K.K. Thankachan vs The Deputy Superintendent Of Police & Anr.

A. Badharudeen, J.

The 5^th accused in C.C.No.42 of 2003 on the files of the Enquiry Commissioner and Special Judge, Kozhikode has filed this appeal challenging the conviction and sentence imposed against him as per judgment dated 23.11.2012 in the said case.

Heard the learned counsel for the appellant and the learned Public Prosecutor. Perused the records of the Special Court and the verdict impugned.

The prosecution case is that accused Nos.1 and 2, while working as Secretaries of the Balal Grama Panchayat, the 3^rd accused, while functioning as the President of the said Panchayat, and the 4^th accused, while functioning as the Vice-President of the said Panchayat, hatched a conspiracy with the appellant/5^th accused, who was a member of the beneficiary committee, along with accused Nos.6 to 12, the other members of the beneficiary committee formed for the construction of a well for the use of the nearby Anganwadi, with intention to misappropriate public money and to get undue pecuniary advantage for themselves. In pursuance to the said conspiracy, they had jointly misappropriated an amount of Rs.24,621/-during the period from 20.04.1996 to 09.05.1997, without constructing the proposed well and by showing a well already constructed by the 5^th accused, after availing a loan under the IRDP scheme from the North Malabar Gramin Bank, by forging documents and by cheating the Government. Thus, accused Nos.1 to 12 alleged to have committed offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act”), and under Sections 420, 468 and 471 read with 120(B) of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”).

The learned Special Judge framed charges for the aforesaid offences against accused Nos.4 to 11 and tried the matter. During trial, PWs 1 to 18 were examined and Exts.P-1 to P-69 were marked on the side of the prosecution. On the side of the defence, DWs 1 and 2 were examined and Exts.D-1 to D-8 were marked. On an appreciation of the evidence, the learned Special Judge found that the prosecution failed to prove the offences alleged against accused Nos.4, 6 to 11, who faced trial (accused No.1 to 3 and 12 died before the trial). However, the learned Special Judge found that accused No.5 alone had committed offences punishable under Sections 420 and 120(B) of the IPC read with Sections 13(1)(d) and 13(2) of the PC Act. Accordingly, the 5^th accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/-, and in default of payment of fine, to undergo rigorous imprisonment for a period of one month for the offence under Section 420 of the IPC. He was further sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.3,000/-, and in default of payment of fine, to undergo rigorous imprisonment for a period of one month for the offence under Section 120(B) of the IPC read with Sections 13(1)(d) and 13(2) of the PC Act, 1988. The substantive sentences were ordered to run concurrently. The accused was also held entitled to get set off the period of detention, if any, in connection with this case.

The learned counsel for the appellant argued that, in this case, the learned Special Judge wrongly found commission of offences punishable under Sections 420 and 120(B) of the IPC as well as Section 13(1)(d) read with 13(2) of the PC Act, while acquitting all the other accused, namely accused Nos.4, 6 to 11, holding that they had neither hatched any conspiracy nor obtained any illegal pecuniary advantage in any manner. According to the learned counsel for the appellant, the finding that the appellant committed offences under Section 120(B) of the IPC as well as Sections 13(1)(d) and 13(2) of the PC Act, in the light of the acquittal of all the other accused, is patently illegal.

He further submitted that, in this case, it is discernible from the evidence of PWs 2 and 3 and from Ext.P-3 and Ext.P-3(a) that three cents of property had been surrendered by the appellant to Balal Grama Panchayat, where the disputed well was constructed. It is pointed out that PW-13, the Upper Division Clerk of the Panchayat, gave evidence regarding the construction of the new well, which led to encashment of Rs.24,621/- and the receipt of Rs.7,681/- by the 5^th accused. It is further pointed out that the appellant herein had surrendered three cents of land belonging to him free of cost to the Panchayat, and the value of which was much higher than Rs.7,681/-, and therefore the allegation that he had obtained an undue pecuniary advantage of Rs.7,681/- on the premise of digging of a well in the place of an existing well, is unsustainable.

According to the learned counsel for the appellant, in fact, the evidence of PW-13 would show that a new well was constructed and that Rs.24,621/- was sanctioned for the same, out of which Rs.7,681/- was paid to the 5^th accused. Since all the other accused involved in the crime were acquitted, segregating the case of the 5^th accused, especially when the allegation of conspiracy under Section 120(B) of the IPC is the foundation of the prosecution case, is wholly unsustainable. Therefore, the verdict requires interference.

The learned Public Prosecutor opposed the contentions raised by the learned counsel for the appellant and supported the verdict. However, he fairly conceded that three cents of property had been surrendered by the appellant to the Panchayat and that the well alleged to have been shown as newly constructed, is in the said three cents of property, where, an old well constructed by the appellant already existed. He also fairly submitted that the amount allegedly misappropriated was assessed at Rs.24,621/-, out of which the 5^th accused had received only Rs.7,681/-.

Adverting to the rival contentions, the points that arise for consideration in this case are:-

The specific case of the 5^th accused has been discussed in paragraph No.5 of the judgment, as pointed out by the learned counsel for the appellant. According to the appellant, he and his wife had purchased property in Survey No. 146/4A5 situated in Balal Village as per Document No.781/96. He is having one acre of property and his wife is having one acre of property, and both these items are lying contiguous without any boundary. A house bearing No.4/55 is situated in that property. He had availed a loan of Rs.10,000/- from the North Malabar Gramin Bank, Vellarikundu Branch, under the IRDP Scheme for the construction of a well and a boundary wall. Even though he dug a well at a distance of five meters from his house, no water could be fetched. He had repaid the loan amount excluding an amount of Rs.2,500/-, which was given as subsidy. The well was constructed by him on the boundary of his wife’s property. An attempt was made by the residents of the nearby XXX Colony (real name hided) to construct a well in the property of Anganwady and, since they could not get water, they approached the 5^th accused and then he had relinquished three cents of land belonging to him, situated adjacent to the road, where a new well was constructed by the Panchayat. The property and the well constructed therein belong to the Panchayat. The 5^th accused had not received any remuneration for surrendering his property. The 5^th accused was a member of the Marxist Party and subsequently became a member of the Congress Party and, according to him, in order to wreak political vengeance, this case was registered based on a complaint given by the Local Secretary of C.P.I. (M). The well constructed by the Panchayat and the well constructed by the 5^th accused still exist in the property and could be seen even now if the property would be inspected. On this plank, he pleaded innocence.

As regards to the surrender of three cents of property, as contended by the accused, the evidence of PWs 2 and 3 would establish the same, as pointed out by the learned counsel for the appellant. PW-2 had given evidence that, while he was working as Secretary of Balal Grama Panchayat, he had produced Ext.P-2 Minutes Book of the Panchayat. It is recorded in the Minutes Book that a decision was taken as per Resolution No.118, Clause 2, that an application had to be given to the Collector for taking steps for the construction of a well at Maruthomkulam and to construct the well as per Untied Fund Norms, and to form a committee consisting of the Ward Member, President and Secretary of the Panchayat for the construction of the well, and the Secretary was authorised to form the committee. Ext.P-3 is the file of the Panchayat, which contains the estimate prepared by Engineer K.P. Gangadharan for the construction of the well and, as per the estimate, the total expenditure for the construction of the well was fixed at Rs.25,000/-. There were no documents with the Panchayat showing that three cents of land were surrendered by the 5^th accused to the Panchayat. In cross-examination, he stated that the responsibility for execution of the work of the Panchayat was upon the Secretary and that the Secretary had to conduct periodical inspections of the work and release the amount. The Ward Member has no authority in the execution of the work. The Engineer would record the measurements of the work done in the M-Book and endorsement would be made by the Secretary in the M-Book, and the final bill would be drawn by him. The Ward Member automatically becomes a member of the Sub-Committee formed for the execution of any work in his ward. As per the decision of the Panchayat, the Secretary was authorised to dig nine wells in the Panchayat area, including Maruthomkulam. Repeated communications were sent by the District Collector for completing the work and submitting the report of compliance. The application given by the 5^th accused for relinquishing his three cents of land to the Panchayat is seen in the Ext.P-3 file and it was endorsed to the Balal Village Officer on 11.06.1996.

PW-3 has given evidence that, while he was working as Village Officer of Balal, the Vigilance Police requested him to submit the plan of the land relinquished to the Panchayat and he issued a certificate stating that the relinquishment had not become final and that the order of the Revenue Divisional Officer regarding the relinquishment had not been received in the Village Office and, therefore, he could not prepare the plan of the relinquished land. Ext.P-4 is the certificate issued by him. The application for relinquishment of land would be submitted to the concerned department and it would be forwarded to the Revenue Divisional Officer. The Revenue Divisional Officer would forward the application for enquiry to the Village Officer. The enquiry report would be submitted to Revenue Divisional Officer through the Tahsildar. After passing of the order, the Revenue Divisional Officer would send a copy of the order to the Village Officer and a request would be made to the Surveyor for preparing the plan of the relinquished area and for effecting the necessary changes in the Field Measurement Book. He had issued the Possession Certificate, which got marked as Ext.P-5, regarding one acre of land belonged to the 5^th accused, Thankachan, situated in R.S.146/4A5. The sketch of the said one acre of land belonging to the 5^th accused tendered in evidence through him as Ext.P-6. In cross-examination, he stated that when a person would relinquish his land, subsequent steps have to be taken by the Revenue Department and it might take years to finalise the proceedings. His vital evidence is that in the land relinquishment form signed by the 5^th accused, it was recorded that the 5^th accused had surrendered the land for the purpose of constructing a well for Maruthomkulam Anganwadi and he had signed the form in the presence of the previous Village Officer. Then, by the evidence discussed above, relinquishment of three cents of property by the appellant/5^th accused could be found, though the surrender proceedings were not finalised by the official Acts, for which the appellant has no role.

As regards the construction of the new well, the evidence of PW-13 is relevant. PW-13 had given evidence that he had worked as U.D. Clerk in Balal Grama Panchayat. In Ext.P-2(a), it is recorded that a decision was taken by the Panchayat to dig a well at Maruthomkulam by spending Rs.25,000/- and to form a committee for executing the work as per Resolution No.184/2. A decision was also taken to construct the well in the property of K.K. Thankachan. In Ext.P-33, it is recorded that Cheque No.2785 for Rs.22,303.70/-was issued in respect of this work and that it was encashed on 27.06.1996 by the Secretary, Ambadikunhi. Ext.P-3(a) is the counterfoil of that cheque. An entry regarding the encashment of the cheque was made in Ext.P-30 Cash Book at page No.26, which is marked as Ext.P-30(a). In Ext.P-30, at page 28, it is recorded that, as per Voucher No.122, an amount of Rs.9,640/- was spent for constructing the well at Maruthomkulam, which is marked as Ext.P-30(b). In Ext.P-3, at Page No.27, the Muster Roll for payment of Rs.9,640/- is seen, signed by the Secretary Ambadikunhi, and it is marked as Ext.P-3(c). It is recorded in Ext.P-3(c) that the amount was received by Koran, Shankaran, Chandran and eight others, who signed the document. Ext.P-34(a) is the counterfoil of Cheque No.64048 for Rs.23,000/- and the corresponding entry was made at page No.7 of Ext.P-31, which is marked as Ext.P-31(a). In Ext.P-31(a), an amount of Rs.4,000/- was recorded as spent for the Maruthomkulam well and the corresponding Muster Roll is seen at Page No.23 of Ext.P-3, which is marked as Ext.P-3(d). In Ext.P-32 Cheque Book, an amount of Rs.23,300/- is shown as encashed as per Cheque No. 3628 and the corresponding entry was made in Ext.P-31 at page No.8, which is marked as Ext.P-31(b). In Ext.P-31, at Page No.9, an amount of Rs.9,000/- was recorded as spend for the Maruthomkulam well. The corresponding Muster Roll is seen at Page 21 of Ext.P-3, which is marked as Ext.P-3(e). As per Ext.P-34 Cheque Book, an amount of Rs.7,681/- was given to Thankachan(appellant) as per Cheque No.64057 and the counterfoil of that cheque is marked as Ext.P-34(b). In Ext.P-3, an application given by Thankachan for sanctioning Rs.7,681/- for constructing the side wall of the well is seen at Page 17, which is marked as Ext.P-3(f), and the receipt given by Thankachan for receiving that amount is marked as Ext.P-3(g). An amount of Rs.24,261/- is recorded as having been spent by the Panchayat for constructing the well at Maruthomkulam. Ext.P-35 is the M-Book regarding the construction of the well. Measurements at Pages 56 to 59 of Ext.P-35 M-Book were recorded by C.V. Narayanan, Assistant Engineer, and the same were signed by the Secretary and the President. Ext.P-51 is the list of the persons who attended the meeting held on 10.06.1996 regarding the construction of the well for Maruthomkulam Anganwadi and it contains the list of committee members and local residents who had attended the meeting. He had produced the voters’ lists of Hosdurg Assembly Constituency, which are marked as Ext.P-52 and P-53, and they were seized as per the Seizure Mahazar. The names of A-5, A-7, A-8, A-9, A-11 and A-12 are seen in the said voters’ lists.

Before finding whether the learned Special Judge was justified in holding that the accused committed the offences punishable under Sections 420 read with 120(B) of the IPC and Section 13(1)(d) read with Section 13(2) of the PC Act, it is very relevant to note that the act of conspiracy is one that has to be hatched between more than one persons. In this regard, the finding of the learned Special Judge in paragraph No.50 is relevant:

Again the finding of the learned Special Judge in paragraph No.51 also is relevant:

Coming to the ingredients to find offence of conspiracy, the minimum requirement is that an agreement between two or more people is a sine qua non (an absolute necessity). A lone accused among other accused persons can still be convicted if the prosecution proves the involvement of other co-conspirators, even if those others are unnamed, untraced, died or tried separately. Similarly, if a specific set of named co-accused are jointly tried and all others are acquitted for lack of an agreement, the remaining single accused cannot be legally convicted of conspiracy.

In the instant case, though accused Nos.4 to 11 were tried on the allegation that they had hatched a conspiracy among themselves with a view to illegally obtain Rs.24,621/-, on an appreciation of the evidence, the learned Special Judge found that, except the 5^th accused, the accused Nos. 4 to 11 did not commit any of the offences, finding that the 5^th accused hatched conspiracy with deceased accused Nos. 1 to 3.

This is a case wherein the evidence discernible from Ext.P3, spoken to by PW-3, would establish that the appellant herein had relinquished three cents of property for the purpose of constructing a well and, for that purpose, a beneficiary committee was formed. Thereafter, the allegation is that, on the pretext of constructing a new well, money was obtained by all the accused as part of the conspiracy hatched between them, out of which only Rs.7,681/- was obtained by the 5^th accused. When, on appreciation of the evidence, the learned Special Judge found that deceased accused Nos.1 to 3 and 5 hatched conspiracy and thereby encashed a total sum of Rs.24,621/-, his finding is that the accused Nos.4, 6 to 11 did not commit any offence. That apart, in paragraph No.39 of the judgment, the learned Special Judge addressed the evidence of DW-2 and Ext.D-7 tendered by the 5^th accused. Paragraph No.39 reads as under:

Thus on reappreciation of evidence, this Court is of the view that the finding of the Special Judge that the 5^th accused alone committed the offences punishable under Sections 420 read with 120(B) of the IPC and Sections 13(1)(d) and 13(2) of the PC Act could not be justified, since the prosecution failed to prove commission of the said offences by the appellant/5^th accused beyond reasonable doubts, and the prosecution evidence not fully free from doubt. Thus, the appellant is entitled to get benefit of doubts. Therefore, the verdict requires interference.

In the result, this appeal is allowed. The conviction and sentence imposed by the learned Special Judge against the appellant are set aside, enlarging him benefit of doubt, and the accused/appellant is set at liberty forthwith. The bail bond shall stand cancelled.