Madras High Court
S.David vs State Rep. By on 14 September, 2009
Author: C.T.Selvam
Bench: C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/09/2009 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.Nos. 140 to 142 of 2003 1.S.David 2.S.Mariappan .. Appellants in Crl.A.No.140 of 2003 Swamydoss .. Appellant in Crl.A.No.141 of 2003 M.C.Kumar .. Appellant in Crl.A.No.142 of 2003 Vs State rep. By The Inspector of Police, Nagercoil, Vigilance and Anti-corruption Wing, In Crime No.2 of 1989 ... Respondent in all the appeals Common Prayer Criminal Appeals are filed under Section 374 of the Code of Criminal Procedure, against the judgment dated 31.12.2008 passed by the learned Chief Judicial Magistrate cum Special Judge, Nagerkoil in Special Case No.1 of 1995. !For 1st Appellant/A1 in Crl.A.140/2003 ... Mr.A.R.Jeyaruthran For 2nd Appellant/A2 in Crl.A.140/2003 ... Mr.C.Arul Vadivel @ Sekar For Appellant/A4 in Crl.A.141/2003 ... Mr.S.Kanagaraj For Appellant/A3 in Crl.A.142/2003 ... Mr.A.Kalaiazhagan ^For Respondent in all appeals ... Mr.L.Murugan Government Advocate (Criminal side) * * * * * :COMMON JUDGMENT
The appellants/accused preferred these criminal appeals against the judgment dated 31.12.2002, passed by the learned Chief Judicial Magistrate cum Special Judge, Nagercoil, in Special Case No.1 of 1995 convicting the appellants/accused 1 and 2 as follows:
Accused Offence Sentence Nos.1 and 2 120(b) r/w 167 of IPC One Year RI each and to pay a fine of Rs.1,000/- each in default to undergo 2 months SI. Nos.3 and 4 120(b) r/w 167 & 109 IPC One Year RI each and to pay a fine of Rs.1,000/- each in default to undergo 2 months SI. Nos.3 and 4 467 IPC One Year RI each and to pay a fine of Rs.1,000/- each in default to undergo 2 months SI. Nos.1 to 4 467 r/w 471 IPC One Year RI each and to pay a fine of Rs.1,000/- each in default to undergo 2 months SI. Nos.1 to 4 420 IPC One Year RI each and to pay a fine of Rs.1,000/- each in default to undergo 2 months SI. Nos.1 to 3 409 IPC One Year RI each and to pay a fine of Rs.1,000/- each in default to undergo 2 months SI. No.4 409 r/w 109 IPC One Year RI each and to pay a fine of Rs.1,000/- each in default to undergo 2 months SI. Nos.1 to 3 5(1)(d) r/w 5(2) of One Year RI each and to pay Prevention of Corruption a fine of Rs.1,000/- each in Act default to undergo 2 months SI. No.4 5(1)(d) r/w 5(2) r/w 109 One Year RI each and to pay of Prevention of a fine of Rs.1,000/- each in Corruption Act default to undergo 2 months SI. 2. The case of the prosecution is as follows:
Between May 1987 and November 1987 all the appellants and one Kallathiyan (deceased) (E.O) Kanyakumari Township conspired together and prepared incorrect documents regarding the construction work of an open well at Mantharam Puthoor by falsely recording measurements in M.Book as if dewatering was done for 90 days and as if medium rock was excavated between 7.7 metres and 8 metres depth and hard and medium rocks were excavated between 8 metres and 15.7 metres depth as against the rock actually being soft rock and thereby caused financial loss to the Government to the tune of Rs.49,396/- due to incorrect classification of the rock during excavation and Rs.5,360/- towards excess payment for dewatering totally amounting to Rs.54,756/-.
3. The Prosecution has examined 21 witness and marked 77 Exhibits. On the side of the defence 3 exhibits were marked.
4. P.W.1, Baskaradas the Secretary of P.W.D Department has accorded sanction for the digging of borewell. P.W.2, Palani was the Clerk in the Collectorate at the relevant time has spoken to the allotment of digging work and of allotment of funds thereof.
5. P.W.3, T.Selvaraj was the Senior Manager in Agricultural Engineering society, and one of the members in the Committee, which decided the need for digging the borewell, has spoken about the decision for digging the well at Mantharam Puthoor.
6. P.W.4, S.Ramachandran was a Geologist, who runs an independent water development Centre and was engaged for the purpose of fixing the site.
7. P.W.5, A.Chelladurai was the Union Engineer, who was employed at the office of the Additional Divisional Engineer spoke to the estimation of work and also allotment of 200 bags of cement and commencement of digging work and stoppage of work as the land was P.W.D land and no P.W.D. permission was obtained.
8. P.W.6, Santhamary who was employed at the Office of the Additional Divisional Engineer has spoken about the estimates, which was approved by A-3 on the same being placed by A-1.
9. P.W.7, M.Janaki has spoken to the revision of estimates and the approval of the revised estimates. He has also spoken about A-1 allowing the revaluation beyond his powers. The evidence of P.W.6, Santha Mary and P.W.8, S.Thangappan are more or less on similar lines.
10. P.W.9, R.Meenakshi Sundaram, an Assistant Executive Engineer, has spoken about the stoppage of work since the work was continued on P.W.D land without permission of P.W.D Department. However, later on, on the instructions of the District Collector the work was completed.
11. P.W.10, Rayan is the Superintendent Engineer of P.W.D, who inspected the place and collected four samples and found the same to be soft rock but that the measurement book referred to auction of hard rock and hence sent a letter to the Inspector of Vigilance and Anti corruption on the issue. He has also prepared Ex.P.67 and Ex.P.57 reports and assessed the loss due to the incorrect classification of the rock during the evacuation at Rs.49,396/-. He has also spoken about the measurement book claiming use of gelatin sticks, which would be required to break hard rocks but finding nothing on necessary precautionary measures taken to use gelatin sticks.
11. P.W.11, V.Chidambaranathan @ Appavu has spoken about the receipt of proper payment for the work carried out by him. P.W.12, Paramarthalingam was the person, who had purchased the excavated rock on auction.
12. P.W.13, T. Subash Bose, the typist in the Kanniyakumari Municipality, has spoken to the sums sanctioned in respect of work, the estimates thereof, payments made and also receipt for the sale of rock, which was excavated in digging the well.
13. P.W.14, C.Dharmalingam was the Junior Assistant in the office of the Divisional Engineer, Highways, who had passed the bill for oil engine charges. P.W.15, Subramanian who was the Divisional Engineer, has spoken to the revised estimates and also deposed that till the time of his transfer, the measurement book was not placed before him.
14. P.W.16, V.Umathanu Pillai was the Head Clerk at Judicial Magistrate Court. At the request of the Investigating Officer, the rock samples were forwarded to the P.W.3 research Centre at Chennai. P.W.17, A. Selvin received the complaint and visited the spot along with P.W.D. officials to carry out the super check.
15. P.W.18, M.Somasekaran and P.W.19, M.K.Somasekar analysts, have spoken to the samples received by the P.W.D research Centre.
16. P.W.21, S.Shanmuganathan was the Deputy Superintendent of police Vigilance and Anti Corruption, who took over the investigation from the Investigating Officer, conducted further investigation and laid the charge sheet on 21.01.1995.
17. All the incriminating material let in by the prosecution were put to the accused upon their questioning under Section 313(1) of the Code of Criminal Procedure. The accused denied the same as false. On the side of the accused Exs.D.1 to D.3 were marked. There was no oral evidence adduced on the side of the accused.
18. On consideration of evidence on record, the learned Chief Judicial Magistrate cum Special Judge, Nagercoil, found the accused guilty and sentenced them as referred supra.
19. Challenging the judgment of the learned Chief Judicial Magistrate cum Special Judge, Nagercoil, these appeals have been filed by the appellants/accused.
20. Point for consideration is:
"Whether the accused could be held guilty as charged?
21. The substance of the complaint against the accused is that in the excavation of the well they have falsely claimed to have encountered hard rock and incurred expenses, while the rock found in the well excavated was only soft rock, which did not involve the expenses as alleged by the accused and thereby a loss of Rs.54,756/- was caused.
22. Learned counsel appearing for the appellants submitted that as against the depth of the well being 15.7 Metres, the samples allegedly taken admittedly were at the depth between 8 to 10 metres and between 10 to 12 metres. This aspect has been spoken to by P.Ws.10 and 17. P.W.4, Geologist had admitted to the possibility of hard rock being found underlying soft rock. Hence, unless samples had been taken up to the entire depth of the well, it would be not possible to say that the excavation of the well did not involve breaking of any hard rock whatsoever.
23. Learned counsel for the petitioner would draw the attention of this Court to Ex.D.3. Such exhibit reflects that in similar work carried in a nearby village viz., Palkulam village, the compressive strength test revealed the values of 133/kg/cm and 161/kg/cm2. The authorities had chosen to observe that it cannot be concluded that the soil was wrongly classified. In the present case, though the compressive strength is reflected as 197.28/kg/cm, these accused have been proceeded against owing to personal animosity of the concerned Divisional Engineer. The four persons, whose services have been utilised for collecting samples were not examined by the police and no 161(3) of Cr.P.C. statements were recorded. No independent witness from the locality was examined. There is no documentary proof that the accused were present at the spot while taking samples. According to P.W.10, who conducted super check on the instruction of the P.W.D. department on receipt of the complaint, samples were taken in polythene covers. P.W.7, the Inspector of Vigilance and Anti-corruption wing, who went along with P.W.10 at the time of collection of samples deposed that samples were taken in cement bags.
24. Though several other grounds were raised such as proper sanction, delay in sending the samples to the Court and discrepancy in evidence for setting aside the judgment of the trial Court, this Court is of the view that the appeal has to be allowed on the following basic considerations.
25. The rock samples have not been taken for the entire depth of the well. The experts opinion is that the quality of the rock would change from layer to layer. While so, considerable prejudice has been caused to the accused by not obtaining samples for the entire depth of the well. In a parallel case, the compressive strength test value of 133 Kg/cm2 and 161 Kg/cm2 stands accepted, while in the present compressive strength test 197.28 kg/cm2 was not accepted. P.W.21, the investigation officer admitted to knowledge that the publication brought out by the Indian Roads Congress is the guideline for survey of sample stones. The expert P.W.19 states that he followed the same Standard Specifications and Code of Practice for Road Bridges, published by the Indian Roads Congress, which is produced before this Court. The same is not disputed. In clause No.705.3.1 thereof, dealing with 'depth of open foundations', hard rocks is referred to as having crushing strength of 100 kg. cm2 or above. In the instant case, the compressive Strength value is 197.28 Kg/cm2.
26. Proceeding to convict the accused on the basis of the improper survey would be hazardous and to do the same when the samples meet the requirements of the compressive strength for hard rock would be unfair.
27. In these circumstances, it would be difficult to sustain the conviction arrived at by the lower Court and accordingly, these appeals shall stand allowed and the conviction and sentence imposed by the Chief Judicial Magistrate cum Special Judge, Nagercoil, by his judgment dated 31.12.2002, made in Special Case No.1 of 1995 stand set aside. The fine amounts paid shall be refunded to the accused.
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