Kerala High Court
R. Baiju vs State Of Kerala on 10 July, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947
CRL.REV.PET NO. 823 OF 2024
CRIME NO.VC 6/05/ALP/2014 OF VACB, ALAPPUZHA
AGAINST THE JUDGMENT DATED 05.06.2024 IN CRL.M.P. NO.104 OF 2018 IN C.C.
NO.5 OF 2014 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM / III
ADDITIONAL DISTRICT COURT, KOTTAYAM
REVISION PETITIONER/PETITIONER/ACCUSED NO.5:
S. CHANDRABABU
AGED 68 YEARS
S/O.P.SUKUMARAN, FORMER EXECUTIVE ENGINEER, PWD ROADS
DIVISION, ALAPPUZHA, PIN-688001,
RESIDING AT 'CHANDRAGEETHAM' HOUSE, THIRUMALA P.O,
T.V NAGAR, THIRUVANANTHAPURAM, PIN - 695006.
BY ADVS.
SRI.D.KISHORE
SMT.MEERA GOPINATH
SRI.R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN - 682031.
SPL PP - RAJESH.A FOR VACB,
SR PP - REKHA.S FOR VACB.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
10.07.2025, ALONG WITH CRL.REV.PET. NOS.731/2024 & 427/2025, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P. Nos. 731 & 823 of 2024
and 427 of 2025
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947
CRL.REV.PET NO. 731 OF 2024
AGAINST THE ORDER DATED 05.06.2024 IN CRL.M.P. NO.578 OF 2018 IN C.C.
NO.5 OF 2014 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM / III
ADDITIONAL DISTRICT COURT, KOTTAYAM
REVISION PETITIONER/2ND ACCUSED:
A. DEVADAS
AGED 69 YEARS
S/O. T V DEVASA PISHARADY, SARASWATHY NIVAS, CUSTOMS ROAD,
KOZHIKODE, PIN - 673032
BY ADVS.
SRI.T.G.RAJENDRAN
SRI.T.R.TARIN
RESPONDENTS/COMPLAINANT AND STATE:
1 THE DEPUTY SUPERINTENDENT OF POLICE
ALAPUZHA, PIN - 688001
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
10.07.2025, ALONG WITH CRL.REV.PET.NOS.823/2024 & 427/2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P. Nos. 731 & 823 of 2024
and 427 of 2025
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947
CRL.REV.PET NO. 427 OF 2025
CRIME NO.VC 06/05/ALP/2014 OF VACB, ALAPPUZHA
AGAINST THE ORDER DATED 05.06.2024 IN CRL.M.P.NO.670 OF2018 IN C.C.
NO.5 OF 2014 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE),
KOTTAYAM
REVISION PETITIONER/PETITIONER/ACCUSED NO.6:
R. BAIJU
AGED 49 YEARS
S/O. RASHEED, FATHIMA MANZIL, P.H. WARD, ALAPPUZHA.,
PIN - 688007
BY ADVS.
SRI.GOKUL DAS V.V.H.
SRI.E.RAFEEK
RESPONDENTS/RESPONDENT/COMPLAINANT:
STATE OF KERALA
THROUGH THE DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU, ALAPPUZHA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
10.07.2025, ALONG WITH CRL.REV.PET.NOS.721 & 823/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P. Nos. 731 & 823 of 2024
and 427 of 2025
4
"C.R"
COMMON ORDER
Dated this the 10th day of July, 2025 These Criminal Revision Petitions have been filed by accused Nos.2, 5 and 6 respectively in C.C. No.5 of 2014 on the files of the Court of the Enquiry Commissioner and Special Judge, Kottayam, challenging the dismissal of the discharge petitions filed by them viz. Crl.M.P. Nos.104, 578 and 670 of 2018 as per the common order dated 05.06.2024 in the above case.
2. Heard the respective counsel for the revision petitioners as well as the learned Public Prosecutor, in detail. Perused the order impugned and the decisions placed.
3. Parties in these criminal revision petitions shall be referred as '2nd, 5th and 6th accused' and 'prosecution', hereafter.
4. The prosecution case is that, the 1st accused, while working as Executive Engineer, Public Works Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 5 Department, Roads Division, Alappuzha, during the period from 02.12.2002 to 31.05.2003 and as such being public servant, abused his official position and entered into criminal conspiracy with accused Nos.2 and 6, the Conveyance contractor of packed bitumen and his authorized agent respectively for the period 2003-04 and in furtherance of the criminal conspiracy, five loads of packed bitumen vide invoice no. 303057 dated 12.05.2003, 304050 dated 23.05.2003, 304228 dated 26.05.2003, 304674 dated 30.05.2003 and 306783 dated 26.06.2003 taken delivery from Kochi Refinery Ltd. on behalf of Executive Engineer, Public Works Department Division, Alappuzha was dishonestly and fraudulently misappropriated wholly causing a loss of Rs.6,27,265.30 to the Government and corresponding gain to the accused by illegal and corrupt means without any public interest. The 5th accused, who succeeded the 1st accused as the Executive Engineer, PWD Division, Alappuzha, during the period 27.06.2003 to 31.08.2005, later on with malafide intention of obtaining pecuniary advantage to the said Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 6 accused Nos.2 and 6, conspired with accused Nos.3 and 4, who worked as Assistant Engineer of the PWD Section, Alappuzha, during the period from November, 1999 to October, 2004 and Assistant Engineer, PWD Section, Cherthala, during the period 03.06.2002 to 31.01.2005 respectively and also with the 7 th accused, who worked as Divisional Account, Public Works Department, Roads Division, Alappuzha, during the period from 24.09.2001 to 31.05.2005, the 8th accused, who worked as Assistant Executive Engineer (Technical Assistant), Public Works Department, Roads Division, Alappuzha, during 14.07.2003 to 30.09.2006, the 9th accused, who worked as Assistant Engineer (Works), Public Works Department, Road Division, Alappuzha, during the period from 17.04.2000 to 27.07.2006, 10th accused, who worked as the Junior Superintendent, Public Works Department Roads Division, Alappuzha, during the period from 03.07.2003 to 18.01.2007 and the 11th accused, who worked as the Clerk in the PWD Roads Division, Alappuzha, during 02.06.2003 to 10.09.2009 and in furtherance of the said conspiracy Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 7 hushed up the matter by delivering two loads of packed bitumen each to Pattanakkad and Cherthala PWD Sections vide USR dated 03.11.2003. Thereafter, accused Nos. 3 and 4 forged and falsified the documents such as the stock register, invoices etc. and used them as genuine so as to make it appear that the bitumen loads with invoices mentioned were delivered directly to the concerned sections and accused Nos.7 to 11 and the 5th accused admitted all the invoices in respect of the above mentioned misappropriated loads of packed bitumen including the falsified duplicate for transporter in respect of invoice no. 303057 dated 12.05.2013 and as such the 9th accused recorded all the invoices in the M Book and prepared bill of Rs.1,39,925.25 in respect of the conveyance of packed bitumen, the 8 th accused checked the recorded quantity and accused Nos.11, 10 and 7 audited the bill and the 5 th accused approved the bill and thereafter Cheques for Rs.1,02,293/- and Rs.33,379/- respectively were dishonestly and fraudulently released to the 2nd accused and the security deposit of Rs.17,500/- Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 8 was also dishonestly and fraudulently released to the 2 nd accused and thereby caused the above said loss to the Government by illegal and corrupt means without any public interest. On this premise, the prosecution alleges commission of offences punishable under Sections 13(2) r/w 13(1)(c) & (d) of the Prevention of Corruption Act, 1988 [hereinafter referred as 'P.C. Act' for short] and under Sections 218, 407, 468, 471, 477(A) and 120(B) of IPC.
5. The learned counsel for the 5 th accused pointed out the events before filing the present criminal revision petition, as stated in paragraph Nos.3 to 5 of Crl.Rev.Pet. No.823 of 2024. The same read as under:
3. The petitioner as well as the other accused filed Criminal Miscellaneous Petitions under Section 239 Cr.P.C. to discharge them.
The 2nd accused filed Crl.M.P 578/18, the 5th accused (Revision Petitioner) filed Crl.M.P 104/2018, the 6th accused filed Crl.M.P 670/2018, the 7th accused filed Crl. M.P 71/2018, the 8th accused filed CrLM.P 772/2017, the 9th accused filed Crl.M.P 773/2017, the 10th accused filed Crl.M.P Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 9 106/2018 and the 11th accused filed Crl.M.P 105/2018.
4. The trial court by Order dated 22.10.2018 allowed the discharge petition filed by the petitioner herein as Crl.M.P. 104/2018 and the Revision Petitioner/5th accused was discharged under Section 239 Cr.P.C. Similarly, the 1st accused was also discharged. The petitions for discharge filed by the accused Nos. 2,6,7,8,9,10 and 11 were dismissed. Against the dismissal of the discharge petitions, the 2nd accused filed Crl.M.C. 8635/2018, the 6th accused filed CrL.R.P. 370/2019, the 7th accused filed Crl.R.P. 55/2019, the 8th accused filed Crl.R.P. 59/2019, the 9th accused filed Crl.R.P. 56/2019, the 10 th accused filed CrL.R.P. 57/2019 and 11 th accused filed Crl.R.P. 58/2019. Against the order of discharge of the 5th accused/revision petitioner herein, the State filed Crl.R.P. 675/2020 and against the discharge of the 1 st accused, the State filed Crl.R.P. 674/2020 before this Honourable Court.
5. It is submitted that by a common judgment dated 5.3.2021, this Honourable Court dismissed CrL.R.P. 57/2019 filed by the 10th accused, CrLR.P. 58/2019 filed by the 11 th Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 10 accused and CrL.R.P. 674/2020 filed by the State against the discharge of the 1 st accused and allowed CrL.R.P. 55/2019 filed by the 7 th accused, CrL.R.P. 56/2019 filed by the 9 th accused, Crl.R.P. 59/2019 filed by the 8 th accused, Crl.R.P. 370/2019 filed by the 6 th accused and CrL.R.P. 675/2020 filed by the State against the discharge of the 5 th accused (Revision Petitioner herein) and CrLM.C. 8635/2018 filed by the 2nd accused. The accused 7 to 9 were discharged and the discharge applications filed by accused 2 and 6 were directed to be reconsidered afresh. Similarly, the discharge petition filed by the 5 th accused/revision petitioner was also directed to be reconsidered afresh.
6. While canvasing discharge at the instance of the 5th accused, it is pointed out by the learned counsel that, the 5th accused is innocent and the only allegation against him is dereliction of duty in not taking action against the other accused, who are accused Nos.7 to 9, in the matter of delayed production of bitumen, which is the subject matter of this crime. According to the learned counsel, the 5th accused was in charge as the Executive Engineer, Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 11 PWD, Road Division, Alappuzha during the period from 27.06.2003 to 31.08.2005. Five loads of packed bitumen were taken delivery from Kochi Refinery Ltd as per Invoice Nos.303057 dated 12.05.2003, 304053 dated 25.05.2003, 304228 dated 26.05.2003, 304674 dated 30.05.2003 and 306783 dated 26.06.2003 and during the said period, the 1st accused was the Executive Engineer. The Special Court discharged the 1st accused in this case and when the said discharge was challenged before this Court by the prosecution, this Court confirmed the discharge. The learned counsel for the 5th accused also pointed out that, the 5th accused also was discharged by the Special Court and as per the common order dated 05.03.2021 in Crl.Rev.Pet. No. 675 of 2020 and connected cases, this Court set aside the order of discharge as against the 5 th accused and remanded the matter back to the Special Court. Earlier, accused Nos.2 and 6 also filed discharge petitions before the Special Court and the same were also dismissed, against which revision petitions were filed and the same were considered by this Court as per common Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 12 order dated 05.03.2021.
7. Placing decision of the Apex Court reported in [1968 KHC 588 : AIR 1968 SC 700 : 1968 (2) SCR 408 : 1968 CriLJ 803] State of Gujarat v. Jaswantlal Nathalal, the learned counsel for the 6th accused argued that, in the said decision the Apex Court considered non delivery of 40 bags of cement entrusted to deliver to BSS was failed to be delivered and in the said case, even though the trial court convicted the accused for the offences punishable under Sections 405 and 409 of the IPC, the High Court set aside the conviction and sentence and when the judgment of acquittal rendered by the High Court was challenged before the Apex Court, the Apex Court confirmed the same and in paragraph Nos. 8 and 9, the word 'entrustment' under Section 405 of IPC has been discussed.
8. The learned counsel for the 5 th accused also placed the decision of this Court in Surendranath C. v. State of Kerala reported in [2024 (2) KHC 134 : 2024 KHC OnLine 33 : 2024 KER 3760] to buttress the point Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 13 that, dishonest intention is sine qua non to attract the offence punishable under Section 13(1)(d) of the P.C. Act and mere conduct and action of the public servant contrary to Rules and departmental norms would not amount to criminal misconduct by a public servant.
9. The learned counsel for the 5 th accused also placed decision of the Apex Court reported in [1979 KHC 574 : 1979 (3) SCC 4 : AIR 1979 SC 366] Union of India v. Prafulla Kumar Samal and Another , highlighting the essentials to be considered by the Sessions Court, when application under Section 227 of Cr.P.C. is to be considered.
10. The learned counsel for the 2nd accused also argued in tune with the contentions raised by the learned counsel for accused Nos.5 and 6.
11. The sum and substances of the argument mooted by the learned counsel for the revision petitioners is that, even though 5 loads of bitumen were taken by the 2nd and 6th accused and there was delay in delivering the same as per the records and thereafter, the bitumen loads Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 14 were delivered on 03.11.2003, there is no materials collected during investigation to substantiate the fact that the Government sustained any pecuniary loss or any of the accused persons obtained any illegal gratification, in any manner.
12. When a specific query as to whether the Government sustained any pecuniary loss or any of the accused persons obtained any illegal gratification or undue pecuniary advantage, was put to the learned Public Prosecutor, he pointed out the narration in the Final Report stating that, as per the prosecution allegation, the loss caused to the Government is Rs.6,27,265.30 and the learned Public Prosecutor fairly submitted that the amount so arrived at is the amount of the bitumen loaded at the instance of accused Nos.2 and 6. He also pointed out that, even though in between the period from 12.05.2003 till 26.06.2003, the bitumen were loaded by the 2 nd and 6th accused, the same were delivered only on 03.11.2003. Therefore, it has to be observed that, the bitumen loads were used for other purposes and there may be temporary Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 15 misappropriation for the said purpose. But, the amount so misappropriated by the accused is not at all quantified.
13. On perusal of the records, the case in a nutshell is that, as per Invoice Nos.303057 dated 12.05.2003, 304053 dated 25.05.2003, 304228 dated 26.05.2003, 304674 dated 30.05.2003 and 306783 dated 26.06.2003, 5 loads of bitumen were taken from Kochi Refinery Ltd on behalf of the Executive Engineer, PWD, Alappuzha, by the 2nd accused through his agent, the 6th accused. But the bitumen loads were not delivered to the Executive Engineer, PWD and as per the prosecution records, it is discernible that the above loads were delivered only on 03.11.2003. The prosecution has no case that the delivery of the bitumen not done at all and the allegation is that there was delay of about 4 months in delivering the bitumen loads to the Executive Engineer, PWD.
14. In order to fasten criminal culpability on a person on alleging commission of offences punishable under Sections 13(1)(c) and 13(1)(d) of the P.C. Act, it has to be established prima facie that, a public servant Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 16 dishonestly or fraudulently misappropriated or otherwise converted for his own use any property entrusted to him or under his control as a public servant or allowed any other person so to do; or if he, by corrupt or illegal means, obtained for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtained for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtained for any person any valuable thing or pecuniary advantage without any public interest.
15. On evaluation of the entire prosecution records, the 5th accused was in charge as the Executive Engineer, PWD, Road Division, Alappuzha during the period from 27.06.2003 to 31.08.2005. When the alleged occurrence was taken place, the 1st accused was in charge as the Executive Engineer. The Special Court discharged the 1 st accused in this case and this Court also confirmed the order of discharge. The amount of pecuniary advantage obtained by accused Nos.2 and 6, as part of the alleged Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 17 conspiracy hatched between the other accused could not be found from any of the prosecution records, even remotely. The loss of Rs.6,27,265.30 alleged by the prosecution is the value of five loads of bitumen, but the said loss could not be found, since the loads were entrusted to the then Executive Engineer, PWD. It is discernible further that, the only allegation otherwise is non-production of the original invoice in respect of one load of bitumen by the 2 nd and 6th accused. But, instead of the original invoice, the copy of the same also was produced. That by itself would not make any misappropriation within the meaning of Sections 13(1)(c) and 13(1)(d) of the P.C. Act.
16. Thus, it has to be observed that, in the instant case, the prosecution materials do not suggest any pecuniary loss to the Government or gain to accused Nos. 2 and 6, from the materials produced by the prosecution. So, prima facie, none of the offences made out as against accused Nos.2, 5 and 6. Therefore, reasons found by the Special Court to dismiss the discharge plea at the instance Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 18 of accused Nos.2, 5 and 6 is found to be unsustainable and the same is liable to be interfered. Accordingly, these revision petitions are liable to succeed.
17. In the result, these criminal revision petitions stand allowed and the order of the Special Court dismissing the discharge plea at the instance of accused Nos.2, 5 and 6 stands set aside. As a sequel thereof, accused Nos.2, 5 and 6 are discharged in this crime.
Registry is directed to forward a copy of this order to the Special Court, forthwith, for information and further steps.
Sd/-
A. BADHARUDEEN JUDGE SK Crl.R.P. Nos. 731 & 823 of 2024 and 427 of 2025 19 APPENDIX OF CRL.REV.PET 731/2024 PETITIONER ANNEXURES :
Annexure 1 CERTIFIED COPY OF THE COMMON ORDER IN CC NO.
5/2014 ON THE FILE OF THE ENQUIRY COMMISSIONER AND SPECIAL LJUDGE, KOTTAYAM DATED 5.6.2024