T. R. Ajayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942** **Crl.Rev.Pet.No.665 OF 2014** **AGAINST THE ORDER/JUDGMENT IN CC 131/2008 DATED 12-08-2013 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,THRISSUR** ## **REVISION PETITIONER/ACCUSED NO.2:** **T.R.AJAYAN, AGED 70 YEARS S/O T.K.RAMAN, JASHINA, WEST YAKKARA, PALAKKAD. (ASST. EXECUTIVE ENGINEER (RTD), P.W.D. ROADS SUB DIVISION, PALAKKAD)** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.M.SUNILKUMAR SRI.R.ANIL SRI.T.ANIL KUMAR SRI.MANU TOM SRI.SUJESH MENON V.B. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.M.VIVEK** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **R1 BY GOVERNMENT PLEADER** ## **SMT K B SONY-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.01.2021, THE COURT ON 18.01.2021 PASSED THE FOLLOWING:** **Crl.R.P.No.665 of 2014** **2** ## **R. NARAYANA PISHARADI, J** **---------------------------------------------------Crl.R.P.No.665 of 2014 -----------------------------------------------------** Dated this the 18[th] day of January, 2021 ## **O R D E R** The petitioner is the second accused in the case C.C. No. 131/2008 pending in the Court of the Enquiry Commissioner and Special Judge, Thrissur. 2. There are three accused in the case. The charge sheet in the case is filed by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Palakkad. The allegation against the accused is that they committed the offences punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and under Sections 420, 468, 471 and 477A and 120B IPC. 3. The offences are alleged to have been committed by the accused in relation to the improvement work of KongadMannarkkad Tippu Sulthan Road in Palakkad District which was conducted by the Public Works Department. The first accused was the contractor and the second and the third accused were the **Crl.R.P.No.665 of 2014** ## **3** Assistant Executive Engineer and the Assistant Engineer respectively who were in charge of conducting the work. 4. The accused filed an application as Crl.M.P.No. 1005/2011 in the trial court under Section 239 of the Code of Criminal Procedure, 1973 (for short 'the Code') seeking discharge. The aforesaid application was dismissed by the trial court. This revision petition is filed by the second accused challenging the aforesaid order passed by the trial court. 5. Heard the learned counsel for the petitioner and also the learned Public Prosecutor. 6. The charge against the accused, as stated in the charge sheet filed by the VACB, reads as follows: “The charge sheet against the accused 2 and accused 3 is that while they were working in the capacity of Assistant Executive Engineer and Assistant Engineer of PWD Roads Sub Division, Palakkad and PWD Roads Section No.II, Palakkad respectively during the period 07.08.1999 to 28.11.1999 and as such being government servants abused their official capacity colluded and consulted with A1 who was the contractor of the workimprovements to Kongad-Mannarkkad Tippu Sultan Road from chainage 0/0 to 6/250 kms. By recording an excess quantity of 86.396m3 of 36mm metal in the M book without using the said quantity of metal **Crl.R.P.No.665 of 2014** **4** in the said work valued at Rs.41,684/- (including tender excess) and by not deducting the specified reduction in volume for loose stack and voids at 10% for the 36mm metal supplied for road and bridge works issued by Ministry of surface transport and as per table 500.28 in the direction contained in the schedule of rates of bill issued by the Chief Engineer PWD, Thiruvananthapuram amounting to Rs.104,208/- for 296M3 of 36mm metal (including tender excess). Thus A2 and A3 allowed undue illegal pecuniary advantage to A1 and corresponding loss to the Government by way of forging and falsifying documents, using forged documents as genuine and thus cheated the government causing corresponding loss to the government to the tune of Rs.1,45,892/- (Rs.41,684/- + Rs.1,04,208/-). Thereby the accused committed offences u/s 13(1) (d) read with 13(2) of the P.C Act, 1988 and Section 420,468,471, 477A and 120B IPC”. 7. Learned counsel for the petitioner has submitted that the work was done during the period from 07.08.1999 to 28.11.1999 and that the petitioner had retired from service on 30.11.1999. Learned counsel would submit that the entire amount has not been paid to the contractor. Learned counsel would also point out that the case was registered on the basis of a surprise check conducted by the VACB on 16.10.2000 but the report of the surprise check has not been produced before the trial court. **Crl.R.P.No.665 of 2014** **5** Learned counsel for the petitioner would also contend that there are no sufficient materials produced by the prosecution to prove the offences alleged against the petitioner. 8. _Per contra,_ the learned Public Prosecutor who appeared for the VACB, submitted that there are sufficient materials on record to prove the offences alleged against the petitioner. 9. The relevant portion of the impugned order reads as follows: “I must state that the matter fall within purely technical realm, so that this court is not justified in venturing to form any opinion with regard to the correctness or otherwise of the evaluation made by expert Engineers which is the basis of the charge sheet. Therefore, as rightly pointed out by the Legal Advisor, any opinion formed without examination of the Engineers who assisted the Investigating Officer would be a misadventure and it will not be expedient to discharge the accused at this stage. If they have adopted slip-shod methods for prosecuting the petitioners that can easily be exposed by cross examination of the witnesses. Even though this court is not convinced that the prosecution is justified in making such an allegation atleast on the first count, that too after lapse of four years of the erection of the road, everything depends upon technical aspects which only the experts can **Crl.R.P.No.665 of 2014** **6** depose. In the circumstances, I am of the view that it is not expedient to discharge the petitioners under Section 239 Cr.P.C. Point is found against the petitioners and the petition is dismissed.” ## (emphasis supplied) 10. There can be no quarrel with the view of the trial court, that the correctness or otherwise of the evaluation made by the expert engineers and the other materials produced by the prosecution along with the final report, cannot be decided at the stage of framing charge. However, the trial court has not pointed out what are the materials produced by the prosecution which form the basis for the charges levelled against the petitioner. There is a specific allegation against the second and the third accused that they allowed the first accused to get undue pecuniary advantage by forging and falsifying documents and using such documents as genuine. The trial court has not even stated which are the documents alleged to have been forged and falsified by the petitioner. There is also a specific allegation against the petitioner that excess quantity of metal was recorded in the M-book. The impugned order does not disclose whether the prosecution has produced the M-book in the court and if produced, it contains any **Crl.R.P.No.665 of 2014** **7** such entries. Though the trial court has stated that opinion of the expert engineers could be appreciated only after trial, it is not mentioned whether the statements of such experts disclose anything against the petitioner. 11. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on their face value, disclose the existence of the ingredients necessary to constitute the offences alleged against the accused (See **State v. Hiremath : AIR 2019 SC 2377** ). 12. In the instant case, the trial court has not evaluated the materials produced by the prosecution in order to determine whether the facts emerging from such materials, taken on their face value, disclose the existence of the ingredients necessary to constitute the offences alleged against the petitioner. It is not sufficient for the trial court to make a general statement that the documents and other materials produced by the prosecution would prima facie disclose the ingredients of the offences alleged against the accused, without pointing out what are those materials. True, **Crl.R.P.No.665 of 2014** **8** at the time of framing charges, the probative value of the materials on record cannot be gone into. But, the Judge while considering the question of framing charges has the undoubted power to sift and weigh the materials produced by the prosecution for the limited purpose of finding out whether or not a prima facie case has been made out against the accused (See **Union of India v. Prafulla Kumar Samal: AIR 1979 SC 366** ). In the instant case, before dismissing the application for discharge filed by the petitioner, the trial court has not undertaken such an exercise. 13. In the aforesaid circumstances, it has become necessary to remand the matter to the trial court to reconsider the discharge application filed by the petitioner herein and to decide the matter afresh. 14. Consequently, the revision petition is disposed of as follows: The impugned order passed by the trial court, as far as it relates to the petitioner, is set aside. The trial court shall reconsider the question whether the petitioner is entitled to be discharged and pass appropriate orders. Sd/- ## **R. NARAYANA PISHARADI JUDGE** lsn **Crl.R.P.No.665 of 2014** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF THE FIR IN CRIME NO.07/02 PKD, VACB, PALAKKAD DATED 27.12.2002.** **ANNEXURE B THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.7/02/PKD DATED 05.12.2007.** **ANNEXURE C THE CERTIFIED COPY OF THE TECHNICAL REPOERT DATED 31.07.2007. ANNEXURE D THE TRUE COPY OF THE OREDER NO. O & M(1) 12407/88, DATED11.02.1988. ANNEXURE E TRUE COPY OF THE PETITION U/S 239 FILED BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR. ANNEXURE F THE CERTIFIED COPY OF THE ORDER IN CRL.M.P 1005/2013 DATRED 12.08.2013 OF THE COURT OF THE ENQUIERY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.** **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R1(a) TRUE COPY OF THE SOURCE REPORT NO.57/2000. ANNEXURE R1(b) TRUE COPY OF THE SURPRISE CHECK DATED 07.02.2001. ANNEXURE R1(c) TRUE COPY OF THE INVENTORY PREPARED BY THE TECHNICAL EXPERTS. ANNEXURE R1(d) TRUE COPY OF THE LOSS CALCULATION STATEMENT PREPARED BY SRI.J.SREEKUMAR, W5 BASED ON THE INVENTORY. ANNEXURE R1(e) TRUE COPY OF THE LOSS CALCULATION STATEMENT. ANNEXURE R1(f) TRUE COPY OF THE SITE INSPECTION. ANNEXURE R1(g) TRUE COPY OF THE TECHNICAL REPORT DATED 31.07.2007.** True copy P A. To. Judge lsn