW15. Here the prosecution case is that accused Nos.1 to 3, who held the post of Overseers, Assistant Engineers and Assistant Engineers of LSGD attached to the Block Panchayath, Sulthan Bathery hatched conspiracy with accused No. 8, C.K.Thomas, Contractor, who executed the work of Meenengadi-Purakkadi-Appad road in a sub-standard manner without executing the work properly at site and made false and inflated measurements. Since the allegations are in the above line, it is difficult to hold that the pre-trial stage that the Overseers of the Block Panchayath have no role in the matter of misappropriation of Rs.4,73,634/- without properly executing the work as their failure to ensure the work in proper manner, resisting the work in a sub-standard manner are matters of evidence. Similarly, when conspiracy is the allegation evidence to prove the same could not be found directly. So in order to prove conspiracy, the evidence discernible from circumstances to be relied upon. If so, no doubt, prima facie the offences alleged are made out against the revision petitioners or a strong suspicion regarding the involvement of accused Nos.1 and 2 also in this misappropriation could be found rather than a mere suspicion.
In view of the above, the discharge plea raised by the revision petitioners cannot be sustained and therefore, the learned Special Judge is right in negating the same. For the above reasons, the impugned order does not require any interference. Accordingly, the same is confirmed.
In the result, the revision petition fails and is dismissed.