Kerala High Court
Suhasini.P 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
2025:KER:20714
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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:
2025:KER:20714
3
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)
2025:KER:20714
4
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:
2025:KER:20714
5
Crl.M.C.Nos.4197 & 5842 of 2022
P.G. AJITHKUMAR, J.
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Crl.M.C.Nos.4197 & 5842 of 2022
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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 2025:KER:20714 6 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 2025:KER:20714 7 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 50x50 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 2025:KER:20714 8 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 50x50 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 2025:KER:20714 9 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.
2025:KER:20714 10 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 50x50 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 2025:KER:20714 11 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 50x50 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 2025:KER:20714 12 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 2025:KER:20714 13 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 2025:KER:20714 14 Crl.M.C.Nos.4197 & 5842 of 2022 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 2025:KER:20714 15 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 2025:KER:20714 16 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
2025:KER:20714
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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