VARGHESE MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and under Section 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:

(2.) 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.

(3.) 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.