[Cites 12, Cited by 0]
Kerala High Court
Shri.K.K.Philip, S/O.K.P.Kuriyan vs State Of Kerala, Rep. By The Public on 3 February, 2026
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 3RD DAY OF FEBRUARY 2026 / 14TH MAGHA, 1947
CRL.A NO. 106 OF 2011
CC NO.15 OF 2002 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.2:
T.O.ABRAHAM,
GOVT.CONTRACTOR,ONMOOTAN THOTTATHIL, PUTHENPURA,
URUMBIKUNNEL, THIRUVALLA,, PATHANAMTHITTA (DIST).
BY ADVS.
SHRI.AMITH KRISHNAN H.
SHRI.B.G.HARINDRANATH (SR.)
SHRI.SUNDEEP ABRAHAM
SMT.ANNA MARY MATHEW
SMT.MANAVI MURALEEDHARAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A,
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2025,
ALONG WITH CRL.A.9/2011, THE COURT ON 03.02.2026 DELIVERED THE
FOLLOWING:
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 3RD DAY OF FEBRUARY 2026 / 14TH MAGHA, 1947
CRL.A NO. 9 OF 2011
CC NO.15 OF 2002 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT & ADDL.APPELLANTS 2 TO 4/ACCUSED NO.1 & HIS L/Hs
1 SHRI.K.K.PHILIP, S/O.K.P.KURIYAN
S/O.K.P.KURIAN (ACCUSED NO.1), 23 CHACKO HOMES,, UC
COLLEGE.P.O., ALUVA.
ADDL.2 MR.VINOD GEORGE PHILIP,
AGED 48 YEARS
S/O LATE. K.K.PHILIP, 184, CANTONMENT SOUTH NAGAR,
BEACH ROAD, KOLLAM-691001.
ADDL.3 MR.MANOJ KURIAN PHILIP
AGED 50 YEARS
S/O LATE. K.K.PHILIP, PONVANIBHAM, POORAM NAGAR,
ASRAMAM, KOLLAM.
ADDL.4 MS.VINITHA RACHEL PHILIP
AGED 46 YEARS
D/O LATE K.K.PHILIP, 59, AROKIA NAGAR, 4TH CROSS,
CRAWFORD, TRICHY, TAMILNADU-620012.
(ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED AS PER ORDER
DATED 24/7/2020 IN CRL.MA NO.1/2020)
BY ADV SHRI.JOY THATTIL ITTOOP
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 3
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REP. BY THE PUBLIC
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA, ERNAKULAM.
SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A
SENIOR PUBLIC PROSECUTOR SMT.REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2025,
ALONG WITH CRL.A.106/2011, THE COURT ON 03.02.2026 DELIVERED THE
FOLLOWING:
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 4
"C.R"
A. BADHARUDEEN, J.
================================
Crl.Appeal Nos.9 and 106 of 2011
================================
Dated this the 3rd day of February, 2026
COMMON JUDGMENT
These appeals have been filed by the 1 st and 2nd accused in C.C.No.15
of 2002 on the files of the Enquiry Commissioner and Special Judge,
Thiruvananthapuram. The respondent herein is the State of Kerala represented
by VACB.
2. During the pendency of this appeal, the appellant/1 st accused
in Crl.Appeal No.9/2011 died and accordingly his legal-heirs got impleaded as
additional appellants 2 to 4.
3. Heard the learned Senior Counsel Sri B.G.Hareendranath
for the appellant/2nd accused in Crl.Appeal No.106/2011 and Advocate Sri
Babu S.Nair, the learned counsel for the additional appellants in
Crl.Appeal No.9 of 2011. Also heard the learned Special Public Prosecutor
Sri Rajesh A. and Senior Public Prosecutor Smt.Rekha.S in detail. Perused the
2026:KER:9212
relevant documents and the decisions placed by both sides.
4. The prosecution case is that the 1st accused who worked as
Superintending Engineer, [SE] KIP RB Circle, Kottarakkara for the period
from 6.7.1990 to 28.2.1991. 2nd accused, who was the Contractor for the
work relating to KI & TCDP RBC formation of Kulasekharapuram
Distributory from Ch. 1700 M to 2400 M including CD works hatched
criminal conspiracy with the common object of deriving undue pecuniary
advantage and by adopting corrupt or illegal means and in pursuance of the
said conspiracy and by misutilizing clauses 31 and 32 of LCB
specifications negotiated rates on 21.2.1991 for 5 items of work viz. (1)
Construction of a road crossing at Ch.1950 M, (2) C.C.1:3:6 for making up
foundation, (3) Constructing flume canal from Ch. 1700 M to 1715 M with
bed width of 2.7 meter, (4) Supplying PVC water stopper 305 MM wide
and (5) Providing shoring etc. and executed Supplemental Agreement
(hereinafter `SA' for short) No.3 on 25.02.1991 ignoring the fact that the
2nd accused was eligible for the agreed rate only as per the original
agreement for item Nos. 1 to 4 and not eligible for any extra rate for item
No.5, awarded extra rates and thereby obtained undue pecuniary advantage
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 6
to the tune of Rs.7,01,380/-. It is further alleged by the prosecution that the
1st accused in pursuance of the above conspiracy hatched with the 2 nd
accused obtained a request from the 2 nd accused on 23.02.1991 demanding
higher rates for RCC 1:2:4 and re-inforcement for the construction of
flume canal with tie beam, negotiated rates with the 2 nd accused on
27.02.1991 and allowed a rate of Rs.1,590/M3 for the total quantity of
1000 M3 of RCC 1:2:4 and also allowed a rate of Rs.11,750/T for a total
quantity of 100 T of re-inforcement for RCC work whereas the Contractor
was eligible only the rate of Rs.1,150/M3 for RCC 1:2:4 and Rs.7,500/T
for re-inforcement for RCC work as per the original agreement and the 1 st
accused had done these acts neglecting the recommendation of his
subordinates and executed supplemental agreement No.6 on 28.2.1991 the
last day of the service of the 1 st accused and thus allowed a total excess
amount of Rs.8,65,000/- to the 2nd accused resulting in corresponding loss
to the Government. Finally it is alleged by the prosecution that the 3 rd
accused, who had worked as Executive Engineer, KIP RB Division No.III,
Kayamkulam from 10/1990 to 10/1991 by abusing his official position,
hatched criminal conspiracy with the 2 nd accused with the same common
2026:KER:9212
object of deriving undue pecuniary advantage and the 3 rd accused, who
should have rejected CC Bill No.IV, V and VI prepared in favour of the 2 nd
accused on the basis of SA Nos.3 & 6 executed on 25.2.1991 and
28.2.1991 respectively by the 1st accused in violation of the LCB
conditions, passed CC Bill No. IV on 21.3.1991 for Rs.6,55,450/-, CC Bill
No.V on 27.3.1991 for Rs.5,22,473/-, CC Bill No. VI on 24.10.1991 for
Rs.7,54,774/- and issued cheque to the 2nd accused and paid a total excess
amount of Rs.15,32,809.69 to the 2nd accused and corresponding loss to the
Government. Thus it is alleged that due to the aforesaid illegal acts the 2 nd
accused obtained undue pecuniary advantage to the tune of
Rs.16,04,908.36 and thereby both accused committed offences punishable
under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act,
1988 (`PC Act, 1988' for short hereafter) and Section 120B of the Indian
Penal Code (`IPC' for short). Thereafter, accused Nos.3 and 4 also were
arrayed in this matter alleging commission of the same offences, but the 4 th
accused died before trial.
5. After framing charge, the learned Special Judge recorded
evidence. PWs1 to PW7 were examined and Exts.P1 to P32 were marked
2026:KER:9212
on the side of the prosecution. Exts.D1 to D3 were marked on the side of
defence. On appreciation of evidence, the learned Special Judge found
that accused Nos.1 and 2 committed offences punishable under Section
13(1)(d) r/w 13(2) of the PC Act, 1988 and under Section 120B of IPC
while acquitting the 3rd accused. Accordingly, accused Nos.1 and 2 are
sentenced to undergo rigorous imprisonment for a period of three years
each and in addition they shall pay a fine of Rs.17,00,000/- (Rupees
Seventeen Lakhs only) each and in default of payment of fine, they shall
undergo rigorous imprisonment for a period of one year each, for the
offence under S.120-B I.P.C, they are sentenced to undergo rigorous
imprisonment for a period of one year each. The bail bond executed by
them are cancelled. The substantive sentences shall run concurrently.
6. The learned Senior Counsel appearing for the 2 nd
accused vehemently argued that none of the offences would be attracted in
the present case. The prime contention raised is that even though
Ext.P3(a), the original agreement executed in 1988, fixed the amount for
completing the work at Rs.23,15,000/-, without properly considering the
shiny and slushy nature of the soil, and even though Rs.23,15,000/- was
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 9
fixed as the expenditure, taking into account the odorous nature of the soil,
the work could not be completed for the said sum because extra works had
to be carried out due to the slushy soil. For this reason, Ext.P4(p) SA No.3
dated 25.02.1991 and Ext.P4(q) SA No.6 dated 28.02.1991 were executed.
It is also pointed out that although the number of tie-beams originally
proposed in Ext.P3(a) was 46, a total of 78 tie-beams were actually
constructed, and in this regard reliance is placed on the evidence of PW1
supported by PW7. Apart from this, it is contended that as evident from
Ext.P7(b), Ext.P7(g) and Ext.P7(e), water stoppers having a width of 45
cm were agreed to be provided, but due to non-availability during the
construction period, water stoppers having a width of 30.5cm were used,
entitling the 2nd accused to claim additional amounts under the head `extra
items'. The learned Senior Counsel further contended that as per item No.1
in Ext.P3(a), the extra work was done as a result of an agitation initiated
by Nanoo Master, the then MLA of the locality, and due to the
intervention of the Irrigation Minister, to make additional constructions,
since only a footpath was provided at Ch.No.1930 m. Thus the contractor
was compelled to construct a motorable road crossing the canal during the
2026:KER:9212
execution of the work.
7. Regarding this contention, the learned Special Public
Prosecutor pointed out that this item had already been accepted as an extra
item in favour of the 2nd accused by the Special Court, and the prosecution
had no dispute in that regard. According to the learned Special Public
Prosecutor, for this additional work, the 2nd accused was entitled to
payment determined through negotiation between the 1 st accused
(Superintending Engineer) and the 2nd accused.
8. The learned Senior Counsel for the 2nd accused also
submitted that as per clause 32 of Ext.P3(a) and as per SA Nos.3 and 6, the
amounts sanctioned by the 1st accused and obtained by the 2nd accused
were within the powers of the 1st accused and the said amount was entitled
by the 2nd accused. Therefore, there is no conspiracy in granting and
encashing the bills. Therefore, there is no misappropriation as alleged by
the prosecution and the prosecution case in its entirety is based merely on
surmises and conjectures, without support from any convincing evidence.
9. The learned Senior Counsel also submitted that when
this Court considered Crl.Appeal No.2/2002 arising out of
2026:KER:9212
C.C.No.29/2009, where similar allegations were raised, this Court by
judgment dated 04.09.2019 acquitted all the accused on the finding that
when excavation of "hard narikkal" work was carried out in deviation
from the agreement, the Superintending Engineer was found empowered to
approve the work done for constructing the "hard narikkal" as an extra
item and accordingly by setting aside the judgment of the Special Court all
the accused were acquitted. He has also pointed out the decision of another
Single Bench of this Court reported in [2008 (3) KLJ 165 : 2006 ICO
11532 : 2008 (3) KHC 817], Varghese Mathew & Ors. v. State of Kerala,
wherein this Court acquitted the accused therein. He also cited the
judgment in Crl.Appeal No.2/2004 in K.G.Ashokan v. State of Kerala, in
this regard. Therefore, applying the ratio of the above decisions and the
submissions made, it is contended that the impugned verdict would require
interference and the 2nd accused is entitled to acquittal, after revising the
verdict impugned.
10. Similar contentions were raised by the learned counsel
appearing for the legal heirs of the 1st accused while seeking interference
in the verdict of the Special Court.
2026:KER:9212
11. Zealously opposing the contentions raised by the
respective counsel for the accused, the learned Special Public Prosecutor
pointed out that originally Ext.P3(a) was executed to complete the work
appended therein for a total sum of Rs.23,15,000/-. According to him,
except item No.1 in SA3 [Ext.P3(b)], all other items of work for which
SA3 and SA6 agreements were executed, were completed, and thereby
amounts of Rs.7,13,415/- (SA3) and Rs.27,65,000/- (SA6) became
payable. Thus, a total of Rs.34,78,415/- was the amount entitled by the
contractor for the work provided in the agreement at the agreed rate fixed
as per Ext.P3(a) original agreement. Therefore, there is no question of
invocation of clause 32 of Ext.P3(a) to grant any additional amount for the
said work, treating it as `extra work' done in deviation from Ext.P3(a)
original agreement.
12. It is specifically argued by the learned Special Public
Prosecutor that item Nos.2 to 4 covered by SA3 and two items covered by
SA6 were the works originally included in Ext.P3(a) original agreement.
According to the learned Special Public Prosecutor, regarding item No.2 in
SA3, PW1 categorically had given evidence that item No.2 was included
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 13
as item No.5 in appendix G and the same is a part of Ext.P1(a) estimate.
The learned Special Public Prosecutor further pointed out that, for this
work, the 1990 schedule of rates was applied and the AEE fixed the rate at
Rs.817.61 per m³. Then the Executive Engineer worked it out at Rs.681/-
per M³, the 1st accused granted Rs.1,400/- per m³ in SA No.3 item No.2
and that was agreed upon by the 2 nd accused. Similarly, item No.3 in SA3
was also a work originally included and the work was agreed to be done at
the rate of Rs.531.48/- per M³, Rs.1,186/- per M³ and Rs.7,567.40 per
tonne. According to the learned Special Public Prosecutor, as per
Ext.P4(m), for item No.1 in SA3, instead of Rs.681/- per m³, the rate was
enhanced to Rs.1,400/- per m³ through Ext.P3 negotiation between the 1 st
and 2nd accused and for item No.2, the rates were increased to Rs.850/- per
M³, Rs.1,700/- per M³ and Rs.11,000/- per tonne as against Rs.531.48 per
M³, Rs.1,186/- per M³ and Rs.7,567.40 per tonne, as stated in paragraph 11
of the judgment. He also pointed out that regarding the water stoppers
mentioned in SA3, the agreed size was 45 cm and according to the accused
persons, the size was reduced to 30.5cm. In this connection, it is submitted
by the learned Special Public Prosecutor that, in fact, the shortage of water
2026:KER:9212
stoppers having size of 40 cm was found after completion of 90% of the
work, and as per Ext.P1(h), as pointed out by the learned Senior Counsel
for the 2nd accused, only water stopper to a size of 30.5cm was permitted.
It is also pointed out by the learned Special Public Prosecutor that
originally the amount agreed for a water stopper was at Rs.100/M, but as
per Ext.Pl(m) negotiation, the rate for the same was increased to the tune
of Rs.750/- per metre. According to the learned Special Public Prosecutor,
regarding item No.5 in SA3, as per the evidence given by PW1, claim for
shoring was not entitled, as the work was included in the original
agreement. However, after granting the same, Rs.1,169/- per metre was
negotiated between the 1st and 2nd accused for a total length of 217 metre,
as seen from paragraph 13 of the judgment. It is also submitted that
regarding item No.1 in SA6, the said item also was agreed upon in the
original agreement @ Rs.1,150/- per metre. But the same was enhanced
by the 1st accused as per Ext.P4(m) negotiation to the tune of Rs.1,169.50
per metre.
13. According to the learned Special Public Prosecutor, in
this case, the prosecution has no case that there was conspiracy in between
2026:KER:9212
the accused persons at the time of execution of the original agreement or at
the time of commencement of the work. But the prosecution case
specifically is that after completion of the work as agreed, the 1 st and 2nd
accused conspired together to misappropriate Government funds and as a
result of the said conspiracy, both of them decided to put up and act upon
unwanted claims, as discussed herein above for obtaining a huge amount
as enhancement and the Government money to the tune of Rs.34,78,415/-
was encashed by the 2nd accused and thereby the 2nd accused
misappropriated the said sum with the aid of the 1st accused and
accordingly both of them committed the offences as alleged.
14. The learned Special Public Prosecutor anxiously argued
that, in fact, the work was taken on tender by the 2 nd accused, who is an
experienced contractor, after knowing the nature of the soil, the work to
be carried out, etc. for an amount of Rs.23,15,000/-. Thereafter, SA3
and SA6, were vexatiously created for claims which were not at all
entitled by the 2nd accused and the amounts were encashed. The learned
Special Public Prosecutor further pointed out that, for a work originally
agreed upon for an amount of Rs.23,15,000/-, an amount of ₹34,78,455/-
2026:KER:9212
was altogether obtained by claiming the same as `extra works'. Therefore,
the prosecution case as to misappropriation of Rs.34,78,455/- is proved
beyond reasonable doubts. According to the learned Special Public
Prosecutor, as far as the decisions placed by the learned Senior Counsel for
the 2nd accused are concerned, the said decisions in no way addressed the
agreement or the conditions thereof in its proper perspective and also, the
facts and claims therein were totally different. Therefore, the above
decisions have no binding effect when independently considering the work
done herein based on Ext.P3(a) for which an exorbitant amount was
granted by executing SA3 and SA6.
15. The learned Special Public Prosecutor has placed a
decision of the Apex Court in Rajiv Kumar v. State of U.P. [2017 KHC
6522 : AIR 2017 SC 3772 : 2017 (8) SCC 791 : 2017 CriLJ 4734],
particularly paragraphs 10 and 44, wherein the Apex Court extracted the
ingredients to constitute the offence of forgery as under:
"10. S.13 of the P.C. Act in general lays down that if a public
servant, by corrupt or illegal means or otherwise abusing his position
as a public servant obtains for himself or for any other person any
valuable thing or pecuniary advantage, he would be guilty of 'criminal
2026:KER:9212
misconduct'. Sub-section (2) of S.13 speaks of the punishment for such
misconduct. S.13(1)(d) read with S.13(2) of P.C. Act lays down the
essentials and punishment respectively for the offence of 'criminal
misconduct' by a public servant. S.13(1)(d) reads as under:
"13. Criminal misconduct by a public servant. -
(1) A public servant is said to commit the offence of criminal
misconduct, (d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any
other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or pecuniary
advantage; or
(iii) while holding office as a public servant, obtains for any
person any valuable thing or pecuniary advantage without any
public interest; or"
A perusal of the above provision makes it clear that if the elements of
any of the three sub-clauses are met, the same would be sufficient to
constitute an offence of 'criminal misconduct' under S.13(1)(d).
Undoubtedly, all the three wings of clause (d) of S.13(1) are
independent, alternative and disjunctive. Thus, under S.13(1) (d) (i) of
P.C. Act obtaining any valuable thing or pecuniary advantage by
corrupt or illegal means by a public servant in itself would amount to
criminal misconduct. On the same reasoning under S.13(1) (d) (ii) of
P.C. Act "obtaining a valuable thing or pecuniary advantage" by
abusing his official position as a public servant, either for himself or for
any other person would amount to criminal misconduct."
"44. The essential ingredients of the offence of criminal conspiracy are:
(i) an agreement between two or more persons; (ii) the agreement must
2026:KER:9212
relate to doing or causing to be done either (a) an illegal act; or (b) an
act which is not illegal in itself but is done by illegal means. It
is,therefore, plain that meeting of minds of two or more persons for
doing or causing to be done an illegal act or an act by illegal means is
sine qua non of criminal conspiracy. It is extremely difficult to adduce
direct evidence to prove conspiracy. Existence of conspiracy and its
objective can be inferred from the surrounding circumstances and the
conduct of the accused. In some cases, indulgence in the illegal act or
legal act by illegal means may be inferred from the knowledge itself."
16. Having considered the arguments on the issue, the points
arise for consideration are :
(i) Whether the Special Court is justified in holding that
accused Nos.1 and 2 committed the offence punishable under Section
13(1)(d) r/w 13(2) of the PC Act, 1988?
(ii) Whether the Special Court is right in holding that the
accused committed the offence punishable under Section 120B of IPC?
(iii) Whether the contention raised by the 2nd accused that
there was no prosecution sanction to prosecute the accused is sustainable?
(iv) Is it necessary to interfere with the judgment in any
manner?
(v) The order to be passed?
2026:KER:9212
Points (i) to (v)
17. In this case for formation of Kulasekharapuram
Distributory from Ch.1700M to 2400 M including CD works as part of
Kulasekharapuram Irrigation Project, an estimate was prepared by PW5,
who was the Assistant Engineer of KIP RB Section during the said period.
Ext.P10 is the file relating to the preparation of estimate with respect to the
aforesaid work which was maintained at the office of PW5 (AE). PW5
deposed that the estimate of this work was prepared by him and he had
sent the estimate to the Assistant Executive Engineer. The first item
covered in Ext.P10(a), that is the estimate, is earth work excavation in all
classes of soil with foundation and depositing on banks with all leads and
lifts including back filling using the spoil, watering etc. The second item of
work is bailing out water with 5 H.P oil engine including conveying
erecting, cost of fuel, pay of staff etc. The 3 rd item of work is cement
concrete 1:4:8 using 40 mm metal including watering, curing etc. complete
as per specifications and drawing or as directed by the Engineer-in-charge.
The 4th item of work is RR in CM 1:6 including pointing the exposed face
simultaneously with the same mortar including watering, curing etc. The
2026:KER:9212
5th item of work is RRC 1: 5:6 using graded metal for road crossing etc.
The 6th item of work is RCC 1:2:4 using 20 mm metal including all
watering, curing etc. complete in road crossing and foot path. The 7 th item
of work is providing reinforcement for RCC work bent, tied and placed in
position as per specification and drawing or as directed by the Engineer-in-
charge. The 8th item of work is filling and forming approaches of road way
using contractor's own earth etc. The 9 th item of work is plastering with
CM 1:4 15mm thick one coat floated hard.
18. The evidence of PW5 further is that in the estimate the
earth work excavation of flume canal RCC 1:2:4 using 20mm metal size,
bed, haunches and tie beam are included. PW5 stated that for each item
estimate was prepared for concrete and reinforcement. The said estimate
prepared by PW5 was forwarded to the Executive Engineer (EE) through
the Assistant Executive Engineer (AEE). This estimate was then forwarded
to the Superintending Engineer (SE) by the EE.
19. It is discernible that PW1 was the S.E of KIP, RBC from
22.06.1997 to 02.03.1999. PW1 identified Ext.P1 file as the file relating to
this work maintained at his office. Ext. P1(a) is pages 1 to 15 of the said
2026:KER:9212
file which is the estimate forwarded to him by the E.E. PW1 identified his
initials in page 15 of Ext. P1(a). Two major items of work could be found
from Ext.P1(a), the first one is canal formation as per Appendix L. It is
stated in Ext.P1(a) that the canal proposed was an open flume of RVV
1:2:4 as per approved hydraulic particulars.
20. It is further stated that in this estimate the flume is
starting in a transition of 5 m length from Ch.1700 to 1705M. As per items
1 and 2, provisions had been made for uprooting of trees in the alignment.
Item No.3 is earth work excavation for foundation of flume canal. It is
stated that the canal reach passes through sandy soil and paddy field and so
the rate for ordinary soil with necessary additional leads and lifts had been
provided. Item No.4 is bailing out water with 5 H.P Engine and pump set,
approved rate was given in the estimate. Item No.5 is provision has been
made in this estimate for CC 1:4:8 using 40mm metal for foundation of the
flume for the entire length. Item No.6 was RR block masonry in cement
mortar 1:6 proposed over the CC 1:4:8 for the flumed portion to with stand
the heavy load over it. The minimum depth of RR 1:6 in paddy field was
fixed as 40cm and varies in filling. It is noted that necessary openings are
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 22
proposed in masonry blocks in paddy field to allow water to flow. Item
No.7 is provided for the construction of flume with RCC 1:2:4 using 20
mm metal. Necessary reinforcement is also provided. Item No.8 covers
necessary provisions in this estimate for providing reinforcement for RCC
work. Reinforcement at 100kg is proposed. Item No.9 mentioned that
water tight expansion joints at 30 M intervals is proposed by using rubber
water seal and the joints filled with bitumen mastic filler. The second
major head is Appendix-G that is road crossing culvert and foot paths. It is
noted therein that the alignment of the canal crosses 7 m wide roads at
Ch.2310 and 2M wide road 3 Nos. at different chainages. Necessary
provisions such as earth work excavation, bailing out water, CC 1:4:8 for
foundation and CC 1:3:6 for abutments have been made in this estimate for
constructing the road crossings. A clear road way of 7 m are provided by
30cm thick RCC 1:2:4 deck slab over the abutments and 15cm thick for
foot slab provisions have been made for constructing parapet and retaining
walls, step footing in RR 1:6 and in DR packing. Necessary earth fillings
to raise the road way so as to get approaches to the road way have also
been made in this estimate. The attached drawing and the estimates are self
2026:KER:9212
explanatory. Finally it is noted that the estimate is prepared based on the
current schedule of rates. Further it is again noted that the LS sheets, data
and conveyance statement, detailed estimate and drawings are appended to
the same. The total estimate amount was shown as Rs.25 lakhs, and later
corrected to Rs.24,45,000/- at the office of PW1 as could be gathered from
page 30 of Ext.P1.
21. PW1 also testified regarding Ext.P2 file. According to
PW1, Ext.P2 is the file relating to the said work maintained at the office of
the Chief Engineer. The said file is identified by PW1. Ext.P2(a) is sheet
Nos.1 to 21 of the said file which is identified by PW1 as the estimate sent
from his office to the Chief Engineer (C.E). for this particular item of
work. Drawings are also included in Ext.P2. PW1 stated that these
drawings were received by him from the office of the S.E. and he
forwarded the same to the C.E. along with the estimate. This drawings are
contained in page 1 to 5 of Ext. P2 file. Pages 6 to 17 of the file relates to
conveyance statement and detailed estimate. Scrutiny was conducted at the
office of C.E. and it was sanctioned for a total amount of Rs.23,15,000/-.
Ext.P1(b) is page 25 of Ext. P1 file showing that the technical sanction
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 24
was given for the said work from the office of the C.E. Ext.P1(c) is sheet
Nos.22 to 24 which is the abstract of the estimate prepared at the office of
the C.E. In this abstract the total quantity of work for RCC 1:2:4 was fixed
as 1000M3 and reinforcement was fixed at 100T. The total amount for
Appendix-L canal formation that is flume canal is fixed at Rs.21,22,950.
For road crossing at Ch.2310 and foot path that is Appendix-G the total
amount is fixed as Rs.1,57,651/-. Thus the general abstract prepared at the
office of the C.E. would go to show that the final sanction was given for
Rs. 23,15,000/-. In page 11 of Ext.P1(a) the details of the construction of
flume canal is shown. The total quantity is mentioned as 1008M3 that was
converted into 1000M3 at the office of the C.E. In Ext.P1(a) different
items of work in item No.7 including the berl, size, haunches and tie
beams of the flume canal are shown. The total number of tie beams
mentioned as 46 and the total quantity for the said tie beam work is shown
as 2.9M3. It is further shown that the tie beams should be constructed at
15m intervals. The length of the tie beams is shown as 2.8m width of the
beam is shown as 0.15m and depth is shown as 0.15m. He stated that the
total number of tie beams fixed is 46 and so the total quantity of the tie
2026:KER:9212
beam is arrived at 2.900m3. The item No.8 is also mentioned in Ext.P1(a).
The item of work in this item No.8 is providing reinforcement for RCC
work bend, tie and placed in position as per specification and drawing or
as directed by the Engineer-in-charge.
22. According to PW1, the reinforcement of the bed flume
canal, sides, tie beams and any other RCC work of same specification.
100kg of steel/M3 was fixed. The length of the flume was reduced to 7.8m
and so the total quantity was reduced to 1000M3 from 1008M3. The said
length reduced was included in Appendix-G. PW1 stated that when the
C.E. scrutinized the said estimate the quantity of the tie beam was not
changed. At the office of the C.E. also the total quantity of the concrete
portion was fixed at 1000M3 and the quantity of the reinforcement was
fixed at 100T. So far the said work tenders were invited from the office of
PW1. PW1 deposed further that the lowest tender was submitted by the 2nd
accused. Ext.P1(d) is the letter sent by PW1 to the Director of Public
Relations, Thiruvananthapuram for publishing the short tender notice. As
stated above, the 2nd accused submitted the lowest tender and accordingly
this tender was accepted and agreement was entered by PW1 with the 2nd
2026:KER:9212
accused. Ext.P3 is the agreement file maintained at the office of PW1.
23. Now it is necessary to look into Ext.P3(a). Ext.P3(a) is
the original agreement No.9/88-89/SC/KIP executed between PW1 and the
2nd accused. This agreement was executed on 19.7.1988. Ext. P3(a) is sheet
Nos. 1 to 75 which contains the original agreement schedule etc. Sheet
No.73 is the memorandum of work. The sanctioned estimate is
shown as Rs.22,78,566/- and the accepted tender is shown as Rs.
23,62,858/-, the date of commencement of work is mentioned as the date
of issue of order to start the work. The date of completion of work is 9
months from the date of issue of order to start the work. Ext.P3(a-1) is
sheet Nos.67 to 71 of Ext.P3(a) which is the accepted agreement schedule.
Appendix-L-1 in Ext.P3(a-1) is constructing flume canal. Item No.1 is
earth work excavation in all classes of soil with foundation and depositing
on banks with all leads and lifts including back filling using the spoil,
watering etc. Item No.2 is bailing out water with 5 H.P oil engine
including conveying erecting, cost of fuel, pay of staff etc. Item No.3 is
cement concrete 1:4:8 using 40 mm metal including watering, curing etc.
to be completed as per specifications and drawing or as directed by the
2026:KER:9212
Engineer-in-charge.
24. As per Ext.P3(a), the 4th item is RR in CM 1:6 including
pointing the exposed face simultaneously with the mortar including
watering, curing etc. The 5th item is RRC 1:5:6 using graded metal for road
crossing etc. The total quantity mentioned is 412/M3. The rate fixed is
500/M3. Item No.6 is Random Rubble in cement mortar 1:2:4 for
foundation and super structure including pointing the exposed faces of
masonry simultaneously with the same mortar including watering, curing
etc. complete as per specification. The total quantity mentioned is
564M3 and the rate fixed is Rs.100/M3. The 7 th item is RCC 1:2:4
using 20mm broken stone for flume canal including all form work
watering, curing etc. complete but excluding cost and labour for
reinforcement as per specification. The quantity is 1000M3 and the rate
fixed is Rs. 1150/M3.
25. Coming to reinforcement for RCC work, bent, tied
and placed in position as per specification. The total quantity mentioned
is 100T and the rate is Rs.7,500/T. Coming to supply and fixing of PVC
water stopper 45cm wide and filling the gaps with 25mm thick machine
2026:KER:9212
pressed bitumen pad of approved quality including all cost and conveyance
etc. complete. The total quantity is 250M and the rate fixed is Rs.100/M.
Appendix-G is construction of road crossing at Ch.2310M and foot path at
different chainages.
26. Reverting back to item No.1, the same is earth work
excavation in all classes of soil to lines and grades for foundation of canal
structure and depositing the spoil on banks and back filling with the spoil
with all leads and lifts, watering, ramming and consolidating etc. complete.
The total quantity mentioned is 185M3 and the rate fixed is Rs.5/M3. The
second item is bailing out water using 5HP Engine and pump set including
conveying to site, Erection charges, cost of fuel, lubricating oil and all
other stores, pay of staff etc. complete. The total time is 24 Hr and the rate
is Rs.10/Hr. The third item is cement concrete 1:4:8 approx using 40mm
metal (nominal size) for foundation to lines and grades and dimension as
shown in the drawing including hire and labour for fixing to lines and
grades, the form work staging scaffolding etc. including removing the
same after the concrete has set or as directed by the Engineer-in-charge
including all boxing, compacting curing, dewatering etc. complete as per
2026:KER:9212
specification. The total quantity is 19M3 and the rate fixed is 400/M3.
27. Item No.4 is random rubble cement mortar 1:6 including
pointing the exposed spaces simultaneously wherever necessary or as
directed by the Engineer-in-charge including watering, curing etc.
complete. The total quantity is 54M3 and the rate fixed is Rs.300/M3. The
item No.4(a) is dry rubble masonry for retaining wall, wherever necessary
as directed by the Engineer-in-charge. The total quantity is 48M3 and the
Rs.50/M3.
28. Item No.5 is cement concrete M100 (1:3:6 approx) for
super structure using graded metal, lines and grades and dimension as
shown in the drawing including hire and labour for fixing to lines and
levels all form work, staging, scaffolding etc. for concrete including
removing the same after the concrete has set or as directed by the
Engineer-in-charge including all boxing, compacting, curing, watering,
etc. complete as per specification. The quantity mentioned is 82M3 and the
fate fixed is Rs.725/M3.
29. Item No.6 is reinforcement cement concrete M150 (1:2:4
approx) with 20 mm broken stone for slab as per the dimension shown in
2026:KER:9212
the drawing including hire and labour for fixing to lines and levels, all
form work, staging, scaffolding etc. for concrete including removing the
same after concrete has set or as directed by the Engineer-in-charge,
compacting, curing etc. complete, but excluding cost and labour for
reinforcement. The total quantity mentioned is 30M3 and the rate fixed is
1200/M3.
30. Item No.7 is in relation to providing reinforcement for
RCC work, bent, tied and placed in position as shown in the drawing or as
directed by the Engineer-in-charge etc. as per specification. The quantity
mentioned is 2.35T and the rate fixed is Rs.7500/T. Item No.8 is filling
and forming the approach road to lines and levels with earth available from
flume excavation including spreading in layers having a thickness of not
more than 15 cm when compacted watering and consolidating with power
roller or other approved equipment and the quantity is stated 55 M³ at
Rs.15/ M³. The 9th item is plastering with CM 1:4, 15 mm thick one coat
floated hard and trowelled smooth including all charges for watering,
curing etc. complete as per specification. The total quantity mentioned is
61M2 and the rate is Rs. 13/M2.
2026:KER:9212
31. During examination of PW1, PW1 identified his
signature in Ext.P3(a) agreement and he also identified the signature of the
2nd accused in this agreement. PW1 deposed that the item of work
mentioned is the bed, sides, haunches, tie beam of flume canal. Drawing
are also appended to Ext.P3(a). PW1 further testified that the LCB
specifications appended to Ext.P3(a) agreement would form the part of the
agreement. This aspect is not in dispute. Sheet Nos. 25 to 32 of Ext.P3(a)
is the Local Competitive Bidding Specification. Ext. P3(a-2) is the
statement of departmental materials proposed to be issued for the work.
Cement, Tore steel are included as Departmental materials supplied for the
said work. The quantity of cement allowed is 471.20T and the total
quantity of tore steel allowed is 102.35 Т. The recovery rate is fixed at Rs.
1200/-T for cement and Rs. 6500T for tore steel.
32. PW1 stated that the copy of the agreement was sent to
the Accountant General, EE, AEE and AE and also to the Contractor and
Ext.P1(e) is the copy of the letter showing that the same was sent to these
persons. Ext.P1(f) is the initial level proposed and sent to PW1 by the E.E.
33. When the evidence of PW1 is analysed in the above line
2026:KER:9212
the prosecution proved Ext.P3(a), otherwise also the execution of
Ext.P3(a) is not disputed by the 2nd accused. It is not in dispute that the
LCB Specifications appended to Ext.P3(a) is applicable to this contract in
question. The period fixed was 9 months and so clause 32(A) the price
adjustment clause was struck off at the time of executing the agreement.
The work was carried on at the site under the supervision of PW5 who was
the A.E. during the said period.
34. Regarding the use of water stopper having a width of 45
cm. Ext.P1(g) is the letter sent by the 2 nd accused to PW1. In Ext.P1(g) it is
stated by the 2nd accused that as per item No.9 of the accepted schedule
supplying and fixing PVC water stopper of size 45 cm wide was specified.
But such size was not available in the market and the only available size is
30.5 cm. The said letter ie Ext.P1(g) is dated 18.10.1988. PW1 stated that
this water stopper is a rubber pad fixed in the joints on two sides of the
flume to prevent leakage of water. Ext.P1 (h) is the reply sent by PW1 to
Ext.P1(g) letter of the contractor. As per Ext. P1(h), the 2 nd accused was
permitted to use 30.5 cm wide PVC water stopper instead of 45 cm
provided in the agreement. The copy of the said letter was forwarded to the
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 33
E.E., KIP RB Division No.lI, Adoor with request to submit the data and
the supplemental schedule for this item for executing SA. Again Ext.P1 (i)
letter was sent by the Contractor PW1. It is stated in Ext.P1 (i) letter that
during the earth work excavation both banks of the canal found slipping
down because of sandy soil and he was now excavating at 1:1 side slope. It
was further stated that they were providing shoring at 1.5 m height and
round the clock bailing out of water with 5 HP pump would be required.
So he requested to issue necessary orders for the payment for additional
earth work for side slope, shoring and for bailing out of water to proceed
with work. To Ext. P1 (i) letter PW1 had endorsed that any unauthorized
modification in side slopе providing shoring without approval or extra
pumping not duly approved at site by the site Engineer would not be paid
for. Ext.P1(j) is the reply sent by PW1 to the accused for Ext.P1(i) letter. It
is stated in Ext.P1(j) that any unauthorized modification in side slope
providing shoring without approval or extra pumping not duly approved at
site by the Site Officers would not paid for. Copy of the said letter was
seen forwarded to the E.E., KIP, RB Division No.III, Adoor. As stated
earlier as per Ext.P1(h) letter sent by PW1 to the Contractor he was
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 34
permitted to use 30.5cm wide PVC water stopper and PW1 had
recommended for executing supplemental agreement with respect to the
said work. PW1 identified Ext. P4 as the file maintained at his office. Ext.
P4(a) is identified by PW1 as the letter sent to him by the E.E. Along with
the said letter the E.E. submitted the data for providing PVC water stopper
305 mm wide and refilling the gap with 25mm thick machine pressed
bitumen pad. He stated that the cost of materials provided in the data were
the current market rate. He requested for approval of the said data and
execution of Supplemental agreement. Ext.P4(a-1) is the data for PVC
water stopper. The cost of the water stopper was arrived at Rs.205.42/M in
Ext.P4(a-1). Ext.P5 is the note file of Ext.P1 and P4. Ext.P5(a) is the sheet
Nos.38 and 39 of Ext. P5 file. In Ext.P5(a-1) the Draftsman had noted that
the E.E. in his letter dated 12.1.1989 had submitted the data and
supplemental schedule for the above extra item and the data was checked
and put up for approval and rate come Rs.205.42/M. Не requested for the
approval of the said data. PW1 had directed the E.E. to certify the
reasonableness of the cost of PVC water stopper in the data. In Ext. P5(b)
it was noted that some proposals were received in the office and also some
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 35
quotations had been received in Division No.1 and it was directed to
compare the rates and put up the file. PW1 deposed that till he left the said
office no decision was taken in the said matter. During cross-examination
PW1 stated that only after perusing the records he could say whether trial
pit was taken. In Ext. P2(a) it is noted that the canal reach passes though
sandy soil and paddy field and in the LS drawing between 2000M to
2100M a pond is shown and in Ch. 2310M to 2400M paddy field is also
shown. He admitted that flume canal was purely structural work/RCC with
reinforcement. When the execution work started PW1 was there in the
office as S.E. He admitted that Ext. P3(a-3) was the drawing of typical
flume canal with flume section. Ext.P3(a-4) is the drawing of foot path at
Ch.1930m. Ext. P3(a-5) is the drawing of road crossing at Ch.2310M and
Ext.P3(a-6) is the foot path at Ch.2100M to 2106M. He further admitted
that if during soil excavation it could be found that the vertical execution
would not practical, because the Site Engineer could direct to give slope.
According to him in this case it was not revealed that vertical excavation
was not practical. He testified further that he had visited the site and he
had also seen the excavation done at the spot. He added that it was the duty
2026:KER:9212
of the Contractor to give side protection at the time of excavation of soil
and for bailing out water. He stated that there was provision for the same
in the estimate. The total width of the acquired land according to him was
6m and the canal width was 2.8m. He admitted that the contractor could
envisage what all particulars were there in the structure on seeing the
drawings and the specifications.
35. Item No.2 in Ext.P3(b-1) pertaining to S.A. No.3 was
cement concrete 1:3:6 using graded metal 60% 40mm and 40% 20mm to
alignment, grade and dimension for making up in slushy including all
forming, watering, curing etc. The total quantity for the same was 98M3
and the rate arrived at in negotiation was 1400/M3. It was admitted by
PW1 that nowhere in Ext.P1 file it was stated that trial pit was taken. He
further admitted that in Ext.P2(a) it was noted that the canal reach portion
was sandy soil and paddy field. He again stated that in LS drawing it was
noted in 2000M and 2100M there was a pond. He further admitted that
from Ch.2310 M to 2400M there was paddy field and for making up the
said portion this item of work was done. The same item of work was
included as item No.5 in Appendix-G to the original agreement. The said
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 37
item was also cement concrete 1:3:6 using graded metal 60% 40mm and
40% 20mm Ext. P4(i) is sheet Nos. 113 to 115 of Ext.P4 file. It could be
seen from Ext.P4 that by adopting 1990 schedule of rates for this item the
AEE had recommended Rs.817.61/M3 which was finalized by E.E. as
Rs.681/M3. Ignoring all these matters at the time of negotiation as seen
from Ext.P4(m) negotiation statement the amount arrived by the 1 st
accused on negotiation with the 2nd accused was Rs. 1,400/M3. In that case
the rate allowed was Rs.725/M3. He also testified that for the said item an
amount of Rs.1,400/M3 was granted in S.A. No.3 by the 1 st accused. So in
this place clause 32 of the LCB conditions would not apply since it was
not an `extra item' but an item already covered in the original agreement.
In the said circumstances as per clause 31 of LCB specifications revised
rates should not exceed the rate quoted even when the quantities of work
actually done exceeded by more 30% of the agreed quantity. So with
respect to item No.2 in Ext.P3(b-1) the said item could not be treated as an
`extra item' and the amount of Rs.1400/M3 was awarded by the 1 st
accused to the 2nd accused in violation of clause 31 and 32 of LCB
conditions.
2026:KER:9212
36. Item No.3 in the S.A. No.3. Ext.P3(b-1) was the
construction of flume canal from Ch. 1700M to 1715M with a bed width
of 2.70M. PW2 stated that as per the original proposal the width of the
flume canal was 2.4m and the length was 15m, but the width was
increased to 2.7M. The first item under Item III was C.C.1:4:8 using 40
mm broken stone for foundation. The said item was same as Item No.5 in
Appendix L-1 of Ext.P3(a-1) original agreement. The item No.2 of RCC
1:2:4 using 20 mm broken stone for flume canal including all form work
watering & curing etc. The said item was item No.7 in Ext.P3(a-1), the
schedule of original agreement. The third item was reinforcement of RCC
work, bent, tied and placed in position as per specification and it was item
No.8 in Ext.P3(a-1). It is discernible that for item No.1 the amount
awarded in the original agreement was Rs.500/M3; for item No.2 the
amount awarded in the original agreement was Rs.1,150/-; for item No.3
the amount awarded in the original agreement was Rs.11,000/-. PW2
further stated that Ext.P4(g) was the proposal sent by the E.E to the S.E.
with respect to the aforesaid three items. In Ext. P4(g), it was stated by the
EE that as per the original agreement the Contractor was supposed to
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 39
construct barrel of inside width 2.4.M between Ch.1700M to 1705M. But
the off take of Oachira Minor Distributory was fixed at Ch.1720M. The
contractor had to alter all the shuttering arrangement which was originally
suited for casting barrel of 2.4m width resulting in considerable additional
expenditure to the Contractor. There was a change in the dimension of the
flume canal and it may be treated as extra and relying on 1990 schedule of
rates, he has refixed the rate in Ext.P4(h) that is Rs.531.48/M3 for the first
item, Rs.1,186/M3 for the second item and Rs.7567.40/T for the third
item. As already stated the said rates were fixed by adopting the 1990
schedule of rates. The 1st accused had negotiated with the 2nd accused for
fixing the rates for these items also. Ext.P4(1) were the rates claimed by
the 2nd accused. Ext.P4(m) was the negotiation statement prepared by
PW2. PW2 deposed that the negotiated rates in Ext.P4(m) were arrived by
the 1st accused. According to him, for the first item the amount arrived by
the 1st accused was Rs.850/M3, instead of Rs.531.48/M3 suggested by
E.E. as per 1990 schedule of rates. The rate fixed for item No.2 by the 1 st
accused on negotiation is Rs. 1,700/M3, instead of Rs.1,186/M3 suggested
by the E.E. The rate fixed by the 1 st accused on negotiation as seen from
2026:KER:9212
Ext.P4(m) for third item was Rs.11.000/Tonne against the amount of
Rs.7,567.40/T suggested by the E.E. It was only an extra quantity of work
done by the accused. So he can claim the amount only within the purview
of clause 31 of the LCB conditions. Thus PW2 categorically given
evidence that clause 31 and 32 of LCB conditions were violated to execute
SA and to grant exorbitant amount. PW2 further asserted that there was
violation of the delegation of financial powers of the S.E. provided under
Appendix II(a) of the Public Works Department Manual.
37. The next item was supplying and fixing PVC water
stopper 45cm wide and filling the gaps with 25mm thick machine pressed
bitumen pad of approved quality including all cost and conveyance etc.
complete. The item rate fixed in the original agreement for this item was
100/M. It is true that in the original agreement, the water stopper
mentioned was 45 cm wide. The evidence would show that Ext.P1(g) letter
was sent by the 2nd accused to PW1 stating that water stopper of 45 cm
width was not available in the market and accordingly permission was
sought to use water stopper of 30.5cm size which was the only one
available in the market. Ext.P1(h) letter was sent by PW1 permitting the
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 41
2nd accused to use 30.5cm width of water stopper and also suggesting for
execution of SA. The E.E. had submitted the data of providing PVC water
stopper of 30.5 cm wide and refilling the gaps with 25mm thick machine
pressed bitumen pad. He had stated that the cost of materials provided by
him in the data were the current market rates. He had requested for
approving the said data and execution of S.A. Ext.P4(a-1) would go to
show that the data so suggested by the E.E. was Rs.205.42/M. Ext. P4(b) is
the letter sent by the S.E. to the 2nd accused calling upon him to offer the
minimum rate for the extra rate for supplying and fixing 30.5cm width of
PVC water stopper. Ext. P5(a) is the notes submitted by the Draftsman to
PW1 with respect to this item. In Ext.P5(a) it was stated that the sanction
to use 30.5cm wide PVC water stopper instead of 45 cm wide PVC water
stopper was issued to the 2 nd accused, the E.E. in his letter dated 12.1.1989
had submitted the data and supplemental schedule for the above extra item
and the data was checked and put up for approval and the rate would come
to Rs.205.42/M and there was request for approval of the said item. As per
Ext.P5(a-1) PW1 had suggested certifying the reasonableness of the costs
of PVC water stopper. It is admitted by PW1 that till he left the said office,
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 42
no S.A was executed for the said item. Ext.P4(c) is the letter sent by the 2 nd
accused to S.E. claiming rate for the water stopper. In Ext.P4(c) the rate
claimed by the 2nd accused was Rs.435/running Metre for 30.5cm wide
water stopper. In Ext.P4(m) PW2 stated that the rates suggested was
Rs.372.34 since the same was the rate sanctioned for the water stopper in
the same nature of work in another reach at Kulasekharapuram. Ext.P4(m)
is a negotiation statement wherein the amount arrived on negotiation was
Rs.750/M. So it was evident that the amount sanctioned by the 1 st accused
was much higher than the amount of Rs.435/-, that is the amount claimed
by the 2nd accused or the amount of Rs.205.42/-, the amount suggested by
E.E on the amount of Rs.372.34/-, the amount sanctioned for another
reach. It was admitted by PW2 that when the same was executed about
90% of the work was already over. In this regard it is relevant to note that
PW1 testified that water stopper was a PVC pad fixed in the joints on two
sides of the flume to prevent leakage of water. Thus the prosecution
clearly established that the price for water stopper had been fixed even
from the beginning of the work and 90% of the said work was over when
S.A. No.3 was executed for the said item. So the amount was awarded by
2026:KER:9212
the 1st accused to the 2nd accused in violation of clause 31 & 32 of LCB
conditions and also in excess of the financial powers conferred on S.E. by
the Kerala Public Works Department Manual.
38. Item No.5 in S.A. No.5 was providing shoring to the
sides of the canal using half split coconut piles etc. during foundation
excavation and during concreting of the structure so as to protect both
sides from slipping at the portions wherever required and removing the
same after the completion of the structure. PW1 testified that it was the
responsibility of the contractor to provide side protection at the time of
digging the canal. PW1 deposed further that he had visited the site and
slope excavation had not done and even there was no space available there
for slope excavation. Ext.P1(i) was the letter sent by the Contractor - the
2nd accused to PW1. Ext. P1(i) would show that the contractor raised claim
that during the earth work excavation both banks of the canal were
slipping down because of sandy soil and now we were excavating at 1:1
side slope and they were providing shoring at 1.5m height and round clock
bailing out of water with 5 HP pump and he had requested issuance of
necessary orders for the payment for additional earth work for side slope,
2026:KER:9212
shoring and bailing out of water. Ext.P1(j) is the reply sent by PW1 who
was the then S.E. to the 2nd accused. In Ext.P1(j) it is stated by PW1 that
any unauthorized modification in side slope, providing shoring without
approval or extra pumping not duly approved at site by the site officers
would not be paid at all.
39. In terms of clause 54 of the LCB conditions of contract,
the contractor is bound to keep machine numbered well bound spot work
order book at the site of work. All instructions given to the contractor by
inspecting officers should be recorded in the book and initialled by the
officers. No oral orders said to have been issued would be accepted as a
claim for payment. A reading of the said clause taken along with Ext.P1(g)
letter would make it clear that the 2nd accused was not eligible for any
claim under the head shoring as an extra item of work unless the same
work was done as per clause 54 of LCB conditions. As per report of the
E.E, ie. Ext.P5(e-1), it was noted that the length of the shoring done was
measured as Rs.2700/m3 and the contractor demanded rate @ of
Rs.2,000/M3. But the E.E. had not submitted data and details for shoring
done. The 1st accused had suggested that the shoring had to be treated as
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 45
`extra item' and rate had to be called for from the Contractor. Ext. P4(k) is
the letter sent to the 2nd accused on the basis of the recommendation of the
1st accused. Ext.P4(1) is the reply submitted by the 2 nd accused wherein he
had claimed Rs.3,000/Rm for providing shoring, consolidating of earth
during consolidating of flume canal. Accordingly as per Ext.P4(m)
demand was negotiated and Rs.1,169.50/RM for shoring was granted by
the 1st accused. Accordingly as per S.A. No.3 the said amount was granted
per running metre to the 2nd accused for a total length of 217M. Clause 35
of Specification for Canal Works issued by the Kerala Public Works
Irrigation Department for KIP dealt with Excavation for structures. It has
been provided that "except as otherwise provided all excavation for
structures will be measured for payment to lateral dimensions 15 cm
outside the foundation footing or slab or where foundation footings or
projecting slabs are not used lateral dimensions 30cm outside of exterior
walls or surfaces of the structures and to side slopes 1 to 4 provided that
when the character of the material cut into is such that it can be trimmed
to the required lines of the concrete and the need for intervening forms
eliminated payment will be made only for the excavation within the neat
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 46
lines of the concrete. Provided further that for any part of the work where
in the opinion of the Engineer-in-charge the conditions will be measured
for payment to the most practicable dimensions and lines staked out or
otherwise established by the Engineer-in-charge. The contractor shall
prepare the excavated surface in a manner, suitable for forming
foundations or concrete structures. The bottom and side slopes of
excavation upon or against which concrete is to be placed shall be
accurately finished by hand to the dimensions shown on the drawings or
prescribed by the Engineer-in-charge and the surface so prepared shall be
moistened with water and tamped with suitable tools for the purpose of
thoroughly compacting them and forming firm foundation upon or against
which to place the concrete. If at any point in excavation, the foundation
materials are excavated beyond the neat lines required to receive the
structure, or specified lines, grades and dimensions the over excavation
shall be filled with the same material as that of the foundation footing at
the cost of contractor. If any point in excavation, the natural foundation
material is disturbed or loosened during the process, it shall be
consolidated to a degree satisfactory to the Engineer- in-charge or
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 47
otherwise it shall be removed and replaced with selected material
compacted to the satisfaction of the Engineer-in-charge. Any and all
excess excavation or over excavation performed by the contractor for any
purpose or reason except as may be ordered in writing by the Engineer-in-
charge and whether or not due to the fault of the contractor shall be at the
expense of the contractor. No blasting that might injure the work will be
permitted and any damage done to the work by blasting including
shattering of the material beyond the required excavation lines shall be
repaired by and at the expense of the contractor and in a manner
satisfactory to the Engineer-in-charge. The schedule for excavation for
structures shall include unless otherwise specifically provided for the cost
of all labour and materials for ring bund and other temporary
construction and of all pumping, bailing, draining and all other work
necessary to maintain the excavation in good order during construction
and of removing such temporary construction where required". PW1
categorically given evidence that claim for shoring was not at all
sustainable as it was included in the excavation and he had turned down
that request of the Contractor. So the said item could never be treated as an
2026:KER:9212
`extra item' and no amount could be granted for the said item. Thus in
violation clause 31 and 32 of LCB conditions and in violation of the
financial powers confirmed on S.E. under Appendix II(a) he had awarded
amount for this item. Thus with respect to S.A. No.3 except item No. 1, all
other items were executed violating provisions of clause 31 & 32 of the
LCB conditions and total amount of Rs.71,24,015/- was gained unlawfully
by the 2nd accused at the instance of the 1st accused and corresponding loss
was suffered by the Government.
40. Coming to execution of S.A. No.6. S.A. No.6 was
executed on 28.2.1991 which according to the prosecution is the date of
retirement of the 1st accused. This was executed for 1000M 3 of RCC 1:2:4
using 20m metal (nominal size) for flume canal including constructing tie
beams to protect the side walls wherever necessary as directed by the
Engineer-in-charge including all form work staging scaffolding etc. for
curing etc. (1st item) complete but excluding cost and labour for providing
concrete had set or as directed by the Engineer-in-charge watering
reinforcement in view of item No.7 of Appendix-L in the original
agreement. The second item treated as extra item in S.A. No.6 was
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 49
reinforcement for RCC work, bent, tied and placed in position as per
specification for flume canal, tie beam etc. in lieu of item No.8 of
Appendix-L in original agreement. It is argued by the learned Senior
Counsel for the 2nd accused that the tie beams were neither provided in the
detailed estimate nor in the diagram supplied to the 2 nd accused and the
parties were not at consensus in idem with respect to the construction of tie
beams. In this regard the evidence of PW5 is relevant, since the estimate
for the same was prepared by PW5 who was the then A.E. He deposed that
he had prepared the estimate for the work of RBC formation of
Kulasekharapuram Distributory from Ch.1700M to 2400M including CD
works and sent estimate to the A.E.E. According to him in the estimate
there was earth work excavation and the flume canal RCC 1:2:4 using
20mm metal sides, bed, haunches, tie beams along with reinforcement. He
admitted that for each item for the concrete reinforcement, the estimate
was prepared. The drawing was also prepared by him but he admitted that
he could not recollect whether in the drawing the tie beam was shown. He
admitted that the tie beams take only very small quantity when compared
to the quantity of the total work. It is only a minute portion of the flume
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 50
canal and so when the cross section was prepared the same was not
included. He further stated that it was he who got the work executed by the
2nd accused at the site. According to him, first of all the work of excavation
was done followed by concreting of the foundation. He added Thereafter
the flume canal was constructed and for that purpose the form work was
done. Thereafter the tore steel, bent, tied and fixed and the form work was
done inclusive of the shutter, haunches etc., then the haunches from the
sides and the bed work were completed. He testified further that the tore
steel were kept for construction of the tie beams and gap was given for
portion with wooden plank. According to him after cast of several barrels
of flume was over, the tie beams were constructed. Ext.P11 is the file kept
at the office of the E.E. In Ext.P11(a) the consolidated reinforcement of
the cement and tore steel is mentioned. In sheet No.55 of Ext.P11(a) the
tore steel required for construction of the tie beam was shown as 51.528M.
In sheet No.53, which is Ext.P11(a-1), the quantity of the main rod,
stirrups etc. required for the tie beam was shown. The same was signed by
the A.E.E. He added that as per 1986 schedule of rates the estimate was
prepared. PW1 the S.E deposed that in Ext.P1(c), 46 tie beams were
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 51
included at an interval of 15m, the length of the tie beams mentioned as
2.8m, width of 0.15M and depth of 0.15m. So the total quantity of tie
beams required were 2.9M3. He also admitted that as per the specifications
he could not understand whether the tie beam was included in the schedule
appended to Ext.P3(a) the original agreement. He further admitted that in
the drawings appended to the agreement as well as in the cross section tie
beam was not specifically mentioned. According to him since the tie
beams were constructed only at 15m intervals the same were not included
in the digging section. He further deposed that the total quantity of 1000M3
and 100T tore steel would include the tie beams also and if it was not
included in the drawings, the contractor was bound to construct the tie
beams. According to PW1 pre-bid conference was convened only for the
purpose of giving an opportunity to the prospective tenderers to understand
fully about nature of work to be executed by them. Page 53 of Ext.P3(a) is
the minutes of the pre bid conference held at KIP RBC Office in
Kottarakkara at 11 am on 2.3.1988. PW1 further stated that the 2 nd accused
did not attend the said conference or in other words failed to avail the said
opportunity. In page 122 of Ext.P4(n) there was a letter sent by the 2 nd
2026:KER:9212
accused to the C.E and forwarded to the S.E. The same was seen signed by
Al the S.E. on 22.2.1991. This was sent to the E.E for his remarks and he
was directed to offer his report with rate and quantity for these items. In
Ext.P4(n), the 2nd accused had claimed that the construction of tie beams
was not mentioned in the original agreement and there was change of
design due to the construction as an `extra item' and the same had to be
treated as an `extra item' and payment had to be effected. Ext.P5(f) is the
note put up in relation to Ext. P4(n). In Ext.P5(f), it was noted that no
reply was received from the E.E. The same was dated 23.2.1991. In
Ext.P5(g) the 1st accused had put up the note to treat RCC 1:2:4 and
reinforcement as purely extra item and contractor should be called upon to
approach him for negotiation. The said letter was seen served to the
Contractor on 23.2.1991 as could be discernible from Ext.P4(o). In
Ext.P4(o), the 2nd accused had claimed Rs.3/dm3 for RCC 1:2:4 barrel and
Rs.18/kg including cost of steel for reinforcement. Ext.P4(p) is the
negotiation statement for the said item. The negotiation was done on
27.2.1991.
41. PW2 deposed that even on the date of negotiation the
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 53
report of the E.E on Ext.P4(m) was not obtained. In the negotiation
statement Ext.P4(p) the column of rate allowed on negotiation and remarks
were filled up by the 1st accused. He had noted that negotiated with the
Contractor and obtained his concurrence. According to him, for RCC 1:2:4
instead of the agreed rate of Rs.1,150/-, the amount arrived was
Rs.1,590/M3. Like wise for reinforcement instead of the agreed rate of
Rs.7,500/T, the rate allowed was Rs.11,750/Tonne. In the original
agreement for RCC 1:2:4 the amount allowed was Rs.1,150/- and the cost
of the cement supplied by the Government was Rs.396/-. So the labour and
material portion would come to Rs.754/-. So as per the original agreement
the contractor would get Rs.754/- as labour and material portion. But
during negotiation the amount was fixed at Rs.1,590/-, the cost of
departmental material remaining the same as Rs.396/- and the labour and
material portion which the contractor get would come to Rs. 1.194/M3.
Like wise regarding the reinforcement for RCC work as per the original
agreement, the agreed rate was Rs.7,500/T and the recovery rate of tore
steel per Ton as per the original agreement was Rs.650/-. So the labour
portion of the contractor as per the original agreement would come to
2026:KER:9212
Rs.1,000/T. In Ext.P4(p) negotiation statement or in other words in
Ext.P3(c-1) S.A. No.6 this amount was raised to Rs. 11,750/-. Then also
the recovery rate of the tore steel remained the same as in the original
agreement that is Rs.6,500/T. Then the contractors labour portion will
come Rs.5,250/-.
42. No doubt, as per clause 10 of the LCB conditions of
contract the contractor had to do the work in accordance with the drawings
and specifications. Clause 10 mentioned the purpose of drawing and
specifications and conformance. It could be seen that the contract drawings
read together with the contract specifications were intended to show and
explain the manner of executing the work and to indicate the type and
class of materials to be used. In this case the evidence would show that tie
beams were not included in the drawings and specifications. So the
construction of tie beams could be treated as `extra item' apart from the
construction of flume canal. The total quantity of tie beams to be
constructed was 2.9m. It was the definite case of the prosecution that
though it was omitted to be mentioned in the drawings, the total quantity
of 1000M3 and 100T of tore steel provided in the estimate and drawings
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 55
would take in the tie beams also. This contention is found to be sustainable
since in the original agreement as well as in the S.A.No.6 the total quantity
of RCC 1:2:4 using 20mm metal and the reinforcement for RCC work,
bent, tied and placed in position was one and the same that is 1000M 3 and
100T respectively. Apart from all these facts even if the tie beams were
taken as not in the contemplation of the contracting parties then the tie
beams alone could be treated as an `extra item' of work for which excess
amount could be granted, the quantity of which was 2.9 M3. But the 1 st
accused awarded huge amount for the entire quantity of 1000M 3 of RCC
1:2:4 and entire quantity of 100T reinforcement of RCC work. Apart from
that PW3 the A.B.E deposed that for RCC work, the rate for reinforcement
was fixed on the basis of the weight. According to him, whatever be the
nature of the work that was done, the rate would be fixed on the basis of
the weight and the same was provided in the PWD Data Standard Book.
He added that even if there was change in the structure or design, then also
the amount would be awarded on the basis of the weight of tore steel for
reinforcement work. The said amounts were awarded in violation of clause
31 and 32 of LCB conditions and also in violation of the financial powers
2026:KER:9212
of the 1st accused. This aspect to be borne out from page 17 serial Nos. 130
and 130(a) of PWD Standard Data Book wherein it has been provided that
for reinforcement of RCC work, bent, tied and placed in position the rate
would be on the basis of weight and not otherwise.
43. The crucial question poses is whether the 1 st accused
granted excess amount legally for the work in dispute and the contention
of the 1st and 2nd accused claiming that the work for which excess amounts
were granted would come within the purview of extra-work, i.e, `extra
item'? In this connection the evidence adduced would show that those
woks are not `extra items'. If the contention of the accused that those
works to be considered as `extra-items', then next is the mode for claiming
`extra item' to be found in Ext.P3(a), the original agreement, and LCB
specifications should have been followed scrupulously without fail.
44. Clauses 31 and 32 of LCB specifications in Ext.P3(a)
agreement deals with `schedule of quantities' and `extra items'. Clause 31
reads as under:
"31. Schedule of Quantities : Variation in the quantities of work
in the bill of quantities shall not vitiate the contract. The rates quoted for
the individual items shall apply for the quantities of work increased or
2026:KER:9212
decreased by not more than thirty percent for each of the items. Should
quantities of work actually involved under any item exceed quantities
provided in the tender by more than thirty percent the rate of such excess
over thirty percent of quantity provided in the tender may be revised in
accordance with the procedure indicated under clause "extra items".
However, the said revised item rate shall not exceed the item rate quoted,
subject to adjustment in accordance with price adjustment clauses. Should
the quantity of work actually involved under any items be reduced by more
than thirty percent of quantity provided in the tender, the bid unit price of
the affected item may be revised in accordance with the procedure
indicated under "extra items". However, the total cost of such item should
not exceed the cost of seventy percent of the item quoted, subject to
adjustment in accordance with price adjustment clauses. The payment of
the item will continue to be made at the original rate until the revised rate
is decided."
Clause 32 reads as under:
"32. Extra Items : Extra items of work shall not vitiate the
contract. The contractor shall be bound to execute extra items of work as
directed by the Superintending Engineer. The rates for extra item to be
mutually agreed."
45. The prime contention raised by the learned counsel for
the accused is that clause 32 empowers the S.E to address extra items of
works and the rates for extra item to be mutually agreed by negotiation
and, therefore, the amount in excess obtained by the 2 nd accused, which is
2026:KER:9212
the amount alleged to be misappropriated by accused Nos.1 and 2, in fact,
was granted by the 1st accused by exercising his power under clause 32.
In this connection, clauses 31 and 32 of LCB specifications to be read
together. Clause 31 provides that `extra items' of works shall not vitiate
the contract and the contractor shall be bound to execute the extra items of
work as directed by the S.E and the rates for extra item to be mutually
agreed. In this connection, it is relevant to note that the 1 st accused
worked as S.E, KIP RB Circle, Kottarakkara from 06.07.1990 to
28.02.1991. That is to say, he had retired after 6 months' of service as on
28.02.1991. The prosecution case is that on 23.02.1991, i.e 5 days before
retirement of the 1st accused, the 2nd accused pressed for claims under the
extra items for the works which were conducted by Ext.P3(a) and it was
acted upon by the 1st accused within 5 days even though almost all the
works for which claims for extra rate raised by the 2 nd accused would
require thorough verification to ensure whether the works were actually
done or not or the same would fall in the category of `extra items'. Thus
even a cursory look at the evidence available would show that the claim
for extra work was considered by the 1 st accused on 23.02.1991 in a hurry-
2026:KER:9212
burry manner and prior to that, there was negotiation on 21.01.1991 for 4
items of work and according to accused Nos.1 and 2, those were `extra
items', though the evidence discussed in detail would show the same as
items covered by Ext.P3(a) original agreement.
46. In this connection, it is relevant to note clause 31 and
32; clause 32 could not be read in isolation and clause 32 is to be read
along with clause 31, as already observed. The learned counsel for the
accused given much emphasis to clause 32 even without referring clause
31. Clause 31 provides that variation in the quantities of work in the bill
of quantities shall not vitiate the contract. Should the quantities of work
actually involved under any item exceed the quantities provided in the
tender by more than 30%, the rate for such excess work beyond 30% of
the quantity provided in the tender may be revised in accordance with the
procedure indicated under clause 32 `extra items'. However, the said
revised item shall not exceed the rate of the item quoted, subject to
adjustment in accordance with the price adjustment clauses. In Ext.P3(a),
the price adjustment clause provided as 32/A was struck off and therefore
the same would not apply in the present contract, as already found. Thus
2026:KER:9212
the revised rate shall not exceed the item rate quoted though a maximum
of 30% of such excess quantity, could be negotiated in terms of clause 32.
So, when reading clause 31 and 32 together, the application of clause 32
is subject to clause 31.
47. Here the prosecution alleges that, as part of conspiracy
hatched between accused Nos.1 and 2, they had misutilised clauses 31
and 32, which do form part of Ext.P3(a) original agreement and
negotiated 5 items of work, viz. (1) Construction of a road crossing at
Ch.1950 M, (2) C.C.1:3:6 for making up foundation, (3) Constructing
flume canal from Ch. 1700 M to 1715 M with bed width of 2.7 meter, (4)
Supplying PVC water stopper 305 MM wide and (5) Providing shoring
etc.
48. Regarding the application of clauses 31 and 32 of LCB
specifications, the learned Special Judge, meticulously addressed the
same in para.10 of the judgment and the said finding is found to be
justifiable. Relevant observation in paragraph 13 is extracted as under:
"PW2 further admitted that what was contemplated in the original
agreement is foot bridge whereas the newly constructed bridge whereas the newly
proposed one is a motorable bridge. The construction of the said road crossing at
Ch. 1950M was brought to the notice of the C.E. through Ext.P4(e) letter. It is stated
2026:KER:9212
in Ext.P4(e) that an estimate amounting Rs.2,36,800/- has been prepared and
submitted by the S.E. for road crossing at Ch.1950M as per the request of
Sri.T.M.Nanu Master MLA and hence the E.E. was directed to see that the work
should be done through the same agency. Ext.P4(e) was approved and initialled by
A1 as identified by PW2. Ext.P4(f) is data submitted by A3 to the S.E. It is based on
the 1990 schedule of rates. The said data was scrutinized by PW2 and the corrected
data was approved by the S.E. So it has come out in evidence that this is clearly an
extract work which was not contemplated at the time of execution of original
agreement. Hence there is no violation of any clauses of LCB conditions in execution
of S.A. No.3 for construction of road crossing at Ch. 1950M. The total amount
covered by this item No.1 in Ext.P3(b-1) is Rs.3,36,743/- The second item in
Ext.P3(b-1) that is S.A. No.3 is cement concrete 1:3:6 using graded metal 60%
40mm and 40% 20mm to alignment grade and dimension for making up in slushy
including all forming, watering, curing etc. The total quantity for the same is 98M3
and the rate arrived at in negotiation was 1400/M3. It is admitted by PW1 that
nowhere in Ext.P1 file it is stated that trial pit was taken. He further admitted that in
Ext.P2(a) it is noted that the canal reach portion is sandy soil and paddy field. He
again stated that in LS drawing it is noted in 2000M and 2100M there was a pond.
He further admitted that from Ch.2310 M to 2400M there was paddy field. For
making up the said portion this item of work was done. The same item of work was
included as item No.5 in Appendix-G to the original agreement. The said item is also
cement concrete 1:3:6 using graded metal 60% 40mm and 40% 20mm Ext. P4(i) is
sheet Nos. 113 to 115 of Ext.P4 file. By adopting 1990 schedule of rates for this item
the AEE has recommended Rs.817.61/M3 which was finalized by E.E. as Rs.681/M3.
Ignoring all these matters at the time of negotiation as seen from Ext.P4(m)
negotiation statement the amount arrived by Al on negotiation with A2 was Rs.
1,400/M3. In that case the rate allowed was Rs.725/M3. For the said item an amount
of Rs. 1,400/M3 was seen granted in S.A. No.3 by Al. So in this place clause 32 of
the LCB conditions will not apply since it is not a pure extra item but an item
already covered in the original agreement. In the said circumstances as per clause
31 of LCB specifications revised rates shall not exceed the rate quoted even when the
quantities of work actually done exceeded by more 30% of the agreed quantity. So
2026:KER:9212
with respect to item No.2 in Ext.P3(b-1 the said item could not be treated as an extra
item and the amount of Rs. 1400/M3 was awarded by A1 to A2 in violation of clause
31 and 32 of LCB conditions."
49. According to the learned Senior Counsel for the
accused, all the items are covered under extra items of clause 32 of LCB
and, therefore, the S.E exercised his power under Section 32, negotiated
the case and granted the same. It is interesting to note that the entire
claim, in fact, was put up and finalised on the last week of February, 1991
and thereafter on 28.02.1991 the 1st accused retired from service and as
pointed out by the learned Special Public Prosecutor, in a hurry-burry
manner, for a work for which the original expenditure fixed as
Rs.23,15,000/-. That is to say, apart from Rs.23,15,000/- originally
agreed and granted, an additional sum of Rs.34,78,458/- had been
sanctioned by the 1st accused and obtained by the 2nd accused and both of
them derived due pecuniary advantage over the same.
50. On re-appreciation of the evidence discussed, it would
appear that as far as item Nos.2 to 4 covered by SA3 and 2 items covered
by SA6, the said works were originally included in Ext.P3(a) original
agreement, for the said work, no claim under the head `extra item' could
be granted. That apart, item No.2 in SA3, as deposed by PW1, the same
2026:KER:9212
also was included as item No.5 in appendix G and also the same was made
part of Ext.P1(a) estimate. As pointed out by the learned Special Public
Prosecutor, the 1st accused fixed much higher rates in excess of the agreed
rate as extracted hereunder above for the works and the 1st accused was
not empowered to do so by clause 32 of LCB specification, which do form
part of Ext.P3(a). Most importantly clause 32 of LCB has no application
for these works already agreed upon in Ext.P3(a) original agreement. Thus
it is proved that the 1st and 2nd accused entered into criminal conspiracy
and by violating clause 31 and 32 of LCB conditions executed S.A. No.6
also thus by awarding an excess amount of Rs.27,65,000/-. It was proved
by the prosecution that S.A Nos.3 and 6 were executed as a result of the
conspiracy entered between the 1st and 2nd accused in violation of clause
31 and 32 of LCB conditions resulting in pecuniary advantage of
Rs.34,78,415/- to the 2nd accused and corresponding loss to the
Government.
51. Thus the conclusion to be reached by the Court is that
regarding the above items, as part of a conspiracy hatched between the 1 st
and 2nd accused, before the retirement of the 1 st accused, some claims were
2026:KER:9212
raised by the 2nd accused and in a hurry-burry manner the 1st accused
granted the same on the date of his retirement. It is judicially noticeable
that the 1st accused also granted amounts to various contractors on the last
date of his retirement in a similar fashion and caused huge loss to the State
exchequer.
52. The contention raised by the learned Senior Counsel for
the 2nd accused that the shiny and slushy nature of the soil and thereby
extra work was exercised also could not be countenanced since Ext.P3(a)
agreement was executed after understanding the nature of the sand in the
same fashion and even the 2nd accused failed to attend the pre-bid meeting.
It is true that though the tie beams originally agreed were 46, 72 tie beams
were constructed and for which the 2nd accused is entitled for the amount,
as per the agreed rate. In the instant case, even though the 2nd accused is
entitled to get 26 items of tie beams extra constructed, the construction
should be quantified at the rate agreed and not in excess of that. Despite
this, huge amounts were granted by the 1 st accused by misusing clause 32
of the LCB specifications. Even though the learned Senior Counsel for the
2nd accused relied on two decisions of this Court in Varghese Mathew &
2026:KER:9212
Ors. v. State of Kerala 's case (supra) and K.G.Ashokan v. State of Kerala
(supra), the facts dealt in those cases and the facts of this case are totally
different. Further, in the above cases interpretation of clause 31 and 32 of
LCB not at all properly addressed. Therefore, the said ratio cannot be
applied to the facts of this case. In addition to that another learned Single
Judge of this Court in Crl.Appeal No.1112/2002 as per judgment dated
04.03.2011 considered the decision in N.E.Abraham v. State of Kerala and
Varghese Mathew & Ors. v. State of Kerala 's case (supra) and thereafter
interpreted clause of 31 and 32 of LCB form part of Ext.P3(a) the original
agreement and observed in para.26 as under:
""26. Going by the above decision it is seen that in that case the
conviction was reversed on a conclusion that the payment made thereon cannot be
found illegal merely because of the violation of the orders or circulars. The facts of
that case revealed in evidence was not at all discussed in the reported judgment. It is
also seen that the learned Single Judge had given reliance to the decisions of the
Apex Court in Major S.K.Kale v. State of Maharashtra [AIR 1977 SC 822],
C.Chenga Reddy and others v. State of A.P. [1996 (10) SCC 193] and Abdulla
Mohammed Pagarkar v. State (1980(3) SCC 110]. Going by the above decisions, it is
seen that those decisions are with reference to a particular set of facts which has
absolutely no bearing with the case on hand. Here, it is not the question of any
violation of the circulars or procedures or government orders. But the issue is
relating to the clandestine manner in which the appellant had lodged a claim one year
and four months after the complete execution of the work and the manner in which
the supplemental agreement was executed on the eve of the retirement of the
2026:KER:9212
Superintending Engineer and the passing of the bills by the 2nd accused on the eve of
his retirement. The evidence on record in this case would convincingly establish that
there was abuse of office by the Superintending Engineer and the Executive Engineer
in executing Ext.P2(b) agreement and in passing the bills for payment a high and
exorbitant rate, namely 240 times of the originally agreed rate. As concluded by the
Special Judge, the appellant is not entitled to any extra rate other than the rate in
Ext.P2(a). It is knowing that aspect, the appellant also agreed in Ext.P2(c) dated
20.3.1990 that he is not entitled to claim any extra rate. The Superintending Engineer
and the 2nd accused were also aware of it. But to agree for a higher rate,
Superintending Engineer and the appellant conspired together and Ext.P2(b)
agreement was executed on 30.4.1991. The 2nd accused also knowing the fact that
the appellant was not entitled to extra claim additional bills were prepared and passed
overruling the objection by the Subordinate officers. Conspiracy between the
appellant and 2nd accused is also evident. Bills were passed very hastily and last
payment was on the date of retirement of the 2nd accused."
In N.E.Abraham v. State of Kerala 's case (supra) the learned Single
Judge of this Court correctly stated the law regarding grant of extra items
in consensus with the view taken in this judgment, as I already found.
53. Thus the prosecution succeeded in proving that the 1 st
and 2nd accused hatched criminal conspiracy with the common object of
deriving undue pecuniary advantage and by adopting corrupt or illegal
means and in pursuance of the said conspiracy and by misutilising clauses
31 and 32 of LCB executed S.A Nos.3 and 6 resulting in pecuniary
advantage of Rs.34,78,415/- to the 2nd accused and corresponding loss to
2026:KER:9212
the Government.
54. It is surprising to note that the learned Senior Counsel for
the appellant raised challenge regarding sanction under Section 19 of the
PC Act, 1988 in the instant case. The learned Senior Counsel while
raising this contention, failed to take note of the fact that, admittedly the 1 st
accused, for whom sanction under Section 19 of the PC Act, 1988 is
required for taking cognizance of the PC Act offences, retired on
28.02.1991 and the investigation and cognizance for the PC Act offences
against the 1st accused was taken after his retirement and Section 19(1) of
the PC Act, 1988 doesn't provide for sanction in the case of an employee
who retired from service at the time of cognizance. Therefore, this
contention is found to be untenable.
55. To sum up, it is found that the Special Court rightly
appreciated the evidence and came to the conclusion that the appellant
Nos.1 and 2 committed offences punishable under Section 13(2) r/w 13(1)
(d) of the PC Act, 1988 (`PC Act, and Section 120B of the IPC. Thus the
conviction imposed by the learned Special Judge is liable to be confirmed.
56. Coming to the sentence, taking into consideration of the
2026:KER:9212
gravity of the offences, the sentence imposed against the 2 nd accused is
confirmed. As far as the sentence imposed on the 1 st accused is concerned,
since he is no more, the execution of the substantive sentence stood abated.
Therefore the execution of the sentence in relation to the 1 st accused shall
be confined to realisation of fine from the accounts, if any, inherited by the
legal heirs of the 1st accused, including the additional appellants in
Crl.Appeal No.106/2011.
57. In the result, Crl.Appeal No. 106 of 2011 is dismissed,
while partly allowing Crl.Appeal No.9 of 2011 by modifying the same as
stated in para.56 above. As a sequel thereof, the order suspending
sentence and granting bail to the 2nd accused stands cancelled and the bail
bond also stands cancelled. The 2nd accused is directed to appear before the
Special Court to undergo the sentence forthwith, failing which the Special
Court is directed to execute the sentence without fail. As regards to
realisation of the fine from the legal heirs of the 1 st accused, the learned
Special Judge is specifically directed to proceed with the same without
fail.
Registry is directed to forward a copy of this judgment to the
2026:KER:9212
Crl.Appeal No.106 & 9 of 2011 69
Enquiry Commissioner and Special Judge, Thiruvananthapuram, for
compliance and further steps.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
2026:KER:9212
CRL.A.NO.106 OF 2011
APPELLANT'S EXHIBITS
NIL.
2026:KER:9212
CRL.A.NO.9 OF 2011
APPELLANT'S EXHIBITS
ANNEXURE-A: A TRUE COPY OF THE JUDGMENT IN CC.28/2002.
ANNEXURE-B: A TRUE COPY OF THE CHARGES IN C.C.NO.15 OF 2002.
