K. Jayendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **FRIDAY, THE 8TH DAY OF JUNE 2012/18TH JYAISHTA 1934** ## **Crl.Rev.Pet.No. 1139 of 2012 ()** **------------------------------CRMP.NO.69/2009 IN CC.3/2004 of ENQUIRY COMMISSIONER. & SPECIAL JUDGE,TRIVANDRUM DATED 29.03.2012** ## **REVISION PETITIONER(S)/PETITIONER/ACCUSED NO.5:** **-----------------------------------------** **K.JAYENDRAN, AGED 64 YEARS, S/O.KESAVAN, FORMERLY ASSISTANT EXECUTIVE ENGINEER, KIP LB DIVISION NO.II, KOTTARAKKARA.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN** ## **RESPONDENT/COMPLAINANT:** **---------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY PUBLIC PROSECUTOR SMT SEENA RAMACHANDRAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **LSN** ## **C.T. RAVIKUMAR, J. =========================== C RL. R.P. NO. 1139/2012 =========================== Dated this the 8[th] day of June 2012** ## **O R D E R** The 5[th] accused in C.C.No. 03/2004 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram is the revision petitioner. This revision petition is filed therein against the order in Criminal M.P. No. 69/2009 filed therein by the revision petitioner seeking discharge under section 239 of the Code of Criminal Procedure. 2. The petitioner is indicted for offences under section 13 (2) read with Section (13)(1)(d) of Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code. The allegation of the prosecution is that the accused persons 2 to 8, who are public servants, holding respectively the posts of Executive Engineer, Upper Division Clerk, First Grade Draftsman, Assistant Executive Engineer, Assistant Engineer, Junior Superintendent/Divisional Accountant, and Head Clerk at KIP, LB Sub Division, Kottarakkara, were in charge of preparation, scrutiny and passing of bills etc. in connection ## **C RL. R.P. NO. 1139/2012** #2# with the execution of work “KIP & TCDP Formation of L.B. Main Canal Driving Tunnel No. V from Ch. 25590 M to 25783 M lining the tunnel including works on inlet side” and they, by abusing their official position, entered into a criminal conspiracy with the first accused Contractor to whom the aforesaid work was awarded, to obtain for the first accused pecuniary advantage, and in pursuance of the criminal conspiracy, the accused persons 2 to 8, illegally prepared and passed price escalation bill for Rs. 4,95,972/- on 15-02-1991, and thereby the accused persons 2 to 8, on 16-08-1988, allowed excess amount of Rs. 3,43,986/- to the first accused and issued cheque to the first accused who was not at all eligible for such price escalation payment for the works executed by him under supplementary agreement, causing corresponding loss to the Government. Accordingly, it is accused that they have committed the offences punishable under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and Section 120-B of Indian Penal Code. 3. There is no dispute that the petitioner herein/the 5[th] ## **C RL. R.P. NO. 1139/2012** #3# accused had been working as an Assistant Engineer in KIP L.B. Sub Division, Kottarakkara during the period from 8-1-1991 to 8-2-1991. Essentially the charge against the accused including the revision petitioner herein, is that they hatched a conspiracy with the 1[st] accused M. Kuriakose, the contractor to whom the work in question was awarded, along with the other accused with the common object deriving undue pecuniary advantage to him and abusing their official position, in the manner set out earlier and thereby committed offences punishable u/s. 13 (2) r/w. Sec. 13 (1) (d) of the Prevention of Corruption Act 1988 and section 120-B Indian Penal Code. 4. Subsequent to the filing of this revision petition the petitioner has filed Crl. M.A. No. 4080 of 2012 which is an application to accept the document. Along with that the petitioner produced a copy of Criminal M.P. No. 69/2009 in C.C.No. 3/2004 preferred by the revision petition, marking it as Annexure-A, that ultimately culminated in the impugned order. Annexure-I carries the contention that the revision petitioner had nothing do with the preparation and scrutiny of the bills in question and it was done at the ## **C RL. R.P. NO. 1139/2012** #4# lower level. Further, it is stated therein vaguely that provisions for price escalation were included in all supplemental agreements executed in respect of the work of KIP. According to him, he received the escalation bill prepared in the office of the Assistant Engineer to be sent to the office of the Executive Engineer and thereupon, forwarded the bill to the Executive Engineer who ultimately passed the bill after the due process of verification in terms of the contract. No offence of conspiracy could be attributed on him for the simple reason that he had only forwarded the CC bill received from his subordinate office for the purpose of consideration by the competent authority viz; the Executive Engineer, it is contended. 5. Evidently the prime allegation of the prosecution is that price escalation is not applicable in the work in question and in the supplemental agreements, the clause of price escalation was specifically excluded. The further allegation is that all the documents that ultimately led to the preparation of the bill in question would reveal that it was prepared based on price escalation clause. In this context, it is to be noted that perusal of Annexure-A petition would ## **C RL. R.P. NO. 1139/2012** #5# reveal that the petitioner did not have a specific case that as relates the work in question, involved in C.C. No. 03/2004, the price escalation clause was not excluded. In Annexure-A petition made by the revision petitioner what was stated in paragraph 4 is as follows:- **“It is worth to mention that all supplemental agreements executed in KIP works there were provisions for prices escalations. It is also submitted that all the preparation and scrutiny of the bills were done at lower level and an Assistant Executive Engineer has nothing to do with that part.”** 6. Thus, it is obvious that there is no case for the revision petitioner that in respect of the work in question, supplemental agreements contained the clause of price escalation. On the contrary the specific accusation of the prosecution is that the price escalation clause is not applicable as regards the work in question. According to the prosecution contractor was not at all eligible for price escalation payment for the work executed by him in terms of the supplemental agreements and therefore, allowing an excess amount of Rs.3,43,986/- **C RL. R.P. NO. 1139/2012** #6# and issuing a cheque to the contractor on 15-2-91 caused corresponding loss to the government. 7. The learned Enquiry Commissioner and Special judge upon considering the police report and the documents sent with it and hearing the prosecution and the accused arrived at conclusion that the charge cannot be set to be groundless. Consequently, Annexure-A petition of the petitioner for discharging him under section 239 of the Code of Criminal procedure, was dismissed. 8. I have heard the learned Counsel for the petitioner and also the learned public prosecutor. The learned Counsel for the petitioner relied on the judgments of the Apex Court in **H.P. Administration Vs. Om Prakash** reported in **AIR 1972 S.C. 545** and in **State of Karnataka Vs. L. Muniswamy (1977 S.C. 1490.)** The learned Counsel gave emphasis on the observation of the Hon'ble Apex Court in the said decisions that the order framing the charges would substantially affect persons' liberty and it could not be said that the court must automatically frame charge merely because the **C RL. R.P. NO. 1139/2012** #7# prosecuting of authorities by relying on the document referred to in Section 193 considered it proper to institute the case and that the responsibility of framing the charge is that of the court and it has to judicially consider the question of doing so. The learned public prosecutor resisted the contentions contending that the charge against the petitioner could be said to be groundless. 9. I am of the view that the test of the prima facie case has to be applied for framing charge in view of the decision of the Apex Court in **R.S. Nayak v. A.R. Antulay (AIR 1986 S.C. 2045** ). Going by the decision the expression prima facie case means a case established by prima facie evidence which in turn means evidence sufficient in law to raise a presumption of fact or establish fact in question unless rebutted. A charge can be said to be groundless if the materials are such that if there is charge unrebutted could make no case whatsoever. 10. In paragraph 44 of R.S. Nayak's case Supra, the Apex Court considered the procedures to be adopted in considering **C RL. R.P. NO. 1139/2012** #8# the question of discharge under the various provisions in the Code of Criminal Procedure viz., Section 227, Section 239 and Section 244 and a comparison of the procedures to be adopted therein. Now, admittedly in this case the petitioner preferred an application under section 239 of the Code of Criminal procedure for discharge. As held by the Hon'ble Apex Court the obligation to discharge the accused under section 239 arises when the Magistrate considers the charge against the accused to be groundless. I have already referred to the charge against the revision petitioner. The contention of the petitioner in price escalation provisions are included in all the supplementary agreements executed in respect of K.I P. Works. According to the revision petitioner the bill in question was prepared in the office of the Assistant Engineer and ultimately it was sanctioned by the Executive Engineer. However, at the same time, primafacie he admits the fact that it was he who forwarded the bill to the Executive Engineer. In that context it is to be noted that one of the charges against the petitioner and the others is commission of the offence of criminal conspiracy. The court cannot at the stage of considering the plea of discharge weigh the evidence. It is beyond the **C RL. R.P. NO. 1139/2012** #9# scope of consideration at that stage. Whether the petitioner had also played any part in the conspiracy is a matter of evidence. 11. The learned counsel further submits that it appears that the learned Special Judge arrived at the conclusion that the charge cannot be said to be groundless on the ground of vicarious liability. As noticed earlier, whether there is conspiracy and if so, whether the petitioner had any role in the conspiracy are certainly, matters of evidence. The finding of the learned Special Judge that the charge against the petitioner cannot be said to be groundless cannot be said to be faulty, in the circumstances. I do not find any error or illegality or infirmity in the impugned order inviting exercise of revisional jurisdiction . Resultantly, this revision petition is dismissed. **==> picture [205 x 45] intentionally omitted <==** kvr/ /True copy/ P.A. to Judge