Kerala High Court
S.Gopakumar vs State Of Kerala on 9 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943
CRL.A NO. 1417 OF 2007
AGAINST THE JUDGMENT IN CC 48/1999 DATED 30.07.2007 OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED : (PARTY IN CUSTODY):
1 S.GOPAKUMAR
(FORMERLY ASSISTANT EXECUTIVE ENGINEER,,
AGRICULTURE DEPARTMENT,KOLLAM,, RESIDING AT T.C.
28/170, KAITHAMUKKU,, THIRUVANANTHAPURAM.) DIED
ADDL 2 JAYASREE, W/O. LATE S.GOPAKUMAR,
JANAKAJA VILAS, T.C. 28/170,KAITHAMUKKU,
THIRUVANANTHAPURAM.
ADDL 2ND APPELLANT 1S IMPLEADED AS PER ORDER DATED
08/07/2020 IN CRL.M.A.1/2020.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.SREEKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR. HIGH COURT OF KERALA,ERNAKULAM.
BY SRI.A.RAJESH, SPL.PP VACB
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
27.01.2021 ALONG WITH CRL.A.NO.1535 OF 2007, THE COURT ON
09.06.2021 DELIVERED THE FOLLOWING:
Crl.A.No.1417/2007 &
1535/2007 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943
CRL.A NO. 1535 OF 2007
AGAINST THE JUDGMENT IN CC 48/1999 DATED 30.07.2007 OF THE
ENQUIRY COMMISSIONER & SPECIAL JUDGE,THIRUVANANTHAPURAM
APPELLANT/A2:
YOUSUF SAIJUDEEN
AGED 60 YEARS
S/O SAIFUDEEN, OWNER,, M/S GOODWILL ENTERPRISES,,
ERNAKULAM.
BY ADV SRI.C.P.UDAYABHANU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
BY SRI.A.RAJESH, SPL.PP VACB
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
27.01.2021, ALONG WITH CRL.A.1417/2007, THE COURT ON
09.06.2021 DELIVERED THE FOLLOWING:
Crl.A.No.1417/2007 &
1535/2007 3
R. NARAYANA PISHARADI, J
****************
Crl.Appeal.Nos.1417 of 2007 & 1535 of 2007
-------------------------------------------------
Dated this the 9th day of June, 2021
JUDGMENT
The appellant in Crl.A.No. 1417/2007 is the first accused and the appellant in Crl.A. No.1535/2007 is the second accused in the case C.C.No.48/1999 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram.
2. The prosecution case against the accused can be briefly stated as follows: The first accused was working as Assistant Executive Engineer (Agriculture), Kollam during the period from 13.11.1992 to 18.01.1995. The second accused was the Managing Partner of the firm "M/s.Goodwill Enterprises". The Executive Engineer (Agriculture), Alappuzha had instructed all the Assistant Executive Engineers (Agriculture) under his control to urgently take up the work of providing additional facilities to the Krishi Bhavans. In response to such direction, the first accused Crl.A.No.1417/2007 & 1535/2007 4 directed the Assistant Directors (Agriculture) under his jurisdiction to forward the details of the works to be executed. Then, four Krishi Bhavans forwarded proposals for providing water connection and the other Krishi Bhavans forwarded proposals for execution of various other works. However, the first accused originated 19 files for supply of pump sets to 19 Krishi Bhavans for providing water connection. Pursuant to the conspiracy entered with the second accused, instead of inviting tenders for the supply of 19 pump sets, the first accused, by abusing his position as a public servant, invited quotations for the supply of 1HP deep well jet pump sets and 1HP mono block pump sets. The second accused was not an authorised dealer of any pump sets. However, the second accused gave quotations of six firms, including his firm, quoting very high rates for the pump sets. Then, the first accused, in violation of the provisions of the Store Purchase Manual of the Government of Kerala, accepted the quotations made by M/s. Goodwill Enterprises at the rates of Rs.8,950/- and Rs.8,750/- for the jet and the mono block pump sets respectively and he placed orders with the second accused for supply of 16 pump sets. Thereafter, the first accused made false entries in the stock register to make it appear that ten pump sets were received from the second Crl.A.No.1417/2007 & 1535/2007 5 accused on 16.03.1993 and six pump sets were received on 25.03.1993 for the price quoted by the second accused. But, the second accused had not supplied any pump set either on 16.03.1993 or on 25.03.1993. The first accused prepared false proceedings on 17.03.1993, 18.03.1993 and 27.03.1993 by which he accorded sanction for drawing and disbursing a total amount of Rs.1,41,600/- and he presented bills for that amount in the District Treasury, Kollam. On passing of the bills by the treasury, the first accused issued two demand drafts for the said amount in favour of the second accused who encashed them on 05.04.1993 through the State Bank of Travancore, Civil Station Branch, Kollam. Thereafter, the second accused purchased 16 pump sets from Guru Associates, Ernakulam on 30.04.1993 for a total amount of Rs.49,680/- and supplied them at the office of the first accused during the first week of May, 1993. Thus, the second accused obtained pecuniary advantage of Rs.91,920/-. Thereafter, the first accused prepared two false supply orders dated 15.04.1993, for supply of three 1HP mono block pump sets and three 1HP jet pump sets. The second accused, without receiving any such orders for the supply of pump sets, handed over two forged invoices bearing numbers 1312 and 1313 dated Crl.A.No.1417/2007 & 1535/2007 6 30.04.1993 to the first accused. The first accused prepared and passed proceedings on 14.05.1993 by which he accorded sanction for payment of a total amount of Rs.53,100/- to the second accused. Without effecting any payment to the second accused, the first accused dishonestly and fraudulently converted the aforesaid amount for his own use. He made false entries in the treasury payment cheque register relating to TP account to show that Rs.53,100/- was paid to the second accused as price of those pump sets. Thereafter, he destroyed or removed the above register and other records connected with such account with the dishonest intention of causing disappearance of the evidence of the offences committed by him.
3. On completing the investigation of the case, after obtaining sanction for prosecution against the first accused, the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Kollam filed charge-sheet against the two accused for the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 409, 468, 471, 477A and 201 read with 120B of the Indian Penal Code (IPC). Crl.A.No.1417/2007 & 1535/2007 7
4. The trial court framed charge against the first accused for the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Act and also under Sections 468, 409 and 477A read with 120B of the IPC and under Sections 471 and 201 of the IPC. The trial court framed charge against the second accused for the offence punishable under Section 13(1)(d) read with 13(2) of the Act and Section 120B of the IPC. Both accused pleaded not guilty and they claimed to be tried.
5. The prosecution examined PW1 to PW42 and marked Exts.P1 to P193 documents and MO1 series material objects. No oral evidence was adduced by the accused but Exts.D1 to D4 documents were marked on their side.
6. The trial court convicted the first accused for the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Act and also under Sections 409, 468, 471 and 477A, 201 and 120B of the Indian Penal Code. The trial court sentenced the first accused to undergo rigorous imprisonment for a period of four years for the offence punishable under Section 13(1)(c) read with 13(2) of the Act and also rigorous imprisonment for a period of four years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous Crl.A.No.1417/2007 & 1535/2007 8 imprisonment for a period of one year for the offence punishable under Section 13(1)(d) read with 13(2) of the Act. The trial court further sentenced the first accused to undergo rigorous imprisonment for a period of three years each for the offences punishable under Sections 409, 468, 471 and 477A read with 120B of the Indian Penal Code. The trial court also sentenced the first accused to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 201 of the Indian Penal Code. The trial court directed that the substantive sentences of imprisonment imposed on the first accused shall run concurrently.
7. The trial court found the second accused guilty of the offence punishable under Section 13(1)(d) read with 13(2) of the Act and 120B of IPC and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of six months.
8. During the pendency of the appeals, the first accused died. As per the order in Crl.M.A No.1/2020, this Court granted leave to the wife of the first accused to continue the prosecution Crl.A.No.1417/2007 & 1535/2007 9 of the appeal.
9. The second accused also died during the pendency of the appeal filed by him. However, none of the near relatives of the second accused made any application for granting leave to continue the appeal.
10. Heard the learned counsel who appeared for the wife of the appellant in Crl.A.No.1417/2007 and also the learned Public Prosecutor. Perused the records of the case.
11. Learned counsel for the appellant has contended that, though voluminous evidence has been adduced by the prosecution, it is deficient to prove the offences alleged against the first accused. Learned counsel has submitted that the prosecution might have proved that the actions of the first accused did not conform to the departmental norms and procedures but certainly, his conduct did not amount to criminal misconduct under the Act. Learned counsel has also contended that the officer who issued the order granting sanction for prosecution of the first accused was not examined and therefore, the prosecution could not prove that there was a valid sanction for prosecution against the first accused.
12. Per contra, learned Public Prosecutor has submitted Crl.A.No.1417/2007 & 1535/2007 10 that there is ample evidence adduced by the prosecution to prove the offences alleged against both accused. Learned Public Prosecutor has further submitted that, non-examination of the person who issued the order granting sanction for prosecution against the first accused is not fatal to the case of the prosecution.
13. The first accused had worked as Assistant Executive Engineer (Agriculture), Kollam during the period from 13.11.1992 to 18.01.1995. He was a public servant as defined under Section 2(c) of the Act. There is no dispute with regard to these facts.
14. PW11 was the Executive Engineer (Agriculture), Alappuzha during the period from 09.11.1992 to 31.03.1994. As per Ext.P56(a) letter dated 10.12.1992, PW11 had given instructions to all Assistant Executive Engineers (Agriculture) under his control to take up and execute the works required for providing additional facilities like electric connection, drinking water, compound wall etc to the Krishi Bhavans, on a priority basis.
15. PW2 was a Lower Division Clerk in the office of the first accused during the period from 10.06.1986 to 14.09.1994. He was the person who was dealing with Ext.P10 file relating to Crl.A.No.1417/2007 & 1535/2007 11 providing additional facilities to the Krishi Bhavans.
16. On receipt of Ext.P56(a) letter, the first accused had made Ext.P10(b) office note in Ext.P10 file to address the Assistant Directors (Agriculture) to forward the details of the works to be taken up for providing additional facilities to the Krishi Bhavans. Ext.P10(b) office note was marked through PW2 who has given evidence that he can identify the handwriting, signature and initials of the first accused. When examined under Section 313 Cr.P.C, the first accused admitted the authorship of Ext.P10(b) office note.
17. On the basis of Ext.P56(a) letter and Ext.P10(b) office note, Ext.P10(c) letter dated 16.12.1992 was sent to the Assistant Directors (Agriculture) who were working under the first accused. As per that letter, the Assistant Directors (Agriculture) were directed to forward the details of the works to be taken up for the Krishi Bhavan buildings.
18. The evidence of PW2 and the contents of Ext.P10 file would show that only four Krishi Bhavans had forwarded proposals for providing water connection and pump sets. However, the first accused proceeded with the work of providing water connection and pump sets to 19 Krishi Bhavans.
Crl.A.No.1417/2007 & 1535/2007 12
19. Ext.P11 is the personal register maintained by PW2 for the year 1993. As per Ext.P11(a) to Ext.P11(i) entries made by PW2 in Ext.P11 register, 19 files were originated by him in the matter of providing water connection to the 19 Krishi Bhavans. PW2 has given evidence that it was as per the direction given by the first accused that he originated the 19 files. There is no reason to disbelieve the evidence of PW2 in that regard. When examined under Section 313 Cr.P.C, the first accused admitted that the 19 files were originated as per the direction given by him. Exts.P2, P3, P12 to P18 and P25 to P34 are the 19 files originated in the matter of providing water connection to the 19 Krishi Bhavans.
20. PW4 was the First Grade Draughtsman in the office of the first accused during the period from November, 1992 to October, 1997. He has given evidence that he prepared the estimates for providing water connection and those estimates are contained in the 19 files. The price of the pump sets is mentioned in the estimates. PW4 has deposed that it was the price mentioned by the first accused which was shown in the estimates prepared by him. PW4 identified the signatures of the first accused in the estimates. When examined under Section 313 Crl.A.No.1417/2007 & 1535/2007 13 Cr.P.C, the first accused admitted that the estimates bear his signature. Since the estimates bear the signature of the first accused it has to be found that they had been approved by him.
21. The price of the pump sets shown in most of the estimates is Rs.6,500/-. However, in Ext.P18 file, the price of the pump set is shown as Rs.6,000/- and in Ext.P30 file, it is shown as Rs.3,000/- and in Exts.P31 and P32 files, it is shown as Rs.9,000/- each.
22. There is no dispute with regard to the fact that the first accused was competent to grant technical sanction for work upto Rs.20,000/-. PW11 Executive Engineer (Agriculture) was the officer competent to grant technical sanction for works above Rs.20,000/-.
23. Exts.P57 and P58 were the files maintained in the office of PW11. They relate to granting of sanction for the estimates received from the first accused. PW11 identified the signature of the first accused in the estimates and the reports contained in pages 3 to 19 of Ext.P57 file [which is marked as Ext.P57(a)] and pages 5 to 21 of Ext.P58 file [which is marked as Ext.P58(a)]. PW11 has given evidence that he had granted technical sanction for the estimates prepared by the first accused. As per Ext.P57(c) Crl.A.No.1417/2007 & 1535/2007 14 and P58(a-1) orders, PW11 had granted technical sanction for purchase of pump sets at Rs.6,000/- and Rs.6,500/- respectively.
24. PW11 has given evidence that he had examined whether the price of the pump sets shown in the estimates forwarded by the first accused were reasonable or not. He has deposed that such verification was made by him with reference to the price of the pump sets shown in the booklet published by the State Level Technical Committee.
25. PW11 has given evidence that, as per Ext.P31(b) and P32(a-1) orders, he had granted technical sanction for purchase of pump sets at Rs.9,000/- each for two Krishi Bhavans. As per Ext.P18(a-1), he had granted technical sanction for purchase of pump set at Rs.6,000/- for another Krishi Bhavan. PW11 has explained the reason for the discrepancy or difference in the price of the pump sets. According to him, when the depth of the well is different, the price of the pump sets to be used would also be different. However, PW11 has also clarified that, even if technical sanction and administrative sanction are given for purchase of pump sets at a specific rate, if the market rate is below the price for which sanction has been granted, the pump sets shall be purchased only at the market rate.
Crl.A.No.1417/2007 & 1535/2007 15
26. PW11 has stated on cross-examination that he had granted technical sanction for purchase of pump sets after being satisfied about the reasonableness of the price of the pump sets. He has also stated that he had granted technical sanction though he was conscious of the variation in the price of the pump sets shown in the estimates forwarded by the first accused.
27. Instead of inviting tender for the supply of 19 pump sets, the first accused had invited quotations for the supply of one jet pump and one mono block pump each.
28. As per paragraph 14 of Ext.P185 Stores Purchase Manual, tenders shall be invited, if the estimated value of the stores to be purchased is Rs.20,000/- or above. In clause (c) of paragraph 24 of Ext.P185 Stores Purchase Manual, it is provided that the requirements of the same or similar materials should be consolidated and tenders invited in order to secure the advantage of competitive prices for bulk supply.
29. The fact that the first accused invited quotations for the supply of one pump set of each type, instead of inviting tenders for the supply of total 19 pump sets, is one of the circumstances which would indicate the dishonest intention of his actions.
30. According to the prosecution, the first accused had Crl.A.No.1417/2007 & 1535/2007 16 entered into a criminal conspiracy with the second accused on or before 15.03.1993 and pursuant to such conspiracy, the first accused, by abusing his official position, had accepted the quotations submitted by the second accused in which exorbitant rate was mentioned for the supply of the pump sets. Exts.P2(g) and P3(h) are the copies of the quotation notices issued by the first accused on 01.03.1993 and 02.03.1993 respectively. The requirement shown in the above quotations was only one number of 1HP jet pump set and one number of 1HP mono block pump set. The last date for the receipt of the quotations shown in Exts.P2(g) and P3(h) was 15.03.1993.
31. The evidence of PW2 shows that the copies of the quotation notices were not affixed on the notice board in the office of the first accused. His evidence also reveals that the quotation notices were not circulated among dealers of pump sets. There is no evidence on record to show that Exts.P2(g) and P3(h) quotation notices were given to any firms which supply pump sets. Ext.P47 is the local delivery tapal book and Ext.P48 is the despatch register maintained in the office of the first accused during the relevant period. These records do not contain any entry regarding the despatch of the quotation notices to any firm. Crl.A.No.1417/2007 & 1535/2007 17 Further, in Ext.P144 register kept in the office of the first accused as per the provision contained in paragraph 30 of Ext.P185 Stores Purchase Manual, no entry with regard to the notification of the quotations has been made. Therefore, it is evident that there was no transparency in the procedure adopted by the first accused in inviting quotations for the supply of the pump sets. Adequate publicity of the quotation notices was not made.
32. Exts.P2(h) to P2(m) are the quotations received in response to Ext.P2(g) quotation notice. Exts.P3(i) to P3(n) are the quotations received in response to Ext.P3(h) quotation notice. Exts.P2(h-1) to P2(m-1) and P3(i-1) to P3(n-1) are the envelopes in which the above quotations were received. These envelopes bear the endorsement made by the first accused to the effect that the quotations were received in his office at 4:00 p.m on 15.03.1993. All the quotations were opened at 4:30 p.m on 15.03.1993 by the first accused. When examined under Section 313 Cr.P.C, the first accused admitted the above facts.
33. All the quotations were opened by the first accused at the same time on the same day, which is the correct practice. However, as rightly observed by the trial court, it is strange that all the quotations were received in the office of the first accused Crl.A.No.1417/2007 & 1535/2007 18 at the same time on the same day inspite of the fact that those quotations were from different firms. The fact that the quotations from the different firms were received in the office of the first accused at the same time on the same day leads to the inference that they were given by the same person or firm, that is, the second accused or his firm and none else.
34. The six firms which had submitted quotations were (1) National Electrical Corporation, Kollam (2) Industrial Engineering Company, Kollam (3) B.K.Industrial Corporation, Ernakulam (4) STS Associates, Thiruvananthapuram (5) M/s.Goodwill Enterprises, Ernakulam and (6) Hindustan General Agencies, Thiruvananthapuram.
35. PW12 is the brother of the second accused. PW12 and the second accused were the partners of the firms, National Electrical Corporation, Industrial Engineering Company and M.A.Abdul Hussain Company. This is revealed from the evidence of PW12. His evidence would further show that M/s.Goodwill Enterprises, Ernakulam was only a branch office of Industrial Engineering Company, Kollam. The evidence of PW12 reveals that the firms, STS Associates and Hindustan General Agencies were conducted by his brother-in-laws. The evidence of PW12 further Crl.A.No.1417/2007 & 1535/2007 19 reveals that the firm B.K. Industrial Corporation, Ernakulam was started by the second accused in the year 1992. Ext.P187 is the copy of the partnership deed in respect of the firm National Electrical Corporation. It shows that PW12 and the second accused were partners of that firm. Ext.P188 is the copy of the partnership deed of the firm M/s. Industrial Engineering Company, Kollam. It shows that PW12 and the second accused were partners of that firm. Ext.P189 is the copy of the sales tax registration certificate in relation to the firm Industrial Engineering Company. In Ext.P189, the additional place of business of the above firm is shown as Goodwill Enterprises at Ernakulam. The evidence of PW12 and the documents mentioned above would clearly indicate that, though the six firms were styled as different, the second accused had some connection with all those firms. Only the above six firms had submitted quotations in response to Exts.P2(g) and P3(h) quotation notices. This would indicate that, only the second accused or the firms which were run by him or with which he had connection, were aware of the quotation notices. In such circumstances, there could have been no difficulty for the second accused to quote the lowest price for the pump sets in the quotations given by him in the name of M/s.Goodwill Crl.A.No.1417/2007 & 1535/2007 20 Enterprises.
36. Exts.P2(n) and P3(o) are the tabulation statements which contain the price quoted by the six firms for the pump set. The rate quoted by M/s.Goodwill Enterprises for one 1HP mono block pump set was Rs.8,750/- and for one 1HP jet pump set was Rs.8,950/-. The quotations made by the second accused in the name of M/s.Goodwill Enterprises were the lowest and they were accepted by the first accused.
37. Exts.P2(o) and P3(p) are the supply orders issued by the first accused. When examined under Section 313 Cr.P.C, the first accused admitted the issuing of Exts.P2(o) and P3(p) supply orders in favour of M/s.Goodwill Enterprises. As per Ext.P2(o) supply order dated 16.03.1993, the second accused was directed to supply five 1HP deep well jet pump sets. As per Ext.P3(p) supply order dated 16.03.1993, the second accused was directed to supply five 1HP mono block pump sets. The total price of the ten pump sets was Rs.88,500/-.
38. It is pertinent here to note that the supply orders were issued by the first accused at a price higher than the estimated price for which technical sanction was granted by PW11. The supply orders issued by the first accused as per Exts.P2(o) and Crl.A.No.1417/2007 & 1535/2007 21 P3(p) were beyond his financial powers.
39. Again, as per Ext.P2(r) supply order dated 20.03.1993 issued by the first accused, the second accused was directed to supply three 1HP deep well jet pump sets. The first accused also issued Ext.P3(s) supply order dated 20.03.1993 for the supply of three 1HP mono block pump sets.
40. Exts.P2(a) and P3(a) are the invoices dated 16.03.1993 submitted by the second accused in relation to Exts.P2(o) and P3(p) supply orders. Exts.P2(b) and P3(b) are the invoices dated 25.03.1993 submitted by the second accused in relation to Exts.P2(r) and P3(s) supply orders.
41. The prosecution case is that the second accused actually did not supply the pump sets on 16.03.1993 or 25.03.1993 as per the invoices mentioned above but the pump sets were supplied by him only in the first week of May, 1993.
42. PW1 was the officer who was handling the stock register in the office of the first accused during the period from 23.10.1992 to 31.08.1994. Ext.P1 is the stock register. PW1 has given evidence that he has made Exts.P1(d), P1(e), P1(f) and P1(g) entries in pages 126, 127, 137 and 138 of Ext.P1 stock register on the basis of the invoices dated 16.03.1993 and Crl.A.No.1417/2007 & 1535/2007 22 25.03.1993 submitted by the second accused.
43. PW1 has given evidence that he made such entries without actually receiving the pump sets as per the invoices and he made such entries on the compulsion by the first accused. These entries had been verified and initialled by the first accused. When examined under Section 313 Cr.P.C, the first accused has stated that he had certified Exts.P1(d), P1(e), P1(f) and P1(g) entries with regard to the receipt of the pump sets but he had physically verified the pump sets and ensured that they were supplied.
44. When examined under Section 313 Cr.P.C, the second accused admitted that he had given the invoices dated 16.03.1993 and 25.03.1993. But, he stated that he did not supply the pump sets either on 16.03.2003 or 25.03.2003. He stated that he had purchased 16 pump sets from M/s.Guru Associates as per Ext.P79 invoice and supplied them at the office of the first accused on 30.04.2003 only.
45. PW16 is the partner of the firm M/s.Guru Associates, Ernakulam. His evidence shows that, the above firm was an authorised dealer of Laxmi Industries. The evidence of PW16 further shows that, as per Ext.P79 bill, 16 pump sets were sold to Crl.A.No.1417/2007 & 1535/2007 23 M/s.Goodwill Enterprises on 30.04.2003.
46. PW38 was the Branch Manager of Laxmi Industries at Ernakulam. His evidence shows that, as per Ext.P118 invoice, 16 pump sets had been sold to Guru Associates. Ext.P118 is the copy of the invoice and Ext.P80 is the original of the invoice. The serial numbers of the pump sets sold are shown in them. Ext.P79 bill, by which Guru Associates sold the pump sets to M/s.Goodwill Enterprises, bear the same serial numbers.
47. Ext.P148 lorry receipt dated 30.04.1993 shows that the above pump sets were sent from Goodwill Enterprises to their office at Kollam on that date.
48. Therefore, there is clinching evidence to find that, though the second accused had given the invoices dated 16.03.1993 and 25.03.1993 in the office of the first accused, the pump sets were actually not supplied on those dates but they were supplied only after the date 30.04.1993. However, the first accused had caused false entries to be made in Ext.P1 stock register regarding receipt of the pump sets on 16.03.1993 and 25.03.1993. Further, on the basis of the invoices dated 16.03.2003 and 25.03.2003, the first accused had passed orders sanctioning payment of a total amount of Rs.1,41,600/- to the Crl.A.No.1417/2007 & 1535/2007 24 second accused. This amount was withdrawn from the treasury and demand draft for that amount was given in favour of the second accused even before the actual supply of the pump sets. The prosecution has adduced clinching evidence regarding the withdrawal of the amount of Rs.1,41,600/- and payment of it to the second accused. When examined under Section 313 Cr.P.C, the first accused has admitted withdrawal of the above amount and payment of it to the second accused. When examined under Section 313 Cr.P.C, the second accused has admitted receipt of the above amount by him even before the supply of the pump sets. Therefore, it is not necessary here to discuss the evidence adduced by the prosecution in that regard.
49. Ext.P79 bill would show that it was for an amount of Rs.49,680/- that M/s.Goodwill Enterprises purchased the 16 pump sets from Guru Associates, which would mean that the price of one pump set was only Rs.3,105/-. Ext.P79 itself is sufficient to infer that the price quoted by the second accused for supply of the pump sets was exorbitant and it was more than double the rate at which it was available in the market.
50. Ext.P193 is the proceedings of the State Level Technical Committee for selection of pump sets. It is dated 30.01.1993. Crl.A.No.1417/2007 & 1535/2007 25 On the basis of the price of the pump sets shown in Ext.P193, learned counsel for the appellant would contend that the price of the pump sets quoted by the second accused and accepted by the first accused was not exorbitant or high. There is no merit in this contention. Ext.P193 itself shows that it is a price list prepared for distribution of pump sets under different loan schemes. Ext.P193 specifically mentions that it shall not be followed for government purchases.
51. It is also alleged by the prosecution that the first accused had withdrawn an amount of Rs.53,100/- from the treasury on the basis of bogus invoices and that he misappropriated that amount.
52. Exts.P2(v) and P3(v) are the supply orders issued by the first accused in favour of the second accused on 20.03.1993. They bear the signature of the first accused. When examined under Section 313 Cr.P.C., the first accused admitted issuing the above supply orders. As per Exts.P2(v) and P3(v), the second accused was requested to supply three 1HP deep well jet pump sets and three 1HP mono block pump sets respectively.
53. When examined under Section 313 Cr.P.C, the second accused stated that he had not received Exts.P2(v) and P3(v) Crl.A.No.1417/2007 & 1535/2007 26 supply orders. He also stated that he did not supply pump sets in response to any such supply orders.
54. Exts.P2(c) and P3(x) are the copies of the invoices submitted by the second accused. They bear the date 30.04.1993. PW1 has given evidence that he made Exts.P1(k) and P1(l) entries in Ext.P1 stock register regarding receipt of six pump sets and that such entries were made on the basis of Exts.P2(c) and P3(x) invoices. He has deposed that he made those entries without actually receiving the six pump sets but on the compulsion made by the first accused. These entries bear the signature of the first accused.
55. The plea of the second accused was that he had given four invoices dated 30.04.1993 in the office of the first accused in place of the four invoices earlier given for supply of 16 pump sets. There is no explanation as to the necessity of substituting the earlier invoices. Therefore, it is evident that the two invoices dated 30.04.1993 given by the second accused were bogus or false and that they were given with a view to enable the first accused to withdraw money from the treasury.
56. Ext.P1 stock register contains Ext.P1(k-1) entry regarding the issue of two 1HP jet pump sets which were Crl.A.No.1417/2007 & 1535/2007 27 purportedly received as per Ext.P2(c) invoice. As per Ext.P1(k-1) entry, these two pump sets were issued on 27.11.1993 for installing at Parippally and Kottamkara Krishi Bhavans. PW37 investigating officer had prepared Exts.P107 and P108 mahazars regarding the pump sets found in the above Krishi Bhavans. These mahazars reveal that the pump sets installed in the above Krishi Bhavans were of Mahendra Company. When examined under Section 313 Cr.P.C, the second accused stated that he had not supplied any pump set of Mahendra Company in the office of the first accused.
57. Ext.P107 is the mahazar prepared by PW37 in respect of the pump set found in the Parippally Krishi Bhavan. The number of that pump set is 'G.1357'. PW25 was the Agricultural Officer of the Krishi Bhavan, Parippally during the period from 01.02.1993 to 11.07.2000. The stock register of that Krishi Bhavan contains Ext.P87(a) entry regarding the pump set there. Ext.P87(b) is the carbon copy of the receipt in respect of that pump set. The evidence of PW25 and the above documents prove that the pump set was received in that Krishi Bhavan on 21.06.1994 and it was of the number 'G.1357'. Crl.A.No.1417/2007 & 1535/2007 28
58. Ext.P108 is the mahazar prepared by PW37 in respect of the pump set found in the Kottamkara Krishi Bhavan. The pump set installed there was also of Mahendra Company, bearing No.18758.
59. PW17 is none other than the father-in-law of the first accused. The records would show that the pump sets bearing the numbers, G.1357 and 18758 had been purchased from Devi Trading Corporation on 18.01.1994 in the name of PW17. Ext.P73(c) is the bill relating to these two pump sets. It is dated 18.01.1994 and it is issued in the name of PW17. These two pump sets were sold only on 18.01.1994 from the company or the dealer. Therefore, it is evident that Ext.P1(k-1) entry made in Ext.P1 stock register that the two pump sets were issued on 07.11.1993 for installation in Kottankara and Parippally Krishi Bhavans is a false entry. Ext.P1(k) entry dated 30.04.1993 is also a false entry.
60. The prosecution has adduced voluminous evidence to prove that the entries made in Ext.P1 stock register regarding the receipt of other four pump sets on 30.04.1993 are also false. It is not necessary here to discuss that evidence in detail. The reason is that, even assuming that the second accused had supplied six Crl.A.No.1417/2007 & 1535/2007 29 pump sets as per Ext.P2(c) and P3(x) invoices on 30.04.1993, there is no record to show that the amount of Rs.53,100/- withdrawn by the first accused from the treasury for payment to the second accused was actually paid to him. It is pertinent here to note that, when examined under Section 313 Cr.P.C, the first accused admitted withdrawing the amount of Rs.53,100/- from the treasury towards payment of the price of the six pump sets.
61. PW18 was the Superintendent in the Kollam District Treasury during the period from 18.06.1996 to 03.06.1997. His evidence would show that the first accused was maintaining TP Account No.1890 in the treasury. Ext.P81 is the extract of the ledger relating to this account for the period from 26.03.1993 to 31.03.1995. The account was opened by the first accused on 26.03.1993. Ext.P81 would show that the first accused had withdrawn an amount of Rs.4,75,000/- on 25.07.1993 as per cheque No.974385. Another sum of Rs.4,00,000/-was withdrawn by him on 28.05.1993 as per cheque No.974836. The first accused had opened a current account in his official address in the State Bank of Travancore, Kollam Civil Station Branch on 27.05.1993. Ext.P51 is the extract of the ledger relating to this account. Ext.P51 would show that the first accused deposited Crl.A.No.1417/2007 & 1535/2007 30 Rs.3,46,363/- and Rs.4,00,000/- in this account. It would clearly show that he had retained an amount of Rs.1,28,137/- with him. This amount would include the amount of Rs.53,100/- withdrawn by him for payment towards the price of six pump sets which were not supplied by the second accused.
62. The prosecution has also alleged that the first accused destroyed or removed the records relating to the TP Account, which were in his personal custody, with the intention to cause disappearance of the evidence of the offences committed by him.
63. The plea of the first accused was that the records connected with the TP Account were taken away from him during the vigilance enquiry conducted and that they were not returned. On suspension of the first accused, PW28, who was working as Assistant Engineer in that office, had taken charge of office from the first accused. His evidence shows that the records relating to the TP Account were not handed over to him when he took charge of the office from the first accused.
64. PW29 was the Inspector of Police who conducted the vigilance enquiry. He has deposed that he had collected some records from the office of the first accused during the enquiry and that he returned such records.
Crl.A.No.1417/2007 & 1535/2007 31
65. PW28 had sent Ext.P94(h) letter to the Principal Agricultural Officer regarding the non-handing over of the records relating to the TP Account. As per Ext.P170(a) letter dated 19.04.1997, the Director of Agriculture had addressed the Director of the VACB to instruct the Vigilance Officer concerned to return the records relating to the TP Account. The prosecution has no case that the Director, VACB or any other officer of the VACB had sent a reply informing that the Vigilance Officer had returned the records which were taken into custody by him during the enquiry. Therefore, not much reliance can be placed upon the evidence of PW29 that he had returned all the records collected by him during the vigilance enquiry.
66. In the above circumstances, it cannot be found that the prosecution has proved beyond reasonable doubt that the first accused destroyed or removed the records relating to the TP Account with the intention to cause disappearance of the evidence of the offences committed by him.
67. The discussion above would show that the prosecution has been able to prove beyond reasonable doubt the following facts and circumstances:
Crl.A.No.1417/2007 & 1535/2007 32
(i) In response to Ext.P10(c) letter dated 16.12.1992 sent by the first accused, only four Krishi Bhavans had sent proposal for providing water connection and pump set.
(ii) Though only four Krishi Bhavans had sent proposal for providing water connection and pump set, the first accused proceeded with the work of providing pump set to 19 Krishi Bhavans.
(iii) Instead of inviting tender for the supply of 19 pump sets in bulk quantity, the first accused invited only quotations for the supply of pump sets.
(iv) Adequate publicity was not given to the quotation notices.
(v) Only six firms submitted quotations in response to the quotation notices.
(vi) Out of the six firms which submitted the quotations, one was M/s.Goodwill Enterprises of which the second accused was the Managing Partner.
(vii) The second accused was in one way or other connected with the other five firms which submitted the quotations.
(viii) All the six quotations were received in the office of the first accused at the same time on the same day.
Crl.A.No.1417/2007 & 1535/2007 33
(ix) The rates quoted by the second accused on behalf of the firm M/s.Goodwill Enterprises were the lowest among the quotations.
(x) The first accused accepted the quotations given by the second accused.
(xi) The rates quoted by the second accused and accepted by the first accused were above the rates for which technical sanction was given by the officer competent to do so.
(xii) The rates quoted and accepted by the first accused were very high and they were more than the rate at which pump sets were available in the market.
(xiii) The first accused issued orders on 16.03.1993 in favour of the second accused for the supply of 10 pump sets.
(xiv) The first accused issued orders on 23.03.1993 in favour of the second accused for the supply of six pump sets
(xv) The second accused submitted invoices dated 16.03.1993 and 23.03.1993 for supplying 16 pump sets.
(xvi) Though invoices were given by the second accused as above, no pump set was actually supplied either on 16.03.1993 or on 23.03.1993. The second accused supplied the 16 pump sets only after the date 30.04.1993.
Crl.A.No.1417/2007 & 1535/2007 34 (xvii) Without the actual receipt of the pump sets on 16.03.1993 and 23.03.1993, the first accused caused entries to the made in Ext.P1 stock register that the pump sets were received on those dates and he authenticated such entries with his signature or initials.
(xviii) Even before the supply of 16 pump sets, the first accused passed orders for withdrawal and payment of an amount of Rs.1,41,600/- to the second accused towards the price of the pump sets.
(xix) The actual cost of the 16 pump sets supplied by the second accused was only Rs.49,680/-. Thus, the second accused obtained undue pecuniary advantage of Rs.91,920/- in the transaction.
(xx) The first accused prepared supply orders on 20.03.2003 for the supply of six pump sets. But, the supply orders were not issued to the second accused.
(xxi) The second accused gave bogus and false invoices dated 30.04.1993 to the first accused for six pump sets.
(xxii) The first accused, on the basis of the bogus and false invoices dated 30.04.1993, passed orders for the withdrawal and payment of an amount of Rs.53,100/- towards the price of the six Crl.A.No.1417/2007 & 1535/2007 35 pump sets which were not supplied by the second accused.
(xxiii) After withdrawing the amount of Rs.53,100/- from the treasury as above, the first accused misappropriated that amount.
68. The acts committed by the first accused, as revealed from the above facts and circumstances established by the prosecution, constitute the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Act and also under Sections 409, 468, 471 and 477A of the Indian Penal Code. The trial court has rightly found that the first accused had committed the above offences.
69. The first accused was a public servant. As per Section 19(1) of the Act, sanction of the competent authority was necessary for prosecution of the first accused for the offences under Section 13 of the Act.
70. In the instant case, sanction for prosecution against the first accused was granted by Sri. K.Mohanachandran, the then Principal Secretary, Vigilance Department. Ext.P98 is the order granting sanction for prosecution issued by him. This document was proved through PW36, an Under Secretary in that department. Sri.K.Mohanachandran, who issued Ext.P98 order, was not examined by the prosecution.
Crl.A.No.1417/2007 & 1535/2007 36
71. Learned counsel for the appellant submitted that Ext.P98 order granting sanction for prosecution has not been legally proved by examining the Principal Secretary who issued it and in the absence of such proof, the entire prosecution case against the first accused has no legs to stand on.
72. The prosecution has not offered any explanation for not examining the Principal Secretary of the Vigilance Department to prove Ext.P98 order granting sanction for prosecution.
73. In an identical situation, in Antony Cardoza v. State of Kerala : 2011 (1) KLT 946, this Court had held as follows:
"Admittedly, Ext.P10 order of sanction to prosecute the appellant was issued by Sri. Mohanachandran, the Principal Secretary, Vigilance. The said Principal Secretary was not examined in this case. Instead, PW9, the Under Secretary who processed the files which were received from the Director of Vigilance and who put up the files to the Principal Secretary through the Addl. Secretary, Vigilance alone was examined in this case to prove Ext.P10 sanction order issued by the Principal Secretary. PW9 admitted that Sri. Mohanachandran is still in service in the Department. Independent application of mind to the facts of the case as also to the materials and evidence collected during investigation by the authority competent to grant sanction is necessary. (Vide -- Mansukhlal Crl.A.No.1417/2007 & 1535/2007 37 Vithaldas Chauhan v. State of Gujarat: AIR 1997 SC 3400). The independent application of mind and the consequent satisfaction arrived at before according prosecution sanction are matters which could be proved only by the sanctioning authority and nobody else. If it was a lapse on the part of an autopsy surgeon in proving the postmortem certificate or that of a doctor in proving the wound certificate of a patient whom he had treated, Courts come down heavily on them. But why show undeserving latitude towards the lapse on the part of an administrative executive? Even if the argument that the expression 'Secretary' as defined under Rule (2)(c) of the Rules of Business of the Government of Kerala includes lower officers such as Special Secretary, Additional Secretary, Joint Secretary or a Deputy Secretary, is accepted, still the Under Secretary will not fall under the said definition.
Moreover, if a low level officer can be treated as the Secretary for the purpose of proving prosecution sanction, then why not invest such low level officer to issue orders granting prosecution sanction? Is it the aversion, antipathy or abhorrence of the official intelligentsia to go to the Court, mount the witness - box and face relevant but inconvenient questions, or is it the 'sensible' forestalling of a feared ignominy of the administrative executive by the investigating and prosecuting agencies? The fact remains that the sanction to prosecute the appellant has not been legally proved".
(emphasis supplied).
Crl.A.No.1417/2007 & 1535/2007 38
74. Antony Cardoza (supra) has been followed in so many decisions rendered by this Court. In K.V.Mathai v. State : 2016 SCC OnLine Ker 37052, it was held as follows:
"Ext.P160 is the prosecution sanction granted by the Commissioner and Secretary to the Government, Vigilance (D) Department. This sanction was marked through PW41, who was only an Under Secretary of the Vigilance Department at the relevant time. PW41 identified the signature of the Secretary and the Commissioner, who granted the sanction, and further stated that it was granted after examination of the relevant records and documents. She did not explain what all documents and materials were perused or examined by the Secretary, or how the Secretary came to a finding on the facts alleged by the Vigilance. The value of evidence given by this witness is only that she just identified the signature of the Commissioner and Secretary, who issued the sanction order, and nothing more. She does not know the details of the examination made by the Commissioner and Secretary, or the details of the materials and documents examined or perused by him. .... In this case, the prosecution sanction was granted by the Commissioner and Secretary to the Government, whereas, the person brought by the prosecution to prove the document is only an Under Secretary. Practically and legally, the prosecution sanction only stands marked, and not proved according to law. ..... The burden of proving the essentials as regards Crl.A.No.1417/2007 & 1535/2007 39 sanction, that it was granted on an independent application of mind, and after consideration of all the relevant materials and documents, cannot be taken over by somebody else, who had no role or involvement in the process of granting sanction......The prosecution does not have any explanation why the Commissioner and Secretary who granted sanction, was not examined. In very many cases and instances, this Court could find the prosecution sanction being simply marked by the Investigating Officer or by somebody else just claiming to be familiar with the signature of the sanctioning authority. Such a practice cannot be accepted in view of the proposition settled by the Hon'ble Supreme Court. In this case, I find that the prosecution sanction stands not properly and legally proved".
75. In Gurudas v. State of Kerala : 2015 (3) KLT 749, this Court had held as follows:
"True it is, that somebody who is familiar with the signature of the sanctioning authority, can prove the sanction, if only a formal proof is required. Marking of a document on formal proof is entirely different from accepting a material document in evidence on proper and legal proof, as required and prescribed under the Indian Evidence Act. Here is a case where the acceptability of the prosecution sanction was challenged by the defence during trial on the ground that it was granted by the authority without properly verifying and appreciating the materials collected by Crl.A.No.1417/2007 & 1535/2007 40 the Investigating Officer during the process. No doubt, in such a case, the prosecution sanction granted under Section 19 of the PC Act will have to be proved by the person who granted sanction. That function cannot be discharged by somebody else. ........ In this case, I find that Ext.P1 prosecution sanction stands not properly and legally proved by examining the right person who granted sanction. He will have to give evidence and prove that sanction was granted after proper and independent application of mind to the process. An Under Secretary cannot come and prove those aspects which will have to be proved by the Principal Secretary who granted sanction. This is what this Court held in Antony Cardoza v. State of Kerala also. I find that the appellant herein is entitled for acquittal on the legal ground itself, that there is no proper and valid sanction in this case proved according to law, and that the very cognizance was barred under Section 19 of the PC Act. I find that the conviction is legally unsustainable, and is liable to be set aside".
76. In Balakrishnan v. State of Kerala : 2015 SCC OnLine Ker 22043, it has been held as follows:
"The prosecution sanction requires proof as provided under the Indian Evidence Act. Ext.P24 sanction in this case cannot claim sanctity and privilege as a public document under Section 74 of the Indian Evidence Act. In such a situation, the sanction will have to be proved by the person who granted sanction. This Court has Crl.A.No.1417/2007 & 1535/2007 41 settled the position that when independent application of mind to the facts is a matter in dispute during trial, the person who granted sanction will have to prove the sanction, even if it is a sanction granted by the Government Secretary. ..... Such a sanction cannot claim any sanctity as a public document, and such a sanction will have to be proved by the person, who granted sanction. When the prosecution sanction cannot claim sanctity and privilege as a public document, it will have to be proved in the manner prescribed, under the Indian Evidence Act, for proof of documents. In the absence of such evidence by the person who granted sanction, Ext.P24 sanction cannot be accepted as a properly and legally proved sanction. I find that the prosecution has failed to prove Ext.P24 sanction as prescribed under the law, and so, the whole prosecution is barred".
77. In Pradeepkumar v. State of Kerala : 2017 SCC OnLine Ker 28866, this Court has held as follows:
"There is no explanation why the prosecution did not examine the Additional Chief Secretary to prove the Ext.P8 prosecution sanction. PW6 is not in a position to say what all documents and materials were examined by the Additional Chief Secretary, whether the Additional Chief Secretary had properly and anxiously considered and examined the materials placed before him, and whether the Additional Chief Secretary granted sanction on an application of mind Crl.A.No.1417/2007 & 1535/2007 42 independently to the facts of the case. PW6, who was only a Under Secretary, cannot prove the essentials which the Additional Chief Secretary will have to prove. Thus, I find that the prosecution sanction in this case stands not properly proved according to law, and on this ground itself, the accused is entitled for acquittal".
(emphasis supplied)
78. In N. Mathai v. State of Kerala : 2015 SCC OnLine Ker 22534, it was found as follows:
"Thus, I find that though the prosecution has succeeded in proving the case on facts, the appellant is entitled for acquittal in this case on the legal ground that the prosecution is barred for the reason that the prosecution sanction granted under Section 19 of the P.C Act stands not properly and legally proved as prescribed under the law".
79. In P. Alikoya v. State of Kerala : 2015 SCC OnLine Ker 23737, this Court has held as follows:
"Section 19 of the P.C Act even bars cognizance in the absence of a proper prosecution sanction granted by the competent authority. Such sanction granted by the authority competent to remove the public servant from service must be proved by the said authority during the trial process. If not so proved, as prescribed under the Indian Evidence Act, such a sanction simply marked by the Investigating Officer cannot be Crl.A.No.1417/2007 & 1535/2007 43 accepted as a proper and legal sanction. In such a situation, the bar of cognizance under Section 19 of the P.C Act would apply, and the accused will have to be acquitted on the ground that the whole prosecution is barred. In this case, I find that the 1 st accused is entitled for acquittal on this legal ground, whatever be the evidence on facts".
80. In K.T. Samuel v. State of Kerala : 2015 SCC OnLine Ker 25167, it has been held as follows:
"In this case, sanction was granted by the Principal Secretary, and the evidence of the Under Secretary examined as PW12 is that he does not know what are the materials considered by the Principal Secretary and he is not in a position to say anything about independent application of mind in the process of granting sanction. Thus the evidence of PW12 is really worthless in the matter of sanction. I find that Ext.P14 sanction in this case stands not properly and legally proved. The responsibility of proving the essential elements as regards sanction cannot be taken over by somebody else, and in such a circumstance, mere marking of the document will not suffice. In this case, I find that the accused is entitled for acquittal on the legal ground that the prosecution against him is barred under Section 19 of the P.C Act in the absence of a properly proved prosecution sanction".
81. In K.T. Hariharan v. State of Kerala : 2015 SCC OnLine Ker 29995, it was held as follows:
Crl.A.No.1417/2007 & 1535/2007 44 "It is true that under the Rules relating to transfer of business in the Government, a Government Secretary is authorised to authenticate sanction on behalf of the Government. This only means that genuineness of the sanction and signature therein cannot be disputed. But when it comes to the question of proving the essentials regarding the independent application of mind in the process of granting sanction, the proper and legal way is to examine the person who granted it, and not to examine somebody else. Instead of examining the Government Secretary, who granted the sanction, the prosecution examined an Under Secretary to prove Ext.P35. PW39 is not the competent person to say that all the relevant aspects and materials were considered by the authority who granted sanction, or that the authority granted it on an independent application of mind in the process. Thus, I find that the prosecution sanction in this case marked as Ext.P35 cannot be said to be a properly proved sanction. Consequently, it will have to be found that the prosecution is barred under Section 19 of the P.C Act".
82. The same view has been taken by this Court in a catena of cases (See V.M.Krishnan v. State of Kerala : 2015 SCC OnLine Ker 14431, K.Gangadharan Nair v. Deputy Superintendent of Police : 2015 SCC OnLine Ker 27592, Fatheela Beegom v. State of Kerala : 2015 SCC OnLine Ker 35694, T.P. Gopalakrishnan v. State of Kerala : 2015 SCC Crl.A.No.1417/2007 & 1535/2007 45 OnLine Ker 24456, V.C. Kuriakose v. State of Kerala: 2016 SCC OnLine Ker 14201 and M.K. Suresh Kumar v. State of Kerala : 2019 SCC OnLine Ker 12868).
83. In the light of the decisions referred to above, it has to be found that the order granting sanction for prosecution against the first accused has not been proved legally. It follows that, even though the prosecution has established that the first accused had committed the offences (except the offence under Section 201 of the I.P.C), the conviction entered against and the sentence imposed on him by the trial court cannot be sustained.
84. The contention of the learned Public Prosecutor is that it was not necessary to examine the Principal Secretary who issued Ext.P98 sanction order to prove the contents of that document. Even if this contention is accepted, there is lack of evidence to find that Ext.P98 is an order issued on application of mind after verifying the relevant documents and materials against the first accused.
85. The burden of proving that the requisite sanction has been obtained rests on the prosecution. Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to Crl.A.No.1417/2007 & 1535/2007 46 be based. These facts might appear on the face of the sanction or might be proved by extraneous evidence. When the facts constituting the offence do not appear on the face of the order granting sanction, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority (See Madan Mohan Singh v. State of U.P : AIR 1954 SC 637).
86. In CBI v. Asok Kumar Aggarwal: AIR 2014 SC 827, the Supreme Court has held that, as regards sanction under Section 19 of the Act, in every individual case, the prosecution has to satisfy the Court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority and in every individual case, the Court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It has also been held that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. It has been further held that consideration of the material implies application of mind and therefore, the order of sanction must ex facie disclose Crl.A.No.1417/2007 & 1535/2007 47 that the sanctioning authority had considered the evidence and other material placed before it. It has also been held that, if the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the Court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non- application of mind. On a consideration of the earlier decisions on the point, in Asok Kumar Aggarwal (supra) the Supreme Court has summarised the principles in this regard as follows:
"(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse Crl.A.No.1417/2007 & 1535/2007 48 sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law".
87. In the instant case, Ext.P98 sanction order does not indicate what all documents had been considered by the sanctioning authority. Ext.P98 sanction order does not indicate which documents were perused or considered by the sanctioning authority. What is stated in Ext.P98 sanction order is only that the sanctioning authority considered "the records of investigation" and Crl.A.No.1417/2007 & 1535/2007 49 that they disclosed the commission of the offences by the first accused. Ext.P98 sanction order does not ex facie disclose that the sanctioning authority had considered the entire evidence and other material against the first accused.
88. When sanction order itself is eloquent enough, then only formal evidence has to be adduced to show that the sanction was accorded by a competent person with due application of mind. The sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind.
89. In the instant case, Ext.P98 sanction order does not speak for itself. The prosecution also did not lead sufficient evidence to establish and satisfy the Court that the entire relevant facts had been placed before the sanctioning authority and that the authority had applied its mind on the same and that the sanction was granted in accordance with law. As noticed earlier, the Principal Secretary who issued Ext.P98 sanction order was not examined by the prosecution. Ext.P98 sanction order was marked through PW36, the Under Secretary who had placed the records before the Principal Secretary. PW36 has not given any evidence Crl.A.No.1417/2007 & 1535/2007 50 as to what all documents were placed by him before the Principal Secretary. He has only stated that all documents given by the Vigilance Director were submitted to the Principal Secretary but he could not state what all documents were so submitted. There is also no evidence as to what all documents had been given to PW36 by the Vigilance Director. The evidence of PW36 is not at all sufficient to establish that the the entire relevant documents and evidence had been placed before the sanctioning authority and that the authority had applied its mind on the same.
90. In State of M. P. v. Dr. Krishna Chandra Saksena :
(1996) 11 SCC 439, the Supreme Court has observed as follows:
"Now the question whether all the relevant evidence which would have tilted the balance in favour of the accused if it was considered by the sanctioning authority before granting sanction and which was actually left out of consideration could be examined only at the stage of trial when the sanctioning authority comes forward as a prosecution witness to support the sanction order if challenged during the trial".
(emphasis supplied) In the instant case, Ext.P98 sanction order does not speak for Crl.A.No.1417/2007 & 1535/2007 51 itself. The Principal Secretary (the sanctioning authority) who issued it was not examined also to support the sanction order.
91. Thus, it is a case where the prosecution failed to prove that the sanctioning authority had given the sanction on independent application of mind after verifying the entire relevant records, materials and evidence.
92. Section 19(3)(a) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction unless in the opinion of the court, a failure of justice has in fact been occasioned thereby. In the instant case, both the accused are no more. Therefore, it would be more or less a futile exercise to decide whether any failure of justice has been occasioned by the infirmity in Ext.P98 sanction order and it is not necessary to delve deep in that regard.
93. In the above circumstances, the conviction entered against and the sentence imposed on the first accused by the trial court cannot be sustained.
Crl.A.No.1417/2007 & 1535/2007 52
94. As noticed earlier in this judgment, none of the near relatives of the deceased second accused made application for granting leave to continue the appeal which was filed by the second accused. Therefore, in the light of the Full Bench decision of this Court in Pazhani v. State of Kerala: 2017 (1) KLT 341, the appeal filed by the second accused stands abated in so far as the sentence of imprisonment imposed on him by the trial court is concerned. As held in Pazhani (supra), the appeal filed by him has to be consigned to the record room.
95. Consequently, Crl.A.No.1417/2007 is allowed. The conviction entered against and the sentence imposed on the first accused by the trial court as per the impugned judgment stand set aside. The appeal filed by the second accused (Crl.A.No.1535/2007) stands abated in so far as the sentence of imprisonment imposed on him by the trial court is concerned and this appeal is consigned to the record room in the light of the Full Bench decision of this Court in Pazhani (supra). The appeals stand disposed of accordingly.
(sd/-) R.NARAYANA PISHARADI, JUDGE
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True Copy PS to Judge