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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
