This criminal appeal against an acquittal was dismissed as meritless. The court held that the prosecution failed to prove dishonest misappropriation, benefit to the accused, or falsification of accounts, noting the assessing witnesses lacked technical expertise.
The Criminal Appeal was dismissed as meritless.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 22ND DAY OF SEPTEMBER 2015/31ST BHADRA, 1937
CRL.A.No. 1280 of 2007 (D)
AGAINST THE JUDGMENT IN CC 12/2000 OF THE ENQUIRY COMMR.& SPL.JUDGE, THRISSUR DATED 30-09-2005
APPELLANT/COMPLAINANT:
STATE OF KERALA, DEPUTY SUPERINTENDENT OF POLICE, VACB , IDUKKI REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB
RESPONDENT/ACCUSED:
3. P.K.MOHANAN,CONVENOR,S/O.KUNJUKUNJU, PAZHAPLACKAL HOUSE, MANIYARAMKUDY, IDUKKI.
R2 BY ADV. SRI.T.S.JOHN R2 BY ADV. SRI.M.S.RADHAKRISHNAN NAIR R1 BY ADV. SRI.SAJU.S.A R3 BY ADV. SRI.RAJESH VIJAYAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.UBAID, J. --------------------------------------Crl.A No.1280 of 2007
---------------------------------------
Dated this the 22nd day of September, 2015
J U D G M E N T
This is an appeal brought against the judgment of acquittal of the Enquiry Commissioner and Special Judge, Thirssur in C.C No.12/2000. Pending this appeal, the respondents 1 and 2 died, and thus the appeal against the original accused Nos.1 and 2 abated. The three accused faced prosecution before the trial court on the allegation that they misappropriated an amount of 87,350/- from public funds, as₹ part of a criminal conspiracy hatched by them in connection with the construction of a check dam in the forest area within Kothamangalam Forest Range, for the benefit of tribals. The department made an estimate of 2 lakhs, and the full amount₹ was also released to the persons concerned. The work was supervised and carried out by the Forest Range Officer in charge and the section Forestor. The work was monitored and supervised by the then Divisional Forest Officer. It is alleged that on the basis of an order passed by this Court in O.P
Crl.A No.1280 of 2007 2
No.4796/1997, the Vigilance and Anti-Corruption Bureau (VACB), Idukki conducted a preliminary enquiry into the allegations made by one K.M George. On the basis of the report of enquiry, made by the Deputy Superintendent of Police, VACB, a crime was registered against three persons. It is alleged that the said enquiry revealed misappropriation of huge amount by the three accused from public funds. After investigation, the VACB submitted final report before the trial court under the provisions of the Prevention of Corruption Act ( P.C Act) and the Indian Penal Code.
Crl.A No.1280 of 2007
3
4
Crl.A No.1280 of 2007
appeal is in fact meritless, and the prosecution does not have any ground for an appeal against the judgment of acquittal. The charge against the accused is mainly under Section 13(2) of the P.C Act. PW3 and PW4 have given evidence regarding the loss sustained by the government due to the alleged irregularities committed by the three accused. As per Ext.P3 report PW3 assessed the total loss sustained by the government, and before that the loss was assessed by the PW4 as per Ext.P6 report. PW6 was the Divisional Forest Officer at that time, and PW3 was the Assistant Executive Engineer. PW4 does not have any such expertise or qualification. Still without the assistance of any expert, PW4 inspected the check dam, assessed the various works done, and assessed the loss sustained by the government. Admittedly, Ext.P6 is only an interim report. This means that the final report, assessing the loss is yet to come. It is not known how the prosecution would rely on the Ext.P6 interim report prepared by a person who is not qualified in the field. He frankly admitted during trial that he does not have the required expertise or qualification, that he had not awaited the service of any expert in the field when he made assessment of the work and assessment of the loss sustained by the government, and that
Crl.A No.1280 of 2007 5
Ext.P6 is only an interim report submitted by him. He frankly conceded that final assessment is yet to be made. So also PW3 stated in evidence that when he made assessment of the loss sustained by the Government on a valuation of the work done for the check dam, he had not sought the assistance of any expert or technical staff. He also stated in evidence that he had not taken so many things into account, like the additional works done by the accused, construction of boundary wall and retaining wall, etc. when he assessed the total loss sustained by the government.
Crl.A No.1280 of 2007 6
prosecution under Section 13(1)(c) of the P.C Act, the prosecution must have a definite case that the accused had dishonestly misappropriated some amount from public funds. So also for a prosecution under Section 13(1)(d) of the P.C Act the prosecution must have a definite case that the accused was somehow benefited by his illegal or dishonest act. It is not known how the accused or any one of them was benefited by the alleged construction, or whether anybody else was benefited by their act. The prosecution must have a case that by some illegal or dishonest act, the accused derived some benefit, or that somebody else was benefitted by such act. Here, in this case, the prosecution does not have such a case. The evidence of PW3 and PW4 is only regarding the loss sustained by the government.
7
Crl.A No.1280 of 2007
that the amount was misappropriated dishonestly by any of the accused, or that any of the accused was in any manner benefited by such work. It is well settled that misconduct or malfeasance on the part of a public servant will not by itself make him liable for a prosecution under the P.C Act, or even under the Indian Penal Code. If any public servant has done anything illegally or improperly against the rules or prescribed procedure, thereby causing loss to the government and public exchequer, he will have to be appropriately dealt with by way of disciplinary action, and the government can impose adequate and appropriate punishment including realisation of the amount of loss caused to the government. For a prosecution on the allegation of breach of trust or cheating or forgery under the Indian Penal Code, or for a prosecution under the P.C Act, alleging violation of Sections 13 (1)(c) and 13(1)(d) of the P.C Act something more is required. Mere breach of duty or mere dereliction of duty will not make a public servant liable under Section 13(1)(c) or 13(1)(d) of the PC Act or under Sections 409, 468, 471 and 477A of the Indian Penal Code.
8
Crl.A No.1280 of 2007
accounts. But on this aspect there is nothing in the evidence of PW3 or PW4. It is not known how the accused falsified the accounts, or what document was in fact forged by them. Nobody has got a case in evidence that any of the accused had misappropriated anything. Nobody says whether any of the accused was in any manner benefited. In short, the prosecution does not have any material to prove the alleged forgery or falsification of accounts, or the alleged dishonest misappropriation. In the absence of any material to prove dishonest misappropriation, a conviction is not possible under Section 13(2) r/w 13(1)(c) of the P.C Act. So also in the absence of anything to prove that the accused was in any manner benefited, or that somebody else was benefited by the act of the accused, a conviction is not possible under Section 13(2) r/w 13 (1)(d) of the P.C Act. In the absence of anything to prove misappropriation of public funds or forgery or falsification of accounts, a conviction is not possible under Sections 409, 468, 471, 477A of the Indian Penal Code. Thus I find that this is a case where the prosecution miserably failed to prove the case in the trial court. I fail to understand why the State has come up in appeal against the said judgment of acquittal.
9
Crl.A No.1280 of 2007
10
Crl.A No.1280 of 2007
examined by the prosecution during trial. It is for him to explain on what materials he registered the FIR in this case. On the basis of the report of enquiry, he must tell the court what are the contents of that report, or what are the materials revealed by the report. In the absence of any such evidence, the FIR in this case cannot have any value. Anyway, even otherwise I find that the prosecution miserably failed in the trial court to prove the case on facts, and the prosecution has come up in appeal before this Court without any definite material or ground to challenge the judgment of acquittal. I find that this appeal is liable to be dismissed as meritless.
In the result, this Criminal Appeal is dismissed as meritless.
P.UBAID, JUDGE
ab
3 issues framed by the court
Whether the prosecution proved dishonest misappropriation of public funds or benefit to the accused.
Whether the FIR had a valid basis as it was registered based on an unproduced enquiry report.
Whether mere loss to the government establishes liability for corruption charges.
3 provisions across 2 enactments
STATE OF KERALA, DEPUTY SUPERINTENDENT OF POLICE, VACB, Idukki Rep.By The Public Prosecutor
P.K.MOHANAN
P.UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
