M.N. Raghavan v. State of Kerala; Rajan K. Paul v. State of Kerala (Crl.M.C. Nos. 6803/2018 & 6820/2018)

Crl.M.C.No.6803/2018 & 6820/2018 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 11th DAY OF DECEMBER 2019/20TH AGRAHAYANA, 1941** **Crl.MC.No.6803 OF 2018** **AGAINST THE ORDER IN CRL.M.P.NO.241/2018 IN CC 48/2011 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR** **CRIME NO.2/2000 OF VACB, PALAKKAD , Palakkad** ## **PETITIONER/4TH ACCUSED:** **M.N. RAGHAVAN, AGED 73 YEARS S/O.M.K.NARAYANAN VAIDYAR, MULLAKKAL HOUSE, POTTUR P.O., TIRUR, MULANKUNNATHUKAVU, THRISSUR.** **BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM SMT.A.MEGHA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (DY.S.P. VIGILANCE AND ANTICORRUPTION BUREAU, PALAKKAD).** **R1 BY SPL.P.P.A.RAJESH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-12-2019, ALONG WITH Crl.MC.6820/2018, THE COURT ON 11-12-2019 PASSED THE FOLLOWING:** Crl.M.C.No.6803/2018 & 6820/2018 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 11th DAY OF DECEMBER 2019/20TH AGRAHAYANA, 1941** **Crl.MC.No.6820 OF 2018** **AGAINST THE ORDER CRL.MP 240/2018 IN CC NO.48/2011 OF ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR** ## **PETITIONER/6TH ACCUSED** **RAJAN K.PAUL S/O.VARKEY PAULOSE, (KANNOTHUKUDIYIL HOUSE, PAZHAYAKALAM, WEST YAKKARA, PALAKKAD (FORMER ASST. ENGINEER, MINOR IRRIGATION SECTION, VENKALAKAYAM, CHITTUR)** **BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM SMT.A.MEGHA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (DY.S.P. VIGILANCE AND ANTICORRUPTION BUREAU, PALAKKAD.)** **R1 BY SPECIAL PUBLIC PROSECUTOR A RAJESH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-12-2019, ALONG WITH Crl.MC.6803/2018, THE COURT ON 11-12-2019 PASSED THE FOLLOWING:** Crl.M.C.No.6803/2018 & 6820/2018 3 ## **O R D E R** ## **[ Crl.MC.6803/2018, Crl.MC.6820/2018 ]** Petitioners, who are the 4[th] and 6[th] accused in CC No.48/2011 pending before the Enquiry Commissioner and Special Judge, Thrissur for offences punishable under section 13(2) read with section 13 (1)(d) of the PC Act and Section 120B of the IPC, are the petitioners herein. They challenge the order in Crl.M.P.No.241/2018 and Crl.M.P.No.240/2018 respectively. 2. The allegation of the prosecution is that, accused Nos. 1 to 6, who were the senior officers of the Irrigation Department, during the period 1996 and as such being public servants, abused their official position, colluded and conspired with accused No.7 who was the managing director of Karuna Plantation Private Limited, Nelliyampathy, submitted proposals for construction of check dams across Seethargundu stream in Nelliyampathy Panchayath at Karuna Plantation, Palakkad District, suppressing the fact that the sites of the check dams were situated in the private estate of accused No.7 and the owners of the estate and their employees were the sole beneficiaries. They allegedly misrepresented some vital facts, violated the norms stipulated in the Government Order pertaining to the construction of check dams and managed to obtain sanction from the Government to construct two check dams. Thus they caused a loss of Rs.33,11,507/-, Crl.M.C.No.6803/2018 & 6820/2018 4 being the expenses incurred, including the cost of materials towards the construction of check dams. They thus committed offences punishable under section 12(2) read with section 13(d) (1) of the Prevention of Corruption Act 1988 and Section 120(b) of the IPC. 3. 4[th] accused was the executive engineer and the 6[th] accused was the assistant executive engineer. Detailed facts of the case, as disclosed in the counter affidavit, is that a new scheme was announced in the budget speech for 1992 -1993 for the construction of check dams on experimental basis in the rivers of the State for storing water in the post monsoon months and to prevent drying up of rivers including Bharathapuzha. As per the decision of the government, a team of officers headed by the then Secretary to Government (Irrigation) and CADA visited State of Maharashtra for studying various aspects of the construction of the check dams and they, after returning from there, recommended to construct similar structures on river beds in Kerala based on the knowledge obtained from Maharashtra. Accordingly, chief engineer, Investigation and Planning prepared a scheme report for the construction of check dams. The scheme report was then placed before the working groups of irrigation department. The working group recommended the scheme. After examining the aspects of the scheme, government accorded administrative sanction for the construction of the check dams in the river basins of the state vide GO No.31/92/IRD dated 25/9/1992 of Irrigation Department(Minor Irrigation) (Exhibit A1 of Crl.M.C.No.6803/2018 & 6820/2018 5 charge sheet) Government has given 13 specific instructions in the construction of check dams through the above mentioned government order. One of the instruction was that the storage so created by check dam could be tapped by farmers through lift arrangement on individual basis or through farmers associations etc. 4.Administrative sanction was accorded in 1994 and technical sanction was granted on 1/3/1995. Since complaints arose regarding the above check dam, crime was registered. After investigation, final report was laid. Accused Nos. 1,3 and 7 are stated to have expired. 6[th] accused turned approver and he was relied on by the prosecution to establish substantial part of allegation against the accused. 5. Pending the proceedings, all the accused filed petitions seeking discharge under section 239 of Cr.P.C. The court dismissed all the applications after hearing. Crl.R.P.No.2304/2008 was preferred by the 4[th] accused and Crl.R.P.No.2305/2008 was preferred by the 6[th] accused challenging the above order. This court quashed the above order and remitted the matter to the court below for fresh consideration. After hearing, applications were again dismissed. Petitioners challenged that order by preferring Crl.R.P.No.3522/2009 and Crl.R.P.No.3523/2009. All the accused challenged the similar orders dismissing their applications seeking discharge. All the applications were dismissed by Annexure 1 common order. Common charge was framed in terms of the above said allegations. against accused 3,4,5 Crl.M.C.No.6803/2018 & 6820/2018 6 and 6. The 3[rd] and 5[th] accused challenged the framing of charges in Crl.R.P.Nos.1386/2017 and 1402/2017. This court allowed both the applications and quashed the charges against accused Nos. 3 and 5. 6. Petitioners have now approached this court contending that common charge was framed against accused 3 to 6 and , since the charges against accused 3 and 5 stand quashed by this court, that benefit should enure to the petitioners also. It was contended that the petitioners have no independent role in the entire project and they were only acting in accordance with the directions given by the superior officers. They contended that, crime against them cannot be established in the light of changed circumstances. It was contended that prosecution against them is groundless in the light of the changed scenario. According to the 4[th] accused , he had only a short stint in the office from 22/6/1992 to 3-4-1995. 6[th] accused contended that he was only a subordinate officer and was acting under the directions of the superior officers. 7. According to the prosecution, the check dam constructed was in the private estate that belonged to the 7[th] accused. The water collected in the check dam will benefit only the 7[th] accused and his employees. He was bound to provide water to his employees under the Plantation and Labour Act and providing water facility to the employees at the state expense amounted to misconduct. Prosecution has yet another allegation that even though it was stated that the Crl.M.C.No.6803/2018 & 6820/2018 7 association of the local persons had requested for check dam, infact the association was registered much later and to that extent, the proposal was against the guidelines laid down by the Government According to the petitioners, the site was chosen by the first accused who was the Chief Engineer. The proposal was proposed by the second accused. Petitioners had only limited role. The site was also suggested by the local MLA. 8. The crux of the issue that arises is whether there are sufficient materials to prima facie believe that the proposal for construction of the check dam was moved by the petitioner suppressing that the check dam was proposed to be constructed inside a private estate and the beneficiaries are its employees. According to the prosecution, the specific allegation against the 4[th] accused was that while he was the Executive Engineer of Minor Irrigation Division, Palakkad, from 22/6/1992 to 3-4-1995, on 20/10/2003, he along with Sri.K.Sasidharan(late) former Chief Engineer (A1) visited the Karuna Plantations Ltd. promoted by 7[th] accused. Three spots were selected inside the estate along the Seethargundu stream. A1 gave direction to A4 to prepare a detailed estimate followed by proper study and investigation. A4 visited the sites again with Sri.Padmanabhan(approver and CW50), Assistant Executive Engineer, M.I.Section, Venkalakkayam and instructed to prepare a scheme report and detailed estimate. Sri.M.C.Padmanabhan, Assistant Executive Engineer had voiced his Crl.M.C.No.6803/2018 & 6820/2018 8 opinion to A4 about the violation of norms and the un-suitability of the site. A4 had exerted his compulsion on him to execute his directions as ordered. 9, The allegation against the 6[th] accused was that as per the direction of the Chief Engineer, the 6[th] accused and Sri.Padmanabhan prepared a scheme report. In the scheme report it was pointed out that the President of Seetharkundu Plantation Society had requested for the construction of the check dams across Seetharkundu stream. The estimate for the above was prepared by 6th accused and the work was executed under his direct supervision and the Assistant Executive Engineer and the Overseer concerned. When the work was about to start, orders were received to stop the work. Later, the Chief Engineer directed to sent a report about the feasibility of the scheme which in turn was received by this accused. Fifth accused allegedly suppressed the material facts and reported that the scheme was technically feasible. 10. To contend that the petitioners have acted as per the specific instructions given by the senior officers and that site was selected by the high level committee, Petitioners relied on Annexure R1(b) as well as Annexure R1 (e). Annexure R1(b) is a letter dated 9/8/1994 issued by the Assistant Executive Engineer to the Executive Engineer, Minor Division, Palakkad. It was stated therein that, based on the Chief Engineers Inspection on 20/10/1993, three check dam locations were Crl.M.C.No.6803/2018 & 6820/2018 9 identified, out of which estimate for one check dam amounting to Rs.14,80,000/- was submitted to that office on 19/4/1994. It was stated therein that the selection criteria, ideal location for check dam, feasibility and financial commitment, public utility, etc. may be examined at higher level as it has to satisfy the recommendation of the committee constituted for that purpose. Annexure R1 (d) is a letter dated 19/4/1994 issued by the 4[th] accused, the Assistant Executive Engineer. It is stated that therein the President of Seethargundu Plantation Workers Welfare Society and Labourers of estates in Nelliyampathy hills represented to Chief Engineer (Irrigation) during his visit at Palaghat for a check dam across Seethargundu stream. Based on the above request, Chief Engineer, Irrigation visited the site on 20/10/1993 and identified the most ideal location for constructing the check dam across the above stream and instructed to conduct detailed investigation for preparing the scheme for approval. The sites were also inspected by the Superintending Engineer, Minor Irrigation Circle, Calicut on 3/2/1994. The scheme has thus been prepared based on the direction given by the Chief Engineer and Superintendent Engineer at site. These two letters clearly show that the sites were chosen at the level of the Chief Engineer and the Superintendent Engineer, Minor Irrigation. It appears that the choosing of the site was not within the domain of the petitioners. 11. As mentioned above, co accused had approached this court Crl.M.C.No.6803/2018 & 6820/2018 10 challenging the framing of charge as against them by filing Crl.R.P.Nos.1386/2017 and 1402/2017. The judgment of this court is produced as Annexure III. Revision petitioners therein relied on _**Ashokan v. State of Kerala(2005 (3) KLT 770)**_ to contend that since the approver in this case was no more, the statement of the approver cannot be relied on by the prosecution to prove the allegations. It was held in that decision that, the statement made by an approver under section 306(4) Cr.P.C.was not admissible in evidence if he was not available for trial due to death. The stand taken by the learned prosecutor in that case was that though approver 's evidence cannot now be established, there were other documentary evidence to prove the prosecution case. Hence, the court proceeded to consider the evidence on record. Regarding the question whether prima facie materials were available against the petitioners therein, this court placed reliance on a letter produced in that case as Ext.G. It disclosed that considering the request made by the local MLA and Panchayat President as well as the necessity of construction of these check dams, the Executive Engineer, Palakkad, requested that sanction may be accorded to take further steps to complete the construction of these check dams as proposed already. The court noted that it was stated therein that the scheme will be most beneficial to the Karuna Estate and the people residing by the estate as envisaged in the original proposal. It was stated that it was in the light of this proposal, that the Crl.M.C.No.6803/2018 & 6820/2018 11 5[th] accused requested the Government through the Chief Engineer that the sanction might be accorded to complete the construction. The court concluded that the there was no suppression of truth in the letter. It was noticed that it was neither for the third accused nor for the 5[th] accused to take a decision and that they had only send the report of the Chief Engineer. The court held that the foundation of the prosecution case that they made a false report to the Government which led the Government to accord sanction, was not at all correct. 12. In the case of petitioners also, apart from the documentary materials placed before the court, prosecution specifically relied on the evidence of the approver, against the 4th accused. In the light of the decision in Ashokan's case(supra) those materials can no longer be used against the petitioners. In Crl.R.P.No.1386/2017, this court had held that there was no suppression of facts and that the decision was taken only at a higher level. Evidently, the benefit of that judgment should be extended to the petitioners herein also. 13. It is pertinent to note that in the light of the decision reported in _**Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008 KHC 4590)**_ wherein it was held by the Supreme Court that when on the same set of circumstances and accusations some of the accused have been acquitted, no separate ground survives to proceed against others. This decision applies to the facts of this case also. 14. It was contended by the learned counsel for the petitioners Crl.M.C.No.6803/2018 & 6820/2018 12 that, now the stand taken by the Government was that the land wherein the check dam was proposed to be constructed was Government land and the land stood vested in the Government. The petitioners relied on Annexure XI produced before this Court to support that contention. 15. Having regard to these facts, I feel that prosecution against the petitioners herein cannot survive. Consequently, Crl.M.C.s are liable to be allowed . No purpose will be served by prosecuting the petitioners especially in the changed circumstances. Accordingly, Crl.M.C.s are allowed. All further proceedings as against the 4[th] and 6[th] accused in CC No.48/2011 of the Enquiry Commissioner and Special Judge, Thrissur stands quashed. **Sd/-** **SUNIL THOMAS** **JUDGE** dpk Crl.M.C.No.6803/2018 & 6820/2018 13 ## **APPENDIX OF Crl.MC 6803/2018** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE ORDER DATED 10/6/2015 OF THIS HON'BLE COURT IN CRL.R.P.NO.3523/2009.** - **ANNEXURE II CERTIFIED COPY OF THE CHARGE IN C.C.48/2011 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.** - **ANNEXURE III TRUE COPY OF THE ORDER DATED 1/12/2017 OF THIS HON'BLE COURT IN CRL.R.P.NO.1386/2017.** - **ANNEXURE IV TRUE COPY OF THE PETITION SUBMITTED ON BEHALF OF THE PETITIONER, BY HIS COUNSEL, SEEKING TO DISCHARGE HIM.** - **ANNEXURE V TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE ADDITIONAL LEGAL ADVISOR, VACB, THRISSUR IN CRL.M.P.NO.241/2018.** - **ANNEXURE VI TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE COUNSEL FOR THE PETITIONER IN C.C.48/2011.** - **ANNEXURE VII CERTIFIED COPY OF THE ORDER DATED 5/9/2018 IN CRL.M.P.NO.241/2018 IN C.C.48/2011.** **ANNEXURE R1 (A): COPY OF THE GOVERNMENT ORDER NO.31/92/IRD DATED 28/9/1992 OF IRRIGATION (MINOR IRRIGATION)** **ANNEXURE R1 (B): COPY OF THE LETTER DATED 9/8/1994** **ANNEXURE R1 ( C) : COPY OF THE LETTER DATED 22/3/1995** **ANNEXURE R1 (D) COPY OF THE LETTER DATED 19/4/1994** **ANNEXURE R1 (E): COPY OF THE REGISTRATION CERTIFICATE OF THE SOCIETY** **ANNEXURE R1(F): COPY OF THE LETTER DATED 25/2/1994** **ANNEXURE R1 (G): COPY OF THE SCHEME PREPARED AND SUBMITTED BY THE PETITIONER.** Crl.M.C.No.6803/2018 & 6820/2018 14 ## **APPENDIX OF Crl.MC 6820/2018** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE ORDER DATED 10/6/2015 OF THIS HON'BLE COURT IN CRL.R.P.NO.3522/2009.** **ANNEXURE II** **CERTIFIED COPY OF THE CHARGE IN C.C.48/2011 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.** **ANNEXURE III** **TRUE COPY OF THE ORDER DATED 1/12/2017 OF THIS HON'BLE COURT IN CRL.RP.NO.1386/2017.** **ANNEXURE IV** **TRUE COPY OF THE PETITION SUBMITTED ON BEHALF OF THE PETITIONER, BY HIS COUNSEL, SEEKING TO DISCHARGE HIM.** **ANNEXURE V TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE ADDITIONAL LEGAL ADVISOR, VACB, THRISSUR IN CRL.M.P.NO.240/2018.** **ANNEXURE VI TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE COUNSEL FOR THE PETITIONER IN C.C.48/2011.** **ANNEXURE VII CERTIFIED COPY OF THE ORDER DATED 5/9/2018 IN CRL.M.P.NO.240/2018 IN C.C.48/2011.** **ANNEXURE VIII : COPY OF THE ENQUIRY REPORT NO.LB(E) 5-6754/2014 PREPARED BY THE SECRETARY, LAND BOARD, WHICH WAS RECEIVED BY THE APPLICANT UNDER THE RIGHT TO INFORMATION ACT.** **ANNEXURE IX: COPY OF THE G.O.(MS) NO.529/2014/REV. DATED 17/12/2014.** **ANNEXURE X: COPY OF THE COUNTER AFFIDAVIT DATED 14/1/2015 FILED BY THE GOVERNMENT IN W.P.(C) NO.34072/2014** . **ANNEXURE XI TRUE COPY OF THE ORDER NO.LR D2-9759/2018 DATED 19.02.2019 OF THE LAND REVENUE COMMISSIONER.** ## **RESPONDENTS EXHIBITS:** **ANNEXURE R1 (A): COPY OF THE LETTER DATED 2/9/1995** **ANNEXURE R1 (B): COPY OF THE LETTER DATED 19/4/1994** **ANNEXURE R1 (C) : COPY OF THE REGISTRATION CERTIFICATE OF THE SOCIETY.** **ANNEXURE R1 (D): COPY OF THE LETTER DATED 25/2/1994.**