Kerala High Court
P.T.Karuppan vs State Of Kerala on 28 March, 2025
2025:KER:27403
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
CRL.APPEAL NO. 2373 OF 2010
AGAINST THE JUDGMENT DATED 15.11.2010 IN CC NO.111 OF
2008 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOTTAYAM
APPELLANTS/1ST ACCUSED AND ADDL.APPELLANT:
1 P.T.KARUPPAN (DIED)*
KARIMANNOR PANCHAYAT), S/O.THAMMI,,
VATTAKKATTIL HOUSE, KOLANGATHIKKARA,,
CHALLUSSERY, THRISSUR DISTRICT.
2* KARTHIAYANI
W/O. LATE P.T KARUPPAN, VATTAKATIL HOUSE
KOLANGATTUKARA, CHOOLLISSERY ,THRISSUR
DISTRICT.
*ADDL. APPELLANT IMPEADED AS PER ORDER DATED
05.10.2023 IN CRL.M.A. 1/2023
BY ADVS.
SRI.C.P.SAJI
AHALYA PRAKASH K.V.
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 19.03.2025, ALONG WITH CRL.A.2374/2010,
2377/2010, THE COURT ON 28.03.2025 DELIVERED THE
FOLLOWING:
2025:KER:27403
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
CRL.APPEAL NO. 2374 OF 2010
AGAINST THE JUDGMENT DATED 15.11.2010 IN CC NO.112 OF
2008 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOTTAYAM
APPELLANTS/1ST ACCUSED & ADDL.APPELLANT:
1 P.T.KARUPPAN (DIED)*
KARIMANNOR PANCHAYAT), S/O.THAMMI,,
VATTAKKATTIL HOUSE, KOLANGATHIKKARA,
CHALLUSSERY, THRISSUR DISTRICT.
2* KARTHIAYANI
W/O. LATE P.T KARUPPAN , VATTAKATIL HOUSE
KOLANGATTUKARA, CHOOLLISSERY ,THRISSUR
DISTRICT.
*ADDL. APPELLANT IMPLEADED AS PER ORDER DATED
05.10.2023 IN CRL.M.A. 1/2023.
BY ADVS.
SRI.C.P.SAJI
AHALYA PRAKASH K.V.
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
RESPONDENT/COMPLAINANT:
STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 19.03.2025, ALONG WITH CRL.A.2373/2010 AND
CONNECTED CASES, THE COURT ON 28.03.2025 DELIVERED THE
FOLLOWING:
2025:KER:27403
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
CRL.APPEAL NO. 2377 OF 2010
AGAINST THE JUDGMENT DATED 15.11.2010 IN CC NO.113 OF
2008 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
KOTTAYAM
APPELLANTS/1ST ACCUSED & ADDL.APPELLANT:
1 P.T.KARUPPAN (DIED)*
(FORMER EXECUTIVE OFFICER, KARIMANNOR
PANCHAYAT), S/O.THAMMI,VATTAKKATTIL HOUSE,
KOLANGATHIKKARA, CHALLUSSERY,THRISSUR DISTRICT.
2* KARTHIAYANI
W/O. LATE P.T KARUPPAN , VATTAKATIL HOUSE
KOLANGATTUKARA, CHOOLLISSERY ,THRISSUR
DISTRICT.
*IMPLEADED AS PER ORDER DATED 05.10.2023 IN
CRL.M.A. 1/2023.
BY ADVS.
SRI.C.P.SAJI
AHALYA PRAKASH K.V.
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 19.03.2025, ALONG WITH CRL.A.2373/2010
AND CONNECTED CASES, THE COURT ON 28.03.2025
DELIVERED THE FOLLOWING:
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal Nos.2373, 2374 and 2377 of 2010
-----------------------------------------------------------
Dated this the 28th day of March, 2025
JUDGMENT
The appellant was the 1 st accused in C.C.Nos.111 of
2008, 112 of 2008 and 113 of 2008 on the files of the Court
of Enquiry Commissioner and Special Judge, Kottayam. The
Special Court convicted him for the offences under Sections
13(1)(c) and (d) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (PC Act) and Sections 409 and 477A of
the Indian Penal Code, 1860 (IPC) in all the cases. He was
accordingly sentenced also. The common judgment rendered
by the Special Court in that regard is under challenge in these
appeals filed under Section 374(2) of Code of Criminal
Procedure, 1973 (Code).
2. The appellant was the Executive Officer (rechristened
as Secretary), Karimannoor Panchayat during 1992-1993.
Alleging that he hatched a conspiracy with the other accused
arraigned in the respective cases for committing
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misappropriation of money allocated for maintenance of
various roads in the Panchayat and in furtherance of their
conspiracy, various amounts were misappropriated in
connection with maintenance work carried out to three roads
in the Panchayat. Each of these cases relates to separate
incidents. Details of the calendar cases corresponding to the
appeals are tabulated below:
Crl.Appeal C.C.No. Road Misappropriated
No. amount
2373/10 111/2008 Mannarathara- Kottakkavala Rs.27,937.90
2374/10 112/2008 Unichikkavala- Mulappuram Rs.48,604.00
2377/10 113/2008 Manakkappadam- Harijan Colony Rs.17,688.40
3. Sri.M.Gopala Pillai, who was the 3rd accused in
C.C.No.112 of 2008 and 2nd accused in C.C.No.113 of 2008
expired before commencement of the trial. When charges
were framed and read over, the appellant and the other
co-accused denied. At the common trial, PWs.1 to 15 were
examined and Exts.P1 to P74 besides Exts.X1 and X1(a) were
marked on the side of the prosecution. The accused were
questioned under Section 313(1)(b) of the Code. He denied
the incriminating circumstances appeared against him in
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evidence. The appellant filed a statement. He maintained that
the respective works were carried out under the supervision of
Engineers, who were responsible for the same and also to
make good loss, if any, occasioned to the Panchayat in
relation to the works. The Engineers measured the works and
certified. Based on such measurement and certification,
amounts were released. The appellant did not have any
technical knowledge in the matter. When the Engineers
certified satisfactory execution of the works, who were duly
paid remuneration, the appellant cannot be held responsible.
Accordingly, he maintained that he was innocent and falsely
implicated in these cases. Although no document was
produced, DW1 was examined on the side of the appellant.
The Special Court, after considering the evidence on record,
found the appellant alone guilty and convicted him. The
findings of the Special Court leading to his conviction are
assailed in these appeals.
4. The appellant expired. His wife got impleaded as
additional 2nd appellant.
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5. Heard the learned counsel for the appellant, the
learned Special Public Prosecutor (Vigilance) and the learned
Senior Public Prosecutor.
6. The appellant was the Secretary of Karimannoor
Panchayat during the relevant period. That fact is not
disputed. In order to prosecute him, sanction under Section
19(1) of the PC Act has been accorded. Ext.P72 is the order of
sanction. The fact that he entered into agreements with the
2nd/3rd accused in regard to the execution of the road works in
question, and he disbursed the estimated amount are also not
in dispute. The allegation of the prosecution is that although
the maintenance work of all the three roads were carried out,
the quantum of work was much less than the estimated cost.
The case of the prosecution is that the excess amounts in that
regard were misappropriated by the appellant. Although it was
alleged that the appellant in connivance with the Engineers,
who were put in charge of supervision of the works, did the
misappropriation, the Special Court found that the role of the
Engineers was not established. They were thus acquitted. The
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details of the roads, amount misappropriated and relevant
documents are tabulated below:
Crl.Appeal C.C.No. Road Misappropriate Agreements Agreement
No. d amount (Exhibits) between
2373/10 111/2008 Mannarathara- Rs.27,937.90 P32(b) A1 & A2
Kottakkavala
2374/10 112/2008 Unichikkavala- Rs.48,604.00 P33(k) A1 & A3
Mulappuram
2377/10 113/2008 Manakkappadam- Rs.17,688.40 P34(a) A1 & A2
Harijan Colony
7. Estimates for the maintenance work of the
aforementioned three roads were got prepared through the
expert Engineers, who are arraigned as accused in these
cases. The aforementioned estimates were considered by the
Panchayat Committee. Ext.P40 is the minutes book of the
Panchayat. Respective decisions of the committee to carry out
work of the aforesaid three roads are proved by PW5, who
was a U.D.Clerk in the Panchayat. The Panchayat Committee
further decided to entrust with the appellant the responsibility
of executing the work and with the respective Engineers to
supervise and certify completion of the works. Exts.P32(b),
P33(k) and P34(a) are the agreements concerned.
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
8. PW2 is the complainant. He raised a general
allegation that the works in question were done not as
stipulated in the estimate and there was under-expenditure.
In the investigation, it was concluded that the allegations
were proved. PW1 and PW8, who were the contractors for
supply of materials for the work, were cited to prove non
supply of the requisite quantity of materials and that the
works were not carried out in terms of the estimate. These
witnesses, however, did not support the prosecution case.
They stated that they supplied materials by resiling from their
statements before police. PW10 even stated that a part of the
amount he received towards the cost of the materials was
remitted back since he could not supply materials
corresponding to that amount in time. Ext. X1 and X1(a) are
the documents evidencing such repayment.
9. The prosecution wanted also to prove that the
measurements recorded in the respective M-Books were not
accurate. In order to prove that fact and also the deficiencies
in the work, a report was called for from PW4. He was an
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
Assistant Executive Engineer in the Public Works Department
(PWD). He, after inspecting the respective roads with
reference to the M-Books, prepared Exts.P37, P38 and P39
reports. He quantified the quantum of the work carried out in
each of the roads. After assessing the value of such works,
the difference from the estimated amounts has been
projected as the amount misappropriated. Thus, the
prosecution essentially based on the evidence of PW4 and
Exts.P37, P38 and P39 to prove that the appellant had
misappropriated the amounts alleged in the charge.
10. Going by the case of the prosecution, PWs.1 and 8
received amounts for supply of materials, but they did not
supply any such materials. In their name, documents were
prepared and the amounts were misappropriated by the
appellant. However, for proving that allegation, there is no
evidence inasmuch as PWs.1 and 8 did not support the case of
the prosecution. While examining in court, they maintained
that they had supplied materials and carried out the works in
terms of the quotation and received money towards the cost
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of such materials and work. Their evidence is not therefore
available in order to prove the charge against the appellant.
11. The Special Court after considering the evidence of
PWs.1 and 8 in detail held that they were not speaking truth
in court. When they deposed against the case of the
prosecution by resiling from their statements under Section
161 of the Code, it may be able to say that they were not
speaking truth in court. However, their evidence cannot totally
be ignored. It is to be noted that the documents produced by
the prosecution, particularly, Exts.P41 to 58, which are
cheques for making payment to the said witnesses, show that
they actually received the amount in respect of the road
works in question. Various receipts issued by them are also
available on record. They deposed in court that they had
supplied materials and carried out the work. When the said
version of these witnesses is supported by the documents
produced by the prosecution, their evidence cannot simply be
brushed aside saying that they resiled from the statement
given in police.
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12. The prosecution has no case that work of the
three roads in question were not carried out. Respective M-
Books, Exts.P35 and P36, carry the measurements of the
works. Of course, the entries therein are said to be incorrect.
The actual quantum of work done is said to be as assessed
by PW4 in Exts.P37, P38 and P39. PW4 examined the roads
after elapsing more than a year after completion of the work.
On account of such a delay, the possibility of soil erosion and
causing changes to the exact measurement, particularly of
the mud roads, cannot be ruled out. All the same, even on
accepting the entire evidence of PW4 as true and reliable,
can the appellant be convicted based on that evidence?
13. Going by the case of the prosecution, each of the
said three works was to be carried out under the supervision
of the expert Engineer, who also had prepared the estimate.
They are retired Engineers. They, being the experts in the
field, were engaged not only to prepare the estimate, but also
to supervise the works.
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14. Of course, they, accused Nos.2 and 3 in
C.C.Nos.111 of 2008 and 112 of 2008 and accused No.3 in
C.C.No.113 of 2008 denied having any role in the execution of
the works. The Special Court gave undue emphasis to the said
denial. One of the reasons which impelled the Special Court to
cast entire responsibility on the appellant is that the role of
Engineers was not duly proved and they denied having any
involvement in the work. It may be noted that PW5, a staff
member in the Panchayat, deposed before the court that the
agreements, Exts.P32(b), P33(k) and P34(a) were executed in
his presence. Of course, he could not identify the accused
Sri.Krishnan Marar before the court. The other Engineer
Sri.Gopala Pillai was no more. The failure of PW5 to identify
Sri.Krishnan Marar before the court cannot have the effect of
discarding his evidence concerning execution of the
agreements. Not only in the agreements, but in the M-Books
also, the Engineers subscribed indicating that they have
supervised and certified the works. The Special Court took the
view that the engineers would have signed the M-Books
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
inadvertently. Such an inference is against the evidence on
record, particularly of the oral testimony of PW5 and the
aforementioned agreements. In the absence of concrete
evidence to prove that the Engineers did not have any role in
execution of the work and certification of completion, such an
inference is not possible. The clauses contained in the
respective agreements that the responsibility for ensuring due
completion of the work would be that of the Engineers derive
much importance in that context. In such a state of affairs,
the finding of the Special Court that the Engineers had no
liability in the defects or deficiency in the works definitely has
an adverse effect on the prosecution against the appellant.
15. As stated, evidence of PWs.1 and 8 makes it
probable that they supplied materials and carried out the
works and also they received the cost. As pointed out above,
due execution of the work has been certified by the respective
Engineers in the M-Book. When they are the persons held
responsible as per the agreements and the works were seen
executed, the only evidence, which can be relied upon by the
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prosecution to prove the allegations against the appellant is
the reports of PW4.
16. What PW4 noticed during his inspection and
deposed in the court can be termed as primary evidence.
But, that part of his reports, which refers to the quality of
the work and sufficiency of the materials used, is based on
the impression he gathered from the data he collected. That
part of his report can have the value of an opinion and not of
his oral evidence. The prosecution has to depend essentially
upon the opinion part of the evidence tendered by PW4 to
prove the charge. The same, however, cannot be a substitute
for the substantive evidence. An opinion has to be
considered in the light of the other evidence and if the
opinion goes in tandem to the substantive evidence brought
on record, the court can conclude that the fact in question
has been proved. But when opinion alone is available
regarding a particular disputed fact, the court is disabled
from entering a finding that the fact has been proved,
especially in a criminal prosecution.
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17. The prosecution could not bring in any evidence
regarding inadequate use of materials for the road works.
Whereas, the evidence of PWs.1 and 8, to a certain extent,
proves otherwise. The fact that PW8 repaid Rs.5,644/- as the
unspent part of the amount of materials he received from the
Panchayat renders confidence to his evidence. In such
circumstances, the opinion of PW4 alone is insufficient to
establish that sufficient materials were not used to carry out
the works and the stipulated volume of work was not done.
18. As pointed out above, the respective Engineers
have the responsibility of ensuring due performance of the
work. But they were absolved from criminal liability for want
of evidence. The appellant, being the Secretary of the
Panchayat, need not have technical know-how about the road
works. True, he was empowered by the Panchayat Committee
to execute the road works. All the same, his responsibility
cannot be viewed in isolation of the role assigned to the
Engineers as per the written agreements. Hence, the lapse on
the part of the appellant in the execution of the work can be
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termed as a procedural lapse alone. Unless the prosecution is
able to show that the appellant had obtained pecuniary
advantage for himself or any other person, he cannot be held
responsible for an offence under Section 13(1)(d) of the PC
Act.
19. In C.Chenga Reddy v. State of A.P. [(1996) 10
SCC 193] the contract was awarded in violation of the
regulations. It was considered whether in the absence of
circumstances sufficient to prove the guilt of criminal
misconduct could there be a conviction. The following
observations are relevant:
"22. On a careful consideration of the material on the record,
we are of the opinion that though the prosecution has
established that the appellants have committed not only codal
violations but also irregularities by ignoring various circulars
and departmental orders issued from time to time in the
matter of allotment of work of jungle clearance on nomination
basis and have committed departmental lapse yet, none of the
circumstances relied upon by the prosecution are of any
conclusive nature and all the circumstances put together do
not lead to the irresistible conclusion that the said
circumstances are compatible only with the hypothesis of the
guilt of the appellants and wholly incompatible with their
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innocence. In Abdulla Mohammed Pagarkar v. State (Union
Territory of Goa, Daman and Diu), [1980] 3 SCC 110, under
somewhat similar circumstances this Court opined that mere
disregard of relevant provisions of the Financial Code as well
as ordinary norms of procedural behaviour of government
officials and contractors, without conclusively establishing,
beyond a reasonable doubt, the guilt of the concerned officials
and contractors, may give rise to a strong suspicion but that
cannot be held to establish the guilt of the accused. The
established circumstances in this case also do not establish
criminality of the appellants beyond the realm of suspicion
and, in our opinion, the approach of the trial court and the
High Court to the requirements of proof in relation to a
criminal charge was not proper. xx xx"
20. The said view was reiterated by the Apex Court in
C.K.Jaffer Sharief v. State (through CBI) [(2013) 1 SCC
205]. Unless the prosecution is able to establish that the
accused has obtained some material thing or pecuniary
advantage as a sequel to the misconduct by misusing his
official position, a conviction for the offence under Section
13(1)(d) of the PC Act is not possible. The same principle is
applicable to the offence under Section 420 of the IPC as well.
21. As held by the Apex Court in Abdulla Mohammed
Pagarkar v. State (Union Territory of Goa, Daman and
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Crl.Appeal Nos.2373, 2374 and 2377 of 2010
Diu) [(1980) 3 SCC 110], a suspicion, however strong, is
not enough to convict an accused. It was held:
"24. Learned counsel for the State sought to buttress the
evidence which we have just above discussed with the findings
recorded by the learned Special Judge and detailed as items
(a) to (e) in paragraph 9 and items (i) and (iii) in paragraph 10
of this judgment. Those findings were affirmed by the learned
Judicial Commissioner and we are clearly of the opinion, for
reasons which need not be restated here, that they were
correctly arrived at. But those findings merely make out that
the appellants proceeded to execute the work in flagrant
disregard of the relevant Rules of the G.F.R. and even of
ordinary norms of procedural behaviour of Government officials
and contractors in the matter of execution of works undertaken
by the Government. Such disregard however has not been
shown to us to amount to any of the offences of which the
appellants have been convicted. The said findings no doubt
make the suspicion to which we have above adverted still
stronger but that is where the matter rests and it cannot be
said that any of the ingredients of the charge have been made
out."
22. The findings of the Special Court are to the effect
that in the light of the evidence tendered by the prosecution,
the probability was in favour of the appellant's
misappropriating the amounts corresponding to the short-
supply of the materials and less work executed. It is thus seen
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that the findings of guilt rendered by the Special Court are not
based on proven facts, but on inferences. The conviction of
the appellant therefore cannot be sustained.
Accordingly, the conviction of the appellant in these
cases are set aside. On reversing the impugned common
judgment of the Court of Enquiry Commissioner and Special
Judge, Kottayam, the appellant is acquitted in C.C.Nos.111 of
2008, 112 of 2008 and 113 of 2008. The appeals are allowed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
