Madhya Pradesh High Court
P.P. Tomas vs The State Of Madhya Pradesh on 9 January, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
THE HIGH COURT OF MADHYA PRADESH
CRA No. 11209/2019
P.P. Tomas S/o. Paily Thomas & others. V/s. State of M.P.
-: 1 :-
Indore, dated : 09.01.2020
Applicants by Shri A.M. Mathur, Sr. Advocate with
Shri Vaibhav Asawa, Advocate.
Respondent, Special Police Establishment,
Lokayukta, Indore by Shri R.S. Raghuvanshi, Advocate.
Heard on the question of admission.
Appeal is admitted for final hearing.
Also heard on I.A. No.10783/2019, an application for suspension of custodial sentence. The appellants stand convicted and sentenced as under :
Section & Act. Imprisonment Fine Amount Imprisonment in lieu of default of payment of fine.
120-B of IPC 4 years' RI 5,000/- 1 year RI 420 of IPC 4 years' RI 5,000/- 1 year RI 406 of IPC 2 years' RI 5,000/- 3 months' RI
2. According to the prosecution case, the Special Police Establishment (SPE) registered a case in the 1.3.1995 vide Crime No. 20/1995, under Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 and Sections 420 and 120-B of IPC against seven Government employees, namely (i) Late P. K. Monda the then Chief Engineer, (ii) B. D. Tiwari the then Superintending Engineer, (iii) A. K. Sojatiya the then Executive Engineer, (iv) V. K. Talsera the then Assistant Engineer in Criminal Revision No.671 of 2014, (v) P. D. Gupta Sub Engineer (vi) M.L. Joshi the then Superintending Engineer and fours partners of M/s Pallanattil Construction Company, Kerala THE HIGH COURT OF MADHYA PRADESH CRA No. 11209/2019 P.P. Tomas S/o. Paily Thomas & others. V/s. State of M.P. -: 2 :- ( here in after referred as ' Contractor') , namely P.P. Thomas, P.P. Polus, Kurian Paul and P.P. George. The above case was registered on the directions of Dy. Inspector General, Special Police Establishment, Lokayukt, Bhopal against appellant and others .It was alleged in the FIR that a contract was awarded for construction of dam which is commonly known as 'Man Project' by order No. 115/17/MNM/90 dated 25.8.1990 to the 'contractor', Kerala and the 'contractor' was directed to complete the work within 29 months i.e. by 29.2.1993. The total cost of the contract was Rs.13.18 crores .As per the term No. 3.23.2 of the contract, the contractor was to be paid an advance for the purpose of bringing and purchasing machinery to be used for the purpose of construction of the Dam. Accordingly Superintending Engineer NVDA, Circular No. 10, Manawar by his letter dated 22.9.1990 ordered the payment of Rs. 110.95 lakhs to the contractor for purchasing the machines. The contractor purchased the various machines to be used in the construction work. On 23.9.1994, the Executive Engineer, Narmada Development Authority (NVDA), Division No. 10, Manawar informed the Director, Rehabilitation, Bhopal that the 'contractor' has removed the machines from the site on 10.6.1991 before completion of work during contract period.
The preliminary inquiry was ordered in which it was revealed that the contractor has removed the machines on 10.6.1991 from the site, still the payments towards advance for machinery were made on 25.10.1991 of Rs. 6.38 Lakhs and of Rs.7.07 Lakhs THE HIGH COURT OF MADHYA PRADESH CRA No. 11209/2019 P.P. Tomas S/o. Paily Thomas & others. V/s. State of M.P. -: 3 :- on 6.4.1992, which ought not to have been done ,the machines were hypothecated with the department by the contractor and, therefore, the possession over the machines should have been continued by the department, but it was not done so, and the contractor has failed to complete the construction work in the specified period, as per the Term No. 4.32, even then the period of contract has been extended.
3. It was also found that the contractor was already having machines which he has shown as new machines and recovered money from the Government. The appellant and other government officers have failed to assess the correct value of those machines, at the time of payment of bills of purchase and thereby caused heavy losses to the government and gave undue financial benefit to the contractor. It was also found that though an advance of R. 1.10 crores was given to the contractor and as per the terms of the contractor, recovery of 10% of the total amount of advance should have been made from the running bills. It was also found that the contractor did not complete the work within the prescribed period from September, 1990 to February 1993 as per the terms of the contract and he did work of only Rs. 1.32 Crores out of 13.18 Crores within this period, but no action was taken by the concerning officers against the contractor and they allowed him to take the machines out of the project area and wrongly extended the period of contract. No information regarding these facts was given to the higher officers in time and thereby present appellant and other government servant have illegally benefited the contractor and caused a loss to the Government and, therefore, they misused their THE HIGH COURT OF MADHYA PRADESH CRA No. 11209/2019 P.P. Tomas S/o. Paily Thomas & others. V/s. State of M.P. -: 4 :- official position and committed the offences punishable under Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act and Sections 420 and 120-B of IPC.
4. After registration of the case investigation was conducted by the Special Police Establishment and a report was sent to the State Government and permission for prosecution of the present appellants was sought. That permission was refused by the Government in the meeting of Permanent Sub Committee of the Council of Minsters dated 13.7.2002. Special Police Establishment, Lakayukt again made a request to the Government to reconsider its decision by way of letter dated 21.7.2004, then again a meeting of Cabinet was held on 26.10.2005 and again sanction was refused and the Special Police Establishment, Lokayukt was informed by the Water Resources Department, to close the matter again six officers including the present appellants. But ultimately, after superannuation of the present appellant charge sheets against his was filed before the Special Court.
5. As per prosecution story, the allegations against the present appellants are that they have illegally conspired to receive the Government fund in the form of advance to the tune of Rs.1,10,62,971/- for construction of Man Dam. It has also been alleged that they have illegally removed the hypothecated machineries from the site without approval from the authorities and later on received the advance amount of Rs.13.45 Lakhs and also got extension of period of the contract with the help of other accused i.e. Government officers. They did not complete the work and caused financial loss to the Government.
THE HIGH COURT OF MADHYA PRADESH CRA No. 11209/2019 P.P. Tomas S/o. Paily Thomas & others. V/s. State of M.P. -: 5 :-
6. That during pendency of the trial for 15 years accused no. Arvind Joshi, No.3 Purshottam das Gupta & No.4 P.P.Jorge have expired and No.2 Ashok Sajotia has been discharged in view of the order dtd .14.2.2013 passed by the Apex court.
7. The prosecution examined the number of witnesses and got exhibited the voluminous documents in order to prove the charges against the appellant. After prolonged trial of 15 years the learned counsel Special Judge has convicted the appellants under section 406, 420 and 120-B of IPC and sentenced as mention above, hence the present Criminal Appeal before this the High Court.
8. Shri A.M. Mathur, learned senior counsel appearing for the appellants, submits that the appellants were Directors of the contractor company at the relevant point of time. The contractor company was given the work of construction of Man Dam and an agreement was also executed with the State Government. Total cost of the contract was Rs.13,18,23,017/- and as per Clause 3.1 and 3.2 of the contract, 5% amount of the total cost of the project was liable to be released for mobilisation and the labourers. From 10.10.1990 to 6.4.1992 amount of Rs.1,10,62,971/- was released to the contractor as an advance amount after due approval by the competent authorities. The contractor purchased various machineries from the aforesaid amount and started the construction work. The contractor purchased the machineries in the name of the firm THE HIGH COURT OF MADHYA PRADESH CRA No. 11209/2019 P.P. Tomas S/o. Paily Thomas & others. V/s. State of M.P. -: 6 :- and the machineries were hypotheticated with the Department with the condition that the possession of machineries will remain with the contract. There was a delay in handing over of the site, release of drawing and design to the contractor till 31.3.1993. The Department has recovered and realised amount of Rs.1,43,36,700/- from the contractor under various heads like security, encashment of EMD, depricated value of machineries, etc., whereas the amount of Rs.1,10,62,971/- was released to the contractor. Hence, the Government has recovered the excess amount of Rs.32,73,729/- from the Contract. He submits that the trial Court did not examine the individual act of the appellants and convicted them only on the ground that they are the Directors of the contractor company. All the appellants are aged about 60 to 81 years. They were on bail during trial and they never misused the liberty granted to them. In support of his contention, he has placed reliance over the judgment of Calcutta High Court in the case of Dinabandhu Banerjee V/s. Mandini Mukherjee (Cr. Revision No.2502/1992 decided on 15.6.1993) and judgment of Gujarat High Court in the case of Bank of Baroda V/s. Rabari Bachubhai Hirabhai : AIR 1987 Guj. 1, in which, it has been held that the hypothecation means a contract of mortgage or pledge in which the subject matter is not delivered into the possession of the pledgee or pawnee. The hypothecation is a mode of creating a security whereby not merely the ownership, but also the possession of the thing remains with the owner. He submits that the trial Court has THE HIGH COURT OF MADHYA PRADESH CRA No. 11209/2019 P.P. Tomas S/o. Paily Thomas & others. V/s. State of M.P. -: 7 :- failed to consider the concept of hypothecation and wrongly convicted the appellant.
9. On the other hand, Shri R.S. Raghuvanshi, learned counsel appearing for the respondent/SPE, opposed the prayer by submitting that the present appellants being contractors of the contractor company were responsible for the day-to-day functioning of the contract. They were in-charge of the project. They used their old machines and submitted the bills of new machines. They removed the machines from the site without completion of the work, therefore, they caused huge financial loss to the Government with the help of Government officers, therefore, they have rightly been convicted by the trial Court and hence, they are not entitled for suspension of custodial sentence.
10. I have heard the learned counsel for the parties and peruse the records.
11. In the facts and circumstances of the case, I find it is to be a fit case to suspend the custodial sentence of the appellants.
12. Accordingly, I.A. No.10783/2019 is allowed and it is directed that subject to deposit of fine amount with the trial Court and on furnishing personal bonds by the appellants in the sum of Rs.1,00,000/- (One Lakh only) each, with separate solvent sureties in the like amount to the satisfaction of learned trial Court for their appearance before the Registry of this Court, THE HIGH COURT OF MADHYA PRADESH CRA No. 11209/2019 P.P. Tomas S/o. Paily Thomas & others. V/s. State of M.P. -: 8 :- the execution of custodial part of the sentence of the appellants shall remain suspended till the final disposal of this appeal.
15. The appellants after being enlarged on bail they shall mark their presence before the Registry of this Court on 15.12.2020 and on all such subsequent dates, which are fixed in this behalf.
16. List the matter for final hearing in due course.
C.C. as per rules.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2020.01.14 11:00:11 +05'30'