Kerala High Court
M.B. Nisha vs State Of Kerala on 7 March, 2025
2025:KER:20714
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
CRL.M.C.NO. 4197 OF 2022
CRIME NO.VC/16/15/ALP/2015 OF VACB, ALAPPUZHA
PETITIONERS/ACCUSED 2, 4, 5 & 6:
1 M.B. NISHA
AGED 45 YEARS
VATHIKKAD HOUSE, WARD IV, PERUMBALAM GRAMA
PANCHAYAT, CHERTHALA, ALAPPUZHA, PIN - 688570.
2 LILLYKUTTY K.M.
AGED 53 YEARS, W/O. AUGUSTINE JOSE,
PUTHENPARAMBIL ASHNA BHAVAN, CHAMBAKKULAM
PANCHAYAT, KUTTANAD, ALAPPUZHA, PIN - 688503.
3 K. DINESAN
AGED 62 YEARS, S/O. KANNANCHI, KONACHANKADU,
ERAMALLOOR P.O., CHERTHALA, ALAPPUZHA,
PIN - 688537.
4 T.C. KUNJUMON
AGED 58 YEARS, S/O. JACOB, THOTTUNGAL HOUSE,
KUMARAPURAM P.O., KUNNATHUNAD, PALLIKKARA,
ERNAKULAM, PIN - 683565.
BY ADVS.
K.P.SATHEESAN (SR.)
P.MOHANDAS (ERNAKULAM)
K.SUDHINKUMAR
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Crl.M.C.Nos.4197 & 5842 of 2022
S.K.ADHITHYAN
SABU PULLAN
GOKUL D. SUDHAKARAN
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031.
2 THE DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI CORRUPTION BUREAU,
ALAPPUZHA, PIN - 688001.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL
HEARING ON 11.02.2025, ALONG WITH Crl.MC.5842/2022, THE
COURT ON 07.03.2025 PASSED THE FOLLOWING:
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Crl.M.C.Nos.4197 & 5842 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
CRL.M.C. NO. 5842 OF 2022
QUASH THE PROCEEDINGS IN CC NO.23 OF 2021 OF THE ENQUIRY
COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
PETITIONER/3RD ACCUSED:
SUHASINI.P
AGED 58 YEARS
W/O S.VELAYUDHAN, KANITHACHIRA HOME, ERAMELLOOR
P.O. CHERTHALA, ALAPPUZHA DISTRICT 688537,
PIN - 688537.
BY ADVS.
V.N.HARIDAS
SAIFUDEEN T.S
PARVATHY S.R.
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031.
2 THE DEPUTY SUPREINDENTENDENT OF POLICE
VIGILANCE AND ANTI CORRUPTION BUREAU, ALAPPUZHA
688001, PIN - 688001.
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
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Crl.M.C.Nos.4197 & 5842 of 2022
THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL
HEARING ON 11.02.2025, ALONG WITH Crl.MC.4197/2022, THE
COURT ON 07.03.2025 PASSED THE FOLLOWING:
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Crl.M.C.Nos.4197 & 5842 of 2022
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.M.C.Nos.4197 & 5842 of 2022
-----------------------------------------------------------
Dated this the 7th day of March, 2025
ORDER
Accused Nos.2, 4, 5 and 6 in C.C.No.23 of 2021
pending before the Court of Enquiry Commissioner and
Special Judge, Kottayam has filed Crl.M.C.No.4197 of 2022.
Accused No.3 in that case filed Crl.M.C.No.5842 of 2022. The
petitioners seek to quash the proceedings in C.C.No.23 of
2021.
2. Heard the learned counsel for the respective
petitioners, the learned Special Public Prosecutor (Vigilance)
and the learned Senior Public Prosecutor.
3. Accused Nos.1 to 5 are the officials of the Local
Self Government Department, Sub Division, Thaikkattussery.
Accused No.6 is the contractor for tarring of Arayukulangara-
Panambukad Road in Thaikkattussery Block under MPLADS
2011-2012. The prosecution allegation is that accused Nos.1
to 5 hatched a conspiracy with accused No.6 and in terms of
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Crl.M.C.Nos.4197 & 5842 of 2022
that conspiracy, accused Nos.1 to 5 recorded inflated
measurements in supply of 60 m.m. graded metals and 36
m.m. metals for metalling the road at 7:3 ratio in 100 m.m.
thickness compacted using blinding materials to 75 m.m. for a
total length of 1150 metres and a width of 3.10 metres. By
recording such inflated measurements, an amount of
Rs.5,05,799/- was paid to the 6th accused in excess and a
corresponding loss was occasioned to the Government. It is
alleged that the accused thereby committed offences
punishable under Section 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act, 1988 (PC Act) and Section
120B of the Indian Penal Code, 1860 (IPC).
4. The petitioners would contend that the work was
done under the supervision of the officials, strictly in
accordance with the estimated specifications and there
occurred no lapse. From the measurements recorded in the
M-Book and that revealed in the inspection during
investigation, it can be seen that there is absolutely no
reduction in the area of the road. It can even be seen that at
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Crl.M.C.Nos.4197 & 5842 of 2022
various places the width of the road is more. On account of
the demand of the local people and politicians, the width of
the road had to be more and that might have caused a
negligible reduction in the thickness of the road. The materials
further would reveal that the entire quantity of the materials
in terms of the schedule to the estimate were supplied by the
contractor and it was quite impossible for removing materials
from the site. Accordingly, it is contended that there occurred
no short supply or short utilisation of the materials. There
occurred no loss to the Government or excess payment to the
contractor as alleged.
5. It is further contended that samples from three
points were collected from 50×50 c.m. area. The thickness at
which the samples were collected has not been stated
anywhere. Therefore, the volume of the collected samples
would not yield a correct estimation of 60 m.m. and 36 m.m.
metals used for the work. The inevitable consequence is that
the conclusion arrived at by the investigating agency that
34.2% less materials alone was used to compact the base and
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Crl.M.C.Nos.4197 & 5842 of 2022
sub base of the road is incorrect. It is thus contended that
without any basis the prosecution was launched.
6. The 3rd accused further contended that she was not
in charge of the work and she was falsely implicated. It is
contended that she worked for only ten months in
Perumbalam Panchayat and she was never in charge of the
work. Smt.Shylaja and Sri.B.Jagadeesan were the supervisors
of the work. Annexure-I order would prove that fact.
Accordingly, the 3rd accused contended that the charge
against her is totally baseless and the final report concerning
her is liable to be quashed.
7. Separate reports were filed in both cases on behalf
of the investigating agency. It is contended that the mahazar
was prepared and samples from three pits at three points of
the road were collected in the presence of the incumbents.
Entire base and subbase, metalling portion from 50×50 c.m.
areas were collected as samples and from the said samples, it
revealed that the metal used was less by 34.2%. It was on
the basis of those findings, the excess payment was tabulated
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Crl.M.C.Nos.4197 & 5842 of 2022
and therefore there is no infirmity in the assessment. It is
further contended that the petitioners were in charge of the
work and there is enough documentary and oral evidence to
substantiate that fact.
8. Annexure-II in Crl.M.C.No.4197 of 2022 is a copy
of the statement given by Sri.Vinu B., Assistant Executive
Engineer. He elaborated the estimate requirements of the
work in question and also about the inspection of the road and
collection of samples in the presence of the incumbents.
Annexure-III is a copy of the mahazar, which contains the
details of the inspection and also collection of samples. Details
of the officials in charge of the work can be seen from the
statement of Sri.Vinu B. The mahazar shows that the
inspection was conducted in the presence of the incumbents.
9. From the narration in the mahazar, statements of
the witnesses and also the M-Book, it is evident that the area
of the road work done has been in agreement with the
estimate. Length of the road is 1150 metres and a width 3.10
metres. At least at two points, the width of the road is more.
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Crl.M.C.Nos.4197 & 5842 of 2022
As regards the chipping carpet also, there was no complaint.
Shortage of materials was however found in the base and
subbase parts of the road.
10. As per the estimate surface of the road should be
raised using gravel. After that, base metalling using 60 m.m.
metal and blinding material should be done and upon which
compacting the subbase using 36 m.m. metal and blinding
materials to be done. The carpeting at the thickness of
20 m.m. should be the top layer of the road.
11. Three samples from three points were collected.
The points were at chainage 0/150, 0/630 and 0/1050.
Materials for checking were collected from 50×50 c.m. pits
after chipping off the carpet tarring. One of the contentions is
that depth of the area from where the samples were collected
has not been mentioned and therefore, quantification of the
volume of the metals used to pack and compact the road
inevitably would have gone wrong.
12. It is true that the depth or thickness at which the
samples were collected has not been mentioned. But, the
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Crl.M.C.Nos.4197 & 5842 of 2022
mahazar and other materials would clearly show that after
chipping off the 20 m.m. thick carpet tarring, the base and
subbase parts of the road from 50×50 c.m. areas were
collected. The work to be done using 60 m.m. metals and
using 36 m.m. metals have been described as item Nos.3 and
4 in the Annexure to the estimate. The mahazer shows that
both base coarse metalling and subbase coarse metalling
were fully scoped out. When the depth of each layer of the
base and subbase coarse of the road was specific and whole
such layers were scooped out, there cannot be a contention
that for want of mentioning depth of the portion from where
the samples collected, the calculation would have gone wrong.
So, for that reason, it cannot be said at this stage that the
prosecution wrongly alleged 34.2% less materials were used
to lay and compact the subbase and base portions of the
road.
13. When there was a specification for construction of
the road, it should have been done strictly in accordance with
that specification. The excuse now put forth is that at a few
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Crl.M.C.Nos.4197 & 5842 of 2022
places, road had to be tarred at more width due to the
pressure of local people and politicians. That cannot be an
excuse for the non-compliance of the specifications for, the
non-compliance will affect the quality of the work and
inevitably the life of the road. The learned counsel for the
petitioners in Crl.M.C.No.4197 of 2022 submitted that no
damage was caused to the road for years together and
therefore the short usage of metals and materials cannot be
attributed against the petitioners. Those are matters of
evidence and cannot be accepted as a reason at this stage for
quashing the final report.
14. The respondents pointed out in the respective
reports that the materials produced along with the final report
prove the complicity of these petitioners. Annexure-I in
Crl.M.C.No.5842 of 2022 is the proceedings of the Assistant
Engineer, LSGD Arookutty Grama Panchayat. It shows that the
petitioner, Smt.Suhasini, was in charge of works in ward
Nos.5 to 13 of Perumbalam Grama Panchayat. The said
document does not enable to enter a finding that
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Crl.M.C.Nos.4197 & 5842 of 2022
Smt.Suhasini was not at all in charge of the work at any point
of time. When witness Nos.11 and 12, two Overseers, stated
and the attendance register showing that Smt.Suhasini was
also in charge of the work, her contention in this regard
cannot be accepted at this stage. Only after recording
evidence, can there be a finding on that aspect.
15. A similar matter was considered by the Apex Court
in State of Bihar v. Dhirendra Prasad Srivasthava [2014
KHC 6002]. In that case, the allegation in the final report
was that the officials did not ensure compliance in executing
the work in accordance with the specifications. The
substandard quality of the work executed was prima facie
evident from the materials produced along with the final
report. It was held that when the facts borne by records give
rise to a case prima facie against the accused regarding
embezzlement of Government funds, it was incorrect to quash
the final report.
16. This Court in Surendranath C. v. State of Kerala
[2024 (2) KHC 134] held that procedural irregularity shall
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not ordinarily be a reason for prosecuting a public servant for
an offence under the PC Act. In Manimekhala S. v. State of
Kerala [2024 (1) KLT 781] this Court held that
carelessness, breach, cheating, malfeasance or misfeasance in
the discharge of duty by a public servant would not
necessarily constitute offence under the PC Act. That may be
a ground for recovering the loss occasioned to the
Government from the erring officers and also to initiate
disciplinary action. In order to prosecute such an officer for an
offence under the PC Act, the Vigilance and Anti-Corruption
Bureau should be able to establish that the public servant
enured some benefit to himself or any other person and
thereby the public servant has done it with dishonest
intention.
17. The said principles can be applied only if it is seen
prima facie from the materials that the loss was occasioned
not on account of any purposeful act of the public servants.
Here, the materials would definitely show that the quantity of
metals used to form the subbase and base portions of the
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Crl.M.C.Nos.4197 & 5842 of 2022
road was less than prescribed. The estimation by the
investigating agency may not be mathematically precise. But
when the shortage of materials is by 34.2%, which was
revealed from the examination of samples collected from
three different points of the road, it cannot prima facie be said
that there was only a carelessness or breach of duty on the
part of the petitioners. The result is, the plea of the
petitioners to quash the final report can only be dismissed.
Hence, these petitions are dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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Crl.M.C.Nos.4197 & 5842 of 2022
APPENDIX OF CRL.MC 4197/2022
PETITIONER ANNEXURES
ANNEXURE-I TRUE COPY OF THE STATEMENT GIVEN BY
SRI. K.S. DINESAN BEFORE THE 2ND
RESPONDENT DATED 11-04-2016
ANNEXURE-II TRUE COPY OF THE STATEMENT GIVEN BY
SRI. VINU B. DATED 13-04-2016
ANNEXURE-III TRUE COPY OF THE JOINT MAHASSAR
PREPARED BY THE INVESTIGATING OFFICER
DATED 9-2-2016
ANNEXURE-IV CERTIFIED COPY OF THE FINAL REPORT NO.
11/2021 SUBMITTED BY THE 2ND
RESPONDENT ON 27-08-2021 BEFORE THE
COURT OF ENQUIRY COMMISSIONER AND
SPECIAL JUDGE, KOTTAYAM AS C.C.NO.
23/2021
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Crl.M.C.Nos.4197 & 5842 of 2022
APPENDIX OF CRL.MC 5842/2022
PETITIONER ANNEXURES
ANNEXURE I A TRUE COPY OF THE ORDER NO.AE/
ARKY/003/2009 DATED 01.10.2011
ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT NO
11/2021 SUBMITTED BY THE 2ND
RESPONDENT ON 27-08- 2021
ANNEXURE III ORDER OF THE CHIEF ENGINEER LSGD
TRANSFERRING THE PETITIONER ALONG WITH
OTHERS DATED 07.08.2012