Supreme Court of India
K.H. Kamaladini vs State on 20 May, 2025
Author: Abhay S. Oka
Bench: Abhay S. Oka
2025 INSC 745
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.5380 OF 2024
K. H. Kamaladini … Appellant
versus
State … Respondent
JUDGMENT
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The appellant has challenged the order dated 27 th March
2023 passed by the High Court of Bombay at Goa dismissing
the Criminal Revision Application No.195 of 2023. The
appellant was aggrieved by the order dated 15th February
2023 passed by the Sessions Judge, North Goa, Panaji,
framing charges against the appellant for the offences
punishable under Sections 409 and 468 of the Indian Penal
Code, 1860 (for short, ‘the IPC’) and Section 13(1) read with
Section 13(2) of the Prevention of Corruption Act, 1988 (for
short, ‘the PC Act’) and dismissing the appellant’s plea for
Signature Not Verified discharge.
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.20
19:16:18 IST
Reason:
Criminal Appeal No.5380 of 2024 Page 1 of 14
2. A complaint dated 30th January 2013 was received by
the Chief Minister of Goa and Chief Vigilance Officer of Goa,
containing allegations pertaining to 19 short tender notices
comprising 847 numbers of water supply works in the Works
Division XVII (PHE-N), Public Works Department, Porvorim,
Goa. It was alleged that the tender notices were not published
in newspapers as required by the Central Public Works
Department Manual. It was also alleged that some works
were unnecessarily split without any valid justification, and
the works were allotted to the same party or their cronies. The
Department of Vigilance conducted an enquiry into the
complaint and furnished a report dated 26 th March 2013,
which revealed that 19 Short Tender Notices enclosed in the
complaint were never published in any newspaper. The works
were quoted 4.8% to 14.95% above their estimated cost, and
for most works, only two bidders had quoted bids, which
clearly indicated that the Government did not get the benefit
of competitive bidding and caused a loss to the Government.
The report further revealed that the appellant was working as
an Executive Engineer at the relevant division of the Public
Works Department, Porvorim, from 21 st October 2009 till the
date of the enquiry report, i.e. 26 th March 2013. The report
noted that the appellant was given an opportunity to explain
the allegations during enquiry, wherein he had submitted that
the decision of not advertising the tenders costing up to Rs.10
Lakhs was approved by the then Public Works Department
Minister for the purpose of saving time, and this decision was
Criminal Appeal No.5380 of 2024 Page 2 of 14
approved by other stakeholders. During the enquiry,
photocopies of each document were collected from the relevant
Division, and it was observed that the signature of the
Minister of the Public Works Department was obtained in
every case, after obtaining approvals from the Superintending
Engineer and the Chief Engineer of the Public Works
Department.
3. The enquiry report finally concluded that the appellant,
after approvals from the aforesaid authorities, inserted in his
own handwriting “approved to take short tender without
publishing in newspaper and issue W/O” just above the
signature of the then Public Works Department Minister on
each document, so as to project as if it was an instruction
from the Minister himself. The enquiry report also addressed
the order dated 16th April 2007, which granted financial
powers to Executive Engineers, Chief Engineers, and
Superintendent Engineers for emergent maintenance and
repair work costing up to Rupees Ten Lakhs. However, it was
alleged that the appellant undertook works such as painting
and fixing floor tiles, which could not be categorised as
emergent works.
4. Relying on the said enquiry report, the Chief Technical
Examiner of the Directorate of Vigilance, Government of Goa,
lodged a complaint dated 05th June 2023, which led to the
registration of Crime No.6 of 2013. After obtaining the
requisite sanction dated 5th February 2020 from the Principal
Criminal Appeal No.5380 of 2024 Page 3 of 14
Chief Engineer, Public Works Department, Panaji under
Section 19(1)(b) of the PC Act read with Section 197 of the
Code of Criminal Procedure, 1973 (for short, ‘the CrPC’), the
Respondent filed the chargesheet No. 02 of 2020 dated 22 nd
May 2020 for the offences punishable under Sections 409,
468 and 471 of the IPC and Section 13(1)(d) read with Section
13(2) of the PC Act. During the course of the investigation, a
report from the Central Forensic Science Laboratory,
Hyderabad (for short, ‘the CFSL’) was called for, which opined
that the alleged handwritten remarks on the documents
matched the handwriting of the appellant. The chargesheet
also contained the statement of Mr. Churchill Alemao, who
was the Public Works Department Minister at the relevant
time, recorded on 26th March 2015, wherein he alleged that he
never directed the appellant to write any remark on the tender
documents. He also stated that he signed the documents
placed before him without making any additions or edits. If
any additions were required, he would generally write them
himself. The charge sheet also alleged recovery of jewelry and
cash of Rs.18,00,500/- from the appellant’s bank locker.
However, the offence of criminal conspiracy under Section
120-B of the IPC, which was initially included in the First
Information Report, was dropped while filing the chargesheet,
as there was no evidence.
5. The appellant’s application for discharge under Sections
226 and 227 of the CrPC came to be dismissed by the
Sessions Judge, North Goa, Panaji. Relying on the test laid
Criminal Appeal No.5380 of 2024 Page 4 of 14
down by this Court in the cases of Niranjan Singh Karam
Singh Punjabi v. Jitendra Bhimraj Bijjaya & Ors.1 and
Madjavrao Jiwajirao Scindia & Ors. v. Sambhajirao
Chandrojirao Angre & Ors2, the Sessions Judge held that if
the statements of the forensic expert and the PWD Minister
are not controverted in the cross-examination, such evidence
would be sufficient to convict the appellant. Thus, the
evidence was sufficient to frame a charge for the offence
punishable under Sections 409 and 468 of the IPC for
dishonestly inserting words in the documents which were
entrusted to him in order to avoid publication of tenders. The
Sessions Judge also proceeded to frame a charge for the
offence under Section 13(1)(d) read with Section 13(2) of the
PC Act, after holding that the use of forged reports in the
execution of Government work without publication of tenders
shall amount to criminal misconduct for personal gains.
6. The appellant filed Criminal Revision Application No.195
of 2023 before the High Court of Bombay at Goa, contending
that none of the ingredients of the offences charged against
him were made out by the material produced in the
chargesheet, if they were taken to be true at their face value.
In the judgment impugned before us, the High Court held that
the allegation of not following the procedure laid down for
awarding tenders for benefitting a cartel of contractors by
inflating the cost of tenders may satisfy the ingredients of
1 (1990) 4 SCC 76
2 (1998) 1 SCC 692
Criminal Appeal No.5380 of 2024 Page 5 of 14
criminal misconduct, laid down in Section 13(1)(d) of the PC
Act. The High Court relied on the material produced in the
chargesheet to hold that the act of overwriting above the
signature of the Minister for the purpose of showing that it is
the Minister who approved the action of non-publication,
discloses the existence of ingredients constituting the offence
of criminal breach of trust and forgery.
SUBMISSIONS
7. The learned counsel appearing for the appellant argued
that the nineteen tenders in question, wherein the procedure
of publication in newspapers was not followed, pertained to
the work urgently required to be carried out to meet a grave
water crisis in Porvorim and other regions of North Goa. The
High Court of Bombay at Goa was seized of the matter in PIL
No.1 of 2010 titled “Soter D’Souza and Anr. v. The
Principal Chief Engineer PWD Altinho, Panji Goa” of water
supply to the citizens. The High Court had already taken the
PWD and all responsible engineers, including the appellant, to
task. In accordance with the directions of the High Court in
the order dated 3rd June 2010, the appellant filed an affidavit
dated 14th October, 2010 stating that the Public Works
Department shall make all efforts and endeavours to supply
water for at least one hour a day. The counsel for the
appellant contended that in order to resolve the crisis and
expedite the regular supply of water, one of the measures was
to do away with the publication of tenders. In furtherance of
this decision, 741 reports and 847 works, executed between
Criminal Appeal No.5380 of 2024 Page 6 of 14
21st October 2009 and 24th November 2011, contained
written instructions of the Public Works Department Minister
of not publishing the tenders in newspapers. It was further
contended that on the basis of a lack of evidence to prove
forgery, the appellant was exonerated in the departmental
inquiry proceedings by the Inquiring Officer. The learned
counsel for the appellant, relying on the judgements of this
Court in the cases of Radhe Shyam Kejriwal v. State of
West Bengal3 and Ashoo Tiwari v. CBI4 submitted that the
standard of proof required in a criminal proceeding where the
case has to be proved beyond a reasonable doubt, is much
higher than the standard of proof in departmental
proceedings, which is based on preponderance of
probabilities. Therefore, since the appellant has been
exonerated in the departmental proceedings, on the same
facts and allegations, criminal proceedings cannot be
pursued.
8. The learned counsel appearing for the respondent-State,
supported the impugned order and submitted that the action
of the appellant of not publishing tenders was in violation of
the CPWD Manual and he was never directed to take any
decisions in contravention to the established practices of the
Public Works Department. It was further submitted that the
findings of the CFSL indicate that the handwriting of the
appellant matches the handwriting on the notings/reports. As
3 (2011) 3 SCC 581
4 (2020) 9 SCC 636
Criminal Appeal No.5380 of 2024 Page 7 of 14
far as the findings of the Inquiry Officer are concerned, the
learned counsel for the respondent submitted that no reliance
can be placed on the report of the Inquiry Officer exonerating
the appellant, as disciplinary proceedings contemplate a
varied scope of enquiry and can run parallel to the criminal
proceedings, and that the outcome of the disciplinary
proceedings can have no bearing on the criminal proceedings
pending against the appellant.
CONSIDERATION OF SUBMISSIONS
9. In this case, the appellant sought discharge. The prayer
for discharge was rejected by the Special Court. Therefore, a
revision application under Section 401 read with Section 397
of the CrPC was preferred by the appellant. As far as the
scope of hearing at the time of framing of the charge is
concerned, the law is well settled. Firstly, at this stage, the
Court can examine only the documents forming part of the
charge sheet, and no other material can be considered.
Secondly, after considering the material on record, the Court
has to decide whether or not there exists a sufficient ground
for proceeding with the trial against the appellant. Thirdly, at
this stage, the Court cannot sift the evidence forming a part
of the chargesheet with a view to separating the grain from
the chaff. Fourthly, if the Court is of the view that the
evidence without cross-examination or rebuttal shows that
the accused has not committed any offence, then an order of
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discharge must be passed. Lastly, if the evidence adduced
before the Court creates a grave suspicion against the
accused, the Court will not discharge the accused.
10. Therefore, at this stage, the outcome of the disciplinary
proceedings cannot be examined, and what needs to be
examined is the material forming part of the chargesheet. The
allegation against the appellant pertains to a tender process.
The appellant was, at the relevant time, Executive Engineer of
Works Division at Porvorim, Goa. The allegation concerns 19
short-term tender notices. The allegation against the
appellant is that after the Hon’ble Minister for the Public
Works Department signed the note/report granting approval
for issuing of tenders, above the signature of the Hon’ble
Minister, the appellant inserted the following words: “approved
to take short tender without publishing in newspaper and
issue w/o”. Further allegation against the appellant is that
he committed forgery by inserting the aforesaid words with
the object of showing that the addition was made by the
Hon’ble Minister. There is an opinion of the Scientist of the
CFSL that the inserted words were in the handwriting of the
appellant. The allegation is that by not publishing tender
notices, loss was caused to the Exchequer for two reasons:
firstly, the revenue could have earned by the sale of the tender
documents, and secondly, the revenue could have been
benefited from getting competitive bids.
Criminal Appeal No.5380 of 2024 Page 9 of 14
11. The appellant has been charged with the offences
punishable under Section 468 of the IPC, which reads thus:
“468. Forgery for purpose of
cheating.—Whoever commits forgery,
intending that the document or
electronic record forged shall be used
for the purpose of cheating, shall be
punished with imprisonment of either
description for a term which may
extend to seven years, and shall also
be liable to fine.”‘Forgery’ is defined under Section 463. Whoever makes any
false document or part of a document with the intent to cause
damage or injury to the public commits forgery. Considering
the allegations made in the charge sheet and the report of the
CFSL, a case is made out to proceed against the appellant for
the offence punishable under Section 468 of the IPC. If the
case of the prosecution is considered without controverting it,
obviously, there is prima facie material against the appellant
to proceed for the offence under Section 468 of the IPC.
12. Another offence alleged against the appellant is under
Section 409 of the IPC. In this case, the reports/documents
signed by the Hon’ble Minister were entrusted to the
appellant. The allegation is that he dishonestly inserted the
portion quoted above the signature of the Minister. Therefore,
taking the case of the prosecution as it is, even the offence
under Section 409 is also attracted. If we take the statements
of the witnesses and, in particular, the Hon’ble Minister as it
Criminal Appeal No.5380 of 2024 Page 10 of 14
is, a case was made out to proceed against the appellant for
the offences punishable under Sections 409 and 468 of the
IPC.
13. Apart from these IPC offences, the allegation against the
appellant is of commission of the offence punishable under
Section 13(1)(d) read with Section 13(2) of the PC Act. We are
concerned with Section 13 as it stood prior to its amendment,
which came into force with effect from 26 th July 2018.
Section 13(1) as it stood prior to 26th July 2018, reads thus:
“13. Criminal misconduct by a public
servant.–(1) A public servant is said to
commit the offence of criminal
misconduct, –
(a) if he habitually accepts or obtains
or agrees to accept or attempts to
obtain from any person for himself
or for any other person any
gratification other than legal
remuneration as a motive or reward
such as is mentioned in section 7;
or
(b) if he habitually accepts or obtains
or agrees to accept or attempts to
obtain for himself or for any other
person, any valuable thing without
consideration or for a consideration
which he knows to be inadequate
from any person whom he knows to
have been, or to be, or to be likely
to be concerned in any proceeding
or business transacted or about to
be transacted by him, or having
any connection with the official
functions of himself or of any
public servant to whom he is
Criminal Appeal No.5380 of 2024 Page 11 of 14
subordinate, or from any person
whom he knows to be interested in
or related to the person so
concerned; or
(c) if he dishonestly or fraudulently
misappropriates or otherwise
converts for his own use any
property entrusted to him or under
his control as a public servant or
allows any other person so to do; or
(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
(e) if he or any person on his behalf, is
in possession or has, at any time
during the period of his office, been
in possession for which the public
servant cannot satisfactorily
account, of pecuniary resources or
property disproportionate to his
known sources of income.”
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14. There is no allegation made in the chargesheet that the
appellant obtained for himself or for any other person any
valuable thing or pecuniary advantage. Therefore, on a plain
reading, clause (d) of sub-section (1) of Section 13 of the PC
Act will not be attracted. In this case, there is no allegation
that the appellant agreed to accept or accepted any
gratification. There is no allegation that he had agreed or
accepted any valuable thing or had dishonestly
misappropriated or converted for his own use any property
entrusted to him. Therefore, the ‘criminal misconduct’ as
provided in Section 13(1) is not attracted in this case. That is
how even the offence punishable under Section 13(2) of the
PC Act is not attracted. In short, there was no case made out
to proceed against the appellant for the offences punishable
under Section 13(1)(d) read with Section 13(2) of the PC Act.
To this extent, the impugned orders will have to be modified.
15. Accordingly, the order dated 15th February 2023 passed
by the learned Sessions Judge and the order dated 27 th March
2023 passed by the learned Single Judge of the High Court
are, hereby, modified and the direction to frame charge for the
offences under Section 13(1)(d) read with Section 13(2) of the
PC Act is, hereby, set aside. The order of framing of charge for
the offences under Section 409 and 468 of the IPC is
maintained.
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16. We clarify that the observations made in this judgment
are only for the purposes of considering the plea of discharge.
The same will not bind the Trial Court at the time of the final
hearing of the case.
17. The appeal is, accordingly, partly allowed on the above
terms.
………..……………………J.
(Abhay S. Oka)
………..……………………J.
(Augustine George Masih)
New Delhi;
May 20, 2025.
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