Crl.M.C.No.3915 of 2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, ``` ## **`1944`** ## **`CRL.MC NO. 3915 OF 2022`** ``` (CC 1/2022 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,THRISSUR) ``` ## **`PETITIONERS/ACCUSED NOS.2 TO 4 & 6:`** - **`1 SRI. C.G. JAYAKRISHNAN, AGED 53 YEARS`** ``` S/O GIRIJA KUMAR C,SECRETARY, PUTHUR GRAMA PANCHAYATH, CHAKKALAKKAL HOUSE, MOORKANIKARA P.O, KOZHUKULLY, THRISSUR, PIN – 680751. ``` - **`2 SRI. K.G. SURYAN, AGED 59 YEARS S/O GANGADHARAN,ASSISTANT ENGINEER, LSGD, PUTHUR GRAMA PANCHAYATH, KARIATE HOUSE, MUDAPPILAVU TEMPLE ROAD, CHIYYARAM P.O, THRISSUR, PIN – 680026.`** - **`3 SMT. SHAIBY GEORGE, AGED 49 YEARS W/O SAJEE PAUL MADASSERY`** ``` ASSISTANT EXECUTIVE ENGINEER, OLLUKARA BLOCK PANCHAYATH,C-10, MADASSERY KALLARACKAL HOUSE, KALINDI RESIDENCY,NORTH BUS STAND, THRISSUR, PIN – 680022. ``` - **`4 SMT. SAJINI,AGED 49 YEARS, W/O V.K SUBRAN, OVERSEER PUTHUR GRAMA PANCHAYATH, VILAKKUMPPADI HOUSE, MURIYANKUNNU COLONY, NADATHARA P.O, THRISSUR, PIN – 680751.`** Crl.M.C.No.3915 of 2022 2 ``` BY ADVS. THOMAS P.KURUVILLA P.PRIJITH P.MARTIN JOSE M.A.MOHAMMED SIRAJ R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S. S.SREEKUMAR (SR.) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN – 682031.`** - **`2 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE & ANTI-CORRUPTION BUREAU, THRISSUR UNIT, PIN – 680022.`** - **`3 K.N. SIVAN, S/O NARAYANAN NAIR, KAVUMPURATH HOUSE, VETTUKADU P.O, THRISSUR, PIN – 680014.`** ``` R1 & R2 BY SPECIAL GP SRI.A.RAJESH P.P SMT.REKHA.S. R3 BY ADVS.SRI.T.C.SURESH MENON B.DEEPAK(K/532/2012) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ``` ``` ON 07.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.3915 of 2022 3 ## **ORDER** In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioners, who are accused Nos.2 to 4 and 6 in C.C.No.1 of 2022 on the file of the Court of Enquiry Commissioner and Special Judge, Thrissur challenge the final report submitted against them alleging offences punishable under Sections 13(1)(c) & 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 477A & 120B of the Indian Penal Code. 2. Petitioner No.1 is the former Secretary of Puthur Grama Panchayat. Petitioner No.2 is the former Assistant Engineer LSGD Section, Puthur Grama Panchayat. Petitioner No.3 had worked as the Assistant Executive Engineer, Ollukkara Block Panchayat. Petitioner No.4 was the Overseer of Puthur Grama Panchayat. Respondent No.3 filed a complaint against the petitioners and others before the Enquiry Commissioner and Special Judge, Thrissur on 17.12.2014 alleging corruption in the construction of an Anganwadi building in Ward No.V of Puthur Grama Panchayat. The Special Judge ordered Quick Verification in the matter. Inspector of Police, VACB, Thrissur Unit, conducted Quick Verification as QV.04/2015/TSR and submitted the Quick Verification Report recommending departmental disciplinary action against petitioner No.2 and the Contractor of the work. Crl.M.C.No.3915 of 2022 4 3. The Director, VACB agreed with the findings in the Quick Verification. The VACB submitted final report before the Special Judge. Respondent No.3 resisted the Quick Verification Report. The Special Judge, after hearing both sides, on 15.6.2016 directed registration of FIR under Section 156(3) Cr.P.C. The VACB registered VC 30/2016/TSR alleging offences punishable under Section 13(2) read with Sections 13(1)(c) & (d) of the Prevention of Corruption Act and Section 120B of the Indian Penal Code against the petitioners and others. The VACB, after completing the investigation, submitted final report against the petitioners alleging offences under Section 13(2) read with Sections 13(1)(c) & (d) of the Prevention of Corruption Act and Sections 477A & 120B of the Indian Penal Code. 4. Heard both sides. 5. The VACB had submitted the QV report dated 27.7.2015 with the following recommendations: - (I) Departmental disciplinary action may be taken against Sri.K.G.Suryan, Asst.Engineer, LSGD, Puthur Grama Panchayath (R3), Smt.Shaiby George, Asst. Executive Engineer, Ollukkara Block Panchayath (R4), and Smt.Sajini, then Overseer, Puthur Grama Panchayath for their part of laxity and dereliction of duty. - (II) Direction may be given to the contractor Sri.T.T.Cheriyan @Thambi, S/o.Thomas, Thekkumchottil House, Thonipara, Puthur, Thrissur (R5) to complete the construction of the Anganavadi building at Ward No.V of Puthur Grama Panchayath and direction may also be given to the authorities to recoup the loss amount of Rs.10,565/- from Crl.M.C.No.3915 of 2022 5 the contractor and the responsible officials. - (III) Direction may be given to the Panchayath authorities to stop the functioning of Anganavady in the alleged building until obtaining fitness certificate after completing the work. 6. The VACB in the final report, submitted after conducting investigation pursuant to the order dated 15.6.2016 of the Special Judge, alleged the following:- “4. It is submitted that as per the direction from the Hon’ble Vigilance Court, the case was registered as VC 30/2016/TSR u/s 13(2) r/w 13(1)(c) & (d) of PC Act 1988 & section 120(B) IPC on 16.07.2016 against A1, Sri.Johny Chirayath, President Puthur Grama Panchayath, A2, Sri.C.G.Jayakrishnan, Secretary, Puthur Grama Panchayath, A3, Sri.K.G.Suryan, Asst. Engineer, LSGD, Puthur Grama Panchayath, A4, Smt.Shaibi George, Asst.Executive Engineer, Ollukkara Block Panchayath, A5-Sri.T.T.Cheriyan, S/o.Thomas Thekkumchottil, Thoniopara, Puthur (contractor) and A6 Smt.Sajini, Overseer, Puthur Grama Panchayath with the allegation that A1 to A4 & A6 being public servants had conspired with A5 for pecuniary advantage by abusing their official powers with regard to the construction of an Anganavadi building (No.83) at Ward No.V of Puthur Grama Panchayath, Thrissur and executed the work by violating the conditions in the agreement and also made full payment to the contractor without completing the work. Owing to the sub-standard work and violation of agreement conditions, a loss of Rs.10,565/- was caused to the exchequer. 5. It is also submitted that by filing a Crl.M.P. (1800/2014) in Thrissur Vigilance Court, the de-facto complainant Sri.K.N.Sivan raised some allegations in the construction and completion of the alleged Anganvadi No.83, Ward 5 of Puthur Grama Panchayath. Moreover, Sri.K.N.Sivan pointed out that among the three Anganavadies (in Ward 4, 5 & 7) constructed during the year 2011-12, only No.83 Anganavadi was constructed against the plan and estimate. The Contractor Sri.Cheriyan had taken over the contract works of these three Anganavadies. A total of 9 Lakh was the approved amount for Crl.M.C.No.3915 of 2022 6 these three Anganavadies (3 lakh each). By showing that all the works were completed, the contractor had received Rs.2,83,509/- for No.83 Anganavady. The Assistant Engneer, Sri.Suryan had made manipulations while passing the bills. They did fraudulently start the construction of the Anganavadi over the existing basement and also width of the wall was reduced. All the accused were aware of the irregularities and faults in the proposed Anganvadi construction.” 7. The investigating agency further concluded that excessive area of the floor as against the area proposed in the estimate points to the fact that already there was a foundation in the plot where the construction was done. It is further alleged that the construction was done on the already existing foundation. 8. The prosecution also alleged that petitioner No.1, the Grama Panchayat Secretary had not ensured that the land where the construction was made was in the ownership of the Grama Panchayat and that he had not verified the Property Register of the Panchayat. Petitioner No.2, the Assistant Engineer concerned, being the implementing officer of the project, was found to be responsible for the construction on the existing basement having an area of 42.25 m[2] as against the proposed area of 34.30 m[2] . Petitioner No.3 (A2) dishonestly entered a false account in the M-Book concerned. Petitioner No.4, who was responsible for supervising the daily progress of the construction, consented for the irregular work to aid the contractor and thereby committed criminal misconduct. Crl.M.C.No.3915 of 2022 7 9. The structure of the prosecution rests on the following materials:- - (a) Annexure `C’ report of the joint inspection conducted by CW3 in the presence of the Inspector of Police, VACB (CW16) which reads thus:- “The quality of construction materials cannot be ascertained by preliminary verification. It may be checked by lab tests. No serious cracks were noticed in the building which leads to collapse. At present the structure is found stable under normal conditions. Protection of the basement from entering water inside the building and plastering the wall and top of roof slab will increase the life of the building.” - (b) Report of the joint inspection conducted by CW5 and CW17 (Annexure-D) which concluded thus:- “The thickness of the concrete block wall is recorded as 20 cm. in the M book 67/11-12 (page 5 to 7). For find out the actual thickness of the concrete blocks wall, the plastering of some area demolished and seen that the concrete block masonry wall was actually constructed in 15 cm. Thickness up to lintel level. Balance of the thickness was found filled with cement mortar for getting the required 20 cm. Thus the weakness of the wall questioned the strength of such a terrace building. Hence calculated the amount of loss sustained to the Govt. in this sector as follows:- As per the M Book – the cost of cement concrete block masonry was 10.90 m[3] x 3886/m[3] = Rs.42,357.40/-. As per actual measurement the cost would come Rs.31,768.05(10.90m[3] x0.15/0.20x3886/m[3] = Rs.31,768.05/-) Therefore, the excess amount paid to the contractor is: Rs.42,357.40-Rs.31,768.05 = Rs.10,589.35/- (Rupees Ten thousand Five Hundred Eighty Nine and Thirty Five Paisa only).” Crl.M.C.No.3915 of 2022 8 10. The learned Senior Counsel appearing for the petitioners contended that the very foundation of the prosecution case is that the construction was made on an existing old foundation and the thickness of the wall was only 15cms. as against the proposed thickness of 20cms. The learned Senior Counsel contended that the case of the prosecution that the construction was made on an existing old foundation is based on `no material’. 11. The learned Special Government Pleader contended that the oral evidence of CW1 and CW4 supported the prosecution case that there existed an old foundation whereupon the new construction was made. 12. The petitioners relied on Annexure-F, the information furnished by the Secretary of Puthur Grama Panchayat in response to an application filed under the RTI Act seeking the details of the construction of the Anganwadi building in Ward No.5 during the period 2004-2011. As per Annexure-F, the Secretary of the Grama Panchayat informed that no decision was taken by the Panchayat to construct building for Anganwadi during the period 2004-2011. 13. The petitioners relied on Annexure-F to contend that there was no probability for the existence of an old foundation. The best available evidence to establish the existence of an old foundation Crl.M.C.No.3915 of 2022 9 could be the Property Register of the Panchayat. In answer to Annexure-F, in the statement submitted on behalf of the prosecution, there is reference to a decision of the Grama Panchayat dated 24.6.2011 in the Minutes Book of the Panchayat. The materials made available would reveal that the decision dated 24.6.2011 relates to the construction of the building in question and does not relate to any old building. 14. In Annexure-C report, the requirement of a lab test for assessing the quality of the construction was suggested. The prosecution has not ventured to take any measures to conduct any lab test for assessing the quality of the construction. 15. The prosecution relied on the following materials to sustain the allegations against the petitioners:- - (1) The oral evidence of CWs 1 and 2 to the effect that the construction was made in the old foundation. - (2) Annexures C and D reports. 16. The prosecution has not placed any credible material to show that an old foundation was in existence. The prosecution essentially relied on the oral evidence of the public gathered at the time of inspection to conclude that the building was constructed on the existing foundation. No contemporaneous mahazars were prepared at Crl.M.C.No.3915 of 2022 10 the time of the two joint inspections which formed the basis of Annexures C and D reports. The prosecution case has not been built upon any factual supporting material. ## 17. In Shafiya Khan v. State of Uttar Pradesh [(2022) 4 SCC 549] the Apex Court held that although it is true that it was not open for the court to embark upon any enquiry as to the reliability or genuineness of the allegations made in the FIR, but at least there has to be some factual supporting material for what has been alleged in the FIR. In State of Karnataka v. L.Muniswamy [(1977) 2 SCC 699] while considering the exercise of power to quash proceedings by the High Court, the Apex Court held thus:- 7………… In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court Crl.M.C.No.3915 of 2022 11 to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” ## 18. In Manik Taneja v. State of Karnataka [(2015) 7 SCC 423] the Apex Court held that where, in the opinion of the Court, the chances of ultimate conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may quash the proceedings even though it may be at a preliminary stage. 19. In the present case, the prosecution has not produced any admissible evidence to show that the construction was made upon the old foundation. Annexure-F information furnished by the Secretary of the Grama Panchayat concerned makes this allegation improbable. There is also no credible material to show the thickness of the wall. 20. The petitioners are also sought to be implicated in the case with the aid of the conspiracy theory. It is trite that conspiracy need not necessarily be proved by direct evidence. It is also capable of being proved by circumstances pointing out the existence of a conspiracy to commit an unlawful act. In **Bhagwan Swarup Lal Bishan Lal** v. **State of Maharashtra (AIR 1965 SC 682)** a three Judge Bench of the Apex Court held that the offence of conspiracy can Crl.M.C.No.3915 of 2022 12 be established either by direct evidence or by circumstantial evidence and the section will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to that conspiracy. ## 21. In State of M.P. v. Sheetla Sahai [(2009) 8 SCC 617], the Apex Court has held as follows:- “Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.” ## 22. In Zakia Ahsan Jafri v. State of Gujarat (AIR 2022 SC 3050), the Apex Court held that every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned. 23. The very nature of the material on which the structure of the prosecution rests is very weak, which gives rise to only a suspicion as distinguished from grave suspicion, which is required for proceeding with a prosecution. The necessary conclusion is that Crl.M.C.No.3915 of 2022 13 allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. It is important to note that the evidence collected by the prosecution in support of its case do not disclose the commission of any offence and make out a case against the petitioners. On the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 Cr.P.C., ## the Apex Court in State of Haryana and Others v. Bhajan Lal and Others (1992 Supp. (1) 335) held thus:- **“102.** In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. Crl.M.C.No.3915 of 2022 14 (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 24. The present case is fully covered by category (3), as enumerated in State of Haryana case (supra). I am of the view that, in the present facts and circumstances, the criminal proceedings consequent to the final report in C.C.No.1 of 2022 are liable to be quashed. Crl.M.C.No.3915 of 2022 15 In the result, the Crl.M.C. is allowed. The FIR in C.C.No.1 of 2022 pending before the Court of Enquiry Commissioner and Special Judge, Thrissur and all consequential proceedings qua the present petitioners stand quashed. Sd/K.BABU Judge TKS Crl.M.C.No.3915 of 2022 16 ## **`APPENDIX OF CRL.MC 3915/2022`** ``` PETITIONERS’ ANNEXURES: ``` ``` Annexure ATRUE COPY OF FIR NO. 30/16/TSR, VACB, THRISSUR DATED 16-07-2016. Annexure BCERTIFIED COPY OF FINAL REPORT IN C.C. NO. 1 OF 2022 OF COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR. ``` ``` Annexure CTRUE COPY OF JOINT SITE INSPECTION REPORT SUBMITTED BY CW3 ``` ``` Annexure DTRUE COPY OF JOINT SITE INSPECTION REPORT SUBMITTED BY CW5 ``` ``` Annexure ETRUE COPY OF THE LETTER DATED 19-10-2016 ISSUED BY ASSISTANT ENGINEER, TO SECRETARY PUTHUR GRAMA PANCHAYATH ``` ``` Annexure FTRUE COPY OF REPLY DATED 19-10-2016 SUBMITTED BY SECRETARY (IN CHARGE) TO DYSP, VACB, THRISSUR. ``` TKS