Kerala High Court
S.Gopakumar vs State Of Kerala on 9 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943
CRL.A NO. 1417 OF 2007
AGAINST THE JUDGMENT IN CC 48/1999 DATED 30.07.2007 OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED : (PARTY IN CUSTODY):
1 S.GOPAKUMAR
(FORMERLY ASSISTANT EXECUTIVE ENGINEER,,
AGRICULTURE DEPARTMENT,KOLLAM,, RESIDING AT T.C.
28/170, KAITHAMUKKU,, THIRUVANANTHAPURAM.) DIED
ADDL 2 JAYASREE, W/O. LATE S.GOPAKUMAR,
JANAKAJA VILAS, T.C. 28/170,KAITHAMUKKU,
THIRUVANANTHAPURAM.
ADDL 2ND APPELLANT 1S IMPLEADED AS PER ORDER DATED
08/07/2020 IN CRL.M.A.1/2020.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.SREEKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR. HIGH COURT OF KERALA,ERNAKULAM.
BY SRI.A.RAJESH, SPL.PP VACB
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
27.01.2021 ALONG WITH CRL.A.NO.1535 OF 2007, THE COURT ON
09.06.2021 DELIVERED THE FOLLOWING:
Crl.A.No.1417/2007 &
1535/2007 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943
CRL.A NO. 1535 OF 2007
AGAINST THE JUDGMENT IN CC 48/1999 DATED 30.07.2007 OF THE
ENQUIRY COMMISSIONER & SPECIAL JUDGE,THIRUVANANTHAPURAM
APPELLANT/A2:
YOUSUF SAIJUDEEN
AGED 60 YEARS
S/O SAIFUDEEN, OWNER,, M/S GOODWILL ENTERPRISES,,
ERNAKULAM.
BY ADV SRI.C.P.UDAYABHANU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
BY SRI.A.RAJESH, SPL.PP VACB
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
27.01.2021, ALONG WITH CRL.A.1417/2007, THE COURT ON
09.06.2021 DELIVERED THE FOLLOWING:
Crl.A.No.1417/2007 &
1535/2007 3
R. NARAYANA PISHARADI, J
****************
Crl.Appeal.Nos.1417 of 2007 & 1535 of 2007
-------------------------------------------------
Dated this the 9th day of June, 2021
JUDGMENT
The appellant in Crl.A.No. 1417/2007 is the first accused and
the appellant in Crl.A. No.1535/2007 is the second accused in the
case C.C.No.48/1999 on the file of the Court of the Enquiry
Commissioner and Special Judge, Thiruvananthapuram.
2. The prosecution case against the accused can be briefly
stated as follows: The first accused was working as Assistant
Executive Engineer (Agriculture), Kollam during the period from
13.11.1992 to 18.01.1995. The second accused was the
Managing Partner of the firm "M/s.Goodwill Enterprises". The
Executive Engineer (Agriculture), Alappuzha had instructed all the
Assistant Executive Engineers (Agriculture) under his control to
urgently take up the work of providing additional facilities to the
Krishi Bhavans. In response to such direction, the first accused
Crl.A.No.1417/2007 &
directed the Assistant Directors (Agriculture) under his jurisdiction
to forward the details of the works to be executed. Then, four
Krishi Bhavans forwarded proposals for providing water connection
and the other Krishi Bhavans forwarded proposals for execution of
various other works. However, the first accused originated 19 files
for supply of pump sets to 19 Krishi Bhavans for providing water
connection. Pursuant to the conspiracy entered with the second
accused, instead of inviting tenders for the supply of 19 pump
sets, the first accused, by abusing his position as a public servant,
invited quotations for the supply of 1HP deep well jet pump sets
and 1HP mono block pump sets. The second accused was not an
authorised dealer of any pump sets. However, the second accused
gave quotations of six firms, including his firm, quoting very high
rates for the pump sets. Then, the first accused, in violation of
the provisions of the Store Purchase Manual of the Government of
Kerala, accepted the quotations made by M/s. Goodwill
Enterprises at the rates of Rs.8,950/- and Rs.8,750/- for the jet
and the mono block pump sets respectively and he placed orders
with the second accused for supply of 16 pump sets. Thereafter,
the first accused made false entries in the stock register to make
it appear that ten pump sets were received from the second
Crl.A.No.1417/2007 &
accused on 16.03.1993 and six pump sets were received on
25.03.1993 for the price quoted by the second accused. But, the
second accused had not supplied any pump set either on
16.03.1993 or on 25.03.1993. The first accused prepared false
proceedings on 17.03.1993, 18.03.1993 and 27.03.1993 by which
he accorded sanction for drawing and disbursing a total amount of
Rs.1,41,600/- and he presented bills for that amount in the
District Treasury, Kollam. On passing of the bills by the treasury,
the first accused issued two demand drafts for the said amount in
favour of the second accused who encashed them on 05.04.1993
through the State Bank of Travancore, Civil Station Branch,
Kollam. Thereafter, the second accused purchased 16 pump sets
from Guru Associates, Ernakulam on 30.04.1993 for a total
amount of Rs.49,680/- and supplied them at the office of the first
accused during the first week of May, 1993. Thus, the second
accused obtained pecuniary advantage of Rs.91,920/-.
Thereafter, the first accused prepared two false supply orders
dated 15.04.1993, for supply of three 1HP mono block pump sets
and three 1HP jet pump sets. The second accused, without
receiving any such orders for the supply of pump sets, handed
over two forged invoices bearing numbers 1312 and 1313 dated
Crl.A.No.1417/2007 &
30.04.1993 to the first accused. The first accused prepared and
passed proceedings on 14.05.1993 by which he accorded sanction
for payment of a total amount of Rs.53,100/- to the second
accused. Without effecting any payment to the second accused,
the first accused dishonestly and fraudulently converted the
aforesaid amount for his own use. He made false entries in the
treasury payment cheque register relating to TP account to show
that Rs.53,100/- was paid to the second accused as price of those
pump sets. Thereafter, he destroyed or removed the above
register and other records connected with such account with the
dishonest intention of causing disappearance of the evidence of
the offences committed by him.
3. On completing the investigation of the case, after
obtaining sanction for prosecution against the first accused, the
Deputy Superintendent of Police, Vigilance and Anti-Corruption
Bureau (VACB), Kollam filed charge-sheet against the two accused
for the offences punishable under Sections 13(1)(c) and 13(1)(d)
read with 13(2) of the Prevention of Corruption Act, 1988 (for
short 'the Act') and also under Sections 409, 468, 471, 477A and
201 read with 120B of the Indian Penal Code (IPC).
Crl.A.No.1417/2007 &
4. The trial court framed charge against the first accused for
the offences punishable under Sections 13(1)(c) and 13(1)(d)
read with 13(2) of the Act and also under Sections 468, 409 and
477A read with 120B of the IPC and under Sections 471 and 201
of the IPC. The trial court framed charge against the second
accused for the offence punishable under Section 13(1)(d) read
with 13(2) of the Act and Section 120B of the IPC. Both accused
pleaded not guilty and they claimed to be tried.
5. The prosecution examined PW1 to PW42 and marked
Exts.P1 to P193 documents and MO1 series material objects. No
oral evidence was adduced by the accused but Exts.D1 to D4
documents were marked on their side.
6. The trial court convicted the first accused for the
offences punishable under Sections 13(1)(c) and 13(1)(d) read
with 13(2) of the Act and also under Sections 409, 468, 471 and
477A, 201 and 120B of the Indian Penal Code. The trial court
sentenced the first accused to undergo rigorous imprisonment for
a period of four years for the offence punishable under Section
13(1)(c) read with 13(2) of the Act and also rigorous
imprisonment for a period of four years and to pay a fine of
Rs.25,000/- and in default of payment of fine, to undergo rigorous
Crl.A.No.1417/2007 &
imprisonment for a period of one year for the offence punishable
under Section 13(1)(d) read with 13(2) of the Act. The trial court
further sentenced the first accused to undergo rigorous
imprisonment for a period of three years each for the offences
punishable under Sections 409, 468, 471 and 477A read with
120B of the Indian Penal Code. The trial court also sentenced the
first accused to undergo rigorous imprisonment for a period of one
year for the offence punishable under Section 201 of the Indian
Penal Code. The trial court directed that the substantive
sentences of imprisonment imposed on the first accused shall run
concurrently.
7. The trial court found the second accused guilty of the
offence punishable under Section 13(1)(d) read with 13(2) of the
Act and 120B of IPC and convicted him thereunder. The trial court
sentenced him to undergo rigorous imprisonment for a period of
two years and to pay a fine of Rs.10,000/- and in default of
payment of fine to undergo rigorous imprisonment for a period of
six months.
8. During the pendency of the appeals, the first accused
died. As per the order in Crl.M.A No.1/2020, this Court granted
leave to the wife of the first accused to continue the prosecution
Crl.A.No.1417/2007 &
of the appeal.
9. The second accused also died during the pendency of
the appeal filed by him. However, none of the near relatives of
the second accused made any application for granting leave to
continue the appeal.
10. Heard the learned counsel who appeared for the wife of
the appellant in Crl.A.No.1417/2007 and also the learned Public
Prosecutor. Perused the records of the case.
11. Learned counsel for the appellant has contended that,
though voluminous evidence has been adduced by the
prosecution, it is deficient to prove the offences alleged against
the first accused. Learned counsel has submitted that the
prosecution might have proved that the actions of the first
accused did not conform to the departmental norms and
procedures but certainly, his conduct did not amount to criminal
misconduct under the Act. Learned counsel has also contended
that the officer who issued the order granting sanction for
prosecution of the first accused was not examined and therefore,
the prosecution could not prove that there was a valid sanction for
prosecution against the first accused.
12. Per contra, learned Public Prosecutor has submitted
Crl.A.No.1417/2007 &
that there is ample evidence adduced by the prosecution to prove
the offences alleged against both accused. Learned Public
Prosecutor has further submitted that, non-examination of the
person who issued the order granting sanction for prosecution
against the first accused is not fatal to the case of the
prosecution.
13. The first accused had worked as Assistant Executive
Engineer (Agriculture), Kollam during the period from 13.11.1992
to 18.01.1995. He was a public servant as defined under Section
2(c) of the Act. There is no dispute with regard to these facts.
14. PW11 was the Executive Engineer (Agriculture),
Alappuzha during the period from 09.11.1992 to 31.03.1994. As
per Ext.P56(a) letter dated 10.12.1992, PW11 had given
instructions to all Assistant Executive Engineers (Agriculture)
under his control to take up and execute the works required for
providing additional facilities like electric connection, drinking
water, compound wall etc to the Krishi Bhavans, on a priority
basis.
15. PW2 was a Lower Division Clerk in the office of the first
accused during the period from 10.06.1986 to 14.09.1994. He
was the person who was dealing with Ext.P10 file relating to
Crl.A.No.1417/2007 &
providing additional facilities to the Krishi Bhavans.
16. On receipt of Ext.P56(a) letter, the first accused had
made Ext.P10(b) office note in Ext.P10 file to address the
Assistant Directors (Agriculture) to forward the details of the
works to be taken up for providing additional facilities to the Krishi
Bhavans. Ext.P10(b) office note was marked through PW2 who
has given evidence that he can identify the handwriting, signature
and initials of the first accused. When examined under Section
313 Cr.P.C, the first accused admitted the authorship of
Ext.P10(b) office note.
17. On the basis of Ext.P56(a) letter and Ext.P10(b) office
note, Ext.P10(c) letter dated 16.12.1992 was sent to the Assistant
Directors (Agriculture) who were working under the first accused.
As per that letter, the Assistant Directors (Agriculture) were
directed to forward the details of the works to be taken up for the
Krishi Bhavan buildings.
18. The evidence of PW2 and the contents of Ext.P10 file
would show that only four Krishi Bhavans had forwarded proposals
for providing water connection and pump sets. However, the first
accused proceeded with the work of providing water connection
and pump sets to 19 Krishi Bhavans.
Crl.A.No.1417/2007 &
19. Ext.P11 is the personal register maintained by PW2 for
the year 1993. As per Ext.P11(a) to Ext.P11(i) entries made by
PW2 in Ext.P11 register, 19 files were originated by him in the
matter of providing water connection to the 19 Krishi Bhavans.
PW2 has given evidence that it was as per the direction given by
the first accused that he originated the 19 files. There is no
reason to disbelieve the evidence of PW2 in that regard. When
examined under Section 313 Cr.P.C, the first accused admitted
that the 19 files were originated as per the direction given by him.
Exts.P2, P3, P12 to P18 and P25 to P34 are the 19 files originated
in the matter of providing water connection to the 19 Krishi
Bhavans.
20. PW4 was the First Grade Draughtsman in the office of
the first accused during the period from November, 1992 to
October, 1997. He has given evidence that he prepared the
estimates for providing water connection and those estimates are
contained in the 19 files. The price of the pump sets is mentioned
in the estimates. PW4 has deposed that it was the price
mentioned by the first accused which was shown in the estimates
prepared by him. PW4 identified the signatures of the first
accused in the estimates. When examined under Section 313
Crl.A.No.1417/2007 &
Cr.P.C, the first accused admitted that the estimates bear his
signature. Since the estimates bear the signature of the first
accused it has to be found that they had been approved by him.
21. The price of the pump sets shown in most of the
estimates is Rs.6,500/-. However, in Ext.P18 file, the price of the
pump set is shown as Rs.6,000/- and in Ext.P30 file, it is shown
as Rs.3,000/- and in Exts.P31 and P32 files, it is shown as
Rs.9,000/- each.
22. There is no dispute with regard to the fact that the first
accused was competent to grant technical sanction for work upto
Rs.20,000/-. PW11 Executive Engineer (Agriculture) was the
officer competent to grant technical sanction for works above
Rs.20,000/-.
23. Exts.P57 and P58 were the files maintained in the office
of PW11. They relate to granting of sanction for the estimates
received from the first accused. PW11 identified the signature of
the first accused in the estimates and the reports contained in
pages 3 to 19 of Ext.P57 file [which is marked as Ext.P57(a)] and
pages 5 to 21 of Ext.P58 file [which is marked as Ext.P58(a)].
PW11 has given evidence that he had granted technical sanction
for the estimates prepared by the first accused. As per Ext.P57(c)
Crl.A.No.1417/2007 &
and P58(a-1) orders, PW11 had granted technical sanction for
purchase of pump sets at Rs.6,000/- and Rs.6,500/- respectively.
24. PW11 has given evidence that he had examined
whether the price of the pump sets shown in the estimates
forwarded by the first accused were reasonable or not. He has
deposed that such verification was made by him with reference to
the price of the pump sets shown in the booklet published by the
State Level Technical Committee.
25. PW11 has given evidence that, as per Ext.P31(b) and
P32(a-1) orders, he had granted technical sanction for purchase of
pump sets at Rs.9,000/- each for two Krishi Bhavans. As per
Ext.P18(a-1), he had granted technical sanction for purchase of
pump set at Rs.6,000/- for another Krishi Bhavan. PW11 has
explained the reason for the discrepancy or difference in the price
of the pump sets. According to him, when the depth of the well is
different, the price of the pump sets to be used would also be
different. However, PW11 has also clarified that, even if technical
sanction and administrative sanction are given for purchase of
pump sets at a specific rate, if the market rate is below the price
for which sanction has been granted, the pump sets shall be
purchased only at the market rate.
Crl.A.No.1417/2007 &
26. PW11 has stated on cross-examination that he had
granted technical sanction for purchase of pump sets after being
satisfied about the reasonableness of the price of the pump sets.
He has also stated that he had granted technical sanction though
he was conscious of the variation in the price of the pump sets
shown in the estimates forwarded by the first accused.
27. Instead of inviting tender for the supply of 19 pump
sets, the first accused had invited quotations for the supply of one
jet pump and one mono block pump each.
28. As per paragraph 14 of Ext.P185 Stores Purchase
Manual, tenders shall be invited, if the estimated value of the
stores to be purchased is Rs.20,000/- or above. In clause (c) of
paragraph 24 of Ext.P185 Stores Purchase Manual, it is provided
that the requirements of the same or similar materials should be
consolidated and tenders invited in order to secure the advantage
of competitive prices for bulk supply.
29. The fact that the first accused invited quotations for the
supply of one pump set of each type, instead of inviting tenders
for the supply of total 19 pump sets, is one of the circumstances
which would indicate the dishonest intention of his actions.
30. According to the prosecution, the first accused had
Crl.A.No.1417/2007 &
entered into a criminal conspiracy with the second accused on or
before 15.03.1993 and pursuant to such conspiracy, the first
accused, by abusing his official position, had accepted the
quotations submitted by the second accused in which exorbitant
rate was mentioned for the supply of the pump sets. Exts.P2(g)
and P3(h) are the copies of the quotation notices issued by the
first accused on 01.03.1993 and 02.03.1993 respectively. The
requirement shown in the above quotations was only one number
of 1HP jet pump set and one number of 1HP mono block pump
set. The last date for the receipt of the quotations shown in
Exts.P2(g) and P3(h) was 15.03.1993.
31. The evidence of PW2 shows that the copies of the
quotation notices were not affixed on the notice board in the office
of the first accused. His evidence also reveals that the quotation
notices were not circulated among dealers of pump sets. There is
no evidence on record to show that Exts.P2(g) and P3(h)
quotation notices were given to any firms which supply pump
sets. Ext.P47 is the local delivery tapal book and Ext.P48 is the
despatch register maintained in the office of the first accused
during the relevant period. These records do not contain any
entry regarding the despatch of the quotation notices to any firm.
Crl.A.No.1417/2007 &
Further, in Ext.P144 register kept in the office of the first accused
as per the provision contained in paragraph 30 of Ext.P185 Stores
Purchase Manual, no entry with regard to the notification of the
quotations has been made. Therefore, it is evident that there was
no transparency in the procedure adopted by the first accused in
inviting quotations for the supply of the pump sets. Adequate
publicity of the quotation notices was not made.
32. Exts.P2(h) to P2(m) are the quotations received in
response to Ext.P2(g) quotation notice. Exts.P3(i) to P3(n) are the
quotations received in response to Ext.P3(h) quotation notice.
Exts.P2(h-1) to P2(m-1) and P3(i-1) to P3(n-1) are the envelopes
in which the above quotations were received. These envelopes
bear the endorsement made by the first accused to the effect that
the quotations were received in his office at 4:00 p.m on
15.03.1993. All the quotations were opened at 4:30 p.m on
15.03.1993 by the first accused. When examined under Section
313 Cr.P.C, the first accused admitted the above facts.
33. All the quotations were opened by the first accused at
the same time on the same day, which is the correct practice.
However, as rightly observed by the trial court, it is strange that
all the quotations were received in the office of the first accused
Crl.A.No.1417/2007 &
at the same time on the same day inspite of the fact that those
quotations were from different firms. The fact that the quotations
from the different firms were received in the office of the first
accused at the same time on the same day leads to the inference
that they were given by the same person or firm, that is, the
second accused or his firm and none else.
34. The six firms which had submitted quotations were (1)
National Electrical Corporation, Kollam (2) Industrial Engineering
Company, Kollam (3) B.K.Industrial Corporation, Ernakulam (4)
STS Associates, Thiruvananthapuram (5) M/s.Goodwill
Enterprises, Ernakulam and (6) Hindustan General Agencies,
Thiruvananthapuram.
35. PW12 is the brother of the second accused. PW12 and
the second accused were the partners of the firms, National
Electrical Corporation, Industrial Engineering Company and
M.A.Abdul Hussain Company. This is revealed from the evidence
of PW12. His evidence would further show that M/s.Goodwill
Enterprises, Ernakulam was only a branch office of Industrial
Engineering Company, Kollam. The evidence of PW12 reveals that
the firms, STS Associates and Hindustan General Agencies were
conducted by his brother-in-laws. The evidence of PW12 further
Crl.A.No.1417/2007 &
reveals that the firm B.K. Industrial Corporation, Ernakulam was
started by the second accused in the year 1992. Ext.P187 is the
copy of the partnership deed in respect of the firm National
Electrical Corporation. It shows that PW12 and the second
accused were partners of that firm. Ext.P188 is the copy of the
partnership deed of the firm M/s. Industrial Engineering Company,
Kollam. It shows that PW12 and the second accused were
partners of that firm. Ext.P189 is the copy of the sales tax
registration certificate in relation to the firm Industrial Engineering
Company. In Ext.P189, the additional place of business of the
above firm is shown as Goodwill Enterprises at Ernakulam. The
evidence of PW12 and the documents mentioned above would
clearly indicate that, though the six firms were styled as different,
the second accused had some connection with all those firms.
Only the above six firms had submitted quotations in response to
Exts.P2(g) and P3(h) quotation notices. This would indicate that,
only the second accused or the firms which were run by him or
with which he had connection, were aware of the quotation
notices. In such circumstances, there could have been no difficulty
for the second accused to quote the lowest price for the pump
sets in the quotations given by him in the name of M/s.Goodwill
Crl.A.No.1417/2007 &
Enterprises.
36. Exts.P2(n) and P3(o) are the tabulation statements
which contain the price quoted by the six firms for the pump set.
The rate quoted by M/s.Goodwill Enterprises for one 1HP mono
block pump set was Rs.8,750/- and for one 1HP jet pump set was
Rs.8,950/-. The quotations made by the second accused in the
name of M/s.Goodwill Enterprises were the lowest and they were
accepted by the first accused.
37. Exts.P2(o) and P3(p) are the supply orders issued by
the first accused. When examined under Section 313 Cr.P.C, the
first accused admitted the issuing of Exts.P2(o) and P3(p) supply
orders in favour of M/s.Goodwill Enterprises. As per Ext.P2(o)
supply order dated 16.03.1993, the second accused was directed
to supply five 1HP deep well jet pump sets. As per Ext.P3(p)
supply order dated 16.03.1993, the second accused was directed
to supply five 1HP mono block pump sets. The total price of the
ten pump sets was Rs.88,500/-.
38. It is pertinent here to note that the supply orders were
issued by the first accused at a price higher than the estimated
price for which technical sanction was granted by PW11. The
supply orders issued by the first accused as per Exts.P2(o) and
Crl.A.No.1417/2007 &
P3(p) were beyond his financial powers.
39. Again, as per Ext.P2(r) supply order dated 20.03.1993
issued by the first accused, the second accused was directed to
supply three 1HP deep well jet pump sets. The first accused also
issued Ext.P3(s) supply order dated 20.03.1993 for the supply of
three 1HP mono block pump sets.
40. Exts.P2(a) and P3(a) are the invoices dated 16.03.1993
submitted by the second accused in relation to Exts.P2(o) and
P3(p) supply orders. Exts.P2(b) and P3(b) are the invoices dated
25.03.1993 submitted by the second accused in relation to
Exts.P2(r) and P3(s) supply orders.
41. The prosecution case is that the second accused
actually did not supply the pump sets on 16.03.1993 or
25.03.1993 as per the invoices mentioned above but the pump
sets were supplied by him only in the first week of May, 1993.
42. PW1 was the officer who was handling the stock
register in the office of the first accused during the period from
23.10.1992 to 31.08.1994. Ext.P1 is the stock register. PW1 has
given evidence that he has made Exts.P1(d), P1(e), P1(f) and
P1(g) entries in pages 126, 127, 137 and 138 of Ext.P1 stock
register on the basis of the invoices dated 16.03.1993 and
Crl.A.No.1417/2007 &
25.03.1993 submitted by the second accused.
43. PW1 has given evidence that he made such entries
without actually receiving the pump sets as per the invoices and
he made such entries on the compulsion by the first accused.
These entries had been verified and initialled by the first accused.
When examined under Section 313 Cr.P.C, the first accused has
stated that he had certified Exts.P1(d), P1(e), P1(f) and P1(g)
entries with regard to the receipt of the pump sets but he had
physically verified the pump sets and ensured that they were
supplied.
44. When examined under Section 313 Cr.P.C, the second
accused admitted that he had given the invoices dated
16.03.1993 and 25.03.1993. But, he stated that he did not
supply the pump sets either on 16.03.2003 or 25.03.2003. He
stated that he had purchased 16 pump sets from M/s.Guru
Associates as per Ext.P79 invoice and supplied them at the office
of the first accused on 30.04.2003 only.
45. PW16 is the partner of the firm M/s.Guru Associates,
Ernakulam. His evidence shows that, the above firm was an
authorised dealer of Laxmi Industries. The evidence of PW16
further shows that, as per Ext.P79 bill, 16 pump sets were sold to
Crl.A.No.1417/2007 &
M/s.Goodwill Enterprises on 30.04.2003.
46. PW38 was the Branch Manager of Laxmi Industries at
Ernakulam. His evidence shows that, as per Ext.P118 invoice, 16
pump sets had been sold to Guru Associates. Ext.P118 is the
copy of the invoice and Ext.P80 is the original of the invoice. The
serial numbers of the pump sets sold are shown in them. Ext.P79
bill, by which Guru Associates sold the pump sets to M/s.Goodwill
Enterprises, bear the same serial numbers.
47. Ext.P148 lorry receipt dated 30.04.1993 shows that the
above pump sets were sent from Goodwill Enterprises to their
office at Kollam on that date.
48. Therefore, there is clinching evidence to find that,
though the second accused had given the invoices dated
16.03.1993 and 25.03.1993 in the office of the first accused, the
pump sets were actually not supplied on those dates but they
were supplied only after the date 30.04.1993. However, the first
accused had caused false entries to be made in Ext.P1 stock
register regarding receipt of the pump sets on 16.03.1993 and
25.03.1993. Further, on the basis of the invoices dated
16.03.2003 and 25.03.2003, the first accused had passed orders
sanctioning payment of a total amount of Rs.1,41,600/- to the
Crl.A.No.1417/2007 &
second accused. This amount was withdrawn from the treasury
and demand draft for that amount was given in favour of the
second accused even before the actual supply of the pump sets.
The prosecution has adduced clinching evidence regarding the
withdrawal of the amount of Rs.1,41,600/- and payment of it to
the second accused. When examined under Section 313 Cr.P.C,
the first accused has admitted withdrawal of the above amount
and payment of it to the second accused. When examined under
Section 313 Cr.P.C, the second accused has admitted receipt of
the above amount by him even before the supply of the pump
sets. Therefore, it is not necessary here to discuss the evidence
adduced by the prosecution in that regard.
49. Ext.P79 bill would show that it was for an amount of
Rs.49,680/- that M/s.Goodwill Enterprises purchased the 16 pump
sets from Guru Associates, which would mean that the price of
one pump set was only Rs.3,105/-. Ext.P79 itself is sufficient to
infer that the price quoted by the second accused for supply of the
pump sets was exorbitant and it was more than double the rate at
which it was available in the market.
50. Ext.P193 is the proceedings of the State Level Technical
Committee for selection of pump sets. It is dated 30.01.1993.
Crl.A.No.1417/2007 &
On the basis of the price of the pump sets shown in Ext.P193,
learned counsel for the appellant would contend that the price of
the pump sets quoted by the second accused and accepted by the
first accused was not exorbitant or high. There is no merit in this
contention. Ext.P193 itself shows that it is a price list prepared
for distribution of pump sets under different loan schemes.
Ext.P193 specifically mentions that it shall not be followed for
government purchases.
51. It is also alleged by the prosecution that the first
accused had withdrawn an amount of Rs.53,100/- from the
treasury on the basis of bogus invoices and that he
misappropriated that amount.
52. Exts.P2(v) and P3(v) are the supply orders issued by
the first accused in favour of the second accused on 20.03.1993.
They bear the signature of the first accused. When examined
under Section 313 Cr.P.C., the first accused admitted issuing the
above supply orders. As per Exts.P2(v) and P3(v), the second
accused was requested to supply three 1HP deep well jet pump
sets and three 1HP mono block pump sets respectively.
53. When examined under Section 313 Cr.P.C, the second
accused stated that he had not received Exts.P2(v) and P3(v)
Crl.A.No.1417/2007 &
supply orders. He also stated that he did not supply pump sets in
response to any such supply orders.
54. Exts.P2(c) and P3(x) are the copies of the invoices
submitted by the second accused. They bear the date 30.04.1993.
PW1 has given evidence that he made Exts.P1(k) and P1(l) entries
in Ext.P1 stock register regarding receipt of six pump sets and
that such entries were made on the basis of Exts.P2(c) and P3(x)
invoices. He has deposed that he made those entries without
actually receiving the six pump sets but on the compulsion made
by the first accused. These entries bear the signature of the first
accused.
55. The plea of the second accused was that he had given
four invoices dated 30.04.1993 in the office of the first accused in
place of the four invoices earlier given for supply of 16 pump sets.
There is no explanation as to the necessity of substituting the
earlier invoices. Therefore, it is evident that the two invoices
dated 30.04.1993 given by the second accused were bogus or
false and that they were given with a view to enable the first
accused to withdraw money from the treasury.
56. Ext.P1 stock register contains Ext.P1(k-1) entry
regarding the issue of two 1HP jet pump sets which were
Crl.A.No.1417/2007 &
purportedly received as per Ext.P2(c) invoice. As per Ext.P1(k-1)
entry, these two pump sets were issued on 27.11.1993 for
installing at Parippally and Kottamkara Krishi Bhavans. PW37
investigating officer had prepared Exts.P107 and P108 mahazars
regarding the pump sets found in the above Krishi Bhavans.
These mahazars reveal that the pump sets installed in the above
Krishi Bhavans were of Mahendra Company. When examined
under Section 313 Cr.P.C, the second accused stated that he had
not supplied any pump set of Mahendra Company in the office of
the first accused.
57. Ext.P107 is the mahazar prepared by PW37 in respect
of the pump set found in the Parippally Krishi Bhavan. The
number of that pump set is 'G.1357'. PW25 was the Agricultural
Officer of the Krishi Bhavan, Parippally during the period from
01.02.1993 to 11.07.2000. The stock register of that Krishi
Bhavan contains Ext.P87(a) entry regarding the pump set there.
Ext.P87(b) is the carbon copy of the receipt in respect of that
pump set. The evidence of PW25 and the above documents prove
that the pump set was received in that Krishi Bhavan on
21.06.1994 and it was of the number 'G.1357'.
Crl.A.No.1417/2007 &
58. Ext.P108 is the mahazar prepared by PW37 in respect
of the pump set found in the Kottamkara Krishi Bhavan. The
pump set installed there was also of Mahendra Company, bearing
No.18758.
59. PW17 is none other than the father-in-law of the first
accused. The records would show that the pump sets bearing the
numbers, G.1357 and 18758 had been purchased from Devi
Trading Corporation on 18.01.1994 in the name of PW17.
Ext.P73(c) is the bill relating to these two pump sets. It is dated
18.01.1994 and it is issued in the name of PW17. These two
pump sets were sold only on 18.01.1994 from the company or the
dealer. Therefore, it is evident that Ext.P1(k-1) entry made in
Ext.P1 stock register that the two pump sets were issued on
07.11.1993 for installation in Kottankara and Parippally Krishi
Bhavans is a false entry. Ext.P1(k) entry dated 30.04.1993 is also
a false entry.
60. The prosecution has adduced voluminous evidence to
prove that the entries made in Ext.P1 stock register regarding the
receipt of other four pump sets on 30.04.1993 are also false. It is
not necessary here to discuss that evidence in detail. The reason
is that, even assuming that the second accused had supplied six
Crl.A.No.1417/2007 &
pump sets as per Ext.P2(c) and P3(x) invoices on 30.04.1993,
there is no record to show that the amount of Rs.53,100/-
withdrawn by the first accused from the treasury for payment to
the second accused was actually paid to him. It is pertinent here
to note that, when examined under Section 313 Cr.P.C, the first
accused admitted withdrawing the amount of Rs.53,100/- from
the treasury towards payment of the price of the six pump sets.
61. PW18 was the Superintendent in the Kollam District
Treasury during the period from 18.06.1996 to 03.06.1997. His
evidence would show that the first accused was maintaining TP
Account No.1890 in the treasury. Ext.P81 is the extract of the
ledger relating to this account for the period from 26.03.1993 to
31.03.1995. The account was opened by the first accused on
26.03.1993. Ext.P81 would show that the first accused had
withdrawn an amount of Rs.4,75,000/- on 25.07.1993 as per
cheque No.974385. Another sum of Rs.4,00,000/-was withdrawn
by him on 28.05.1993 as per cheque No.974836. The first
accused had opened a current account in his official address in the
State Bank of Travancore, Kollam Civil Station Branch on
27.05.1993. Ext.P51 is the extract of the ledger relating to this
account. Ext.P51 would show that the first accused deposited
Crl.A.No.1417/2007 &
Rs.3,46,363/- and Rs.4,00,000/- in this account. It would clearly
show that he had retained an amount of Rs.1,28,137/- with him.
This amount would include the amount of Rs.53,100/- withdrawn
by him for payment towards the price of six pump sets which were
not supplied by the second accused.
62. The prosecution has also alleged that the first accused
destroyed or removed the records relating to the TP Account,
which were in his personal custody, with the intention to cause
disappearance of the evidence of the offences committed by him.
63. The plea of the first accused was that the records
connected with the TP Account were taken away from him during
the vigilance enquiry conducted and that they were not returned.
On suspension of the first accused, PW28, who was working as
Assistant Engineer in that office, had taken charge of office from
the first accused. His evidence shows that the records relating to
the TP Account were not handed over to him when he took charge
of the office from the first accused.
64. PW29 was the Inspector of Police who conducted the
vigilance enquiry. He has deposed that he had collected some
records from the office of the first accused during the enquiry and
that he returned such records.
Crl.A.No.1417/2007 &
65. PW28 had sent Ext.P94(h) letter to the Principal
Agricultural Officer regarding the non-handing over of the records
relating to the TP Account. As per Ext.P170(a) letter dated
19.04.1997, the Director of Agriculture had addressed the
Director of the VACB to instruct the Vigilance Officer concerned to
return the records relating to the TP Account. The prosecution has
no case that the Director, VACB or any other officer of the VACB
had sent a reply informing that the Vigilance Officer had returned
the records which were taken into custody by him during the
enquiry. Therefore, not much reliance can be placed upon the
evidence of PW29 that he had returned all the records collected by
him during the vigilance enquiry.
66. In the above circumstances, it cannot be found that the
prosecution has proved beyond reasonable doubt that the first
accused destroyed or removed the records relating to the TP
Account with the intention to cause disappearance of the evidence
of the offences committed by him.
67. The discussion above would show that the prosecution
has been able to prove beyond reasonable doubt the following
facts and circumstances:
Crl.A.No.1417/2007 &
(i) In response to Ext.P10(c) letter dated 16.12.1992 sent
by the first accused, only four Krishi Bhavans had sent proposal
for providing water connection and pump set.
(ii) Though only four Krishi Bhavans had sent proposal for
providing water connection and pump set, the first accused
proceeded with the work of providing pump set to 19 Krishi
Bhavans.
(iii) Instead of inviting tender for the supply of 19 pump sets
in bulk quantity, the first accused invited only quotations for the
supply of pump sets.
(iv) Adequate publicity was not given to the quotation
notices.
(v) Only six firms submitted quotations in response to the
quotation notices.
(vi) Out of the six firms which submitted the quotations,
one was M/s.Goodwill Enterprises of which the second accused
was the Managing Partner.
(vii) The second accused was in one way or other connected
with the other five firms which submitted the quotations.
(viii) All the six quotations were received in the office of the
first accused at the same time on the same day.
Crl.A.No.1417/2007 &
(ix) The rates quoted by the second accused on behalf of
the firm M/s.Goodwill Enterprises were the lowest among the
quotations.
(x) The first accused accepted the quotations given by the
second accused.
(xi) The rates quoted by the second accused and accepted
by the first accused were above the rates for which technical
sanction was given by the officer competent to do so.
(xii) The rates quoted and accepted by the first accused
were very high and they were more than the rate at which pump
sets were available in the market.
(xiii) The first accused issued orders on 16.03.1993 in
favour of the second accused for the supply of 10 pump sets.
(xiv) The first accused issued orders on 23.03.1993 in
favour of the second accused for the supply of six pump sets
(xv) The second accused submitted invoices dated
16.03.1993 and 23.03.1993 for supplying 16 pump sets.
(xvi) Though invoices were given by the second accused as
above, no pump set was actually supplied either on 16.03.1993 or
on 23.03.1993. The second accused supplied the 16 pump sets
only after the date 30.04.1993.
Crl.A.No.1417/2007 &
(xvii) Without the actual receipt of the pump sets on
16.03.1993 and 23.03.1993, the first accused caused entries to
the made in Ext.P1 stock register that the pump sets were
received on those dates and he authenticated such entries with
his signature or initials.
(xviii) Even before the supply of 16 pump sets, the first
accused passed orders for withdrawal and payment of an amount
of Rs.1,41,600/- to the second accused towards the price of the
pump sets.
(xix) The actual cost of the 16 pump sets supplied by the
second accused was only Rs.49,680/-. Thus, the second accused
obtained undue pecuniary advantage of Rs.91,920/- in the
transaction.
(xx) The first accused prepared supply orders on
20.03.2003 for the supply of six pump sets. But, the supply
orders were not issued to the second accused.
(xxi) The second accused gave bogus and false invoices
dated 30.04.1993 to the first accused for six pump sets.
(xxii) The first accused, on the basis of the bogus and false
invoices dated 30.04.1993, passed orders for the withdrawal and
payment of an amount of Rs.53,100/- towards the price of the six
Crl.A.No.1417/2007 &
pump sets which were not supplied by the second accused.
(xxiii) After withdrawing the amount of Rs.53,100/- from the
treasury as above, the first accused misappropriated that amount.
68. The acts committed by the first accused, as revealed
from the above facts and circumstances established by the
prosecution, constitute the offences punishable under Sections
13(1)(c) and 13(1)(d) read with 13(2) of the Act and also under
Sections 409, 468, 471 and 477A of the Indian Penal Code. The
trial court has rightly found that the first accused had committed
the above offences.
69. The first accused was a public servant. As per Section
19(1) of the Act, sanction of the competent authority was
necessary for prosecution of the first accused for the offences
under Section 13 of the Act.
70. In the instant case, sanction for prosecution against the
first accused was granted by Sri. K.Mohanachandran, the then
Principal Secretary, Vigilance Department. Ext.P98 is the order
granting sanction for prosecution issued by him. This
document was proved through PW36, an Under Secretary in that
department. Sri.K.Mohanachandran, who issued Ext.P98 order,
was not examined by the prosecution.
Crl.A.No.1417/2007 &
71. Learned counsel for the appellant submitted that Ext.P98
order granting sanction for prosecution has not been legally
proved by examining the Principal Secretary who issued it and in
the absence of such proof, the entire prosecution case against the
first accused has no legs to stand on.
72. The prosecution has not offered any explanation for not
examining the Principal Secretary of the Vigilance Department to
prove Ext.P98 order granting sanction for prosecution.
73. In an identical situation, in Antony Cardoza v. State
of Kerala : 2011 (1) KLT 946, this Court had held as follows:
"Admittedly, Ext.P10 order of sanction to prosecute the
appellant was issued by Sri. Mohanachandran, the
Principal Secretary, Vigilance. The said Principal
Secretary was not examined in this case. Instead,
PW9, the Under Secretary who processed the files
which were received from the Director of Vigilance and
who put up the files to the Principal Secretary through
the Addl. Secretary, Vigilance alone was examined in
this case to prove Ext.P10 sanction order issued by the
Principal Secretary. PW9 admitted that Sri.
Mohanachandran is still in service in the Department.
Independent application of mind to the facts of the
case as also to the materials and evidence collected
during investigation by the authority competent to
grant sanction is necessary. (Vide -- Mansukhlal
Crl.A.No.1417/2007 &
Vithaldas Chauhan v. State of Gujarat: AIR 1997 SC
3400). The independent application of mind and the
consequent satisfaction arrived at before according
prosecution sanction are matters which could be
proved only by the sanctioning authority and nobody
else. If it was a lapse on the part of an autopsy
surgeon in proving the postmortem certificate or that
of a doctor in proving the wound certificate of a patient
whom he had treated, Courts come down heavily on
them. But why show undeserving latitude towards the
lapse on the part of an administrative executive? Even
if the argument that the expression 'Secretary' as
defined under Rule (2)(c) of the Rules of Business of
the Government of Kerala includes lower officers such
as Special Secretary, Additional Secretary, Joint
Secretary or a Deputy Secretary, is accepted, still the
Under Secretary will not fall under the said definition.
Moreover, if a low level officer can be treated as the
Secretary for the purpose of proving prosecution
sanction, then why not invest such low level officer to
issue orders granting prosecution sanction? Is it the
aversion, antipathy or abhorrence of the official
intelligentsia to go to the Court, mount the witness -
box and face relevant but inconvenient questions, or is
it the 'sensible' forestalling of a feared ignominy of the
administrative executive by the investigating and
prosecuting agencies? The fact remains that the
sanction to prosecute the appellant has not been
legally proved".
(emphasis supplied).
Crl.A.No.1417/2007 &
74. Antony Cardoza (supra) has been followed in so many
decisions rendered by this Court. In K.V.Mathai v. State : 2016
SCC OnLine Ker 37052, it was held as follows:
"Ext.P160 is the prosecution sanction granted by the
Commissioner and Secretary to the Government,
Vigilance (D) Department. This sanction was marked
through PW41, who was only an Under Secretary of
the Vigilance Department at the relevant time. PW41
identified the signature of the Secretary and the
Commissioner, who granted the sanction, and further
stated that it was granted after examination of the
relevant records and documents. She did not explain
what all documents and materials were perused or
examined by the Secretary, or how the Secretary
came to a finding on the facts alleged by the Vigilance.
The value of evidence given by this witness is only
that she just identified the signature of the
Commissioner and Secretary, who issued the sanction
order, and nothing more. She does not know the
details of the examination made by the Commissioner
and Secretary, or the details of the materials and
documents examined or perused by him. .... In this
case, the prosecution sanction was granted by the
Commissioner and Secretary to the Government,
whereas, the person brought by the prosecution to
prove the document is only an Under Secretary.
Practically and legally, the prosecution sanction only
stands marked, and not proved according to law. .....
The burden of proving the essentials as regards
Crl.A.No.1417/2007 &
sanction, that it was granted on an independent
application of mind, and after consideration of all the
relevant materials and documents, cannot be taken
over by somebody else, who had no role or
involvement in the process of granting sanction......The
prosecution does not have any explanation why the
Commissioner and Secretary who granted sanction,
was not examined. In very many cases and instances,
this Court could find the prosecution sanction being
simply marked by the Investigating Officer or by
somebody else just claiming to be familiar with the
signature of the sanctioning authority. Such a practice
cannot be accepted in view of the proposition settled
by the Hon'ble Supreme Court. In this case, I find that
the prosecution sanction stands not properly and
legally proved".
75. In Gurudas v. State of Kerala : 2015 (3) KLT 749,
this Court had held as follows:
"True it is, that somebody who is familiar with the
signature of the sanctioning authority, can prove the
sanction, if only a formal proof is required. Marking of
a document on formal proof is entirely different from
accepting a material document in evidence on proper
and legal proof, as required and prescribed under the
Indian Evidence Act. Here is a case where the
acceptability of the prosecution sanction was
challenged by the defence during trial on the ground
that it was granted by the authority without properly
verifying and appreciating the materials collected by
Crl.A.No.1417/2007 &
the Investigating Officer during the process. No doubt,
in such a case, the prosecution sanction granted under
Section 19 of the PC Act will have to be proved by the
person who granted sanction. That function cannot be
discharged by somebody else. ........ In this case, I find
that Ext.P1 prosecution sanction stands not properly
and legally proved by examining the right person who
granted sanction. He will have to give evidence and
prove that sanction was granted after proper and
independent application of mind to the process. An
Under Secretary cannot come and prove those aspects
which will have to be proved by the Principal Secretary
who granted sanction. This is what this Court held in
Antony Cardoza v. State of Kerala also. I find that the
appellant herein is entitled for acquittal on the legal
ground itself, that there is no proper and valid
sanction in this case proved according to law, and that
the very cognizance was barred under Section 19 of
the PC Act. I find that the conviction is legally
unsustainable, and is liable to be set aside".
76. In Balakrishnan v. State of Kerala : 2015 SCC
OnLine Ker 22043, it has been held as follows:
"The prosecution sanction requires proof as provided
under the Indian Evidence Act. Ext.P24 sanction in this
case cannot claim sanctity and privilege as a public
document under Section 74 of the Indian Evidence Act.
In such a situation, the sanction will have to be proved
by the person who granted sanction. This Court has
Crl.A.No.1417/2007 &
settled the position that when independent application
of mind to the facts is a matter in dispute during trial,
the person who granted sanction will have to prove the
sanction, even if it is a sanction granted by the
Government Secretary. ..... Such a sanction cannot
claim any sanctity as a public document, and such a
sanction will have to be proved by the person, who
granted sanction. When the prosecution sanction
cannot claim sanctity and privilege as a public
document, it will have to be proved in the manner
prescribed, under the Indian Evidence Act, for proof of
documents. In the absence of such evidence by the
person who granted sanction, Ext.P24 sanction cannot
be accepted as a properly and legally proved sanction.
I find that the prosecution has failed to prove Ext.P24
sanction as prescribed under the law, and so, the
whole prosecution is barred".
77. In Pradeepkumar v. State of Kerala : 2017 SCC
OnLine Ker 28866, this Court has held as follows:
"There is no explanation why the prosecution did not
examine the Additional Chief Secretary to prove the
Ext.P8 prosecution sanction. PW6 is not in a position to
say what all documents and materials were examined
by the Additional Chief Secretary, whether the
Additional Chief Secretary had properly and anxiously
considered and examined the materials placed before
him, and whether the Additional Chief Secretary
granted sanction on an application of mind
Crl.A.No.1417/2007 &
independently to the facts of the case. PW6, who was
only a Under Secretary, cannot prove the essentials
which the Additional Chief Secretary will have to
prove. Thus, I find that the prosecution sanction in this
case stands not properly proved according to law, and
on this ground itself, the accused is entitled for
acquittal".
(emphasis supplied)
78. In N. Mathai v. State of Kerala : 2015 SCC OnLine
Ker 22534, it was found as follows:
"Thus, I find that though the prosecution has
succeeded in proving the case on facts, the appellant is
entitled for acquittal in this case on the legal ground
that the prosecution is barred for the reason that the
prosecution sanction granted under Section 19 of the
P.C Act stands not properly and legally proved as
prescribed under the law".
79. In P. Alikoya v. State of Kerala : 2015 SCC OnLine
Ker 23737, this Court has held as follows:
"Section 19 of the P.C Act even bars cognizance in the
absence of a proper prosecution sanction granted by
the competent authority. Such sanction granted by the
authority competent to remove the public servant from
service must be proved by the said authority during
the trial process. If not so proved, as prescribed under
the Indian Evidence Act, such a sanction simply
marked by the Investigating Officer cannot be
Crl.A.No.1417/2007 &
accepted as a proper and legal sanction. In such a
situation, the bar of cognizance under Section 19 of
the P.C Act would apply, and the accused will have to
be acquitted on the ground that the whole prosecution
is barred. In this case, I find that the 1 st accused is
entitled for acquittal on this legal ground, whatever be
the evidence on facts".
80. In K.T. Samuel v. State of Kerala : 2015 SCC OnLine
Ker 25167, it has been held as follows:
"In this case, sanction was granted by the Principal
Secretary, and the evidence of the Under Secretary
examined as PW12 is that he does not know what are
the materials considered by the Principal Secretary
and he is not in a position to say anything about
independent application of mind in the process of
granting sanction. Thus the evidence of PW12 is really
worthless in the matter of sanction. I find that Ext.P14
sanction in this case stands not properly and legally
proved. The responsibility of proving the essential
elements as regards sanction cannot be taken over by
somebody else, and in such a circumstance, mere
marking of the document will not suffice. In this case,
I find that the accused is entitled for acquittal on the
legal ground that the prosecution against him is
barred under Section 19 of the P.C Act in the absence
of a properly proved prosecution sanction".
81. In K.T. Hariharan v. State of Kerala : 2015 SCC
OnLine Ker 29995, it was held as follows:
Crl.A.No.1417/2007 &
"It is true that under the Rules relating to transfer of
business in the Government, a Government Secretary
is authorised to authenticate sanction on behalf of the
Government. This only means that genuineness of the
sanction and signature therein cannot be disputed. But
when it comes to the question of proving the essentials
regarding the independent application of mind in the
process of granting sanction, the proper and legal way
is to examine the person who granted it, and not to
examine somebody else. Instead of examining the
Government Secretary, who granted the sanction, the
prosecution examined an Under Secretary to prove
Ext.P35. PW39 is not the competent person to say that
all the relevant aspects and materials were considered
by the authority who granted sanction, or that the
authority granted it on an independent application of
mind in the process. Thus, I find that the prosecution
sanction in this case marked as Ext.P35 cannot be said
to be a properly proved sanction. Consequently, it will
have to be found that the prosecution is barred under
Section 19 of the P.C Act".
82. The same view has been taken by this Court in a catena
of cases (See V.M.Krishnan v. State of Kerala : 2015 SCC
OnLine Ker 14431, K.Gangadharan Nair v. Deputy
Superintendent of Police : 2015 SCC OnLine Ker 27592,
Fatheela Beegom v. State of Kerala : 2015 SCC OnLine Ker
35694, T.P. Gopalakrishnan v. State of Kerala : 2015 SCC
Crl.A.No.1417/2007 &
OnLine Ker 24456, V.C. Kuriakose v. State of Kerala: 2016
SCC OnLine Ker 14201 and M.K. Suresh Kumar v. State of
Kerala : 2019 SCC OnLine Ker 12868).
83. In the light of the decisions referred to above, it has to
be found that the order granting sanction for prosecution against
the first accused has not been proved legally. It follows that, even
though the prosecution has established that the first accused had
committed the offences (except the offence under Section 201 of
the I.P.C), the conviction entered against and the sentence
imposed on him by the trial court cannot be sustained.
84. The contention of the learned Public Prosecutor is that it
was not necessary to examine the Principal Secretary who issued
Ext.P98 sanction order to prove the contents of that document.
Even if this contention is accepted, there is lack of evidence to
find that Ext.P98 is an order issued on application of mind after
verifying the relevant documents and materials against the first
accused.
85. The burden of proving that the requisite sanction has
been obtained rests on the prosecution. Such burden includes
proof that the sanctioning authority had given the sanction in
reference to the facts on which the proposed prosecution was to
Crl.A.No.1417/2007 &
be based. These facts might appear on the face of the sanction or
might be proved by extraneous evidence. When the facts
constituting the offence do not appear on the face of the order
granting sanction, it is incumbent upon the prosecution to prove
by other evidence that the material facts constituting the offence
were placed before the sanctioning authority (See Madan Mohan
Singh v. State of U.P : AIR 1954 SC 637).
86. In CBI v. Asok Kumar Aggarwal: AIR 2014 SC 827,
the Supreme Court has held that, as regards sanction under
Section 19 of the Act, in every individual case, the prosecution
has to satisfy the Court that at the time of sending the matter for
grant of sanction by the competent authority, adequate material
for such grant was made available to the said authority and in
every individual case, the Court has to find out whether there has
been an application of mind on the part of the sanctioning
authority concerned on the material placed before it. It has also
been held that there is an obligation on the sanctioning authority
to discharge its duty to give or withhold sanction only after having
full knowledge of the material facts of the case. It has been
further held that consideration of the material implies application
of mind and therefore, the order of sanction must ex facie disclose
Crl.A.No.1417/2007 &
that the sanctioning authority had considered the evidence and
other material placed before it. It has also been held that, if the
sanction order on its face indicates that all relevant material i.e.
FIR, disclosure statements, recovery memos, draft charge-sheet
and other materials on record were placed before the sanctioning
authority and if it is further discernible from the recital of the
sanction order that the sanctioning authority perused all the
material, an inference may be drawn that the sanction had been
granted in accordance with law. This becomes necessary in case
the Court is to examine the validity of the order of sanction inter
alia on the ground that the order suffers from the vice of total
non- application of mind. On a consideration of the earlier
decisions on the point, in Asok Kumar Aggarwal (supra) the
Supreme Court has summarised the principles in this regard as
follows:
"(a) The prosecution must send the entire relevant
record to the sanctioning authority including the FIR,
disclosure statements, statements of witnesses,
recovery memos, draft charge-sheet and all other
relevant material. The record so sent should also
contain the material/document, if any, which may tilt
the balance in favour of the accused and on the basis
of which, the competent authority may refuse
Crl.A.No.1417/2007 &
sanction.
(b) The authority itself has to do complete and
conscious scrutiny of the whole record so produced
by the prosecution independently applying its mind
and taking into consideration all the relevant facts
before grant of sanction while discharging its duty to
give or withhold the sanction.
(c) The power to grant sanction is to be exercised
strictly keeping in mind the public interest and the
protection available to the accused against whom
the sanction is sought.
(d) The order of sanction should make it evident
that the authority had been aware of all relevant
facts/materials and had applied its mind to all the
relevant material.
(e) In every individual case, the prosecution has to
establish and satisfy the Court by leading evidence
that the entire relevant facts had been placed before
the sanctioning authority and the authority had
applied its mind on the same and that the sanction
had been granted in accordance with law".
87. In the instant case, Ext.P98 sanction order does not
indicate what all documents had been considered by the
sanctioning authority. Ext.P98 sanction order does not indicate
which documents were perused or considered by the sanctioning
authority. What is stated in Ext.P98 sanction order is only that the
sanctioning authority considered "the records of investigation" and
Crl.A.No.1417/2007 &
that they disclosed the commission of the offences by the first
accused. Ext.P98 sanction order does not ex facie disclose that
the sanctioning authority had considered the entire evidence and
other material against the first accused.
88. When sanction order itself is eloquent enough, then only
formal evidence has to be adduced to show that the sanction was
accorded by a competent person with due application of mind. The
sanction order should speak for itself and in case the facts do not
so appear, it should be proved by leading evidence that all the
particulars were placed before the sanctioning authority for due
application of mind.
89. In the instant case, Ext.P98 sanction order does not
speak for itself. The prosecution also did not lead sufficient
evidence to establish and satisfy the Court that the entire relevant
facts had been placed before the sanctioning authority and that
the authority had applied its mind on the same and that the
sanction was granted in accordance with law. As noticed earlier,
the Principal Secretary who issued Ext.P98 sanction order was not
examined by the prosecution. Ext.P98 sanction order was marked
through PW36, the Under Secretary who had placed the records
before the Principal Secretary. PW36 has not given any evidence
Crl.A.No.1417/2007 &
as to what all documents were placed by him before the Principal
Secretary. He has only stated that all documents given by the
Vigilance Director were submitted to the Principal Secretary but
he could not state what all documents were so submitted. There is
also no evidence as to what all documents had been given to
PW36 by the Vigilance Director. The evidence of PW36 is not at all
sufficient to establish that the the entire relevant documents and
evidence had been placed before the sanctioning authority and
that the authority had applied its mind on the same.
90. In State of M. P. v. Dr. Krishna Chandra Saksena :
(1996) 11 SCC 439, the Supreme Court has observed as
follows:
"Now the question whether all the relevant
evidence which would have tilted the balance in
favour of the accused if it was considered by the
sanctioning authority before granting sanction and
which was actually left out of consideration could
be examined only at the stage of trial when the
sanctioning authority comes forward as a
prosecution witness to support the sanction order
if challenged during the trial".
(emphasis supplied)
In the instant case, Ext.P98 sanction order does not speak for
Crl.A.No.1417/2007 &
itself. The Principal Secretary (the sanctioning authority) who
issued it was not examined also to support the sanction order.
91. Thus, it is a case where the prosecution failed to prove
that the sanctioning authority had given the sanction on
independent application of mind after verifying the entire relevant
records, materials and evidence.
92. Section 19(3)(a) of the Act provides that,
notwithstanding anything contained in the Code of Criminal
Procedure, no finding, sentence or order passed by a special
Judge shall be reversed or altered by a Court in appeal,
confirmation or revision on the ground of the absence of, or any
error, omission or irregularity in the sanction unless in the opinion
of the court, a failure of justice has in fact been occasioned
thereby. In the instant case, both the accused are no more.
Therefore, it would be more or less a futile exercise to decide
whether any failure of justice has been occasioned by the
infirmity in Ext.P98 sanction order and it is not necessary to delve
deep in that regard.
93. In the above circumstances, the conviction entered
against and the sentence imposed on the first accused by the trial
court cannot be sustained.
Crl.A.No.1417/2007 &
94. As noticed earlier in this judgment, none of the near
relatives of the deceased second accused made application for
granting leave to continue the appeal which was filed by the
second accused. Therefore, in the light of the Full Bench decision
of this Court in Pazhani v. State of Kerala: 2017 (1) KLT 341,
the appeal filed by the second accused stands abated in so far as
the sentence of imprisonment imposed on him by the trial court is
concerned. As held in Pazhani (supra), the appeal filed by him
has to be consigned to the record room.
95. Consequently, Crl.A.No.1417/2007 is allowed. The
conviction entered against and the sentence imposed on the first
accused by the trial court as per the impugned judgment stand
set aside. The appeal filed by the second accused
(Crl.A.No.1535/2007) stands abated in so far as the sentence of
imprisonment imposed on him by the trial court is concerned and
this appeal is consigned to the record room in the light of the Full
Bench decision of this Court in Pazhani (supra). The appeals
stand disposed of accordingly.
(sd/-) R.NARAYANA PISHARADI, JUDGE
jsr/lsn
True Copy PS to Judge
