Allowed

K.v.Vidyadharan v. State of Kerala

Kerala HC6 Oct 2016CRL.A/503/2009

Case brief

AI extract

What is this about?

The High Court allowed appeals against convictions under the Prevention of Corruption Act and IPC. The court acquitted appellants after finding that the sole prosecution evidence supporting the conviction—an inspection report created three years after the alleged road construction—was unreliable, incomplete, and based on unsupported assumptions regarding earth quantities.

What did the court decide?

Conviction and sentence set aside; appellants acquitted; fines deposited returned to appellants.

K.v.Vidyadharan Vs State of Kerala — Corruption | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938 CRL.A.No. 503 of 2009 ( )

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CC 26/2003 of ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE DATED 27-02-2009

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APPELLANT/7TH ACCUSED:

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K.V.VIDYADHARAN, S/O.P.KUNHAMBU, KUTTAMATH, CHERUVATHUR.

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BY ADV. SRI.T.A.SHAJI

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, (DY.S.P.VIGILANCE AND ANTI-CORRUPTION BUREAU, KOZHIKODE),, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SR.PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-10-2016, ALONG WITH CRA. 520/2009, CRA. 528/2009 & CRA. 564/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/7/10/16

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B. KEMAL PASHA, J

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=========================== Crl.Appeal Nos.503, 520, 528 & 564 of 2009 =========================== Dated this the 6^th day of October, 2016

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J U D G M E N T

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The appellant in Crl. Appeal No.503 of 2009 is A7, the appellant in Crl. Appeal No.520 of 2009 is A8, the appellant in Crl. Appeal No.528 of 2009 is A1 and the appellant in Crl. Appeal No.564 of 2009 is A5, in C.C.No.26 of 2003 of the Court of the Enquiry Commissioner and Special Judge (Vigilance), Kozhikode.

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A1, A4 and A7 stand convicted under

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Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. They along

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Crl.As.503, 520, 528 & 564/09 2

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with A5 and A8 stand convicted under Section 120B IPC. Each one of A1, A4 and A7 stands sentenced to undergo rigorous imprisonment for two years and to pay a fine of `2,000/- for each one of the offences under Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. They along with A5 and A8 stand sentenced to undergo rigorous imprisonment for six months each for the offence under Section 120B IPC.

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A1 was the Secretary, A4 was the Ward Member and A7 was the 2^nd Grade Overseer respectively of the Cheruvathur Grama Panchayat during the period 1995-1996 and as such they were public servants.

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The prosecution case is that A1, A4 and A7 with the dishonest intention to cheat the Panchayat and to obtain undue pecuniary advantage, abused their official position and hatched a criminal

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Crl.As.503, 520, 528 & 564/09 3

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conspiracy with A5, who was a Retired Assistant Engineer, PWD, A6 Retired Assistant Executive Engineer and A8 Contractor, thereby committing criminal misconduct. It is alleged that they have

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fabricated forged documents in relation to Narangulam- Vadakkevalappu Harijan Colony road work, and without actually executing the work as per the specifications contained in the estimate, misappropriated an amount of `1,12,086/- during the period 1995-1996 and obtained undue pecuniary advantage.

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It seems that a Panchayat road was constructed through a wet land for vehicular traffic to the Harijan Colony. A culvert was also constructed at a portion of the road, which evidently points out that the road was constructed through a wet land. Three years after the construction of the road, an anonymous complaint was preferred by somebody,

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Crl.As.503, 520, 528 & 564/09 4

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alleging corruption in the execution of the works for the road and consequently, an investigation was allegedly made by the VACB, on the registration of a crime. The Final Report was filed against the appellants herein and the other accused alleging offences punishable under Section 13(2) read with Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 468, 471, 477A and 120B IPC.

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On the side of the prosecution, PW1 to PW11 were examined and Exhibits-P1 to P52 were marked. No defence evidence was adduced. The court below found the aforesaid accused guilty of the offence/offences as noted above, convicted them and sentenced them as aforesaid.

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Heard the learned Senior Counsel and the other learned counsel for the appellants and the learned Senior Public Prosecutor.

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Crl.As.503, 520, 528 & 564/09 5

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It has been argued that the conviction passed by the court below is based on the evidence of PW1 and Exhibit-P1 alone. On a perusal of the impugned judgment also, it can be seen that the conviction is based on the evidence of PW1 and the contents of Exhibit-P1. According to PW1, he was asked to conduct a surprise check of the works of Narangulam- Vadakkevalappu Harijan Colony road by the Executive Engineer, PWD. PW1 was working as the Assistant Executive Engineer, PWD Sub Division, Kanhangad.

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According to PW1, he along with PW10, Circle Inspector, VACB, conducted a surprise check and he prepared Exhibit-P1 joint mahazar. Exhibit-P1 is captioned as a mahazar. At the same time, when PW1 was subjected to cross-examination, he has fairly conceded that the matters relating to Exhibit-P1 were taken note of by him in a rough book and on the basis

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Crl.As.503, 520, 528 & 564/09 6

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of the matters noted down by him in the rough book, he later prepared Exhibit-P1 report. Even through Exhibit-P1 is captioned as a mahazar, PW1 has clearly admitted that it was only a report prepared by him based on the points allegedly noted down by him in a rough book. It has also been conceded by PW1 that the rough book was destroyed. At any stretch of imagination, Exhibit-P1 cannot be considered as a mahazar prepared at the spot by PW1.

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According to PW1, he was assisted by a worker for carrying out the measurements and also for making pits for noting down the data for the preparation of Exhibit-P1. At the same time, no such worker has been cited as a witness. Even the identity of such a worker has not been revealed by PW1. PW1 was not aware of the identity of such a worker.

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It has to be taken note of that the so

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called surprise check was conducted by PW1 after

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Crl.As.503, 520, 528 & 564/09 7

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three years from the construction of the road. By the time, three monsoon period were over. It is only mere common sense that at that point of time, nobody could have correctly measured the actual earth used for the construction of the road.

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PW1 has admitted that the said road was formed for vehicular traffic and that the vehicular traffic was possible through the road even at the time of such surprise check. The explanation offered by PW1, as to how could he assess the earth dumped on the then existing land to form the road, is not believable. It is not possible to identify or to differentiate the said portion of earth from the soil of the then existing land by a person like PW1. The service of a Geologist was not made use of. Even if such a service was obtained, no fruitful purpose could have been made because of the lapse of three years after the formation of the road. It is only common

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Crl.As.503, 520, 528 & 564/09 8

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knowledge that in rain, much quantity of earth could be washed off. Therefore, one will not get an actual measure of the earth used for formation of a mud road after the lapse of three years from the formation of the road.

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It has also been admitted by PW1 in crossexamination that the measurement of the works of the road, as noted in the M book, after the formation of the road, could be correct. That itself denotes that he was not sure about the measurements allegedly taken by him during the surprise check. Had the earlier measurements been correct, the measurements allegedly resorted to by PW1 in Exhibit-P1, could not have been correct. He might have assumed and presumed the quantity of earth that was actually made use of for the formation of the road. Judicial exercise cannot rely on such presumptions and assumptions resorted to by PW1.

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Crl.As.503, 520, 528 & 564/09 9

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Much discussion is not required to conclude that the evidence of PW1 and the contents of Exhibit-P1 cannot be relied on, without any further direct evidence in the matter. No other persons were examined by the prosecution, who had witnessed the formation of the road. No other evidence was collected by the investigating officer to show the actual quantity of the earth used, at the time of the formation of the road.

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The so called evidence of PW1 and the contents of Exhibit-P1 obtained through a surprise check, after the lapse of three years from the formation of the road, cannot be made use of for entering findings with regard to the actual quantity of earth or boulders used for the formation of the road. On a careful scrutiny of the entire evidence of PW1, this Court is satisfied that the same cannot be relied on for the conviction of any of these appellants.

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Crl.As.503, 520, 528 & 564/09

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Matters being so, the conviction and sentence passed by the court below, on these appellants, are liable to be set aside.

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In the result, these Crl.Appeals are allowed.

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The conviction and sentence passed by the court below, on these appellants, are set aside and the appellants are acquitted.

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The amounts, if any, deposited by the appellants or other accused by way of fine shall be returned to the concerned appellants/accused.

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Sd/B. KEMAL PASHA, JUDGE.

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DSV/6/10/16

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// True Copy //

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P.A. To Judge

K.v.Vidyadharan v. State of Kerala

Case brief

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K.v.Vidyadharan v. State of Kerala

Case brief

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