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Judgment
A. Badharudeen, J.
This petition has been filed under Article 227 of the Constitution of India by accused Nos.1 and 2 in V.C.10/2016-WYD of 2016 seeking the following prayers:
“i.Quash Exhibit P5 and all further proceedings against the petitioners in VC 10/2016 WYD before the Court of Enquiry Commissioner and Special Judge, Thalassery;
ii.Issue such other and further reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
iii.Award costs of this petitioners.
iv.Petitioners also prays that this Hon’ble Court may be pleased to dispense with the translation of the documents produced in the vernacular language.”
Heard the learned counsel for the petitioners and the learned Public Prosecutor appearing for the State. Perused the prosecution records including the report submitted by the Investigating Officer.
In this case the prosecution allegation is that accused Nos.1 and 2, who are the Assistant Project Engineer and Project Engineer engaged on contract basis under the Kerala Police Housing Construction Corporation and, being public servants during the period 2012-2013 , were entrusted with the construction of 25 houses at Nellarachal in Ambalavayal Grama Panchayat and 25 houses at Kunhome in Thondanadu Grama Panchayat for the rehabilitation of tribal families, hatched criminal conspiracy with the 3rd accused with intent to misappropriate Government money. Pursuant to the said conspiracy, the 1st accused allegedly recorded the plinth area of the 25 houses at Nellarachal in excess of what had actually been constructed, and the 2nd accused certified the same as correct. Consequently, on that premise, Rs.2,06,196.08 happened to be assessed in excess to the 3rd accused. Thus the prosecution alleges commission of offences punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (`PC Act’ for short) as well as Sections 420, 471 and 120B of the Indian Penal Code (`IPC’ for short) by the accused Nos.1 to 3.
According to the learned counsel for the petitioners, earlier the 2nd petitioner/2nd accused had approached this Court and filed Crl.M.C.No.6430/2024 and obtained Ext.P4 order to complete the investigation as the same was delayed. Later as an outcome of the said direction, the Investigating Officer had filed final report which is under challenge in this petition. According to him, in the instant case, there are no materials to show that the petitioners had any dishonest intention to manipulate the records. According to him, all the 25 houses were proposed to be constructed based on the same plan with a uniform plinth area. But when the construction was actually carried out, there occurred some shortage in the plinth area and without noticing the same, the petitioners considered the plinth area as proposed for the purpose of sanctioning the amount. It is also submitted that the alleged misappropriation of Rs.2,80,436/- is a negligible amount and, therefore the same would not constitute corruption or fraud. It is also submitted that Rs.9,00,000/- due to the contractor has been pending with the Corporation and in that view of the matter, no actual financial loss was sustained by the Corporation.
Repelling this contention, earlier a detailed report has been filed by the Investigating Officer. Paragraph Nos.4 to 9 of the report are relevant and the same are extracted as under:
“4.It is submitted that five model 'Unnathy' of 25 houses each were planned in different Districts in the State of Kerala by utilizing The Scheduled Tribe Development Department Fund which obtained Administrative Sanction vide GO (Rt) No. 508/12/STDD (PM) Dated 20.03.2012. In Wayand Districts two 'Unnathy' in this category was approved in Vakery in Poothadi Gramapanchayath and Kunhome in Thondarnad Gramapanchayath. Later the Unnathy planned in Vakery was shifted to Nellarachal (Njamalam kunnu) in Ambalavayal Grama panchayath. The work was entrusted to Kerala Police Housing Construction Corporation Ltd (KPHCC) and in this regard an agreement was executed between The Scheduled Tribe Development Department and KPHCC. It is designed to construct 25 typical houses having plinth area of 40.79 m² with an estimated cost of Rs 5.32 Lakh for a single house in each Unnathy. Accordingly Technical Sanction was accorded vide order No. KPHCC/317/2012/QM Dated 27.07.2012 by Chief Engineer of KPHCC for an estimate amount of Rs 1,13,52,875/-for 25 houses.
5.It is respectfully submitted that KPHCC tendered the work and awarded to M/S Kenza Engineering Construction and executed an agreement on 01.08.2013. The construction of 25 houses in Kunhome was completed by M/S Kenza Engineering.. Construction and final bill for the work is settled for Rs 1,33,26,729/. The Construction of 21 houses in Nellarachal was Completed and 9th part bill for Rs 1,01,57,237.47/ was paid to the company.
6.It is submitted that Sri. Rejeesh. C (petitioner No: 1' herein) was appointed as the Asst. Project Engineer and Sri. Krishna Kumar. K (petitioner No:2 herein) was appointed as the Project Engineer by The Kerala Police Housing Construction Corporation to supervise the civil works carried out by the KPHCC (Anexure-1 and Annexure -2 respectively). Sri. Rejeesh. C (petitioner No: 1 hercin) recorded the measurement of the above mentioned houses in the M-book and Sri. Krishna Kumar. K (petitioner No: 2 herein) check measured the measurements recorded by Sri. Rejeesh. C. (Annexure -3 to Annexure-13).
7.It is submitted that during the course of investigation site inspection was conducted by CW-5, the Assistant Executive Engineer, PWD Buildings Sub Division, Sulthan Bathery in the presence of the investigating officer on 26.06.2018, 04.07.2018, 10.07.2018 and 12.07.2018 and physically verified the measurements of 20 houses constructed at Nellarachal. On physical verification the following discrepancies are noted.
Description of work Approve rate(Rs) Unit asper schedule Qty as per IX th &part bill for 20 units Amount (in Rs) as per prepaid bill Qty as per filed verification Unit used for physical verification Short age of quantity Amount for shortage of Qty (in Rs) CIVIL WORKS RCC 1:2:4 using 20mm metal for sloping roof slab 12373.00 M3 104.5 443 129352 6.624 102.8044 M3 1.7399 21527.988 92 Roofing with MP tiles 320 mm size to slopping roof over reepers formed with cm 1:3 15 mm thick 510.15 M2 1391. 3000 709771 .695 1310.41667 M2 80.8833 41262.632 5 Supplying and fixing ceramic tiles of size 30 cm×30c m size 679.92 M2 621.3 050 422473 .6956 604.696 M2 16.6090 11292.791 28 WATER SUPPLY ANDSANITARY WORKS Supplying and fixing 550×400 3 mm or nearest size wash hand basin of white glazed carthen ware 2338.03 Each 20 46760. 6 8 each 12 28056.36 Supplying and fixing 15min cp long body tap 558.45 each 40 22338 0 each 40 22338 TOTAL 124477.77 10331.66 Add 8.3% above to estimate rate. G TOTAL 134809.43
The Assistant Executive Engineer, PWD Buildings Sub Division Sulthan Bathery conducted site inspection in the presence of the investigating officer on 01.08.2018, 09.08.2018, 29.08.2018 and 31.08.2018 and physically verified the measurements of 25 houses constructed at Kunhome. On physical verification the following discrepancies are noted.
Item. No Description of work Approve rate(Rs) Unit asper schedule Qty as per MBVI th & final bill for 25 units Amount (in Rs) as per prepaid bill Qty as per filed verification Unit used for physical verification Short age of quantity Amount for shortage of Qty (in Rs) CIVIL WORKS 10 RCC 1:2:4 using 20mm metal for sloping roof slab 12373.00 M3 130.5 200 161492 3.96 128.9461 M3 1.5739 19474.328 69 19 Roofing with MP tiles 320 mm size to slopping roof over reapers formed with cm 1:3 15 mm thick 510.15 M2 1739. 1400 887222 .271 1649.2875 M2 89.8525 45838.252 88 TOTAL 65312.58 Add 9.3% above to estimate rate 6074.07 G TOTAL 71386.65
From the above chart it is clear that an amount of Rs 2,06,196.08/ was paid to the contractor in excess for the construction of 20 houses at Nellarachal and 25 houses at Kunhome.
8.It is respectfully submitted that Sri. Rajeesh. C (the petitioner No:1 herein) and Sri. Krishna Kumar. K (the petitioner No:2 herein) recorded measurement of only one house and multiplied by the number of houses completed since all houses are typically similar in nature, area and shape. The Assistant Executive Engineer who conducted the site inspection stated that the above mentioned method of recording measurement is not as per norms and it might happened due to the lack of work experience (Annexure-14).
9.It is submitted that KPHCC appointed Sri. Rajeesh. C (the petitioner No: 1 herein) and Sri. Krishna Kumar. K (the petitioner No: 2 herein) as the Assistant Project Engineer and the Project Engineer respectively, after thoroughly verifying their academic qualification and ability to supervise a civil work. Only after convincing their capability, the KPHCC gave appointment to them. Hence it cannot be say that Sri. Rejeesh and Sri. Krishna Kumar. K were inexperience and they were ignorant about the mode and manner of recording measurement of a civil work and hence the opinion of the Assistant Executive Engineer cannot be sustained. It is convinced that the excess measurement was recorded purposefully with intention to make excess payment to the contractor and there is sufficient material for a successful prosecution against the accused (Annexure-15 ).”
When this Court had given a specific direction on 18.06.2026 to file a statement regarding the retention of Rs.9 lakh by the Corporation, a report was filed by the Investigating Officer and paragraphs 2 and 3 of the report are relevant which read as under:
“2.It is most respectfully submitted that as per the agreement condition of the project, the total amount fixed for the construction of a single house is Rupees 5,32,000/-. As agreed, the construction of 25 houses at Kunhome was completed and the final bill was settled. The construction of 21 houses at Nellarachal is completed and the 9th part bill for Rupees 1,01,57,237/- was paid to the contractor. As per the agreement condition, the contractor is entitled to get an amount of Rupees 1,11,72,000/- on completion of the construction of 21 houses. (5,32,000 X 21-1,11,72,000/-). When the irregularities in the measurement is detected and the case is being registered, the KPHCC retained the balance amount of 10,14,763/-). Rupees 10,14,763/-(1,11,72,000 1,01,57,237/From this amount, the statutory deduction is to be deducted.
3.It is most respectfully submitted that if the final bill is settled for the construction of 21 houses at Nellarachal, the Government will sustain a loss of Rupees 2,06,196.08/- due to the excess measurement recorded by the accused.
Going through the reports as extracted, it is perceptible that the bill note was finalised even though measurements were taken in excess of what actually had been constructed showing the same in excess in the M book. It is true that Rs.10,14,763/- is yet to be given to the contractor and actual loss to the Government would happen only when the said amount also would be given to the 3rd accused contractor. In this connection, it is relevant to refer that when dishonest and fraudulent misappropriation or conversion of any property entrusted to a public officer or under the control of a public servant if he, by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage is an offence under Section 13(1)(d) of the PC Act, 1998. At the same time, Section 15 of the PC Act, 1988 provides that, whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section (1) of section 13 shall be punished with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine. Thus when an offence of misappropriation contemplated under Section 13(1)(d) is complete, the punishment under Section 13(2) of the PC Act, 1988 would apply and when there is attempt to commit an offence under Section 13(1)(d) of PC Act, the same also is punishable as per Section 15.
Here the prosecution case is that Government funds were misappropriated on the premise that the amount had been handed over to the 3rd accused. But the latest report filed by the Vigilance would show that the entire amount for the work is not fully paid to the 3rd accused. But the allegation of the prosecution is that accused Nos.1 and 2 cheated the Government and also made manipulation and used forged documents and M book as part of the conspiracy hatched between them. Therefore, prima facie, the offences punishable under Sections 420, 471 and 120B of IPC can be found. As regards the commission of offence punishable u/s 13(1)(d) of the PC Act, the prosecution records would prima facie show the ingredients for the said offence, since the disputed bill is alleged to be encashed, though Rs.9 lakh has been retained as part of the whole work. Otherwise offence u/s.15 of the PC Act to be found prima facie. Therefore, the final report cannot be quashed stalling trial against the petitioners and in such view of the matter, the petition must fail. It is specifically made clear that at the time of framing charge, the Special Judge is at liberty to frame appropriate charge for the offences made out from the prosecution records.
Accordingly this Original Petition stands dismissed.
The interim order of stay granted by this Court stands vacated.
Registry is directed to forward a copy of this judgment to the Enquiry Commissioner and Special Judge, Thalassery for information and compliance.
APPENDIX OF OP(CRL.) NO. 759 OF 2025
PETITIONER’S EXHIBITS
Exhibit P1 TRUE COPY OF THE FIR NO. VC10/2016-WYD DATED 30.11.2016.
Exhibit P2 TRUE COPY OF THE REPORT DATED 19.09.2019 SUBMITTED BY THE INVESTIGATING OFFICER.
Exhibit P3 TRUE COPY OF THE ORDER OF LEARNED ENQUIRY COMMISSIONER AND SPECIAL JUDGE THALASSERY DATED 10/07/2020 IN V.C 10/2016,WAYANAD.
Exhibit P4 TRUE COPY OF THE ORDER DATED 22/10/2024 OF THIS HON’BLE COURT IN CRL MC 6430/2024.
Exhibit P5 TRUE COPY OF THE FINAL REPORT DATED 12.3.2025 FILED BY THE INVESTIGATION OFFICER IN VC 10/2016 WYD.
Exhibit P6 TRUE COPY OF THE INVENTORY PREPARED BY THE ASSISTANT ENGINEER AT THE INSTANCE OF VACB.
Exhibit P7 TRUE COPY OF THE INFORMATION RECEIVED BY THE 2ND PETITIONER ON 30.07.2025 UNDER RIGHT TO INFORMATION ACT.