K.G.ASHOKAN Vs. STATE

JUDGEMENT

(1.) The appellants herein are the five accused in C.C No.29/2009 of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. Crl.A No.2/2002 is the appeal brought by the 3 rd accused, Crl.A No.3/2002 is the appeal brought by the 2nd and 5th accused, Crl.A No.11/2002 is the appeal brought by the 1st accused, and Crl.A No.53/2002 is the appeal brought by the 4th accused. This prosecution was brought with respect to the alleged irregularities, amounting to corruption in some construction works relating to the RBC Formation Minor Distributory from chainage 0 to 4074M and Mallassery Minor Distributory from chainage 0 to 878 M including CD works of the Kallada Irrigation Project (KIP). The work in question was awarded to the 3rd accused, who is a public works contractor. The first accused was the Superintending Engineer of the Kallada Irrigation Project (KIP, RB Circle, Kottarakkara) from 6.7.1990 till his retirement from service on 28.2.1991, the second accused was the Executive Engineer, KIP, RB Division No.2, Kottarakkara, from 7.9.1989 to 16.5.1993, the 4th accused was the Assistant Engineer, KIP, RB Section 2/7, Adoor from 30.6.1988 to 27.8.1993, and the 5th accused was the Assistant Executive Engineer, KIP Sub Division No.7, Adoor from 22.8.1986 to 22.6.1988 and from 16.1.1991 to 30.12.1992. The accused Nos.1, 2, 4 and 5 were in- charge of the execution of the contract works and also supervision of the works in their respective capacities. The work in question was awarded to the 3rd accused as per an agreement dated 7.1.1986. The works undertaken by him included earth work and excavation of all classes of soil except hard rock, but included medium rock which requires blasting. The earth work for a total quantity of 72450 M? was undertaken by the 3rd accused at the rate of 15/- per M? (meter cube). When the work progressed, there appeared a particular material by name "hard narrikkal", forming part of the earth, and this required hard labour and blasting for excavation. Finding that he would sustain loss, if such works are done at the rate of 15/- per M?, the contractor made a representation on 21.1.1991 before the first accused, making a claim that he had already, by that time, excavated 40000 M? of hard narrikkal, and that if he continued the work at the said rate, he would have to incur heavy loss. He made a request to treat excavation of hard narrikkal as an extra item, and he claimed an amount of 375/- per M? for the said work, sanctioning it as an extra item, in addition to the works covered by the contract dated 7.1.1986.

(2.) The prosecution case is that with the object of helping the contractor for huge monetary gain, the five accused hatched a conspiracy, the engineers created documents including site inspection notes, containing the nature of the alleged hard narrikkal, and also the extra expenses required for blasting narrikkal, the accused Nos.2 and 5 accordingly submitted a report to the Superintending Engineer, recommending extra expenses for the said work, that the first accused accepted the proposal with the dishonest intention of giving monetary benefits to the contractor as already conspired by them all, without seeking permission from the government for sanctioning such an exorbitant rate, that the 3rd accused received a total amount of 15,15,177/- as extra benefit, all the accused apportioned the said amount derived by the contractor illegally under an additional agreement dishonestly executed with the Superintending Engineer, and they all thus derived undue benefits.

(3.) In view of the allegations of corruption in the said works, the Vigilance and Anti-Corruption Bureau (VACB) intervened and made an enquiry. On the basis of the things revealed by such enquiry, a crime was registered at the Kollam Unit of the Vigilance and Anti-Corruption Bureau and investigation proceeded against the four engineers and the contractor. After thorough investigation, the VACB submitted final report in court. The offence alleged against the public servants is under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (P.C Act), 1988 read with Section 120B IPC, and the contractor (3rd accused) is being prosecuted as one of the conspirators, who is liable under Section 120B IPC for the offence committed by the public servants. The prosecution sanction under Section 19 of the P.C Act was not required, and so such sanction was not produced by the VACB along with the final report, for the reason that the accused Nos.1, 2, 4 and 5 had by that time retired from service.