Madras High Court
State Represented By vs Lakshmanan on 2 March, 2023
Crl.A.(MD).No.264 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date : 02.03.2023
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.A.(MD).No.264 of 2020
State represented by,
Inspector of Police,
Vigilance and Anticorruption,
Nagercoil.
(Crime No.3/97 of V&AC, Nagercoil) ... Appellant/Complainant
Vs.
1.Lakshmanan
2.K.Kalidhas (Died)
3.S.Arumughaperumal (Died)
4.S.Varuvel
5.K.S.Raja
6.G.Sudarsanan Nair
7.S.Thangam (Died)
8.N.Arumugam Pillai : Respondents/Accused Nos.1 to 8
Prayer: Criminal Appeal has been preferred under Section 378
(1) Cr.P.C., to set aside the judgment of acquittal of the respondents/
Accused No.1 to 8, in Special Case No.1 of 2004 dated 24.09.2019, by the
Special Judge-cum-Chief Judicial Magistrate's Court, Nagercoil,
Kanniyakumari District and convict the respondents/Accused No.1 to 8 for
the charges framed against them.
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1/24
Crl.A.(MD).No.264 of 2020
For Appellant : Mr.Ravi, Additional Public Prosecutor
For R1 : Mr.Babu Rajendran
For R4 : Mr.N.Dilipkumar
For R6 & R8 : Mr.C.Muthu Saravanan
JUDGMENT
This Criminal Appeal has been filed by the State against the
judgment of acquittal of the respondents/ Accused No.1 to 8, passed in
Special Case No.1 of 2004 dated 24.09.2019, by the Special Judge-cum-
Chief Judicial Magistrate's Court, Nagercoil, Kanniyakumari District and to
convict the respondents/Accused No.1 to 8 for the charges framed against
them.
2.The case of the prosecution:-
PW3 make a Joint Inspection in respect of the work that was
undertaken on constructing an approach channel in Pogaiyar Reservoir
Project under the control of Public Works Department, Aralvoimozhi and
during the course of the above said joint Inspection, he found various
irregularities, commission of misappropriation, violation of rules etc., So he
made a report. Upon which, the then Deputy Superintendent of Vigilance
and Anticorruption Department, registered a case in Crime No. 3 of 1997
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under Sections 120-B, r/w. 167, 218, 420, 409 IPC and r/w 13(1)(2 r/w
13(1)(c) and (d) of Prevention of Corruption Act, 1988, on 09.06.1997.
Further investigation was also undertaken and after completing the
formalities of investigation, final report was filed and taken cognizance in
S.C.No.1 of 2004 and the following charges were framed against the
accused.
3.At that time of laying charge sheet, accused No.5 namely
M.Maria Siluvai, accused No.7 namely M.Ramanathan and accused No.8
M.G.Subramanian, expired. So the charges against them were ordered as
abated and the following charges were framed against the remaining
persons.
Sl. Name of the Accused and Name Charges framed Counts
No. of the Act. under Section
1 S.Lekshmanan
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.167 10 Counts
Indian Penal Code u/s.420 10 Counts
Indian Penal Code u/s.409 10 Counts
Prevention of Corruption Act, u/s.13(2) r/w. 10 Counts
1988 13(1)(c) & (d)
2. K.Kalidhas
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.167 20 Counts
Indian Penal Code u/s.420 10 Counts
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Indian Penal Code u/s.409 10 Counts
Prevention of Corruption Act, u/s.13(2) r/w. 10 Counts
1988 13(1)(c) & (d)
3. S.Arumugha Perumal
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.167 20 Counts
Indian Penal Code u/s.420 10 Counts
Indian Penal Code u/s.409 10 Counts
Prevention of Corruption Act, u/s.13(2) r/w. 10 Counts
1988 13(1)(c) & (d)
4. S.Varuvel
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.109 r/w 167 4 Counts
Indian Penal Code u/s.420 4 Counts
Indian Penal Code u/s.109 r/w 409 4 Counts
IPC and Prevention of u/s.109 r/w 13(2) 4 Counts
Corruption Act, 1988 r/w. 13(1)(c) &
(d)
5. K.S.Raja
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.109 r/w 167 3 Counts
Indian Penal Code u/s.420 3 Counts
Indian Penal Code u/s.109 r/w 409 3 Counts
IPC and Prevention of u/s.109 r/w 13(2) 3 Counts
Corruption Act, 1988 r/w. 13(1)(c) &
(d)
6. Ramanathan (died)
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.167 10 Counts
7. Subramaniam (died)
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.218 1 Count
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Indian Penal Code u/s.409 1 Count
Prevention of Corruption Act, u/s.13(2) r/w. 1 Count
1988 13(1)(c) & (d)
8. G.Sudarsanan Nair
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.218 1 Count
Indian Penal Code u/s.409 1 Count
Prevention of Corruption Act, u/s.13(2) r/w. 1 Count
1988 13(1)(c) & (d)
9. S.Thangam
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.218 1 Count
Indian Penal Code u/s.409 1 Count
Prevention of Corruption Act, u/s.13(2) r/w. 1 Count
1988 13(1)(c) & (d)
10. N.Arumugham Pillai
Indian Penal Code u/s.120 B 1 Count
Indian Penal Code u/s.218 1 Count
Indian Penal Code u/s.409 1 Count
Prevention of Corruption Act, u/s.13(2) r/w. 1 Count
1988 13(1)(c) & (d)
4.To prove the charges on the side of the prosecution 18 witnesses
have been examined and 267 documents marked. On the side of the accused
side no witness was examined and no documents were marked.
5.After completion of the trial all the accused persons have been
acquitted by the trial Court from all the charges framed against them.
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Crl.A.(MD).No.264 of 2020
Against which this appeal have been preferred by the State.
6.The case of the prosecution in brief as narrated through the
evidence.
As mentioned earlier PW3 is the person, who is responsible for
the origination of the criminal prosecution. The Government through the
Public Works Department, proposed to construct the reservoir across the
Pogaiyar Rivar near Aralvoimozhi Village, Thovalai Taluk, Kanniyakumari
District. For the purpose of completing the project, the Chief Engineer,
Irrigation, Chennai, granted Technical Sanction for Rs.1195.75 lakhs. The
Superintendent Engineer, Public Works Department, Project Circle,
inspected the work on 11.05.1993. At that time, he found that a project
channel must be formed, since the site condition required the work. But the
above said work was not included in the approved scheme. So
Mr.Rajamanickam, the Superintendent Engineer, granted the approval on
the basis of the proposal made by the Executive Engineer of the project. It
was proposed to form the channel at 101.50 meters. It was split into 13
parts for the purpose of making out the tender and as well as the work. The
above said estimate was prepared by third accused Arumughaperumal, the
Assistant Engineer and counter signed by the second accused Kalidhas, the
Assistant Executive Engineer. The above said project was also sanctioned
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Crl.A.(MD).No.264 of 2020
by the Executive Engineer, who was no more and later the complaint.
7.The above said work was executed through Contractors namely
A4 Varuvel & A5 K.S.Raja and one deceased Mariya Siluvai. The above
said work was undertaken under the direct supervision of accused Nos.1 to
3. It was completed in the month of June and July 1994. The
measurements in respect of the above said were also mentioned in the 'M'
Book and 'LF' Book. The bills for the above said work was prepared and
counter signed by accused Nos.1 to 3. The preparation work was done by
accused Nos.6, 7 & 8.
8.In the meantime PW3 namely the Palanisamy the Chief
Engineer inspected the project on 25.08.1994 and 26.08.1994. As
mentioned above, he detected the irregularities and malpractices. So he
requested Mr.Kandasamy, Chief Engineer, to super check the project and
file the report. In pursuance of the above said, he filed two super check
reports on 02.12.1994 and 19.05.1995. In the report, it was stated that the
estimate were prepared falsely by mentioning incorrect and boosted
measurements. The soil excavated was also found to be incorrect. So on
the basis of the above said falsification of records, amounts were disbursed
to the contractors. In that process the total loss is Rs.1,22,492/- has been
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Crl.A.(MD).No.264 of 2020
occurred. So this is the sum and substance of the entire prosecution case. It
is not necessary to go into the minute details of the entire evidence spoken
by the witnesses for disposing this appeal. The above said narration of
substance is enough. With this background facts in mind, now, let us go to
the evidence available on record straight away.
9.As mentioned above, the basis for the initiation of the criminal
proceedings is the super check report submitted by one Kandasamy on
02.12.1994 and 19.05.1995. We straight away go to the above said report
keep in mind that this work of forming the project channel was not
originally form and part of the project, that was approved by the
Government. Only on technical ground and technical advice the above said
subject work was added by the Chief Engineer. There is no clarification on
that position. So all the officials, who are now facing charges, have
undertaken the above said work, only on the basis of the instructions given
by the higher officials. Similarly, it is not the case of the prosecution that
without following the proper open tender process the work was given to the
individual contractors, who are the accused herein. So this is also not the
case of the prosecution. What has been stated is that by falsification of
records boosted measurements have been made in the 'M' Book and 'LF'
Books for the purpose of misappropriation of Government money, not only
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Crl.A.(MD).No.264 of 2020
illegally enriching themselves, but also individual contractors.
10.He requested the then Superintendent Engineer, Kandasamy to
make super check by the letter dated 27.09.1994. The order is Ex.P.214.
Inspection was undertaken and report was filed by Mr.Kandasamy on
02.12.1994 under Ex.P.215 and Ex.P.216. He perused the entire report
which was submitted along with relevant records and again PW3 was of the
opinion that he wanted to have second Inspection report. So he again sent
the request on 26.12.1994. It has also mentioned the areas, on which, the
concentration must be made during super check. So another report was
filed on 19.05.1995 under Ex.P.226. Now let us concentrate on the earlier
report and as well as the subsequent report for further discussion.
11.The concluding portion is extracted, leaving the other
technical matters in the report.
“In the above 13 works, the payment was made for
10 works i.e., from LS. 30 to 130 M, as they were
completed, in this balance reach i.e., 130M to 160M,
the earth work are yet to be completed and no
measurements, were reported to have been recorded
for these three works.
While cheking the arithmetical
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Crl.A.(MD).No.264 of 2020
calculations made in the recorded measurements for
the 10 works (i.e.,) from LS. 30M to 130M, there
were errors in arriving the contents column of the
measurements. Due to this arithmetical error noted
in the calculation, there was excess payment of Rs.
1,22,492/- and the excess quantity of earth arrived at
is 2758.25 M3. Such excess payment made due to
mere arithmetical error shows that there is no proper
check at Section Sub division and Division levels,
while making payment.
This needs, recovery of excess amount
paid, besides, taking disciplinary action against the
lapsed officials. A statement (Statement No.3)
showing the details of irregularities (due to
artithmetical error) made in the works (10Nos.) of
excavation of approach channel in the Us of
uncontrolled weir is enclosed for reference. On
further scrutiny, it is found that the height and width
of ordinates differ in the previous and next reaches.
For eg. in the reach from LS. 30 to 40M the ordinate
for 1.50M width in 8.10+8.20/2. at 40M and in the
reach from LS. 40 to 50M the ordinate for 1.50M
width is 8.10+8.62/2 at 40M. A statement
(Statement.No.5) showing such observations is
enclosed for perusal. The correct ordinate could not
be assessed at this stage in the absence of earth
muttees.”
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12.With this extraction in the background, now let us go to the
second report, the relevant portion is extracted hereunder.
“Of the above 13 Works, the last three
reaches are not completed and measurement not
recorded and payment has not been made to
contractors. The first 10 reach were completed and
final bills paid.
On scrutinizing the measurement books in
which the measurements were recorded, it is found
there are arithmetical error in calculating the
contents of earth excavated. Due to this there is an
excess payment of Rs.1,22,492/-.
.....
The amount of overpayment due to (1)
arithmetical error (2) Boosting up of measurements
(3) superfluous design (4) Non provision of
deduction of voids have been shown in a separate
statement with total over payment in each item of
work and the officers responsible for the said over
payment.
It is also observed that no check has been
exercised on the design of retaining walls and also
the accounts branch had not included the deviation
from the project estimate and also the deduction of
voids in filling areas.
It is also observed that no proper planning
and monitoring had been done at the every stage of
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the project either monthly or quarterly at Divisional
level or circle level. As a result the items to be
executed under last priority had been taken up in the
beginning of the project without paying more
attention to the items contemplated in the scheme
estimate as main items.”
13.The comparison of the earlier report and subsequent report
with regard to the subject of this case, it is seen that very same observation
has been made by him. So according to him, only because of the Arithmetic
mistake in the first report and due to boosted measurements added in the 2nd
report, the above said excess payment has been made and recovery was also
recommended.
14.In the above said background, now, let us go to the arguments
advanced on the side of the Accused No.6 & 7. The learned counsel
appearing for them would drew the attention of this Court to the
corrections, manipulations that occurred in the 'M' Book and 'LF' Book, etc.,
This has been discussed at length by the trial Court. The relevant portion of
the judgment is extracted hereunder for better appreciation of the arguments
advanced by the accused before the trial Court and as well as by the
prosecution.
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Crl.A.(MD).No.264 of 2020
“55.The next limb of the argument is that the
documents were corrected by A1 – Lekshmanan, A2 –
Kalidhas and A3 – S.Arumughaperumal and the
Government money was misappropriated to the tune
of Rs.1,22,292/-. The main limb of the allegation is
that A1 – Lekshmanan, A2 – Kalidhas and A3 –
S.Arumughaperumal connived with the contractors
A4 – S.Varuvel and A5 – K.S.Raja to correct M
Books, L.F.Book and prepared bills with the help of
A6 – Sudarsanan Nair, A7 – Thangam and A8 –
Arumugham Pillai to misappropriate Government
money. Measurement books are referred as M books
and the Level books are referred as L.S. Books in the
discussion. It is a known fact that the entire area of
approach channel is divided into 13 points. A4 –
S.Varuvel and A5 – K.S. Raja have not disputed their
involvement in Poigaiyar Reservoir Project. The
main contention of the prosecution is that M books
with Nos.321A, 322A, 323 A were corrected by the
A1 – Lekshmanan, A2 – Kalidhas and A3 –
S.Arumughaperumal to enable them to swindling
Government money. The following table is charged
to show the accusation made by the prosecution with
reference to M book exhibits, bill exhibits and super
check exhibits. The estimated financial loss to the
Government is also given in the last row to the tune
of Rs.6,86,925/-.
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Crl.A.(MD).No.264 of 2020
Sl. No. Reach to Total Actual M book Bill Super Financial
which amount value of exhibits exhibits Check loss to
Estimate shown in the work exhibits the
relates the bill done Govern
Rs. Rs. ment
(A) (B) committe
d by the
accused
Rs.
(A-B)
1 L.S. 30 m 1,74,564 1,60,629 112 Page 112 Page Ext.228 13,935
to 40 m No.26 No.26 Page No.
2 L.S. 40 m 1,76,161 1,40,296 112 Page 112 Page Ext.228 35,865
to 50 m No.91 No.91 Page No.
3 L.S. 50 m 1,66,308 1,21,853 112 Page 112 Page Ext.228 44,455
to 60 m No.97 No.97 Page No.
4 L.S. 60 m 1,67,057 1,17,001 112 Page 112 Page Ext.228 50,056
to 70 m No.99 No.99 Page No.
5 L.S. 70 m 1,64,586 1,03,651 113 Page 113 Page Ext.228 60,935
to 80 m No.25 No.25 Page No.
6 L.S. 80 m 1,59,643 76,461 172 Page 172 Page Ext.228 83,188
to 90 m No.24 No.24 Page No.
7 L.S. 90 m 1,56,799 70,654 181 Page 181 Page Ext.228 86,145
to 100 m No.25 No.25 Page No.
8 L.S. 1,65,338 56,228 190 Page 190 Page Ext.228 1,09,050
100m to No.24 No.24 Page No.
9 L.S. 1,56,902 41,444 199 Page 199 Page Ext.228 1,15,458
110m to No.26 No.26 Page No.
10 L.S. 1,37,994 50,156 115 Page 115 Page Ext.228 87,838
120m to No.25 No.25 Page No.
Total 6,86,925
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Crl.A.(MD).No.264 of 2020
Sl.No. Reach to which Total Correct and Over Audit slip
Estimate relates amount Actual Total payment due Exhibits
shown in the of bill to incorrect
bill false and
Rs. Rs. boosted
(A) (B) calculation
and totalling
Rs.
1 L.S. 30 m to 40 m 1,74,564 1,74,635 Rs.-0,071 165
2 L.S. 40 m to 50 m 1,76,161 1,75,993 Rs.00,168 165
3 L.S. 50 m to 60 m 1,66,308 1,62,711 Rs.03,597 165
4 L.S. 60 m to 70 m 1,67,057 1,51,184 Rs.15,873 165
5 L.S. 70 m to 80 m 1,64,586 1,40,095 Rs.24,491 165
6 L.S. 80 m to 90 m 1,59,649 1,36,371 Rs.23,278 165
7 L.S. 90 m to 100 m 1,56,799 1,39,907 Rs.16,892 165
8 L.S. 100m to 110m 1,65,338 1,47,957 Rs.17,381 165
9 L.S. 110m to 120m 1,56,902 1,45,336 Rs.11,566 165
10 L.S. 120m to 130 m 1,37,994 1,28,677 Rs.09,317 165
Total Rs.1,22,492
The accused A1 – Lekshmanan, A2 – Kalidhas and
A3 – S.Arumughaperumal would categorically
disown the corrections made under the M book. The
prosecution would rather contend that the records
were in the custody of A1 – Lekshmanan, A2-
Kalidhas that they were answerable for the
discrepancies found in the records. The accused
would contend in wholesome that the entire bills
were prepared in accordance with the original
records and that they were in no way responsible for
the subsequent corrections. It is true that M books
exhibited as Ext.P221 to P225 were found with
certain overwritings and pencil entries. The
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Crl.A.(MD).No.264 of 2020
prosecution would allege that the quantum of SDR
hard sand was corrected to enable preparation of
false bills. But it has to be seen that no corrections
were countersigned by any of the officials in toto.
The accused would also rely upon the evidence of
P.W.4 to make out their point that no allegations of
boosted measurements were reported in Ext.P216
earlier report by the deceased Kanthasami. It is also
important to note that the difference between the
original recordings and corrected recordings were
interpreted to be the sustained loss. The same is
deposed by P.W.18 Sundararajan. But the accused
would fairly admit that the excess payment of Rs.
1,22,492/- was only an arithmetic error and that no
criminal liability can be fastened upon the accused
in respect of the same. Similar view has been taken
by the Honourable Supreme Court of India reported
in 1996 AIR SC 3390 held in Chenga Reddy &
Others Vs. State of Andhra Pradesh with the
highlight that departmental lapses should not be
misconstrued as criminal offence in a false billing
case by PWD officials for jungle clearance.”
15.So this clinches the issue. Perusal of 'M' Books in Ex.P221 to
P225 shows that there are some interpolations, corrections in pencils. Now
loss has been calculated only based upon the above said corrections, which
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Crl.A.(MD).No.264 of 2020
were not authenticated by the officers. How the difference has been
calculated is also not known. The corrections in the pencils and
interpolations cannot be a matter for criminal prosecutions unless it
established that the above said measurements book has been corrected to
suit their convenience. As mentioned above, it is the contention on the part
of the prosecution that accused officers 1 to 3 were in custody of the
document and they are bound to explain the corrections.
16.In this background now let us go back to the evidence of PW3.
The vernacular portion of the evidence is extracted hereunder for better
appreciation.
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tprhuizapy; mst[ g[j;jf';fspy;
gjpt[ bra;ag;gl;Ls;s mst[fis ghh;itapl;l gpd;
kpifg;gLj;jg;gl;l mst[ v!;/o/Mh;/ tif kz;
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gjpt[ bra;ag;gl;oUg;gJk; mjd; fhuzkhf
TLjyhd bjhia[k; ,J tiff;F
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Crl.A.(MD).No.264 of 2020
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fhzg;gLfpd;wd/ mst[ g[j;jfk; 322V?y; gf;f';fs;
7. 8 kw;Wk; 9 Mfpatw;wpd; v!;/o/Mh; kz; tif
rk;ge;jg;gl;l gjpt[fspy; nkw;brhd;d jpUj;j';fs;
jpUj;jg;gl;Ls;sd/ mst[ g[j;jfk; 321V?y; gf;fk;
5. 7. 8 kw;Wk; 10 Mfpatw;wpy; nkw;go
jpUj;j';fs; fhzg;gLfpd;wd/ mst[ g[j;jfk;
323V?d; gf;f';fs; 2. 3. 5. 7. 8. 10 Mfpatw;wpy;
nkw;fz;l jpUj;j';fs; fhzg;gLfpd;wd/ nkw;go
jpUj;j';fspy; cjtp bghwpahsUila
RUf;bfhg;gk; ,y;iy/ ehd; Ma;t[ bra;jnghJ
nkw;fz;l FiwghLfs; ,Ug;gjhf
bjhpatutpy;iy/ mjdhy; Ma;t[ mwpf;ifapy;
Fwpg;gplg;gltpy;iy/ mst[ g[j;jf';fspy;
fhzg;gLk; gjpt[fspy; ePs. mfy. kw;Wk; cauk;
Fwpg;gplg;gl;Ls;sd/ me;j mst[fspy;jhd;
jpUj;j';fs; fhzg;gLfpd;wd/ mitfspd; fPH;
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Crl.A.(MD).No.264 of 2020
cs;s bkhj;j bjhifapy; jpUj;j';fs; ,y;iy/
Ma;t[ mwpf;ifapy; kpifg;gLj;jg;gl;l mst[fs;
vd;W brhy;ypapUg;gJ mst[ g[j;jf';fspy; cs;s
ePs. mfy. cau';fs; mog;gilapy; cs;s
mst[fs; MFk;/ mjd; mog;gilapy; kpif
gLj;jg;gl;l bjhifq[k; bfhLf;fg;gl;Ls;sjhf
Fwpg;gpl;Ls;nsd;/ vdf;F gpd;dhy; te;j mYtyh;
Ma;t[ bra;J U:/1.22.000-? TLjyhf
brYj;;jpapUg;gjhf TwpapUg;gJ nkw;fz;l
mst[fspy; fz;l ntWghL cs;sdth vd;gij
vd;dhy; rhpahf brhy;y KoahJ/ jlwnghJ
jpUj;jg;glhj bkhj;j bjhiffSf;F ,izahf
tuntz;oa ePs mfy cau gjpt[fs; jpUj;jj;jpd;
K:ykhf ,izahf ,y;yhky; Fiwj;J
fhl;lg;gl;Ls;sJ/ kpifg;gLj;jg;gl;l mst[fs;
vd;gJ gzpapl';fspy; cs;s cz;ikahd
msittpl TLjyhf gjpt[ bra;ag;gl;lJ MFk;/
vd;Dila Ma;t[f;F gpd; mst[ g[j;jf';fs;
ghJfhg;ghf itf;fg;gl;l ,lj;jpy; itj;J ahnuh
mij vLj;J mst[fs; kpifg;gLj;jg;gl;ljhf
bjhpahky; ,Ug;gjw;fhf mst[fis Fiwj;J
jpUj;jk bra;Js;shh;fs; vd;why; mJgw;wp vdf;F
bjhpahJ/@
17.So reading of the above said portion of the evidence shows
that now the criminal proceedings has been initiated on the basis of the
above said corrections in the pencils. Which one of the measurement is
correct on ground could not be ascertained because of the non availability
of modes of bund on the date of inspection as admitted by PW3 himself and
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Crl.A.(MD).No.264 of 2020
as well as the report of Mr.Kandasamy, the then Superintendent Engineer.
So there is no basis for the accusation that boosted measurements were
given.
18.Now coming back to the charges. Absolutely, there is no
evidence on record to show that there was criminal conspiracy between all
accused. The excess payment has been made as stated by the above said
Kandasamy due to the Arithmetic mistakes and that too on the basis of the
corrections made in pencil and as well as interpolations. It appears that the
investigating Officer has not taken care even to look into those corrections
and get a proper explanation either from the witness or from the accused.
Similarly, the sanctioning authority also did not take into account, this is
important factor. As pointed out by the trial Court the sanctioning itself is
not proper and shows non application of mind.
19.The learned Additional Public Prosecutor would contend that
no steps has been taken by the accused 1 to 3 to recover the amount till the
date of filing of the FIR; No proper explanation was also made by A1 to A3
while passing the bills; Ex.P.226 and Ex.P32 was not properly considered
by the trial Court; PW11 to PW14 were used by the contractors and
technical assistants and no proper permission was obtained from the
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Crl.A.(MD).No.264 of 2020
Government before undertaking the above said additional work, but in the
light of the above said basis of the criminal prosecution, I am of the
considered view that these arguments are only secondary in nature and not
primarily fixing the criminal liability upon the accused persons.
20.As mentioned in the opening paragraph of the judgment itself,
it is seen that the above said additional work was undertaken by the accused
officer only on the basis of the technical advise made by the Chief Engineer
and above or the technical team is also given such an advice, which is
available on record. The relevant portion may be extracted herein from the
evidence of PW3.
@mizfs; ghJfhg;g[ Ma;t[f;FGtpd;
Ma;t[ Fwpg;gpy; tHpe;njhoapd; nky;g[wj;jpYk;
fPH;g[wj;jpYk; ePhpd; ghij rhp bra;g;gltpy;iy
vd;Wk;. mJ bra;ag;gl ntz;Lk; vd;Wk;.
epyr;rhpt[ vjph;fhyj;jpy; jfh;e;J ePhpd; ghijia
jilgLj;jhky; fhf;f ntz;Lk; vd;W
Twg;gl;oUe;jnj jtpu mQq fhy;tha; vJt[k;
njhz;Lk;go mjpy; Twg;gl;oUf;ftpy;iy/
mizfs; ghJfhg;g[ Ma;t[f; FGtpd; me;j
Ma;t[f; Fwpg;g[ m/rh/M/213 MFk;/ nkw;brhd;d
Mnyhrid Ma;t[ Fwpg;gpy; gf;fk; 25 y; cs;sJ/
tHpe;njhoapd; fpu!;l; bytYf;F jhH;thd
bytypy; mike;Js;s epyg;gFjp tHpe;njhoia
nehf;fp tUk; ePhpd; Xl;lj;jpw;F vt;tpjj;jpYk;
jilna Vw;gLj;jhJ vd;fpw nghjpYk; fpu!;l;
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Crl.A.(MD).No.264 of 2020
bytYf;Fk; jhH;thd bytypy; cs;s
epyg;gFjpiaa[k; njhz;o mfw;w ntz;oa mtrpak;
vd;d vd;gnj g[hpatpy;iy vd ehd; vdJ
Ma;tf; Fwpg;gpy; Fwpg;gpl;Ls;nsd;/ mt;thW
fpu!;l; bytYf;F jhH;thd bytypy; cs;s
epyg;gFjpia njhz;o ntz;oa mtrpakpy;iy/
mQqF fhy;tha; ntiy chpa mjpfhunkh.
m';fPfhunkh ,d;wp bra;ag;gl;l ntiyahFk;/@
21.According to his opinion the above said addition of work is
not at all required, but that has been undertaken. But from the evidence on
record it is seen that the above said work was sanctioned and recommended
by the Chief Engineer, which was also done by the then Engineer
Rajamanickam. He was originally shown as first accused and later was
deleted from the final report. On what ground, he was deleted from the final
report is not clear on record. Since the work has been undertaken only on
the basis of the above said order, that too, on technical ground by the above
said Rajamanickam, the subordinate officers cannot be made liability
criminally liable. So the contention that has been raised by the State is also
rejected.
22.Even though the appeal has been preferred against the
judgment of acquittal, I started discussion from the angle of the accused,
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Crl.A.(MD).No.264 of 2020
since the very basis or foundation of the criminal prosecution was also bad
in law, in the light of the submission that was made by the counsel
appearing for 6th and 7th accused. So, I started the discussion from the angle
of the defence in the light of the prosecution case.
23.In the light of the above said discussion, I absolutely, find no
reason to interfere with the judgment of the acquittal that was passed by the
trial Court. No illegality or irregularity was committed by the trial Court.
24.In the result, this criminal appeal fails and dismissed. The
judgment of acquittal passed by the trial Court in Special Case No.1 of
2004 dated 24.09.2019, by the Special Judge-cum-Chief Judicial
Magistrate's Court, Nagercoil, Kanniyakumari District is hereby confirmed.
02.03.2023
Index:Yes/No
Internet:Yes/No
TM
To
1.The Special Judge-cum-Chief Judicial Magistrate, Nagercoil,
Kanniyakumari District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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Crl.A.(MD).No.264 of 2020
G.ILANGOVAN, J
TM
Crl.A.(MD).No.264 of 2020
02.03.2023
https://www.mhc.tn.gov.in/judis
