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Judgment
A. Badharudeen, J.
Order dated 21.07.2026 in Crl.M.P.No.140/2025 in C.C.No.25/2025 on the files of Enquiry Commissioner and Special Judge (Vigilance), Kollam, is under challenge in this Revision Petition filed by the 8th accused in the said case.
Heard the learned counsel appearing for the revision petitioner/8th accused and the learned Public Prosecutor appearing for the State. Perused the verdict under challenge and the available records.
Here the prosecution alleges commission of offences punishable under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (`PC Act’ for short hereafter) and Sections 468, 471 and 120B of the Indian Penal Code (`IPC’ for short hereafter) by accused Nos.1 to 9. The allegation is that they hatched conspiracy with the intention of obtaining illegal gratification for themselves and, thereby, misappropriated an amount of Rs.11,34,947.46 (Rupees Eleven lakh thirty four thousand nine hundred and forty seven and paise forty six only), causing corresponding loss to the State exchequer.
The specific allegation against the revision petitioner/8th accused as per the final report reads as under:
“A8, Sri.P.R.Santhosh Kumar had worked as Assistant Executive Engineer of NH Sub Division, punalur from 14/02/2006 to 03.04.2008. During the period he check measured CC VIII and part bill in between the chainage 68/300 to 68/400 in respect of the work ‘Improvements to the accident prone locations in the ghat section between KM 68/00 to 81/250 of N.H.208'. The measurement as noted in the page No: 79 to 91 of M Book No 181/98-99. (Record.06). He had check measured a total quantity of 269.41 M3 of 1:2:4 concrete. But as per the Chemical Analysis Report the ratio of materials actually used was in the ratio of 1:8:12.67 in the chainage. As such A-9, the Contractor had used a less quantity of cement of 25704.48 kg instead of 88,803 Kg and there by A-8 allowed and helped, A-9 to obtain an undue pecuniary gain for the value of cement having a quantity of 63098.52kg which was equal to an amount of Rs.189,295.56/- and thereby made corresponding loss to the Government exchequer. The measurements were noted by Assistant Engineer Sri.Shamsudeen and Overseer Sri. Somarajan had assisted in the above mentioned works. Thus A8 conspired with A1, A4 and A9 to obtain undue pecuniary gain of Rs.1,89,295.56/- to A9. Hence he committed offences u/s 13 (2) R/w 13 (1) (d) of Prevention of Corruption Act, 1988 (Act No.49 of 1988) and 468, 471, 120-B of IPC.”
It is submitted by the learned counsel for the revision petitioner that, the entire allegations as against the revision petitioner, 8th accused rest on the chemical analysis report dated 16.03.2018, wherein it was found that the sample alleged to be taken from the construction in question would show that there was deficiency in the quantity of cement used for the work. According to him, Annexure A4 chemical analysis report alone is insufficient to find, prima facie, commission of the offences against the revision petitioner/8th accused. The further contentions raised in Grounds H, J, K, L and M are extracted as under:
“H. The allegations are inherently untenable on the further reason that the final bill raised by the 9th accused claiming the payment for the construction has passed and there is no excess payment made as specifically spelt out in the final report itself. Therefore, there is no question of any loss being caused to the Government. If any loss has been caused to the Government as alleged the same could have been recovered from the payment claimed by the 9th accused. The learned Special Judge did not advert to any of these fundamental factors and the resultant order is bad in law.
J. The procedure for taking sample of concrete and consequential chemical analysis and the conclusions arrived at there on are wholly illogical and insulting to intelligence. The average of the data of chemical analysis on the samples allegedly collected from 18 places of the construction are used to set up an allegation of irregularity in the construction. The recitals in the mahazar defies logic, scientific principles and plain common sense. The data on the qualitative analysis demonstrates that the findings are inherently untenable and the same cannot in any event be used as a material for a criminal prosecution.
K. It is submitted that the responsibility of verifying whether the work was completed as per the agreement conditions, checking the quantity, rate and quality and issuing clarifications accordingly rest with the concerned Engineers. The Regional Officer appointed by the Central Government was responsible for inspecting the work passed by the executive engineer verifying the specifications, quality certificates, rate and amount, issuing clarifications and forwarding the bill amount to the Pay and Accounts Officer of the Central Government, who would then release the cheque to the contractor. The only role attributed to the petitioner as an Assistant Engineer was just to take proper check measurements, which he has perfectly done. Therefore, there cannot be any laches that can be attributed against the petitioner.
L. Even otherwise the alleged work was admittedly executed as early as in 2004-06. The allegations were raised after about 11 years. The prosecution is based merely on an unacceptable chemical analysis report, incapable of being verified its veracity and that too without following any accepted procedure. A criminal prosecution based on such a belated and faulty exercise would not pass muster with the established constitutional procedure in consonance with the principles of natural justice.
M. Going by the materials on record, there is no ghost of a chance of the case being ended in a conviction. There are no materials produced along with the final report which could reasonably be converted into legal evidence. Therefore, the prosecution shall not be allowed so as to turn out to be an engine of oppression and that too a belated prosecution without any materials whatsoever.”
Whereas, it is submitted by the learned Public Prosecutor that, in the instant case, the involvement of the revision petitioner/8th accused, who check-measured the work in CC VIII (the work in dispute) and prepared the part bill thereof, could not wriggle out from the prosecution, on getting discharged, as prima facie the offences alleged to be committed by him are made out from the prosecution records. It is submitted further that all these points had been argued before the learned Special Judge, while seeking discharge and in paragraphs 12 to 14, the learned Special Judge assigned reasons for negating the plea of discharge on facts and materials available and also relying on the decisions of the Apex Court discussed therein.
In paragraphs 11 to 13 and 15 of the impugned order the learned Special Judge observed, while dismissing the discharge plea, as under:
“11.The Investigating officer in his objection has highlighted the fact that the crime was registered pursuant to a vigilance preliminary enquiry as V.E.18/2006/KLM, that the scientific examination of the samples was conducted at the Chemical Analysts Laboratory, Thiruvananthapuram in the year 2018 relying on well-established forensic and materials engineering methods designed to assess the composition and integrity of the hardened concrete, that the long delay will not affect the chemical composition of the mixture and the results, that the PWD, NH Division lacked the facility to obtain core cutting samples earlier, that the results recorded by the Quality Control of PWD, NH division does not automatically establish compliance of standards, that the durability of the structure alone cannot negate technical and composition deficiencies, that the chemical analysis of hardened concrete conducted by the prosecution is a well-recognized and scientifical method in forensic civil engineering, that the tests were conducted in certified Laboratories using approved scientific methods which tests provide credible objective and admissible evidence of substandard execution, that the calcium oxide examination is not inapplicable to the cement used in the present case and that the chemical analysis report is scientifically valid, methodologically sound and it is cogent credible evidence of substandard material usage and deviation from contract norms.
12.The short point to be considered hence is "whether the petitioner/accused No.8 is entitled to an order of discharge on the basis of the aforesaid averments". As already mentioned above, it is an admitted fact that the petitioner/accused No.8 had worked as the Assistant Executive Engineer, NH Sub Division, Punalur as aforesaid and also that he had also check measured the work in CC VIII and part bill in between CH 68/300 to 68/400 for length of a 100 metres. The entire claim of the petitioner is on the ground that the chemical analysis of the samples done by the prosecution is unscientific and baseless. In fact, this is a matter of evidence to be decided at the stage of trial. Further, the alleged involvement of the petitioner in the larger conspiracy is also a matter of evidence to be decided at the trial. The prosecution at this stage has produced cogent evidence in the form of chemical analysis report (prosecution record No.17) in addition to the statements of the Chief Chemical Examiner, who is also cited as witness No.13. Further, the prosecution has produced the statements of Assistant Executive Engineers of the Quality Control, PWD NH Division as witness Nos.9, 10 and 11 in order to establish that the quality control test was conducted by them using samples taken from the concrete mixing machine. Hence in the light of the aforesaid cogent oral and documentary evidence and the admitted involvement of the petitioner in the execution of the work and its check measurements carried out for 100 metres it cannot, by any means, be held at this stage of the proceedings that the charge against the petitioner is "groundless".
13.Even a cursory scan of the final report No.01/2020 dated 26/05/2020 will reveal the fact that the investigating officer has conducted a detailed scientific investigation of the allegations. 23 witnesses were examined and 19 documents were produced as evidence. The investigating officer physically inspected the site on 29/03/2017 and on 30/03/2019. 18 concrete samples were collected from six reaches in different chainage using core cutting machines and were sent for chemical examination. The investigating officer has also produced the report of chemical analysis. It is on the basis of the chemical examination report submitted after chemical examination that the investigating officer has concluded that there were irregularities in the use of cement for concrete work contrary to the prescribed ratio of 1:2:4. The investigating officer has also cited witnesses which includes the Chief Chemical Examiner at the laboratory of the Chief Chemical Examiner to the Government at Thiruvananthapuram. In the light of the aforesaid final report, and the supporting documents including witness statements and documents it cannot, by any means, be held that the charges levelled against the petitioner are "groundless" at this stage of the proceedings.
15.Accordingly, on the basis of the aforesaid discussion and based on the admitted involvement of the petitioner and the prosecution records it cannot by any means be held that the charges or allegations levelled against the petitioner are "groundless".”
Having addressed the rival contentions, here the involvement of the revision petitioner along with the other accused persons in the matter of obtaining illegal gratification, which led to misappropriation of a total sum of Rs. 11,34,947.46, has been raised by the prosecution on the allegation that all the accused persons hatched conspiracy to do so. Further, it is alleged that on this premise, the revision petitioner herein, who had worked as the Assistant Executive Engineer, N.H Sub Division, Punalur had check measured CC VIII and prepared part bill in between the chainage CH:68/300 to CH:68/400, i.e, at a length of 100 metres. The specific allegation of the prosecution is that, in the said work, instead of using 1:2:4 ratio of concrete for the total measured work of 269.41 m3, the ratio used for concrete work in the chainage is 1:8:12.67 and thereby facilitated the contractor to use less quantity of 25704.48 kgs of cement instead of using 88,803 kg. of cement and thereby the revision petitioner facilitated, the 9th accused, the contractor, in getting excess amount of Rs.1,89,295.56 and thereby they jointly misappropriated the value of the said cement coming to the tune of Rs.1,89,295.56. It is true that chemical analysis report is the main evidence relied on by the prosecution in a case where the prosecution alleges hatching of conspiracy in between the accused, to misappropriate a total sum of Rs.11,34,947.46. Thus the prosecution alleges conspiracy as the plank, where from the series of action culminated in the misappropriation alleged. It is well settled in law that direct evidence to find conspiracy is very remote and the allegation of conspiracy could be proved from the circumstances of the entire case, and to reach this stage, trial is necessary. Thus when conspiracy is alleged as the underpath of the prosecution case, discharge of an accused at the pre-trial stage, when, prima facie, the allegations, or at least a strong suspicion to be brought from the prosecution materials could not be resorted. Here, prima facie, the allegations against the petitioner are made out, otherwise a strong suspicion regarding his involvement in the crime as part of the conspiracy hatched between the accused could be found, prima facie.
It is a well settled law that, when prosecution records would show, prima facie, the ingredients for offence/offences alleged to be committed and in its absence even the strong suspicion to be found from the prosecution records to show the involvement of the accused person, who seeks discharge, the discharge plea would not succeed as to prevent trial of the matter and in such cases, the innocence of the accused can be considered on evaluation of evidence, after trial. In view of the settled law, the finding of the learned Special Judge is only to be justified and thus no interference in the impugned order is called for.
Accordingly, this Criminal Revision Petition is dismissed.