A.A. Aysha and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938** **CRL.A.No. 571 of 2007 ( ) -------------------------CC 50/2002 of ENQUIRY COMMR.& SPL.JUDGE,THRISSUR DATED 23-03-2007** **APPELLANT(S)/ACCUSED NO.1 TO 4:** **------------------------------** **1. A.A.AYSHA, FORMER SECRETARY, KUNNUKARA GRAMA PANCHAYATH.** **2. KALADEVI, FORMER PRESIDENT, KUNNUKARA GRAMA PANCHAYATH.** **3. RAJAGOPALA MENON,** - **RETD.ASST.EXECUTIVE ENGINEER, S/O.GOPALAN NAIR,, ARACKAL HOUSE, MEKKUVUKARA,, NEDUMBASSERY VILLAGE.** **4. K.K.ABDUL SALAM, CONTRACTOR, S/O AZEEZ, KOLLAMPARAMBIL HOUSE, KUNNUKARA VILLAGE.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.T.ANIL KUMAR SRI.SHYAM ARAVIND SRI.JOSEPH P.ALEX SRI.SUJESH MENON V.B. SRI.B.RAMAN PILLAI SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.P.SANJAY SMT.A.PARVATHI MENON** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKG** ## **P.UBAID, J.** =================================== **Crl.Appeal.No.571 of 2007** =================================== Dated this the 15[th] day of December, 2016 ## **JUDGMENT** The appellants herein faced prosecution before the learned Enquiry Commissioner and Special Judge, Thrissur in C.C.No.50 of 2002, on the allegation of misappropriation of money from the untied funds of the Kunnukara Grama Panchayath in connection with the maintenance works of a road, amounting to misconduct as defined under Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. The first appellant was the Secretary of the Kunnukara Grama Panchayath during 1997-1998, and the second appellant was the President of the Panchayath at that time. The prosecution was brought against four accused by the Vigilance and Anti Corruption Bureau, Ernakulam. The third accused was an Assistant Executive Engineer of the CADA, Thrissur, and the 4[th] accused was the contractor who took up the maintenance Crl.Appeal.No.571 of 2007 2 works of the road. A total amount of Rs.1,50,000/- was allotted from the untied funds of the Panchayath for the said work, and the Panchayath committee approved the estimate, and also accepted the quotation submitted by the 4[th] accused. The prosecution allegation is that as part of a conspiracy hatched by the four accused, they purchased and used less quantity of materials for the maintenance works, the road was not maintained as proposed and agreed, with the required thickness, and thus the four accused jointly misappropriated an amount of Rs.36,747.84. 2. All the four accused entered appearance before the learned trial Judge, and they pleaded not guilty to the charge framed by the trial court under Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988, and under Sections 409, 468, 471, 477A and 120B IPC. The prosecution examined ten witnesses, and proved Exts.P1 to P14 documents during trial. When examined under Section 313 Cr.P.C., all the four accused denied the incriminating circumstances, and Crl.Appeal.No.571 of 2007 3 projected a defence that the entire amount allotted from the Panchayath was used for the maintenance works, and that nobody had misappropriated any amount, as the prosecution would allege. Inspite of opportunities granted, the accused did not adduce any evidence in defence. On an appreciation of the evidence adduced by the prosecution, the learned trial Judge found the accused Nos.1 and 2 guilty under under Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the PC Act, 1988, and also under Sections 409, 468, 471, 477A and 120B IPC. The accused Nos.3 and 4 were found guilty under Sections 409, 468, 471 and 477A IPC read with Section 120B IPC. On conviction, the accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for four years each, and to pay a fine of Rs.20,000/- each under Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the PC Act, and under Sections 409, 468 and 477-A IPC. No separate sentence was imposed under Sections 471 and 120-B IPC. The accused Nos.3 and 4 were sentenced to undergo rigorous imprisonment for four years each, and to pay a Crl.Appeal.No.571 of 2007 4 fine of Rs.20,000/- each under Sections 409, 468 and 477-A IPC read with Section 120-B IPC. No separate sentence was imposed under Section 471 IPC. Aggrieved by the judgment of conviction dated 23.03.2007, the four accused have come up in appeal. 3. When this appeal came up for hearing, the learned counsel for the appellants submitted that the appellants are entitled for acquittal on factual as well as legal grounds. As regards the factual aspects, the learned counsel submitted that the appellants had spent the entire amount sanctioned for the works, that nobody had misappropriated any amount from the funds of the Panchayath, and there was no agreement or stipulation regarding the required thickness of the road. The learned counsel further submitted that the appellants had in fact purchased the entire quantity of materials covered by the proposed estimate, and they had used the entire materials for the maintenance works. As regards the legal aspects, the learned counsel submitted that the prosecution sanction in this case stands not properly proved, and that Crl.Appeal.No.571 of 2007 5 the inordinate delay in registering the FIR stands not properly and satisfactorily explained. The learned counsel also submitted that the complaint which led to the registration of the crime consequent to a preliminary enquiry, stands not proved, and the complainant was also not examined by the prosecution to prove the basis of the FIR. On the other hand, the learned Public Prosecutor submitted that the entire prosecution case on facts stands well proved by the satisfactory evidence of the material witnesses, that there was no inordinate delay in registering FIR in this case, and that the prosecution sanction stands well proved by the competent person. 4. Before going to the factual aspects concerning the alleged misappropriation, let me discuss the legal aspects raised by the defence. Ext.P13 is the FIR in this case, registered on 07.03.2000. PW6 is the Deputy Superintendent of Police who registered the crime on the basis of the report of a surprise check made by the Assistant Executive Engineer. PW1 claims to be the person who conducted the surprise check, and Ext.P2 is the report Crl.Appeal.No.571 of 2007 6 submitted by him. This report was submitted on 15.02.1999. PW2 conducted the surprise check on 28.10.1998. The witness does not explain why the report was delayed till 15.02.1999. Though the report of surprise check was received in February 1999, the VACB found it convenient to register the crime only on 07.03.2000. PW6 has no explanation at all for this inordinate delay of more than a year. The Deputy Superintendent of Police who conducted major part of investigation was not examined by the prosecution. Ofcourse, he was cited as a witness, but he is not seen examined. The Ext.P1 file contains a written complaint by one Kuttan. It appears that it was this complaint that led to a surprise check by PW1. If so, the said complaint must be the basis of the prosecution. The said complaint is not seen proved in this case, and the prosecution did not even cite the said Kuttan as a witness. PW1 does not say that he conducted surprise check on the basis of any complaint. The VACB officials have also not stated anything about such a complaint. There is no reason or explanation why the complaint was not proved Crl.Appeal.No.571 of 2007 7 during trial. So also, there is absolutely no explanation why registration of the crime was delayed for more than a year. I find that this inordinate delay is really suspicious as regards the merits of the prosecution case, and when there is no evidence proving the actual complaint that led to the prosecution, it will have to be found that the prosecution does not have any foundation. The benefit of the unexplained delay of more than a year in the registration of FIR, and also the fact that the original complainant Kuttan, who made a written complaint that led to the prosecution is not examined to prove the complaint, must necessarily go to the appellants. 5. Now let me see whether the prosecution sanction in this case stands properly and legally proved. Ext.P12 is the prosecution sanction in this case. The prosecution examined PW4 to prove the sanction. He was only an under Secretary to the Government at the relevant time. The sanction was in fact granted by the Principal Secretary. An identical situation came up before this Court in **Antony Cardoza v. State of Kerala (2011 (1) KLT** Crl.Appeal.No.571 of 2007 8 **946)** where the prosecution examined an Under Secretary to the Government to prove a prosecution sanction granted by the Principal Secretary. This Court held in the said case that independent application of mind and consequent satisfaction arrived at for granting sanction are matters which could be proved only by the sanctioning authority, and that when such necessary elements are not proved by the actual person who granted the sanction it cannot be said to be a sanction properly and legally proved. Following Antony Cardoza and the decisions of the Honourable Supreme Court on the point, this court held in **Gurudas v. State of Kerala [2015 (3) KLT 749]** that the prosecution sanction granted under Section 19 of the PC Act will have to be proved by the person who granted the sanction, as provided under the Indian Evidence Act, and that somebody who can identify the signature of the sanctioning authority can prove the sanction formally only in cases where the prosecution sanction can claim some sanctity or immunity under the law. The burden of proving the essentials as regards sanction, that it was granted on Crl.Appeal.No.571 of 2007 9 an independent application of mind and after consideration of all the relevant materials and documents, cannot be taken over by somebody else, who had no role or involvement in the process of granting sanction. In this case PW4 is definite that the relevant materials and documents were in fact perused and examined by the Principal Secretary, and that sanction was in fact granted by the Principal Secretary, though it is seen issued in the name of the Governor of kerala. Ofcourse, under the Rules relating to business transaction in the Government, some arrangements are made for official functions, and under such arrangements, the Secretary concerned will discharge the functions in the name of the Governor of Kerala. It cannot be said that the materials were considered by the Governor, or, that the Governor is the sanctioning authority. Here, everything concerning the whole process of granting sanction including examination of documents and application of mind, was made by the Principal Secretary according to PW4, and this witness has no case that he had any role or involvement in the process of Crl.Appeal.No.571 of 2007 10 granting sanction. He does not know what all documents were perused or examined by the Principal Secretary, or how, or on the basis of what materials the Principal Secretary decided to grant sanction. In **State of Maharashtra through CBI v. Mahesh G.Jain [(2014) 1 SCC (Cri)515]** , the Honourable Supreme Court has issued some guidelines regarding the process of granting sanction under the PC Act, and proving the sanction during trial. The prosecution in this case has no explanation why the Principal Secretary was not examined to prove the sanction. The evidence of PW4 shows that he is not the competent person to prove the sanction, and he came and deposed before the Court just to identify the signature of the Principal Secretary, only because he was so summoned. I find that the Ext.P12 prosecution sanction is not properly and legally proved in this case, and so it must be found that the prosecution is in fact barred under Section 19 of the PC Act, 1988. On this legal ground itself, the accused is entitled for acquittal. 6. Now let me come to the facts. The whole Crl.Appeal.No.571 of 2007 11 prosecution case is based on the Ext.P2 report submitted by PW1 regarding the irregularities in the maintenance works of the road in question, and regarding the loss sustained by the Panchayath. In assessing the quality of work, and the quantity of loss alleged to have been sustained, the basic material must be the Ext.P5(a) estimate which contains the description of the works required. Ext.P7 is a report submitted by PW2, and this contains the assessment of loss due to the alleged irregularities committed by the accused. The loss is seen assessed as Rs.36,748/-. The evidence given by PW2 shows that the Ext.P7 report is in fact based on the Ext.P2 report submitted by PW1. As per the Ext.P2 report, no loss was assessed by PW1. However, in evidence he fairly admitted that the loss which he actually assessed was Rs.8,227/-. He also stated that the said figure is really true so far as his assessment is concerned. If so, there is absolutely no explanation why there is glaring inconsistency as regards the loss, between the assessment made by PW2 as per the Ext.P7 report, and the initial Crl.Appeal.No.571 of 2007 12 assessment made by PW1. There is much difference between the two figures. The evidence of PW2 does not show that he assessed the loss independently. On the other hand, he practically admitted that Ext.P7 report is based on the Ext.P2 report. But the Ext.P2 report does not contain any assessment of loss. Based on the Ext.P2 report, PW1 assessed the loss initially as Rs.8,227/-. This means that the prosecution does not have any consistency regarding the actual or probable loss sustained by the Panchayath, due to the alleged irregularities in the construction or maintenance of the road in question. 7. The evidence given by the material witnesses examined as PW1 and PW2 will show that the serious irregularity alleged by the prosecution in the maintenance of the road is that instead of having a thickness of 11¼ cms after repair, the road was found, on inspection, having only a thickness of 7 cms to 7.5 cms. If this is the irregularity alleged by the prosecution, it must be examined where exactly is it provided that after repair the road shall have a thickness of 11¼ cms. The witnesses Crl.Appeal.No.571 of 2007 13 fairly admitted that there is no document or agreement providing that the road shall have such thickness after repair. As already stated, the Ext.P5(a) estimate must be the basic document as regards the quality of work undertaken by the accused. This estimate contains the details of the materials required for the works, but it is nowhere stated in this estimate that the road shall have a thickness of 11¼ cms after repair. The material witnesses are not in fact consistent and definite as regards use of the required quantity of materials in the process of repair. The estimate contains the quantity of the different materials like cement, granite, metal, iron bars etc. When the estimate does not contain any provision regarding the required thickness of the road after repair, the fact that on inspection, after repair, the road was found having only a width of 7 to 7.5cms, cannot be said to be irregularity in the construction. When the estimate contains the details item wise, the witnesses must give evidence regarding the irregularities and shortage item wise. PW1 or PW2 has not given such evidence regarding item wise violation or Crl.Appeal.No.571 of 2007 14 irregularity as regards the quantity and quality of different materials prescribed in the Ext.P5(a) estimate. In such a situation, it will have to be found that the prosecution case stands not properly and satisfactorily proved beyond reasonable doubt. The very material witness examined as PW1 says that the loss was assessed by him as Rs.8,227/-, but the Ext.P7 report of assessment made by PW2 shows the loss as Rs.36,748/-. When the prosecution alleges loss to public revenue on the basis of materials relied on by the prosecution, there must be consistency regarding the loss assessed or the loss caused. In this case, I find that the prosecution does not have such consistency in the allegations, and even the allegation that the road was not found having the required thickness after the works, is not based on any definite material. An examination of the evidence given by PW1 and PW2 will show that mainly and practically the irregularity alleged by them is that the road was found not having the required thickness after repair. If this is the main allegation against the accused, the court will have to find against the prosecution, when there is no Crl.Appeal.No.571 of 2007 15 document or material showing that there was a stipulation or agreement between the parties regarding the required thickness after repair. The Ext.P5(d) quotation submitted by the 4[th] accused also does not contain any such stipulation regarding thickness of the road. The Ext.P1 file contains the minutes of the Panchayath calling for quotations for the works. This minutes also does not contain anything regarding the required thickness of the road after repair. 8. In a case like this, the Court expects evidence of the Investigating Officer also regarding the physical inspection and verification made by him during investigation, as regards the quality and quantity of the works done by the accused under contract or estimate. Here, the police officer who conducted such investigation effectively was cited as CW16, but was not examined as a witness. This is a material flaw in the prosecution case. It is true that non-examination of the Investigating Officer will not affect the prosecution in all cases. But in cases like this the physical verification and examination made by the Crl.Appeal.No.571 of 2007 16 Investigating Officer as part of investigation will have it's role in proving the alleged violations in construction. But here, the prosecution failed to examine the Investigating Officer, who did major part of investigation. 9. On an appreciation of the evidence as discussed above, I find that the prosecution case on facts stands not satisfactorily proved beyond reasonable doubt. To prove the alleged irregularity, the prosecution does not have any definite material binding the accused regarding the required thickness of the road, and the material witnesses have no consistency as regards the actual or probable loss sustained by the Panchayath. The prosecution sanction in this case stands not properly and legally proved by the right and the competent person. The prosecution does not have any explanation for the inordinate delay in registering the FIR, and the FIR itself does not have any solid factual basis because, the person who initially made complaint is not examined, and the original complaint is not proved. Thus, I find that the appellants are entitled for acquittal on factual as well as Crl.Appeal.No.571 of 2007 17 legal grounds. In a single sentence, it can be said that the prosecution case stands not satisfactorily and properly proved beyond reasonable doubt, and the required essentials under the law as regards sanction and FIR also stand not proved. In the result, this appeal is allowed. The appellants are not found guilty of the offences under Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988, and under Sections 409, 468, 471, 477A and 120B IPC. Accordingly, they are acquitted of those offences in appeal under Section 386(b)(i) Cr.P.C. All the appellants will stand released from prosecution, and bail bond executed by them will stand discharged. Sd/- ## **P.UBAID, JUDGE** rkj //TRUE COPY// P.A. TO JUDGE