E.N. Surendran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 ``` ``` CRL.MC NO. 916 OF 2024 ``` ``` CRIME NO.5/2015 OF VACB, ERNAKULAM, Ernakulam ``` ``` AGAINST THE ORDER IN VC 5/2015 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR ``` ## **`PETITIONER:`** ``` E.N. SURENDRAN, AGED 53 YEARS S/O NARAYANAN E K, EXECUTIVE ENGINEER, P.H. DIVISION, KERALA WATER AUTHORITY, CHEMBUKAVU, THRISSUR-680020 RESIDING AT ERATTENPARAMBIL (H), MANITHARA, AVANUR P.O, PIN - 680541 BY ADV JOHNSON JOSE PANJIKKARAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` SRI.RAJESH.A-SPL.PUBLIC PROSECUTOR (VIG.) REKHA-PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON ``` ``` 26.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ## K.BABU, J ------------------------------------------------- ## Crl.M.C.No.916 of 2024 -------------------------------------------------- ## Dated this the 26[th] day of February, 2024 ## O R D E R The prayers in this Crl.M.C are as follows: “………...to set aside Annexure A1 FIR VC 5/2015/SCE of Ernakulam PS VACB Spl.Cell, Ernakulam & Annexure A5 order dated 1.1.2024 in VC.5/2015/SCE before Hon’ble Court of Enquiry Commissioner & Special Judge (Vigilance), Thrissur with respect of petitioner and all further proceedings.” 2. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor (Vigilance). 3. The petitioner is accused No.6 in FIR No.VC.5/2015/SCE of Ernakulam P.S, VACB Special Cell, Ernakulam. The petitioner and the other accused are alleged to have committed the offences punishable under Sections 13(1)(c) & (d)(ii) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 409 and 120B of IPC. 4. The prosecution allegation are as follows: The Kerala Water Authority was entrusted with the implementation of Guruvayoor Drainage Scheme. The petitioner was the Assistant Crl.M.C.No.916 of 2024 3 Executive Engineer, Kerala Water Authority, PH Division, Guruvayoor. The petitioner and accused Nos.1 to 5, 7 and 8 abused their position as public servants in awarding the work relating to the designing and execution of Guruvayoor Drainage Scheme to accused No.9, a contractor who was the lone bidder in the tender proceedings, and thereafter dishonestly and fraudulently allowed the contractor to misappropriate the public fund entrusted to them and thereby caused huge loss to the public exchequer. The VACB registered the above referred FIR and after completing investigation submitted a report before the Court of Enquiry Commissioner and Special Judge, Thrissur under the caption 'Further Action Dropped' (FAD). In the final report the VACB arrived at the following conclusions: a) The contract was given to the sole bidder in the tender after much deliberation and discussion based on the decision made by the high level officials, including the Managing Director, Kerala Water Authority with the permission of the government. b) Precast rings were used during construction instead of monolithic manholes and the same was done only after getting permission from the Chief Engineer. A compression test was conducted on the sample collected and found in the expert Crl.M.C.No.916 of 2024 4 examination that the normal density of good concrete should be more than 2400 kg/m3 whereas the density of the sample is more than 2500 kg/m3. c) The prescribed proportion of cement, metal and sand in the concrete was 1:2:4 whereas the proportion found in the sample was negligibly lower than the proposed proportion. d) Even though precast rings are more costly than monolithic manholes, no excess amount was paid by the Kerala Water Authority for the same and only the amount mentioned in the contract was paid. Even though the contract amount was Rs.8.50 Crores in 2011, only Rs.5,32,54,806/- was paid to the contractor. Retention money of 10% was deducted from each bill and the same was returned only after 18 months, after the construction was completed. e) 'L' shape joints were used for durability and joints were filled by using cement grouts instead of epoxy because the setting time of epoxy was very fast and the cement grouts were used only because of the same. There is no conspiracy as alleged. In the expert examination, no damage or loss to the public exchequer was found. 5. The learned counsel for the petitioner submitted that the petitioner assumed charge as Assistant Executive Engineer at PH Division, Guruvayoor only on 12.9.2011, whereas the contract was given as early as on 13.7.2011 and the construction commenced on 4.8.2011. Crl.M.C.No.916 of 2024 5 In the FIR or the final report submitted by the VACB before the Court there is no specific allegation against the petitioner. 6. The final report was submitted on 15.11.2021. The Enquiry Commissioner and Special Judge, three years after the submission of the final report, ordered further investigation on the ground that the investigating agency did not obtain an expert opinion and failed to assess the damage caused and the quality of the work. 7. The relevant portion of the impugned order is extracted below: “8. Virtually the construction of the manhole and drawing the scheme absolutely depend upon civil engineering. Therefore, opinion of expert in the field is a must. Before entering at any opinion, the Investigating Officer should ensure from the expert that conflict in the proportion would not cause any damage to the scheme and quality of the work. Normally in adequacy of quality and loss calculation statement should be necessary to assess the loss. Though a lengthy final report was filed, it does not contain as to why now damage was opined by the Investigating Officer. Really, it is a matter of engineering. Construction should be free from any kind of corruption. Therefore, the Investigating Officer ought to discuss with senior expert to ascertain the standard proportion of the cement, metal and sand in the construction of manhole would cause any damage to the scheme or not. Moreover, loss calculation would be secured on the basis of expert report. Thereby, sincere effort must be required to ensure that no kind of corruption ever occurred in this case. Then only the investigation report would be accepted.” Crl.M.C.No.916 of 2024 6 8. The Enquiry Commissioner and Special Judge passed the above order on the premise that the investigating agency has not consulted any expert to assess the quality of the work. I have gone through the materials placed before the Court by the petitioner as well as the learned Public Prosecutor. On 20.11.2020, the investigating officer and Sri.P.P.Sivan, an Assistant Professor of Government Engineering College, Thrissur conducted a joint inspection (see document No.28) and collected concrete samples from the construction. The samples were produced before the Court and the Court forwarded the sample for examination to the Government Engineering College, Thrissur. The report of the expert examination reads as follows: “Normally density of good concrete should be more than 2400 kg/m3. For all the three given samples, density is more than 2500 kg/m3” 9. The investigating agency also obtained the expert opinion of an Assistant Executive Engineer (witness No.15) who stated that as there is only a minor variation in the construction undertaken as against the specification in the drawing (average force M27.90), it has no impact on the strength of the construction. I have carefully gone through the Crl.M.C.No.916 of 2024 7 materials placed by the investigating agency in the final report. There was no reason for assessment of the loss or damage. Therefore, the reasoning applied by the Special Court to order further investigation has no foundation and the same is liable to be quashed. On a perusal of the entire materials, this Court is of the view that there are no material to proceed against the petitioner. There are no chances of ultimate conviction if the prosecution in any way proceeds with the matter. The materials placed before the Court do not disclose even a mere suspicion against the petitioner. In Manik Taneja & another v. State of Karnataka (2015(7)SCC 423) the Apex Court held that 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 proceeding even though it may be at a preliminary stage. 10. The prosecution has also not placed any material to show any dishonest intention on the part of the petitioner. There is nothing to show that he has abused his position as a public servant and obtained for himself or any other person any valuable thing or pecuniary advantage. The FIR and all further proceedings against the petitioner are Crl.M.C.No.916 of 2024 8 liable to be quashed. 11. In the result, the order dated 1.1.2024 in VC.5/2015/SCE of the Enquiry Commissioner and Special Judge, Thrissur stands quashed. The FIR and all further proceedings as against the petitioner also stand quashed. The Crl.M.C is allowed as above. Sd/K.BABU JUDGE ab Crl.M.C.No.916 of 2024 9 ## **`APPENDIX OF CRL.MC 916/2024`** ## **`PETITIONER ANNEXURES`** |**`Annexure A1`**|**`CERTIFIED COPY OF THE FIR VC.5/2015/SCE`**| |---|---| ||**`OF ERNAKULAM P.S VACB SPL. CELL,`**| ||**`ERNAKULAM DATED 1.7.2015`**| |**`Annexure A2`**|**`CERTIFIED COPY OF THE FINAI REPORT IN`**| ||**`VC.5/2015/SCE OF ERNAKULAM P.S VACB SPL.`**| ||**`CELL, ERNAKULAM DATED 15.11.2021`**| |**`Annexure A3`**|**`TRUE COPY OF THE JUDGMENT IN W.P (C)`**| ||**`17413 OF 2023 DATED 11.8.2023`**| |**`Annexure A4`**|**`TRUE COPY OF THE STATEMENT FILED BY`**| ||**`VIGILANCE IN W.P (C) 17413 OF 2023`**| |**`Annexure A5`**|**`CERTIFIED COPY OF THE ORDER DATED`**| ||**`1.1.2024 IN VC.5/2015/SCE BEFORE HON'BLE`**| ||**`COURT OF ENQUIRY COMMISSIONER &`**| ||**`SPECIAL JUDGE(VIGILANCE), THRISSUR`**| |**`Annexure A6`**|**`TRUE COPY OF THE JUDGMENT DATED 19.9.2018`**| ||**`IN W.P(C) 30782 OF 2018`**| |**`Annexure A7`**|**`TRUE COPY OF THE ORDER BEARING NO.`**| ||**`KWA/HO/E.2(A)/7570/2008 DATED 3-9-2011`**| |**`Annexure A8`**|**`TRUE COPY OF THE REPORT OF TRANSFER OF`**| ||**`CHARGE DATED 12.9.2011`**| |**`Annexure A9`**|**`TRUE COPY OF THE NOTIFICATION BEARING NO.`**| ||**`16443/E9/2020/KWA DATED 16-12-2023`**| RESPONDENTS ANNEXURES: NIL