Kerala High Court
Joy Joseph vs State Of Kerala on 2 February, 2001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938
CRL.A.No. 126 of 2001 ( )
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AGAINST THE JUDGMENT IN CC 2/1992 of ENQUIRY COMMR.& SPL.JUDGE,THRISSUR
DATED 02-02-2001
APPELLANT/ACCUSED NO.2:
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JOY JOSEPH,
FORMER ASST. ENGINEER,
MVIP 1/I, MUTTAM
BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.SHAJI THOMAS PORKKATTIL
SRI.J.JOSE
RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REP.BY THE D. SUPDT OF POLICE,
VACB, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2016,
ALONG WITH CRA. 127/2001 & OTHER CONNECTED CASES, THE COURT ON
20.5.2016 DELIVERED THE FOLLOWING:
K. RAMAKRISHNAN, J.
.......................................
Crl. Appeal Nos.126, 127,
128 & 129 of 2001
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Dated this the 20th day of May, 2016
JUDGMENT
Crl.Appeal No.126/2001 was filed by the second accused in C.C.No.2/1992 on the file of the Special Judge and Enquiry Commissioner, Thrissur while Crl.Appeal No.127/2001 was filed by the 3rd accused, Crl.Appeal No.128/2001 was filed by the first accused and Crl.Appeal No.129/2001 was filed by accused Nos. 4 and 5 in the same case. The accused Nos.1 to 5 was charge-sheeted by the Superintendent of Police, VACB, Ernakulam in V.C.No.9/87 of VACB, Ernakulam alleging offences under Section 5(i)(c) and (d) read with section 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as the P.C. Act for short) and under Section 409, 406, 465, 471, 201 and 120B of the Indian Penal Code. The case of the prosecution in nut shell was that while first accused was working as Executive Engineer, Mutattupuzha Valley Irrigation Project (hereinafter referred to as 'MVIP') Division No.I, second accused as Assistant Engineer of I.I. Muttam under MVIP, 3rd accused as Assistant Engineer of Section-III of Thanneermukkam bridge and accused Nos. 4 and 5 as contractors for the work of Kudayathoor bridge and Kolapra bridge respectively entered into a criminal conspiracy during the period between 26.12.1985 and 31.01.1986 and accused Nos. 1 to 3 misusing their Crl. Appeal Nos.126, 127, 128 & 129 of 2001 2 official position on account of the conspiracy hatched between all the accused dishonestly, fraudulently mis-appropriated 19.40 tonnes of 32MM tore steel rods worth `1,26,100/- by corrupt and illegal means caused undue pecuniary advantage for themselves and forged certain documents in the official records used false documents as genuine documents for this purpose and destroyed certain documents in order to help the accused Nos.4 and 5 and themselves and got absolved from the responsibility of other accused persons and thereby all of them have committed the offences punishable under Section 5(i)(c) and 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 120(B), 409, 465, 471 and 201 of the Indian Penal Code.
2. The case was registered on 01.07.1989 as Crime No.9/1987 as per Ext.P38 first information report. Since first accused had retired at the time of filing the charge-sheet, no sanction was required for prosecuting him and since accused Nos.2 and 3 were in service, sanction was obtained for prosecuting them. Since accused Nos.4 and 5 were not public servants, no sanction was required for prosecuting them. After investigation, final report was filed before the Enquiry Commissioner and Special Judge, Thrissur and it was taken on file as C.C.No.2/1992.
3. On appearance, first accused filed Crl.M.P.No.252/1992 for Crl. Appeal Nos.126, 127, 128 & 129 of 2001 3 discharge and that was dismissed by the Special Judge by order dated 23.09.1992. Challenging the same, he filed Crl.M.C.No.1404/1992 before this court and this court allowed the first accused to withdraw the Crl.M.C. with liberty for him to file revision and accordingly it was withdrawn and Crl.R.P.No.421/1993 was filed before this court. This court by order in Crl.R.P.No.421/1993, allowed the revision and discharged the first accused as no sanction was obtained to prosecute him under section 197 of the Code of Criminal Procedure. This was challenged by the State by filing appeal before the Hon'ble Apex Court and the Apex Court by order in Crl.M.A.No.632/1999 dated 14.07.1997, set aside the order passed by this court in Crl.R.P.No.421 of 1997 restoring the order dismissing the application for discharge by the special judge.
4. After hearing both sides, charge under section 5(i)(c) and (d) read with Section 5(2) of the Prevention of Corruption Act and section 409, 406, 465, 471, 120B and 201 of the Indian Penal Code was framed against accused Nos. 1 to 3 and Section 120B, 409, 406, 465, 471 and 201 of the Indian Penal Code was framed against accused Nos. 4 and 5 and the same was read over and explained to them and they pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 32 were examined and Exts.P1 to P55 were marked on the side of the prosecution. After closure of the prosecution evidence, the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 4 accused were questioned under Section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in the prosecution evidence. The first accused further submitted a statement in which he had stated that he had not committed any offence, when he came to know about the shortage, he had directed to retain `3,00,000/- from the amount payable to the fifth accused in connection with this contract and thereafter he was transferred from the place and it was after his transfer that the amounts were allowed to be withdrawn by the accused Nos.4 and 5 and he had not committed any offence. Accused Nos.4 and 5 submitted that they have not committed any offence and the entire articles which had been received had been stocked at the work place and there was no safety provided in the work place and theft had occurred and a complaint was filed on the basis of which a crime was registered. So there was no misappropriation committed by them. Other accused have stated that they have not committed any offence and when they came to know about the shortage, they have taken necessary action. No defence evidence was adduced on the side of the accused except marking Exts.D1 to D13, certain documents produced by the prosecution itself and also by way of contradiction brought out in the statement of the witnesses.
5. After considering the evidence on record, the court below Crl. Appeal Nos.126, 127, 128 & 129 of 2001 5 found all the accused not guilty for the offence under Section 201 of the Indian Penal Code and they were acquitted of that charges, but found accused Nos. 1 to 3 guilty under Section 5(i)(c) and 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and also for the offence under Section 120B, 409, 465 and 471 of the Indian Penal Code and found accused Nos. 4 and 5 guilty for the offence under Section 120B, 409, 465, 471 of the Indian Penal Code and convicted them accordingly. Accused Nos.1 to 3 were sentenced to undergo rigorous imprisonment for four years each under section 5(i)
(c) read with Section 5(2) of the P.C.Act, 1947 and accused Nos.1 to 5 were sentenced to undergo rigorous imprisonment for two years each under section 120B of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for four years each and also to pay a fine of ` 40,000/- each, in default to undergo rigorous imprisonment for two years each under Section 409 of the Indian Penal Code and they were further sentenced to undergo rigorous imprisonment for two years each under section 465 of Indian Penal Code and directed the substantive sentences run concurrently. No separate sentence was awarded under Section 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and section 471 of the Indian Penal Code.
6. Aggrieved by the same, the first accused filed Crl.A.No.128/2001, second accused filed Crl.A.126/2001 and third Crl. Appeal Nos.126, 127, 128 & 129 of 2001 6 accused filed Crl.A.No.127/2001 and accused Nos. 4 and 5 filed Crl.A.No.129/2001. During the pendency of the proceedings, second appellant in Crl.Appeal No.129/2001 who was the 5th accused in the case died and first appellant in that case filed Crl.M.A.Nos.954/2015 and 955/2015 for leave to prosecute for and behalf of the second appellant as legal heir and also delay in filing the petition and that was allowed and first appellant was permitted to prosecute the case as legal heir on behalf of the deceased 5th accused as well under Section 394(2) of the Indian Penal Code.
7. Heard Sri. Shaji Thomas Porkkattil and Sri.J.Jose, learned counsel appearing for the appellant in Crl.A.126/2001, Sri.P.K.Ashokan, learned counsel appearing for the appellant in Crl.A.129/2001, Sri.B. Raman Pillai, learned senior counsel appearing for the appellant in Crl.A.No.128/2001, Sri.M.Ramesh Chander, learned senior counsel appearing for the appellant in Crl.A.No.127/2001 and Smt.Jasmine, learned Public Prosecutor appearing for the State in all these cases.
8. Since all these appeals arose out of the same judgment, this court felt that, the same can be disposed of by a common judgment. For convenient safe, this court refer to the status of the parties as in the lower court for convenience.
9. Counsel for the first accused who is the appellant in Crl. Appeal Nos.126, 127, 128 & 129 of 2001 7 Crl.A.No.128/2001 submitted that there was no evidence adduced on the side of the prosecution to prove any conspiracy between the first accused and other accused persons. In fact except the fact that he had recommended for sanctioning the steel required for both the project, he had no connection with the implementation of work. When it was brought to his notice about the shortage of steel at the work spot through PW3, he had called for the meeting and instructed the subordinates to take immediate action and also ordered to retain `3,00,000/- from the bill payable to the accused Nos. 4 and 5 as a security measure to recover the amount of loss if any caused in this transaction, but subsequently the amounts were allowed to be withdrawn by them and he was not responsible for the same. Further within a short period, he was transferred from there and he had no criminal responsibility for the act is any committed. At the most, it may be said that there may be some latches in exercising power of superintendence and no criminal offence has been made out as against him.
10. The counsel for the second accused submitted that there is no evidence to show that there was any conspiracy between the accused Nos.4 and 5 and the second accused. Further it will be seen from the evidence that the articles once entrusted to the contractor, it is their responsibility to bring the same to the site and the articles Crl. Appeal Nos.126, 127, 128 & 129 of 2001 8 when brought to the site, it will be verified by the overseer and it will be entered in the work register and on that basis unstamped receipt will be obtained from the contractor for proving the entrustment. Further except sending the recommendation, unless it is intimated to them by the higher officials about the intend made and supply made, they may not be aware of the total allotment made till it is brought to the work site by the contractor. In this case neither the copy of the intend nor the sanction nor supply were intimated to this accused. So he may not be knowing about the actual deficit and he had countersigned the entries made in the registers on the basis of the entries made by the Overseer who will be in charge of the work site at the relevant time. Further there was some discrepancy in the final settlement of the supply as well as the account section had returned the claim bill made by the Thanneermukkam bridge project store in respect of the supply of the articles made. Further there is no entrustment of the articles to him and the articles were entrusted with the contractor and there is no offence committed by him. Further there is no finding as to how the false document has been created, who was responsible for creation of the false document, so as to attract the offences under Section 465 and 471 of the Indian Penal Code. So the conviction on those sections is unsustainable in law. Further there is discrepancy in the final verification made regarding the actual quantity Crl. Appeal Nos.126, 127, 128 & 129 of 2001 9 of iron rod missing at the work spot. Further the contract work was being done by the father and son, and there was possibility of misplacing or exchanging the articles. Further the second accused has no control over the delivery of the article which is being done from Thanneermukkam project area on the basis of the recommendations made by the Chief Engineer and the Superintending Engineer as is the practice when the materials are not available at the present work spot. At the most, it can be said that there is some latches on the part of this accused in verifying the documents and making necessary entries and there is nothing on record to show that he was in connivance with the accused Nos. 4 and 5 in the alleged misappropriation. So there is no criminal offence committed by him and he cannot be held responsible for the same as well. The court below had completely mis- appreciated the evidence. So according to the learned counsel there was no offence committed by him.
11. The counsel for the third accused submitted that there is no dispute regarding the receipt of the intend and supply of the article as per the intend and it was admitted fact that the articles were supplied from the depot and there was no latches on the part of this accused in making the supply. The discrepancy if any in the gate pass cannot be fastened on this accused as there is no evidence to show that it was prepared by him. He had only signed the gate passes and other Crl. Appeal Nos.126, 127, 128 & 129 of 2001 10 documents on the basis of the entries made by the officials as usual. There is no case for the prosecution that he had supplied excess quantity and shown only less quantity so as to make accused Nos.4 and 5/contractors any undue advantage on account of the same. Further he was not included as accused in the first information report and no report has been filed to incorporate him as the accused in the case and there is no allegation against him or materials collected against him so as to held that he was also responsible for commission of the offence along with the other accused persons. The appreciation of the evidence by the court below is not justifiable.
12. The counsel for the accused Nos.4 and 5 who are appellant in Cri.A.No.127/2001 submitted that there is no evidence to show that the articles were misappropriated by the accused persons. Further as per the evidence, there is nothing on record to show that any articles were entrusted to the 4th accused. Even as per the evidence, as authorized, the 5th accused had gone to Thanneermukkam and obtained the articles and it was transported through the lorry. Though an attempt was made by the prosecution by producing Ext.P4 and examining PW4 to prove that on 27.12.1995 a petty case was registered against the driver of the lorry and for parking of the vehicle by PW5 which carried 32 mm steel rod and the vehicle was driven by PW10 who turned hostile later to prove that the articles were taken Crl. Appeal Nos.126, 127, 128 & 129 of 2001 11 outside and sold, and also examining PW12 who was the accountant of one shop owner by name Ukru, who was no more to prove that the 5th accused had sold a portion of the steel rod supplied to him, but they did not support the case of the prosecution. So under the circumstances, misappropriation of the article has not been properly proved. Further even assuming that there was some shortage, it cannot be said that it was misappropriated and later at the time of final settlement, this amount can be recovered from the contractors. Once the article has been sold, they become the owners of the property and there is no misappropriation as such arises. At any rate the 4th accused cannot be held responsible as there was no entrustment of any article to him, which was after entrustment has been misappropriated by him. The 4th accused was in charge of the construction of Koduvaythoor bridge and the shortage was found as at Kolapra, which has been undertaken by the deceased 5th accused. So according to him, the court below was not justified in convicting the accused for the offences alleged.
13. On the other hand, the learned Public Prosecutor submitted that the evidence adduced on the side of the prosecution proved that the total supply of steel intended for the work to be conducted in Kudayathoor and Kolapra and it was taken by the 5th accused for himself and for the the 4th accused as authorised agent of the 4th Crl. Appeal Nos.126, 127, 128 & 129 of 2001 12 accused and it was taken delivery from the Thanneermullam project depot and there was deficit found in respect of the same is not in dispute. Further it was also brought out in evidence that as per the manual, the officials have got a duty to check the records regarding the delivery and supply of the articles as and when it is supplied and if it was done by them in a proper manner, this could have been found out earlier. Further the evidence will go to show that accused Nos. 4 and 5 have admitted the fact regarding the shortage, but their case was that there was theft of article from the work site and a case has been registered but the ultimate result of the investigation showed that there was no such theft occurred. Further the evidence adduced on the side of the prosecution namely PW4, 5, 6 and 10 will go to show that the vehicle carrying the iron rod obtained from Thanneermukkam had gone to Ernakulam, where they are not expected to go. That circumstances will go to show that there was misappropriation and diversion of the articles entrusted.
14. The evidence of PW3 will go to show that when he found some shortage in the supply of steel in Kudayathoor project work site, he made a report regarding the same to the first accused and though a meeting was called and directions was given to get the articlels checked, no such attempt was made on the side of the second accused in finding out the shortage in Kolapra cite. Further there was no Crl. Appeal Nos.126, 127, 128 & 129 of 2001 13 attempt made on the part of the second accused to inspect the cite and check the articles and find out whether there was any shortage. On the other hand, he had taken steps only long after giving room for the 5th accused to collect the articles and produced the same. He had not properly made entries in the registeres as well. Further though the first accused had ordered to retain `3,00,000/- from the amount payable to accused Nos.4 and 5, later before he was transfered, first accused himself had released a portion of the amount. He had also not taken care to make supervisory work to findout the shortage at the earliest possible time as well. The third accused also made some entries in the register maintained in the Thanneermukkam depot while supplying the articles and he had made some mistakes regarding the quantity, person to whom it was issued and to the place it was supplied as well. There were discrepancies in the quantity of steel released from that depot and all these things will go to show that he had also played some role in making such things so as to help accused Nos.4 and 5 and creating confusion regarding the articls supplied. Further as per the gate passes, 42 metric tonnes of 32 mm steel road having supplied to Kolapra, but supply of only 40 MT was noted. If really second accused had varified the gate passes and made the certificate, then this discrepancies would have been brought to the notice of the first accused which he had not done. So all these things Crl. Appeal Nos.126, 127, 128 & 129 of 2001 14 will go to show that the accused Nos.1 to 3 were having some connivance with accused Nos. 4 and 5 in diverting the steel rod given to them for the purpose of construction of bridges at Kudayathoor and Kolapra and allowed them to misappropriate the same for their purpose. So according to the learned Public Prosecutor, the court below was perfectly justified in coming to the conclusion that the accused have committed the offence and there is nothing to interfere with the finding of the court below on this aspect.
15. The counsel appearing for the accused and also the Public Prosecutors have relied on the following decisions in support of their case namely, National Insurance Company Ltd., v. Ishardas Madanlal (2007(4) SCC 105); S.P.Batnagar and Another v. State of Maharashtra (AIR 1979 SC 826); Arjun Thiwari v. State (AIR 1977 Crl.L.J. 1751); Krishnakumar v. Union of India (AIR 1959 SC 1390); The Superintendent and Remembrance of Legal affairs West Bangal v. S.K.Roy (AIR 1974 SC 794); C.S.D. Swami v. State (AIR 1960 SC 7); Narayanan Nambiar v. Executive Officer, Cherukunnu Panchayath Board (1964 KLT 354); Lalbanu Dias v. State (1981 Crl.L.J. 677); R.K.Dalmia and others v. Delhi Administration (AIR 1962 SC 1821); Ramanarayan Obli and others v. Central Bureau of Investigation and other connected cases (2003 (3) SCC 641)and State of Gujarat v. Jaswantlal Crl. Appeal Nos.126, 127, 128 & 129 of 2001 15 Nathlal (AIR 1968 SC 700) in support of their respective cases.
16. On the basis of the submissions made by both counsel, the following points arose for consideration of this court.
i. Whether the court below was justified in holding that there was conspiracy hatched between accused 1 to 5 for the purpose of enabling accused 4 and 5 to misappropriate the iron rod supplied?
ii. Whether the court below was justified in convicting them for the offence under section 120 B of the Indian Penal Code?
iii. Whether the court below was justified in holding that accused 1 to 5 in furtherance of the conspiracy hatched created false documents so as to enable accused 4 and 5 to divert the iron rod supplied to them in connection with the construction work of Kodayathoor and Kolapra?
iv. Whether the court below was justified in holding that accused 1 to 3 have abused their official position so as to allow accused 4 and 5 to make unlawlful gain for themselves and causing loss to the Governemnt exchequer?
v. Whether the court below was justified in holding that accused 4 and 5 in furtherance of the conspiraicy hatched with the help of accucsed 1 to 3 committed criminal breach of trust and misappropriation of iron rods entrusted to them with dishonest intention to cause unlawful gain to themselves and loss to the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 16 Government?
vi. Whether the court below was justiifed in convicting accused 1 to 5 for the offences under sections 120 B, 409, 465 and 471 of the Indian Penal Code?
vii. Whether the court below was justified in onvicting accused 1 to 3 for the offences udner section 5(1)(c) and (d) read with section 5(2) of the P.C. Act?
viii. If so, the sentence imposed is proper and legal?
17. Points i to vii:
PW1 was examined to prove Ext.P1 sanction granted for prosecuting second and third accused in the case for and on behalf of the Government of Kerala. PW2 was the Divisional Accountant at the technical wing of the Instruction Department of KSEB who deposed that an item appeared in the news papers with respect to the work of Kudayathoor bridge on 21.04.88. Accordingly he had directed to conduct record check on 22.04.88 and on the basis of checking of the records, it was revealed that there were short comings in the supply of goods and there was an attempt of diversion and it was on that basis, a vigilance enquiry was ordered and on the basis of enquiry, Ext.P38 first information report was registered as VC-9/89 of VACB Ernakulam.
18. PW3 is the Assistant Engineer of Section I/II of Thodupuzha Irrigation Department. He was in charge of Kudayathoor bridge work. Crl. Appeal Nos.126, 127, 128 & 129 of 2001 17 He gave a request of 32 mm tore steel rods for the construction of the work. According to him, the procedure for getting supply of steel rods was that the concerned Assistant Engineer has to make a request for supply of required quantity to the Assistant Executive Engineer and he would inturn address the Executive Engineer and the Executive Engineer will address the Executive Engineer at Thanneerkukkam project for issue of the material from the store and he in turn will make the supply as per the intend. So according to PW3, he had made a request showing the requirement of 33.921MT of tore steel of 32 mm for construction work at Kudayathoor through the proper authorities and Executive Engineer Thodupuzha who is the first accused in this case submitted an intend for 28 MT of 32 mm steel rod to Executive Engineer, Thanneermukkam. Accoridng to him, on verification, it was revealed that only 17.25 tonnes of steel alone was received at the construction site at Kudayathoor and there was a shortage of 10.75 MT of tore steel. He had also reported that as per gate pass No.2/86, 13 MT of 32 mm steel and gate pass No.4/86, 9.65 mt. of tore steel were issued, but only 17.25 MT had reached the site. There is a shortage of 5.40 MT of tore steel of 32 MM as per the quantity shown in gate passes issued from supply point namely Thanneermukkam project site. The 4th accused was the contractor for the work of Kudayathoor bridge and he had directed him to bring the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 18 balance steel rod. Ext.P2(b) explanation was given to the effect that the balance steel rod was taken for the purpose of welding to the work shop.
19. PW4 was examined to prove that lorry No.KRA/5382 was found in the middle of the road at Gopalakrishna Prabhu road at Ernakulam on 27.12.85 at 10.00 a.m., and a petty case was registered in respect of the same and Ext.P7 is the petty case register of City Town police station, Ernakulam and Ext.P7(a) is the relevant entry regarding this. Ext.P8 is the mahazar prepared in respect of the same. On the basis of the report, a case was registered as S.T.No.833/86 on the file oft he JFCM, Ernakulam against the driver of the lorry Sri.E.Viswambaran, who was examined as PW10 and he pleaded guilty and he was fined. PW5 was examined to prove that he was working as Assistant Sub Inspector of Police at the relavant time and he registered the petty case No.211/86 and prepared Ext.P10 GVR in respect ofthe vehicle and it was carrying load of steel on that day.
20. PW6 is the Inspector at the check post at Perumannoor and Ext.P11 is the check post register and on 27.12.85, in the early hours, the lorry with No.KRA/5382 with a load of 14 tonnes of steel rods had passed the check post and it was coming from Assistant Engineer's Stores, Thanneerkukkam to Kolapra in Idukki and Viswambaran was the driver and these things were entered in Ext.P11 and the relevant Crl. Appeal Nos.126, 127, 128 & 129 of 2001 19 entry was marked as Ext.P11(a). Ext.P10(e) is the GVR which contains the seal of the check post. It also contains an entry showing the name of the person as Bose, that is the 4th accused, Thanneerkukkam-Kolapra, Idukki 10 tonnes of steel rod, namely the name of the person authorized from the place to which place it has to be transported, quantity and nature of article carried. Ext.P12 is the gate pass which was carried in the vehicle (gate pass No.48) containing the discription to the steel rods were to be transported to Kolapra from Thanneerkukkam.
21. PW7 was the section officer of I/I of MVIP Sub Division-I, who worked along with the second accused as oversear. Ext.P13 was the workspot order book prepared by him at the work site at Kolapra. He was in charge of the work of Kolapra bridge. On 20.01.1996 40 MT of 32 mm tore steel and on 05.04.87, 8.65 MT of 32 m.m. tore steel had reached the spot and it was entered into Ext.P13 workspot order book as Ext.P13(a). Ext.P14 is the MAS register of the office of the Assistant Engineer, MVIP Section-III, Muttam and Exts.P14(a) and
(b) are the relevant entries made regarding the materials reached the work spot. He had also stated that the 5th accused was the contractor for this work at Kolapra. He had also stated that a request was made for supply of 48.308 m.t. of 32 m.m tore steel and 40 MT tore steel reached the spot as per three issues. According to him when the steel Crl. Appeal Nos.126, 127, 128 & 129 of 2001 20 rods were brought at the site, the relevant gate passes were not shown. On 13.03.86, USR for 40 MT and on 05.05.87 USR for 8.65 MT of 32 m.m tore steel road were issued by the 5th accused.
22. PW8 was the Assistant Executive Engineer of Sub Division-I, Muttam under the MVIP. He was in charge of Kolapra bridge and second accused was working as Assistant Engineer under him and first accused was the Executive Engineer at the relevant time and 5th accused was the contractor for the Kolapra work. According to PW8, as per the intend given by the Executive Engineer, namely first accused, 32 m.m tore steel for the work was issued from the Thanneerkukkam project. According to him, 32 m.m tore steel were dumped at the cite. He had sought clarification from the second accused regarding the same and on 17.06.1986, second accused submitted a report that 40 m.t. of 32 m.m tore steel rod reached the spot. According to the second accused, on 26.12.1985, 14 tonnes; on 28.12.1985 14 tonnes and on 03.01.1986, 12 tonnes of 32 m.m tore steel had reached the spot. On 26.06.1986, PW8 addressed the Executive Engineer, Thanneerkukkam seeking details of the issue, but no reply from the Executive Engineer, Thanneerkukkam was received. He had also stated that he addressed the Executive Engineer to intimate the details regarding the actual quantity intended to the Executive Engineer, Thanneermukkam by Executive Engineeer, Thodupuzha. Though the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 21 last issue was on 03.01.1986, only on 17.06.1986 he got information regarding the delivery of the articles.
23. PW9 was the agent working for the 4th accused. He is in charge of Kolapra bridge work as well. According to him, as per gate pass No.20/85-86 14 metric tones of 32 mm steel rode was received by him on 28.12.1985 and Ext.P17A(a) was the relevant entry in the measurement book No.87/81-82 of the Assistant Executive Engineer, MVIP Sub Division No.1, Muttam. Ext.P17A is the gate pass book of the Assistant Executive Engineer, Thanneermukkam project and Ext.A17A(a) is the gate pass No.20/85-86 dated 28.12.1985 showing supply of 14 metric tones of 32 mm steel rod. In that the destination and name of the messenger were shown. PW9 was examined to prove that on 26.12.1985 he had not received any articles to be supplied at Kolapra. According to him, the steel rod sent as per gate pass No.19/85-86 namely Ext.P17A(b) dated 26.12.1985 was not received by him. Ext.P5 is the original gate pass book of the Assistant Executive Engineer, Thanneermukkam project and Ext.P5(c) is the gate pass No.21/85-86 dated 3.1.1986 wherein the name of the messenger was shown as 5th accused, but the destination was shown as Kudayathoor (Kolapra). Ext.P5(a),P5(b) and P5(d) are the gate pass No.2/86 dated 9.12.1985, gate pass No.4/86 dated 31.1.1986 and gate pass No.3/86 dated 9.1.1986 where the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 22 destination was shown as Kudayathoor and the messenger's name was shown as Damodaran, the 5th accused. Ext.P18A is the store intent No.31/85-86 and it is for Kudayathoor project and the total intent made was for 28 metric tones of steel rod (Ext.P19A store intent No.30/85-86) and Ext.P18A (a) is the duplicate and triplicate copies of that intent which contains the signature of the 4th accused. The intent for Kolapra work was intent No.30/85-86 and the total intent was 48.650 matric tones of 32 MM tore steel rod. According to PW9, he had entrusted the gate pass to the contractor and the steel rods were dumped at the work site. According to him, the articles were brought from Thanneermukkam store through Thanneermukkam bund via Vaikam and Koothattukulam. According to him, no steel rod supplied at the work site were taken by anyone either to the workshop or for fabrication purpose. According to him, no steel rods were found missing from the work site.
24. PW10 was the driver of the lorry with registration No.KRA 5382 which was used for taking the steel rod from Thannermukkam project area which was supplied to the 5th accused and Ext.P10(a) is the relevant entry in Ext.P10 GVR maintained in that lorry showing 10 metric tones steel rod was carried in the vehicle as per instructions of the 4th accused from Thanneermukkam to Kolapra and Ernakulam city police had charge sheeted him in a petty case. He was examined Crl. Appeal Nos.126, 127, 128 & 129 of 2001 23 to prove that the article was taken from Thanneermukkam to Ernakulam for the purpose of sale. But, according to him, when the lorry was checked by the police there was no steel rod in the vehicle and according to him, he had supplied the rod at Kolapra and lorry was empty at the time when police checked the vehicle at Ernakulam. He was declared hostile to the prosecution as his evidence is against documents produced by the prosecution and against the statement given by him at the time when he was questioned by the investigating officer.
25. PW11 is the Assistant Executive Engineer at Sub Division- I, Muttam. Both the works at Kudayathoor and Kolapra were under his supervision. According to him, he had sent Ext.D2(h) letters to the contractors namely accused 4 and 5 regarding the shortage of steel found and he had also reported this matter to the Executive Engineer vide Ext.D2(f) letter dated 16.10.1986 requesting him to inform the matter to the police. He had received Ext.D2(j) letter dated 15.1.1988 from the Executive Engineer to conduct verification. Accordingly he had sent letters to the contractors asking them to be present at the work site on 29.1.1988. The 5th accused was not present at the site when he inspected the site at Kolapra. With the assistance of PW7 and Assistant Engineer Muhammod Kunhi, he conducted physical verification and Ext.D2(l) was the report of the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 24 Assistant Executive Engineer dated 19.1.1988 and he forwarded the letter along with his Ext.D2(m) recommendation dated 19.2.1988. He had suggested to terminate the contract of accused 4 and 5 and to collect the balance materials and to fix the liability. Ext.P21 is the file No.D3-881/84 volume No.2 of work of Kolapra bridge and Ext.P21 and P21(b) will go to show that the liability was provisionally fixed as Rs.7.8 lakhs. The 5th accused sent Ext.P21(d) letter requesting to extend the time for submitting his explanation and his contract was terminated vide Ext.P21(f) proceedings No.D/339/78 dated 20.7.1988. He had also made a suggestion vide Ext.P21(g) letter dated 27.9.1988 to appoint three watchmen at site in order to avoid further loss. He had sent Ext.P21(h) letter dated 11.10.1988 asking the 5th accused to bring the balance materials at site.
26. Ext.P22 was the file No.554/1976 of Assistant Executive Engineer, Thodupuzha relating to Kudayathoor bridge work. As per Ext.P22(a) letter dated 21.12.1987 the shortage was fixed and as per Ext.P22(b) letter dated 29.7.1987, Ext.P22(c) letter dated 19.12.1987 and Ext.P22(d) letter dated 19.2.1988, it will be seen the quantity of steel brought to the site. Ext.P22(e) is the show cause notice issued to the contractor, the 4th accused.
27. Ext.P23 is file No.DE 554/86 of Assistant Executive Engineer, MVIP No.1, Muttam and Ext.P23(a) was the letter sent by the 4th Crl. Appeal Nos.126, 127, 128 & 129 of 2001 25 accused stating that the entire quantity of steel supplied from Thanneermukkam was brought to the work site at Kudayathoor. Ext.P23(g) is the report of the Assistant Engineer dated 4.10.1988 and Ext.P23(h) is the final report dated 25.10.1988 stating that on verification at the site, it was found only 22.9379 metric tones steel was found. This was intimated to the Executive Engineer as per Ext.P23(i) report dated 11.11.1988. As per this witness, the shortage at Kudayathoor work site was 5.0621 kg of 32 mm steel rod. The shortage was found after measurement of the rods found in the custody of the contractor namely the 4th accused.
28. PW12, the Accountant of the shop of one Ukru was examined on the side of the prosecution to prove that Ukru had purchased steel rod from the 5th accused. But he had denied having purchased any steel road by a private purchase.
29. PW13 was the Assistant Executive Engineer, Sub Division- II, Thodupuzha MVIP and he was in charge of Kudayathoor bridge work and 4th accused was a contractor and PW3 was the Assistant Engineer at the relevant time. As per Ext.P22(f) letter dated 16.12.1985, he had made a requisition for 29 metric tones of 32 mm steel rod for the construction work of the bridge at Kudayathoor and as per Ext.P22(g) letter dated 19.12.1985, the first accused who was the then Executive Engineer, MVIP, Thodupuzha put forward Crl. Appeal Nos.126, 127, 128 & 129 of 2001 26 the request for 28 metric tones of 32 mm steel rod and PW3 vide Ext.P22(h) letter dated 19.2.1986 reported that only 17.25 metric tones of 32 mm tore steel alone was received as against the intent of 28 metric tones. This was reported by PW13 to Executive Engineer as per Ext.P22(i) letter dated 22.4.1986. PW3 vide Ext.P22(j) letter dated 5.3.1986 reported the shortage to PW13 the Assistant Executive Engineer stating that there was a discrepancy in the gate pass and though 22.65 metric tones steel rod was taken delivery from Thannermukkam store, only 17.25 metric tones was brought to the site. As per Ext.P22(k) letter dated 5.3.1986, PW13 had addressed the first accused regarding the discrepancy found and requesting him to ascertain the quantity supplied. Ext.P22(l) is the letter dated 1.4.1986 sent by PW3 to PW13 regarding the details of 32 mm raw steel brought to the site at Kudayathoor. On the basis of Ext.P22(l) report of PW3, PW13 sent Ext.P22(m) letter dated 3.4.1986 to the first accused, the then Executive Engineer, MVIP, Thodupuzha. PW3 had reported as per Ext.P22(n) letter dated 4.4.1986 that the 4th accused had not brought the balance materials at the site. Ext.P22(o) memo dated 9.4.1986 was issued to the 4th accused with a copy to the first accused and the 4th accused sent Ext.P22(p) reply dated 12.5.1986 to the Assistant Engineer with a copy to PW13 where he had mentioned that some quantity of 32 mm raw steel was taken to Crl. Appeal Nos.126, 127, 128 & 129 of 2001 27 the workshop for the purpose of welding. Ext.P22 (q) letter dated 16.5.1986 was sent by PW3 to 4th accused intimating that the reply is not satisfactory and also mentioned in that letter that there was no need to take out articles for the purpose of welding to the workshop from the site and this was intimated to the Executive Engineer as per Ext.P22(r) letter dated 12.5.1986. The Executive Engineer, MVIP, Thodupuzha addressed a letter to Executive Engineer, Thannermukkam project requesting him to supply the details of quantity of steel supplied and the first accused vide Ext.P22(s) office order dated 8.5.1986 transferred the work from Muttam Sub Division to Thodupuzha Sub Division. Thereafter PW13 had no role in the transaction.
30. PW14 was the record attender at Project Division, Thannermukkam and he was examined to prove the dispatch made from the depot as per records. He deposed that as per Ext.P26(a) entry in Ext.P26 despatch register of the office of Assistant Executive Engineer, Thanneermukkam that on 31.3.1986, an invoice was sent from Thanneermukkam project to MVIP, Thodupuzha Division.
31.PW15 was working as the Assistant Engineer at Thannermukkam Section II. According to her, section III was also merged with section II on 1.11.1986 and the third accused was working as Assistant Engineer in charge of the store. According to Crl. Appeal Nos.126, 127, 128 & 129 of 2001 28 her, Ext.P5(a) to Ext.P5(d), P17A(a), P17A(b), P18A, P18A(a), P19, P12 and P25 gate passes issued on different dates contained the signature of the third accused. According to PW15, as per intent No.30 (wrongly shown as 13 in paragraph 22 of the judgment of the court below), 28 metric tones of 32 mm tore steel and as per intent No.31, 48.650 metric tones tore steel were issued and Ext.P22 was the letter sent by the third accused in this regard. Ext.P27 endorsement was made on the back of Ext.P27 letter dated 31.1.1996 of the Assistant Engineer, section No.III, Thanneermukkam by the third accused. Ext.P28 is the carbon copy of the issue note and Ext.P28(a) is also a carbon copy of the issue note which contained the signature of the third accused. She was examined to prove that the third accused was working as Assistant Engineer of Thanneermukkam project division and he was in charge of the store at Thanneermukkam and the supplies relating these projects namely Kudayathoor and Kolapra were issued by him from the store at Thanneermukkam. The relevant documents relating to this supply mentioned above contained the signature of the third accused. She had stated that she did not know in whose handwriting the gate passes were written.
32. PW16 was the Chief Engineer, Project-II and the construction of bridges at Kudayathoor and Kolapra were under him. Crl. Appeal Nos.126, 127, 128 & 129 of 2001 29 He had stated that he had sent Ext.P29(d) letter dated 6.12.1985 to the Chief Engineer, Irrigation regarding the supply of 32 mm steel rod on the basis of the letter received from the first accused and Ext.P29 is the file No.CEPII-1/85(G1) of CE, Thiruvananthapuram relating to the same.
33. PW17 who was the Superintending Engineer was examined to prove that the contract issued to 4th and 5th accused were later terminated.
34. PW18 was the station writer of Kanjar police station who registered Crime No.43/1987 of that police station of theft of articles on the basis of the complaint given by the 5th accused stating that 12 mm steel rod worth Rs.5,000/- was stolen from Kudayathoor site and his evidence will go to show that it was closed as undetected and UN report was given to the court.
35. PW19 was the cleaner of the lorry driven by PW10 which carried the steel rod from Thannermukkam store and checked by Ernakulam City Police at Ernakulam and he did not support the case of the prosecution.
36. PW20 was the Sub Contractor under accused 4 and 5 in respect of these projects and he was examined to prove the alleged theft of steel rod from Kudayathoor and Kolapra but he did not state as to whether any quantity of 32 mm steel rod was stolen from the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 30 site.
37. PW21 was the Executive Engineer of Thannermukkam project. He was also examined to prove that the third accused was in charge of the Assistant Engineer, Stores and as per the directions of Chief Engineer, 32 MM steel rods were supplied from Thannermukkam project store to the sites at Kudayathoor and Kolapra. Ext.P21 is the stock register of the store. He was also examined to prove that on 9.10.1984, the third accused was in charge of the store and he had taken charge of the store on 9.10.1984 evidenced by Ext.P31(a) endorsement made by him. Ext.P31(b) is the entry dated 26.12.1985 by which 14 metric tones of 32 mm raw steel rod was issued as per intent No.31/85-86 and as per Ext.P31(c) entry dated 28.12.1985 another 14 empty 32mm steel rod was issued under the same intent namely intent No.31/85-86. As per Ext.P31(d) entry dated 3.1.1986, 12 empty 32 mm tore steel was issued as per intent No.30/85-86 and as per Ext.P31(e) entry dated 9.1.1986, 27 metric tones of steel was issued and as per Ext.P31 (f) entry dated 31.1.1986, 9.65 metric tones of steel rod was issued and as per the register, the balance of 32 mm steel in the store was 272.227 metric tones which is seen as per Ext.P31(g) endorsement containing the signature of the third accused.
38. Ext.P24 (b) is the file No.A-4-34/85-86 of Executive Crl. Appeal Nos.126, 127, 128 & 129 of 2001 31 Engineer, MVIP Division No.1, Thodupuzha and Ext.P24 (b)letter dated 14.10.1986 was received from the Chief Engineer directing him to supply 60 metric tones of 32 mm of tore steel. Ext.P32 was the copy of invoice intent Nos.30 and 31. Ext.P32(a) is the cash statement suspense account. Ext.P18A, and Ext.P18A(a) series were all issued by PW21 which were triplicate copy of the intent. All these contained the signature of the third accused. The first accused had attested the signature of the contractor in these intents and on the basis of the intends passed by PW21, the third accused had issued the material and gate passes were also issued by him. He had deposed that the gate passes will show the respective intent number, articles supplied and that will be given to the signatory whose signature was attested by the intending officer namely the first accused in this case.
39. PW22 was the Tahsildar, Thoduppuzha at the relevant time who was examined to prove that there was no natural calamity occurred at Kudayathoor or Kolpra during 1985-86.
40. PW23 is the Section Clerk of Thodupuzha, MVIP section who was in charge of cash settlement suspense account claimed. According to him, when cash settlement suspense account claim was made from Thannermukkam, it was made as a single claim though there were two intents issued for the purpose of supply. So it was Crl. Appeal Nos.126, 127, 128 & 129 of 2001 32 returned for rectification.
41. PW24 was in charge of the Assistant Engineer of Section 1/II of MVIP, Thodupuzha for about two weeks from 22.5.1986. According to him, at the relevant time no effective construction works were done at Kudayathoor bridge site.
42. PW25 was the Executive Engineer, MVIP Division No.1, Thodupuzha. As per the directions of the Superintending Engineer, he conducted physical verification of the articles at Kudayathor and Kolapra sites and Ext.D6 is the file No.A3-903/87 of MVIP division which contained Exts.P34 and P35 verification reports relating to Kudayathoor and Kolapra respectively. He had sent a letter to the 4th accused intimating that 10.75 metric tones of 32 mm raw steel was not brought to the site and A4 had sent a letter vide Ext.P36
(a) seen in Ext.P36 file No.S3-10/86 volume I in respect of Kudayathoor bridge and this letter was sent to the Superintending Engineer and copy of the same was seen as Ext.P25 in the file.
43. PW26 was the Assistant Executive Engineer, Thanneermukkam, who was questioned by the investigating officer on the basis of the records maintained there.
44. PW27 was the Assistant Engineer in charge of Kudayathoor bridge works, who took charge from PW3. He intimated the shortage of steel from Kudayathoor site to the Assistant Executive Engineer Crl. Appeal Nos.126, 127, 128 & 129 of 2001 33 and he had sent Ext.P36(a) letter to the 4th accused intimating the shortage and informed the Assistant Executive Engineer as per Ext.P36(d) letter dated 27.3.1987. Ext.P36(f) is the letter sent by the Assistant Executive Engineer to the 4th accused. According to him, at the time of verification 16.45 metric tones of 32 mm tore steel was found shortage and Ext.P36(g) letter dated 12.5.1987 is regarding the same. According to him, the contractor had dumped the steel at different intervals.
45. PW28 was the Chief Technical Examiner of the Finance Department and on 6.7.1988 he had suggested the vigilance investigation in respect of works at Kudayathoor and Kolapra.
46. PW29 was the lorry cleaner of lorry with registration No.KRA 5382 which was driven by PW10 used for transport of 32 mm steel rod of 10 metric tone quantity from Thanneermukkam store to Kolpra on 26.5.1985. According to him, on 26.5.1985 no load was taken from Thannermukkam to Ernakukam and he turned hostile. He had admitted that Ext.P10 GVR was in his hand writing and destination was shown as Kolapra. According to him, he was sleeping in the vehicle at the time when loading of the steel was done said to be at Ernakulam.
47. PW30 was the employee at Way bridge at Chemmanam, Vyttila and he was examined to prove that on 26.5.1985 he had Crl. Appeal Nos.126, 127, 128 & 129 of 2001 34 weighed a load of steel rod transported in Lorry No.KRA-5385 driven by PW10 which was entrusted to take the rod supplied from Thanneermukkam project to Kolapra by the 5th accused.
48. PW31 was the Superintendent of Police, Vigilance, Spacial cell, who registered Ext.P38 First Information Report as VC.No.9/1989 of VACB Ernakulam on the basis of the request received from PW28 in this regard and he conducted the investigation. He had seized several documents as per Ext.P39 to P55 mahazers on different dates produced by different officials of the Public Works Department in relation to this transaction. Ext.P47 mahazer is the duplicate for Ext.P18. PW32 completed the investigation and submitted final report after obtaining Ext.P1 sanction to prosecute accused Nos. 2 and 3 from the competent authority and proved through PW1.
49. Before going into the facts of the case, let me consider the precedents and also the relevant guidelines in the PWD Manual and Accounts Code regarding these aspects.
50. In the decision reported in State of Gujarat v. Jaswantlal Nathalal (AIR 1968 SC 700) it has been held that:
"The expression"entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as Crl. Appeal Nos.126, 127, 128 & 129 of 2001 35 to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. Thus where the Government sells cement to its contractor solely for the purpose of being used in connection with the construction work the circumstances does not make the transaction anything other than sale. After delivery of the cement, the Government has neither any right nor dominion over it. If the purchaser or his representative fails to comply with the requirements of any law relating to cement control, he should be prosecuted for the same. But it cannot be held that there was any breach of trust".
51. In the decision reported in Velji Raghavji Patel v. State of Maharashtra (AIR 1965 SC 1433), it has been held that :
"The term "entrusted" found in Section 405 of the Indian Penal Code governs not only the words "with the property"
immediately following it but also the words "or with any dominion over the property" occurring hereafter".
52. Further in the decision reported in Jaswatrai Manilal v. State of Bombay (AIR 1956 SC 575), it has been observed that:
"Before there can be any entrustment, there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that Crl. Appeal Nos.126, 127, 128 & 129 of 2001 36 does not mean that such an entrustment need conform to all the technicalities of the law of trust".
53. In the decision reported in Jaswatrai Manilal's case (supra) the Supreme Court has held that:
"In the absence of any clause in the agreement between the contractor and the department regarding the ownership of the property namely cement to be supplied it cannot be said that if cement was supplied to the contractor for the purpose of using the same for a particular purpose it will amount to entrustment as it is nothing to sale of cement and if there is any short supply or the entire quantity is not used then contractor can be proceeded against for the deficit in the work and not for misappropriation as there is no entrustment as such as contemplated under section 405 of the Indian Penal Code and the Government/Department has any right over the property entrusted and the value of the article is being collected from the contractor and in such circumstances, it will amount to sale of the article and the contractor will become the owner of the property"
54. In the decision reported in National Insurance Co.Ltd. v. Ishar Das Madan Lal (2007 (4) SCC 105) the question of entrustment as occurring in the exclusion clause of the policy was considered and in that case when the employee of the shop was dealing with article and it was given to a customer and the customer Crl. Appeal Nos.126, 127, 128 & 129 of 2001 37 had taken away the property and committed theft of the same, then it cannot be said that it was entrusted with the employee so as to bring such entrustment within the exclusion clause mentioned in the policy. So that dictum is not applicable to the facts of this case though the decision reported in State of Gujarat v. Jaswantlal Nathalal (AIR 1968 SC 700) was referred to in that decision.
55. In the decision reported in Arjun Tewari v. The State (1977 Crl.L.J.1751) the Calcutta High Court has held that:
"Section 106 of the Evidence Act is an exception to section 101 which lays down the general rule about the burden of proof. The general law is that the prosecution is to prove the case against the accused beyond reasonable doubts by adducing evidence direct or circumstantial establishing reasonable probability raised to the standard of proof about the commission of the offence in question as required by the Evidence Act. Once the Court thinks that a case is acceptable against the accused on evidence either direct or circumstantial, and if the accused takes up a plea based on facts which are within his special knowledge as required under section 106, it is for him to prove that plea and the onus of proof in that case lies on him. Of course the standard proof of that plea is not so high as in the case of prosecution".
56. In the decision reported in Narayanan Nambiar v. Executive Officer, Cherukunnu Panchayat Board (1964 KLT 354), Crl. Appeal Nos.126, 127, 128 & 129 of 2001 38 it has been held that:
"Section 106 is an exception to Section 101. It is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'exclusively' within the knowledge of accused and which he could prove without difficulty or inconvenience.
The ordinary rule that applies to criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by this rule of evidence. The section cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted and such inference can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused, that section 106 can be applied and its effect considered while weighing the evidence".
57. In the decision reported in The Superintendent and Remembrancer of Legal Affairs, W.B., v .S.K. Roy (AIR 1974 SC
794), it has been held that:
"To constitute an offence of criminal breach of trust by a public servant punishable under section 409, Indian Penal Code, the acquisition of dominion or control over the property must also be in the capacity of a public servant. Ordinarily, it is the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 39 ostensible or apparent scope of a public servant's authority when receiving property and not its technical limitations, under some internal rules of the department or office concerned, and the use made by the servant of his actual official capacity which would determine whether there is a sufficient nexus or connection between the acts complained of and the official capacity so as to bring it within the ambit of section 409 of the Indian Penal Code".
58. In the same decision it has been further observed that:
"Section 409 of the Indian Penal Code covered dishonest misappropriation in cases where the receipt of property is itself fraudulent or improper and also those where the public servant misappropriate what may have been quite properly and innocently received. All that is required is what may be described as "entrustment" or acquisition of dominion over property in the capacity of a public servant who, as a result of it, becomes charge with a duty to act in a particular way, or at least honestly".
59. In the same decision it has been observed that:
"The obligation to act in a certain manner with regard to or to deal honestly with property, over which a public servant obtains dominion or control by the use of his official capacity, may arise either expressly or impliedly. It is enough if the payment is made by a person dealing with a public servant in his capacity as a public servant even if it is made on an erroneous assumption Crl. Appeal Nos.126, 127, 128 & 129 of 2001 40 which the public servant concerned does nothing to remove. A legal defect in the scope of the ostensible authority of a public servant does not prevent an entrustment to or an obligation to be fastened upon a public servant in his capacity as a public servant if the facts of the case establish, the required nexus or connection between acts which create the obligation and the capacity".
60. In the decision reported in Albano Dias v. State (1981 Crl.L.J.677), it has been held that:
"Once it is found that the accused was entrusted with certain amounts for disbursement which he had not disbursed and has falsely made entries as paid, there is an unerring certainty that he converted the amount for his own use and the act was a deliberate act to commit misappropriation which also amounted to offence of criminal misconduct under section 5(1)(c) of the Prevention of Corruption Act, 1947".
61. In the decision reported in C.S.D. Swami v. The State (AIR 1960 SC 7), it has been held that:
"It is true a section 5(3) of the Prevention of Corruption Act, 1947 does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances, a rule which is a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never Crl. Appeal Nos.126, 127, 128 & 129 of 2001 41 shifts on the to disprove the charge framed against him".
62. In the decision reported in Ram Narayan Popli v. Central Bureau of Investigation (2003(3) SCC 641), it has been held that:
"The elements of a criminal conspiracy have been stated to be:(a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c ) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the stature required, an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. Law making conspiracy a crime designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment.
For an offence punishable under section 120 B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of Crl. Appeal Nos.126, 127, 128 & 129 of 2001 42 criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object of for use of criminal means.
No doubt, in the case of conspiracy there cannot be any direct Evidence. The ingredients of offence a re that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a mater of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. It is not always possible to give affirmative Crl. Appeal Nos.126, 127, 128 & 129 of 2001 43 evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relied cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference Crl. Appeal Nos.126, 127, 128 & 129 of 2001 44 should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub- section (2) of section 120 A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and the trappings of the provisions contained in section 120B. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design.
In a case where criminal conspiracy is alleged, the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 45 court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. Express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence, whenever any one of the conspirators does an act or series of acts, he would be held guilty under section 120B of the Indian Penal Code".
63. Further in the same decision it has been observed that:
"To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him, that amounts to a criminal breach of trust as defined by section 405. The section is relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in Crl. Appeal Nos.126, 127, 128 & 129 of 2001 46 violation of any direction and of law or any contract touching the discharge of trust.
The term "entrustment" is not necessarily a term of law. It may have different implications in different contexts. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all.
To establish the charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted if proved, may, in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion.
Sections 407 to 409 make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence. The offence of breach of trust and dishonest misappropriation are sufficient to constitute an offence under the relevant provisions.
When a person misappropriates to his own use the property that does not belong to him, the misappropriation is dishonest even though there was an intention to restore it at some future Crl. Appeal Nos.126, 127, 128 & 129 of 2001 47 point of time".
64. In the same decision it has been observed that:
"Section 13(2) of the Prevention of Corruption Act is intended to deal with aberrations of public servants, In view of the finding that A-1, in furtherance of criminal conspiracy, in his capacity as public servant abused his position by causing and/or allowing MUL's funds to be utilized for the wrongful gain of A-5 provisions of section 13(1)(c) read with section 13(2) are clearly applicable. Similar is the position vis-a-vis A-3.
The offences in these cases were not of the conventional or traditional type. The ultimate objective was to use public money in a carefully planned manner for personal use with no right to do it.
Funds of the public bodies were utilized as if they were private funds. There was no legitimacy in the transactions. Huge funds running into hundreds of crores of MUL, a government company, were diverted and all the accused persons concerned, A-1, A-3 and A-5, played dubious roles in these illegitimate transactions. Their acts had serious repercussions on the economic system of the country, and the magnitude of financial impact involved in the present appeal is only the tip of the iceberg. There were several connected cases and interestingly some of the prosecution witnesses in the present case are stated to be accused in those cases. That itself explains the thread of self perseverance running through their testimony. Therefore, Crl. Appeal Nos.126, 127, 128 & 129 of 2001 48 the need to pierce the facadial smokescreen to unravel the truth to lift the veil so that the apparent, which is not real, can be avoided. The proverbial red herrings are to be ignored, to find out the guilt of the accused.
The cause of the community deserves better treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence of the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest".
65. Further in the decision reported in Krishan Kumar v. Union of India (AIR 1959 SC 1390), it has been observed as follows:
"The offence under section 5(1)(c) is the same as embezzlement, which in English law is constituted when the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 49 property has been received by the accused for or in the name or on account of the master or employer of the accused and it is complete when the servant fraudulently misappropriates that property.
Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property as well as being wrongfully deprived of property. Therefore, when a particular thing has gone into the hands of a servant he will be guilty of misappropriating the thing in all circumstances which show a malicious intent to deprive the master of it.
It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstance against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servants knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may Crl. Appeal Nos.126, 127, 128 & 129 of 2001 50 exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is enough to establish the facts which give rise to a suspicion and then by reason of Section 106 of the Evidence Act to throw the onus of him to prove his innocence.
If under the law it is not necessary or possible for the prosecution to prove the manner in which the goods have been misappropriated then the failure of the prosecution to prove facts it set out to prove the manner of misappropriation or the identity of the goods would be of little relevance".
66. In the decision reported in R.K. Dalmia and others v. Delhi Administration (AIR 1962 SC 1821) it has been held as follows:
"The term 'agent' in S.409 is not restricted only to those persons who carry on the profession of agent. What S.409 requires is that the person alleged to have committed criminal breach of trust with respect to any property be entrusted with that property or with dominion over that property in the way of his business as an agent. The expression 'in the way of his business' means that the property is entrusted to him in the ordinary course of his duty or habitual occupation or profession or trade. He should get the entrustment or dominion in his capacity as agent. In other words, the requirements of this section would be satisfied if the person be an agent of another Crl. Appeal Nos.126, 127, 128 & 129 of 2001 51 and that other person entrusts him with property or with any dominion over that property in the course of his duties as an agent. A person may be an agent of another for some purpose and if he is entrusted with property not in connection with that purpose but for another purpose. That entrustment will not be entrustment for the purposes of S.409 if any breach of trust is committed by that person. Entrustment of property in the capacity of agent will not, by itself, be sufficient to make the criminal breach of trust by the agent a graver offence only when he is entrusted with property not only in his capacity as an agent but also in connection with his duties as an agent. It is not correct to say that the word 'agent' in S.409 refers to a 'professional agent' ie., a person who carried on the profession of agency".
67. In the decision reported in S.P.Bhatnagar and another v. The State of Maharashtra (AIR 1979 SC 826)while considering the question of "the abuse of position" it has been observed as follows:
"The abuse of position in order to come within the mischief of section 5(1) (d) must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other persons".
68. In the same decision it has been observed as follows:
Crl. Appeal Nos.126, 127, 128 & 129 of 2001 52 "In cases depending on circumstantial evidence, there is always the danger that conjecture or suspicion may take the place of legal proof.
The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far compete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
The principle that inculpatory fact must be inconsistent with the innocence of the accused and incapable of explanation on any other hypothesis than that of guilt does not mean that any extravagant hypothesis would be sufficient to sustain the principle, but that the hypothesis suggested must be reasonable".
69. Let me consider the relevant provisions of the Kerala Public Works Department Manual and also the Accounts Code regarding these aspects. Chapter-1 of the Manual deals Organization Crl. Appeal Nos.126, 127, 128 & 129 of 2001 53 and set up of the Public Works Department. Clause 1.2-4 of Chapter-I says that the main executive unit of the department is the division in charge of an Executive Engineer, who controls the work of all the sub-divisions under his jurisdiction. The executive Engineer is responsible for the proper execution of all works in his division and also in guiding and design and preparation of estimates etc. He has also powers of sanctioning estimates and entering into contracts within certain limits. As the disbursing officer of the department all payments for works, supplies and services are made in the divisions and subdivisions under him and the Executive Engineer has to render the prescribed accounts to the Accountant General. The division officer has generally two branches , the Technical (Drawing branch) and Accounts branch. The Technical branch is under a Technical Assistant in the cadre of Assistant Engineer (or under one or more Head Draftsman subordinate staff such as Draughtsman, Tracer etc. The Accounts branch is under the overall control of a Divisional Accountant with necessary ministerial staff.
70. Clause 1.2-3 deals with power of other officials which says the work of a number of sections is controlled by a subdivision under the charge of a Subdivision Officer (Assistant Engineer) who generally is vested with powers, within certain limits, to sanction estimates, enter into contracts and make payments. The Assistant Engineer has Crl. Appeal Nos.126, 127, 128 & 129 of 2001 54 also to guide subordinate officers in the matter of investigation and preparation of estimates, and take all steps necessary to examine that works under charge of the subdivision are properly executed. He has to maintain and render accounts as prescribed in the rules or orders in force. To assist the Assistant Engineer in the discharge of his duties, necessary ministerial and technical staff are provided in the subdivision offices.
71. Appendix II(b) deals with duties and responsibilities of all officers under the Department. Clause -5 of the Appendix deals with general duties and responsibilities of all officers. It says that:
(1) Overseers are employed either for supervision of works or for survey and investigation or for technical work in offices. (2) When employed for supervision of works, their duties will be similar to what has been detailed in respect of Work Superintendents.
It may sometimes happen particularly in important works, that Overseers and Work Superintendents are both posted for supervision in the same work at the same time. In such cases, the more important item of work should be under the charge of the Overseer or Overseers while the comparatively less important item must be dealt with by Work Superintendents. The senior most officer posted at any work site for direct supervision will be the officer who should, in addition to supervision, co-ordinate the work of other subordinates. Crl. Appeal Nos.126, 127, 128 & 129 of 2001 55 (3) When Overseers are posted for survey and investigation, checking, setting out etc., they will be responsible for the correctness of the survey work, levelling or any other field work or collection of data entrusted to their charge.
72. It is the duty of the Junior Engineer for (1) forecasting and reporting the requirements of materials, Tools and Plant etc, required for works sufficiently early so that they could be arranged for and got supplied in time. (2) Taking and recording measurements and assisting in check measurements. (3) Scrutinizing contractor's bills and recording accounts of materials issued for works. (4) Watching the progress of works and taking steps to remove bottle necks if any. (5) Ensuring in the case of contract works, that all the conditions of contract are properly observed and taking appropriated action if any of these is violated. (6) The safe custody and rendering proper account (as per rules) of each, materials, scientific instruments, Tools and Plant etc, entrusted to him or which pass through the section accounts. (7) When a Junior Engineer is posted to the charge of an custodian of stores, he is also responsible for: (a) Ensuring that only articles covered by proper indents and approved by the Stores Officer are issued out of the stores and that the issue is made to the person authorized to receive the same. (b) Keeping proper accounts and submitting proper returns as per rules of the receipts, issues and Crl. Appeal Nos.126, 127, 128 & 129 of 2001 56 balances of different articles.
73. The Executive Engineer is responsible for the proper execution of all the works under his charge. For this purpose he should take timely action to:
(a) get estimates prepared and sanctioned.
(b) move and obtain possession of land required for the execution.
(c ) forecast and take steps to provide required materials and Tools and Plant for departmental work and for meeting departmental obligation in contract work.
(d) inspect works during execution and give instructions where required.
(e) invite tenders and make contract arrangements as per rules.
(f) provided adequate staff for proper supervision.
(g) arrange periodical payments and watch expenditure.
(h) deal with such other matters as may be found necessary for proper execution.
74. In regard to new works, the Executive Engineer is responsible for guiding and controlling proper investigation, and design or works and preparation of estimates.
Crl. Appeal Nos.126, 127, 128 & 129 of 2001 57
75. Clause -28 of the tender deals with supply of articles which says as follows:
Cement and M.S rods required for the work will be supplied departmentally from the District Stores and their value recovered at Rs...... per bag of 59 Kg of cement and Rs...... per/Kg of M.S. Rods. Cement and rods as well as other materials so issued shall remain the property of government though in contractors custody and shall not be removed from the stores at work site except under written authorization by a competent authority not less than the rank of a Junior Engineer. (underlined by me)
76. Clause-33 of the tender says that :
Value of quantities of the departmental materials issued for the work either allowed to deteriorate or unaccounted for, amounting as it does to an excess supply over the sanction requirements, shall be recovered at book value or issue rate plus 20% supervision charges or market rates whichever is higher with sales tax and in addition, specific penalty rate stipulated by the Department Market value will be the retail selling price of the materials in the locality of the work or the nearest market town current on the day of issue, or recovery which is more. The Executive Engineer shall obtain the information and record within 7 days of such issue, sending a copy to the Contractor. The decision of the Chief Engineer regarding the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 58 current market rates shall be binding on the contractor.
77. Clause -44 says that this tender notice with the conditions stated herein will form part of the contract documents. Specification attached to the tender, Clause-7 says that all materials and plant that are to be made over the Contractor by the Department shall be handed over to him at the Division Office or Store Yards at Division Head quarters or the P.W.D. District Stores and the charges, for their handling, loading and unloading, and conveyance to and fro for the respective work as also for stacking the materials neatly and in regular heaps on the ground or sheds to which they are brought shall be deemed to be included in the rates for the work and this is the duty of the contractor.
78. Clause-9 of the Part I-General of specification attached to Tender notice in PWD Manual says that the contractor shall be responsible for the proper use and bear the cost of protection of materials made over to him by the Department for use on the work and bear any loss from deterioration or from faulty workmanship or any other cause. The cost of materials thus allowed to deteriorate amounting as it does to an excess issue over sanctioned quantities, will be recovered at rate of 20 per cent over the actual cost. The orders of the Division Officer in the matter shall be final and binding on the Contractor.
Crl. Appeal Nos.126, 127, 128 & 129 of 2001 59
79. Chapter-XVI of the Manual deals with execution of works through contractors.
80. Clause 16.1.1 says that after the award of contract and after the contractor deposits the required security and signs the agreement, the site has to be made available to the contractor for carrying out the works.
81. Clause 16.1.2 : An acknowledgment in the form given in Appendix XVI (a) may then be got signed by the contractor or his representative after the site is handed over.
82. Clause 16.3 deals with Work-spot Order Book and Clause 16.3.7 says that the Work Superintendent in charge should record in the workspot order book the day to day progress of the work, arrivals of materials at site of work.
83. Clause-16.7.7 says that materials supplied by the contractor should be properly stored and protected against weather by the contractor so that thee is no deterioration due to storage. Clause-16.7.8 deals with use and care of departmental materials which says that departmental materials issued to a contractor should also be brought to site and properly stored. Quantities issued from the departmental stores should be based on the rate of usage of such materials, and the time required for getting replacement. Every time an issue is made from the departmental stores, the fact Crl. Appeal Nos.126, 127, 128 & 129 of 2001 60 should be intimated to the Junior Engineer in charge so that he can see whether the entire lot supplied to the contractor is brought to site or not. The Work Superintendent in charge should record a certificate in the workspot order book about the details of materials brought to site and then only the materials should be used for the work. The Junior Engineer in charge should compare this with the requisition and supply made from the stores and record a certificate about the actual receipt of materials. When any discrepancy is noticed, the contractor should be asked to explain it, and steps should be taken against him as per contract if such explanation is unacceptable. Similarly, the balance in the contractors' site store should be checked from time to time to see that there is no misuse of the departmental materials. The fact that such check has been done should be noted by the subordinate Work Superintendent in charge in the work spot order book. It may be noted that as per general conditions of contract, departmental materials are given only for use on the concerned work, and the contractor is not entitled to put these to any other use or transfer them to another work or otherwise dispose of them.
84. Clause 10.3 deals with issue of materials as per the Accounts Code and clause 10.3.1 subclause (1) deals with issues of materials to contractors with whom agreements in respect of Crl. Appeal Nos.126, 127, 128 & 129 of 2001 61 completed items of works i.e., for both labour and materials, have been entered into. It further says that the accounts of materials issued direct to works and to contractors should be maintained in K.P.W. Form 31 and 31 A respectively.
85. Clause 10.3.4(b) says that in both cases the contract should specify (1) the materials to be supplied by Government for use on the work. (2) the place or places of delivery and (3) the rates to be charged to the contractor for each description of materials and the contractor should be held responsible for obtaining from Government all such materials required for the work and for making payment therefor, by deduction from his bills, at the rates specified, regardless of fluctuations in the market rates or in the stock rates of the Division.
86. Clause 10.3.4(c) says that no carriage or incidental charges are borne by Government for moving the materials beyond the place where the contractor has agreed to take delivery thereof.
87. Clause 10.3.6 says that all materials required for issue to a contractor under any of the provisions of paragraphs 10.3.4 and 10.3.5 should be made over to him, as soon after their receipt as possible and an unstamped but dated acknowledgment detailing full particulars of the materials, the rates and values chargeable to him should at once be taken from the contractor. The issue of materials Crl. Appeal Nos.126, 127, 128 & 129 of 2001 62 should simultaneously be entered in the account of materials issued to contractors,K.P.W. Form 31 A.
88. Clause 10.3.8 says that the recovery from a contractor on account of the cost of materials issued to him for use on a work should ordinarily be made by deduction from the first bill authorising an on account payment to him for the work.
89. Clause 10.3.10 says that Government do not undertake to take over from contractors, whether before or after the completion or determination of contracts surplus materials which were originally procured by the contractors for themselves or were issued to them and charged to their accounts under paragraph 10.3.6. Such materials are the property of the contractors and can be taken over by Government, if required, for use on other works in progress only by special arrangement and at the prevailing market rates. If the materials were originally supplied by Government the price allowed to the contractor on re-acquisition should not exceed the amount charged to the contractor excluding the element of storage charges, if any.
90. Chapter 17 of the Code deals with transactions with other divisions, departments and governments.
91. Clause 17.1.1 says that the conditions under which one department of the public service may raise debits against another Crl. Appeal Nos.126, 127, 128 & 129 of 2001 63 department under the same Government, or any department under another Government, for services rendered or articles supplied to it, are regulated by the directions contained in Chapter 4 of the Kerala Account Code, Volume I.
92. Clause 17.1.7 says that services rendered, or articles supplied, by one division to another will not be charged for except in the following cases:-
(i) Stores - if they are issued from a Stock of Materials account (vide paragraphs 10.5.14 and 10.5.15) or if their transfer affects a work for which a separate capital account is kept.
93. Clause 17.1.9 says that cash recoveries made from employees, contractors, etc., as also revenue realized, by a division on behalf of other divisions, departments or governments, should be passed on to them, the payment being made in the manner prescribed in paragraph 17.1.8. Cash obtained from treasuries on cheques and cash receipts (including surplus cash) remitted to treasuries, are accounted for as remittance transactions.
94. The detailed procedure to be followed in the settlement of transactions relating to cash recoveries, etc., made by one Public Works Division on behalf of another Division is indicated in Rule II (I) of Appendix 8.
95. Appendix 8 of the Code deals with the detailed procedure Crl. Appeal Nos.126, 127, 128 & 129 of 2001 64 to be followed by the P.W.Divisional Officers for the settlement of Inter divisional transactions by Cheques/Bank Drafts. Sub-chapter (2) of this Appendix deals with Action in the Responding Division which deals as follows:
96. Immediately on receipt of the copy of Form 1 from the originating Division, the responding Division should check that the connected vouchers (except those for work done) have been duly, received, The same should then be entered in the "register of claims received" in Form 3 and urgent arrangements made to obtain and send the Cheque or Bank Draft with a distinct marking "Payment by book adjustment only" along with a forwarding letter in Form 4. On the cheque being issued, the entry will appear on the payment side of the Cash Book as debit to the Suspense Account "Purchases" under Stock/Work as the case may be (in the case of stores received) thus clearing the original credit afforded to this head on receipt of the stores by debit to "Stock" or work concerned, as the case may be.
97. It should be ensured that the dispatch of the Cheque/Bank Draft is not delayed beyond ten days of the receipt of the account. For this purpose, the Divisional Officer should arrange to have the detailed verification of the claim completed well within this period. In order to ensure smooth working all round, the Cheque/Bank Crl. Appeal Nos.126, 127, 128 & 129 of 2001 65 Draft should always be for the full amount claimed by the Division. In cases where some mistake in calculation etc. is detected in the course of check of the account or an item clearly pertaining to another Division has been wrongly included in the account, the Cheque/Bank Draft should be sent for the full amount and the discrepancies should be simultaneously pointed out to the originating Division. Such items should be re-debited to the Division concerned by including them in the next monthly account to be sent to the latter along with the supporting vouchers, if any. With these principles in mind the case in hand has to be considered:
98. It is an admitted fact that the first accused was the Executive Engineer of Thodupuzha division, who was in charge of construction of the bridges at Kudayathoor and Kolapra at the relevant time. The second accused was the Assistant Engineer in charge of Kolapra bridge works. The third accused was the Assistant Engineer in charge of stores at Thannermukkam project. The 4th accused was the contractor in respect of bridge works at Kudyathoor and the 5th accused was the contractor in respect of the work of bridge at Kolapra and 4th accused is the son of the fifth accused. It is also an admitted fact that as per the requisition of the second accused and PW3 as respective Assistant Engineer in charge of Kolapra and Kudayathoor bridge works, intends were made by the Executive Crl. Appeal Nos.126, 127, 128 & 129 of 2001 66 Engineer namely the first accused for supply of 32 MM tore steel rod to the Thanneermukkam work project stores as per rules and supplies of 32 MM tore steel rods were issued from Thannermukkam project stores by the third accused who was in charge of that store as Assistant Engineer in charge of stores at the relevant time. The requisition for materials, namely 32MM tore steel, for the purpose of construction of the bridges were prepared by the Assistant Engineer in charge of the site and was forwarded to the Executive Engineer through the Assistant Executive Engineer.
99.Ext.P2(c) was the requisition with respect to Kudayathoor bridge. As per the requisition, the quantity required was shown as 29 tones and it was dated 16.12.1985 and addressed by the Assistant Executive Engineer to the Executive Engineer. In that the name of the contractor was shown as the 4th accused. As per the original intend No.26/85-86, 33.921 tonnes were originally intended. But after the issue, there was a balance of 30.300.90 tonnes. But the present requirement shown was only 29 tonnes. The copies of this requisition was marked to the Assistant Engineer section I/II also. Ext.P2(a) was the requisition for 32 MM tore steel to be forwarded by the Assistant Engineer, Section I/II with respect to construction at Kudayathoor bridge. This was prepared by PW3 on 30.11.1985 and it was submitted to the Assistant Executive Engineer, MVIP Crl. Appeal Nos.126, 127, 128 & 129 of 2001 67 Sub Division-II namely PW13 and the requirement shown as 29 tonnes. It was on the basis of Ext.P2(a) that PW13 the Assistant Executive Engineer had prepared Ext.P2(c) and forwarded to the Executive Engineer namely the first accused. The first accused on 19.12.1985 addressed to the Executive Engineer, Thannermukkam enclosing the intend for 28 tonnes of 32 MM tore steel for the work of Kudayathoor with the signature of the 4th accused and attested by the first accused and this intend is 31/85-86. A copy of Ext.P2
(b) letter was sent to the Assistant Engineer Sections I and II and also to the Assistant Executive Engineer, sub-division II and their endorsements are seen as well. It is also mentioned in the letter that the subordinate office were to intimate Executive Engineer the date of material on arrival without fail.
100. Ext.P2 (d) also would show that the first accused had addressed the Executive Engineer, Thanneermukkam for the supply of 28 tones of 32 MM steel rods for Kudayathoor project works. It will be seen from the evidence of Pws 3 and 13 that though the requisition was for 29 tonnes of 32 MM tore steel for Kudayathoor bridge works vide intend No.31/85-86, the first accused had placed intend for supply of 28 tonnes of tore steel. Exts.P22(f) and (g) are the requisitions made by Pws 3 and 13 for 29 tonnes.
101. As far as Kolapra is concerned, on 6.2.1985 the first Crl. Appeal Nos.126, 127, 128 & 129 of 2001 68 accused had, as per Ext.P15(b), that is intend No.30/85-86, to the Assistant Executive Engineer, Thanneermukkam, made a request for supply of 48 tonnes of 32 MM tore steel. So it is clear from this that for Kudayathoor 28 tonnes and for Kolapra 48 tonnes of 32 MM tore steel were intended by the first accused and this is evident from the evidence of PWs3 and 13 coupled with Ext.P2(a), (c ), (d) and P22(f) and (g) in respect of Kudayathoor and Pws 7 and 8 and Ext.P15(a) in respect of Kolapra project. Intend No.31/85-86 namely Ext.P18A is for Kudayathoor which was submitted by the first accused on 19.12.1985 to the Executive Engineer, Thannermukkam and 28 tonnes of 32 MM steel rods at the rate of Rs.4836/- and one percentage storage was intended. The value of 28 tonnes was assessed at Rs.1,35,408/- and inclusive of one percentage storage the total value will come to Rs.1,36,762/- and the name of the contractor was shown as the 4th accused. It was specifically mentioned that the articles are to be delivered to the person whose specimen signature was given. It is further mentioned that the name and address of the person to whom the articles should be delivered was shown as Assistant Engineer, MVIP section 2/2, Thodupuzha through Sri.D. Bose, the 4th accused, the contractor. The specimen signature of the 4th accused was obtained and it was attested by the first accused. It was passed for issue by the Executive Engineer, Thanneermukkam on 26.12.85 Crl. Appeal Nos.126, 127, 128 & 129 of 2001 69 for supply of 28 metric tonnes of 32 MM tore steel and it was seen issued on 26.12.1985 and 28.12.1985 vide gate pass Nos.19 and 20/85-86 dated 16.12.1985 and 28.12.1985 and the quantities were said to have been received by the 4th accused.
102. Ext.P18A(a) is the carbon copy of the intend and Ext.D4 series show that vide intend No.30/85-86, 48 tonnes 32 MM tore steel was intended by the first accused from Thannermukkam project division and the name of the contractor was shown as the 5th accused and the signature of the 5th accused was attested by the first accused. In Ext.D3 series, the name and address of the person to whom the articles were delivered was shown as the Executive Engineer, MVIP section 1/1 of Muttam through K.N.Damodaran, the 5th accused contractor. This was passed for issue but the actual quantity issued was 48.650 metric tonnes for a value of Rs.2,35,271.40 inclusive of one percentage of storage showing the total amount as 2,37,624.11. Ext.D4 series will go to show that this article was supplied vide gate pass Nos.21/85-86, 2/86, 3/86 and 4/86 dated 3.1.1986, 9.1.1986 and 31.1.1986 vide Ext.P5(a) to (d), Ext.P12, P25, and P17A(a) and Ext.P17 A(b). Ext.P5(c) is the gate pass No.21/85-86 dated 3.1.1986 for supply of 12 tonnes of 32 MM tore steel to the 5th accused and the destination was shown as Kudayathoor( Kolpra) and the vehicle number through which it was carried was shown as KLI 5157 and the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 70 name of the messenger was shown as Damodaran and it was issued by the third accused.
103. As per Ext.P5(a) supply of 13 tonnes of 32 MM tore steel was made and the name of the messenger was shown as Damodaran, the 5th accused and intend number was shown as 30/85-86 and the destination was shown as Kudayathoor and that was issued on 9.1.1986 and gate pass number was 2/86 and the vehicle number was shown as KLZ 5157. Ext.P5(d) was the gate pass No.4/86 dated 31.1.1986 for supply of 9.650 tonnes of 32 MM tore steel as per intend No.30/85-86 showing the messenger's name as Damodaran, the 5th accused and the destination as Kudayathoor and the vehicle No.KLI 2975. Ext.P5(e) is the gate pass No.3/86 dated 9.5.1986 for supply of 14 Metric tonnes of 32 MM tore steel with intend No.30/85- 86 showing the name of the messenger as the 5th accused, destination as Kudayathoor and the vehicle number as KLD 5600.
104. From the different gate passes issued, it is clear that in Ext.P17 A(a) and A(b) the destination was shown as Kolapra with correct intend number and correct name of the contractor. In Ext.P5 (c ) it is shown that on 3.1.1986 as per gate pass No.21/85-86 12 metric tonnes of 32 MM steel rod was issued in the name of the 5th accused but the destination was shown as Kudayathoor (Kolpra). It will be seen from Exts.P17 A(a), P17A(b), P5(c) and P25 that only 40 Crl. Appeal Nos.126, 127, 128 & 129 of 2001 71 metric tones of 32 MM tore steel was issued for the site at Kolapra namely on 26.12.1985 14 tones, on 28.12.1985 14 tonnes and on 3.1.1986 12 tones.
105. As regards Kudayathoor is concerned, it will be seen from Ext.P5(a) that 13 tonnes of 32 MM steel rod was issued as per gate pass No.2/86 (Ext.P5(a) dated 9.12.1985), another 14 tonnes as per gate pass No.3/86 (Ext.P5(b) dated 9.1.1986) and as per gate pass No.4/856 (Ext.P5(d) dated 31.1.86) 9.65 tonnes with intend No.30/85-86 in stead of 31/85-86 and the name of the messenger was shown as Damodaran, the 5th accused in stead of 4th accused in Exts.P5(a) and P5(b). Ext.P5(d) gate pass No.3/86 dated 9.1.1986 for 14 metric tones of 32 MM tore steel was also issued with the name of the messenger Damodaran, the 5th accused and the destination was shown as Kudayathoor and Ext.P5 (a)(b) and (d) gate passes were received by PW9 and it will be seen from Ext.P5(a) and P5(b) that on 9.1.1986 the articles covered by those gate passes were carried in the lorry with No. KLI 5157 and KRD 5600 covered by intend No.30/85-86 for Kudayathoor in the name of the 5th accused and on 31.1.86 as per Ext.P5 (d) gate pass, 9.650 metric tones was also issued to Kudayathoor from Stores at Thanneermukkam. It will be seen from Ext.P5(a) and P5(b) that total quantity of 32 MM steel rod issued to Kudayathoor from Thanneermukkam is 22.65 and they Crl. Appeal Nos.126, 127, 128 & 129 of 2001 72 were issued on 9.1.1986 and 31.1.1986, but it is seen from the evidence of PW3 that only 17.25 metric tones of tore steel alone reached the site. Further it will be seen from Ext.P5 (d) that on 9.1.1986 another 14 metric tones of 32 MM tore steel was issued to Kudayathoor and that is also added, then the total quantity will come to 36.65 metric tones as against the intend of 28 metric tones, thereby an excess 8.65 metric tones was issued to Kudayathoor as against the actual intend of 28 metric tones. But Ext.P18A and D4 series would show a different picture. As per Ext.P18 A (intend No.31/85-86) the articles were issued on 26.12.1985 and 28.12.1985 as per gate pass Nos.19 and 20 of 1985-86 covered by Ext.P17A
(b) and P17A(d) dated 26.12.1985 and 28.12.1985 the total issue was for 28 metric tonnes and the endorsement was made by the third accused and this would only a mistake as per Ext.P17A(a) and P17A(b) this was intended to be issued to Kolapra. Ext.D4 series also show that intend No.30/85-86 relates to Kolapra and issues were on 3.1.1986, 9.1.1986 and 31.1.1986 covered by gate pass Nos.21/85- 86 (Ext.P5(c)) and gate pass Nos. 2, 3 and 4/86 evidenced by Ext.P5
(a), P5(d) and P5(b) and in those, the destination was shown as Kudayathoor as well. So it is clear from the documents produced namely Ext.P18A and Ext.D4 series with gate passes covered by Ext.D5 (d) and Ext.P17 A series along with Ext.P12 and P25, it will be Crl. Appeal Nos.126, 127, 128 & 129 of 2001 73 seen that the gate passes issued were not gate passes mentioned in the intends when the invoices were prepared for the purpose of making the CSSA claim as per Ext.P32. It will be seen from the documents that the entire quantity covered by the intends namely intend No.30/85-86 and 31/85-86 relating to Kudayathoor and Kolapra were really lifted by the contractor through his agent or messenger and it will be seen from the evidence of Pws 3 and 13 that there was short delivery at the site. It will be seen from the evidence of Pws 3 and 13 that at Kudayathoor only 17.25 tones of 32 MM steel rods reached evidenced by Ext.P2(e) and P22 (h) and (i) as against total intend of 28 metric which was really supplied from the stores and taken delivery by the contractor though his messenger or agent and there is a deficit of 10.75 metric tones of 32 MM tore steel at Kudayathoor. At Kolapra as against the quantity lifted namely 48.65 metric tones, only 40 metric tones reached the site and there was a shortage of 8.65 metric tones. This will be evident from the work spot order book Exts.P3 and P13 relating to Kudayathoor and Kolapra respectively. Further these facts were fortified by the entries in Ext.P4 and 17 measurements book relating to the above respective site as well. It will be seen from Ext.P14, material at site account at Kolapra, receipt of 40 metric tonnes was recorded as required by the officials and on 5.4.1987, i.e., much later the contractor, namely the Crl. Appeal Nos.126, 127, 128 & 129 of 2001 74 5th accused had brought 8.65 metric tones of 32 MM tore steel to the site which was found to be short at the site.
106. It will be seen from Ext.P3 work spot order book with respect to Kudayathoor, the site was handed over to the contractor namely the 4th accused on 14.11.1983 and the proposed date of completion of the work was on 13.11.1985. It is seen from the evidence of PW3, the Assistant Engineer in charge of Kudayathoor project, that he had taken charge on 19.3.1985 and he was working in that capacity till 22.5.1986 and one K.A. Iype was the overseer from 19.3.1985. It will be seen from Ext.P3(a) endorsement made in the work spot order book relating to Kudayathoor that only 17.25 metric tones 32 MM tore steel rod alone reached the site and this entry was made on 19.2.1986 and as per Ext.P5(d), the last issue to Kudayathoor was on 31.1.1986. The same fact was entered in Ext.P4 measurement book as well.
107. Ext.P13 is the work spot order book relating to Kolapra site. It will be seen from this that the site was handed over to the contractor namely the 5th accused on 23.11.1984 and the proposed completion of the work was extended up to 31.1.1988. The entry in Ext.P13 dated 20.1.1986 will go to show that 40 metric tones of 32 MM tore steel was stocked at the site and only on 5.4.1987 8.65 metric tones of 32MM tore steel was brought to the site by the 5th Crl. Appeal Nos.126, 127, 128 & 129 of 2001 75 accused which was after the deficit was found and notice was issued to the 5th accused to bring back the deficit tore steel which was lifted by him from Thannermukkam stores as per the intend given for this purpose. Ext.P14(a) is the material at site account at Kolapra and it will be seen that on 9.1.1986, 40 metric tones of 32 MM tore steel was received at site and as per Ext.P14(b) entry dated 5.4.1987, the balance quantity of 8.65 metric tones was also reached the site and Exts.P18 and P19 were the unstamped receipts (USR) given by the contractor for receipt of materials from Kolapra site. It will be seen from Ext.P18 that the 5th accused had received 40 metric tones of 32 MM tore steel on 30.3.1986 and 8.650 metric tones on 5.5.1987 as per Ext.P19.
108. It will be seen from the evidence of PW3, the Assistant Engineer, who was in charge of Kudayathoor site that he had pointed out the discrepancies in the two gate passes to PW13, the Assistant Executive Engineer. Ext.P22(I) report dated 24.2.1986 and Ext.P22
(j) letter dated 5.3.1986 were given to the divisional office with respect of the articles brought to the site by the contractor. It is seen from Ext.P2(g) that on getting a report from PW3 regarding the discrepancy and the shortage of material at the spot, the first accused had convened a conference and memos were issued to the contractor seeking explanation for the shortage. The second accused Crl. Appeal Nos.126, 127, 128 & 129 of 2001 76 had submitted his report on 14.3.1986 as regards Kolapra along with Ext.D1(a), (b) and (c ) and D2(a) MAs (monthly accounts) and as per Ext.D2(n) dated 9.4.1986 he had intimated the total quantity brought to the site. Ext.P15(f) copy of the part bill also will clarify this aspect. PW7 was the overseer of Kolapra and he had proved the entries in the work order book and also in the measurement book. Further it will be seen from Ext.D1(c) letter sent by the second accused that the total quantity issued in respect of Kolapra was not intimated to them and they were not known about the same as he had not received the copy of intent or issue note. It will be seen from the evidence of PW3 that as far as Kudayathoor work site is concerned, though the last issue was on 31.1.1986, he had found the discrepancy in the gate passes and the arrival of articles at the site on 24.2.86 and he had intimated the same to his superiors. But as far as kolapra was concerned though the last issue was on 31.1.1986, only on 14.3.1986 as per Exts.D1(a), (b) and (c) letters, second accused intimated the same to his superiors. PW13 the Assistant Executive Engineer mentioned about the status of the material at the site showing that only 40 MM tones tore steel was received at the site Kolapra but he did not mention about the discrepancy in the gate pass regarding the quantity, destination and the intend number etc. As per Ext.P32 dated 7.4.1986 the CSSA Crl. Appeal Nos.126, 127, 128 & 129 of 2001 77 claim was put forward from the division office of Thannermukkam project regarding the supply made showing the total quantity along with invoice and copies of the passed intends to the first accused. But only on 8.5.1986 this claim was returned showing the defects that a single claim was made on the basis of two invoices. It will be seen from the documents that copies of the passed intends were not sent to the Assistant Engineer to complete the material at site account.
109. It will be seen from Exts.P24(a) and (c) that on 12.5.1986, from the account section of the division office of the first accused, an intimation was given to Thanneermukkam stores division that the copies of the intends were not received and it will be seen from the documents that there was some correction in the date though the letter was drafted on 12.3.1986, it was seen sent on 12.5.1986 though Ext.P32 was received on 7.4.1986 along with copies of the passed intends but it was returned only on 8.5.1986. It is also seen from the evidence that on 26.4.1986 the first accused had ordered to withhold an amount of Rs.3 lakhs from the part bill of the contractor but on 7.5.1986 Rs. One lakh was released by himself and he left the charge on 13.5.1986. But it will be seen from the evidence that when the shortage was noticed, he had directed to retain Rs. 3 lakhs from the part bill and it is true that on 7.5.1986 an amount of Crl. Appeal Nos.126, 127, 128 & 129 of 2001 78 Rs.One lakh was seen released. Even as per the evidence, the total shortage at Kudayathoor was 10.75 metric tones while at Kolapra was 8.65 metric tones, thereby a total deficit of 19.40 metric tones and the value of which will come to Rs.1,03,200/- including the storage value of 1%. So merely because the first accused had allowed Rs. 1 lakh to be withdrawn cannot be taken as a ground to doubt his act as more than the value of loss as allowed to be retained by him namely Rs.2 lakhs and the balance amount was allowed to be withdrawn by his successors though they were also aware of the fact that there is discrepancy in the gate pass and there is shortage of material found at the work spot.
110.Further it is true that there was some laches on the part of the second accused in finding out the defect in the gate passes and also the deficit of material at the work sport. But it will be seen from the evidence of PW7 that it was he who used to enter the quantity of articles received at the work spot order book and it will be verified by the Assistant Engineer, who is the second accused. There is no evidence on record to show that the copies of the intends or the issue notes from Thannermukkam stores were delivered to the second accused though it was said to have been marked to him. So under the circumstances, the prosecution has not produced any evidence to prove that the second accused was aware of the quantity of supply Crl. Appeal Nos.126, 127, 128 & 129 of 2001 79 made from the stores and the date of supply and the quantity supplied as such.
111. It will be seen from the evidence of Pws 3 and 13 that immediately when Pws 3 and 13 informed about the shortage found in Kudayathoor site, the first accused had convened a meeting of the respective subordinate officials and instructions have been given to them to get explanation from the contractors regarding this aspect and he had also taken steps to retain Rs.3 lakhs from the bill amount payable to the contractors in order to deduct the same ultimately if it is found that any loss has been caused on account of the act of the contractors to the department. It is true that the first accused, being the Executive Engineer, should have been more diligent in supervising the work and collected the materials from the subordinate officers to quicken the action against the contractors. But it will be seen from the evidence that it is only on 24.2.1986 the deficiency was intimated by PW3 to PW13 and immediately thereafter a meeting was convened by the first accused to enquire into the matter and gave instructions to PW13, PW3 and second accused to look into the matter and to get explanation from the contractors and he was transferred from there on 13.5.1986. On 26.4.1986 on getting an over all picture of the shortage, he had directed to retain Rs.3 lakhs in the part bill payable to the contractors and on 7.5.1986 he had released only Rs. 1 lakh Crl. Appeal Nos.126, 127, 128 & 129 of 2001 80 out of that amount and retained Rs.2 lakhs. He cannot be held responsible for release of the balance amount when there was enquiry pending regarding shortage of materials supplied to the contractor as found at the site.
112. Further it will be seen from the evidence that on the basis of the instructions given by the first accused, memos have been issued to accused 4 and 5 by PW3 and the second accused and 4th accused had given an explanation stating that some quantity of iron rod supplied was taken to the workshop for welding and fabrication purposes. He did not mention the quantity taken and when this was not satisfactory, PW3 had reported the mater to PW13 who in turn informed the same to the first accused. It will be seen from the evidence that the 5th accused had made a complaint to Kanjar police stating that some quantity of 12 MM steel rods were stolen from the site, on the basis of which a crime was registered as Crime No.43/1987 showing the value of the steel rod stolen as Rs.5,000/- and this was proved through PW18, the former station writer of Kanjar police station. But there is nothing mentioned in the complaint about loss of any 32 MM steel rod which is the subject matter in dispute regarding shortage found in this case. Further the evidence of PW20 and PW9, the subcontractor under accused 4 and 5 and their agent respectively will go to show that there was no theft of Crl. Appeal Nos.126, 127, 128 & 129 of 2001 81 material committed to their knowledge from the work site. Further it will be seen from the evidence of PW18 that they have filed a UN report to the court as the articles could not be traced out. So there is contradictory evidence regarding the explanation given by the 5th accused regarding the loss of articles seen from the evidence of PW9 and particulars mentioned in the complaint given by the 5th accused to the Station House Officer, Kanjar, on the basis of which, a crime was registered as mentioned above. Further the evidence of PW9 is not also helpful to come to the conclusion that there was any theft of 32 MM steel rod committed from the site as well. So even if a complaint was filed regarding the theft of article, that is not sufficient to come to the conclusion that the accused persons 4 and 5 were able to show that there was no misappropriation and the articles were stolen from the site. Accused 4 and 5 had no case that they have not lifted the entire quantity of iron rod requested for as per intend No.30/85-86 and 31/85-86 namely 48 metric tones for Kolpra and 28 metric tones for Kudayathoor respectively. They also have no case that they have not lifted the quantity of iron rod covered by the gate passes and intend as well. According to them, the entire quantity have been reached the site and some of the articles was taken to the workshop and some article was stolen and that was how the deficit was found at the time of inspection which explanation Crl. Appeal Nos.126, 127, 128 & 129 of 2001 82 was found to be not proved or probable in view of the evidence adduced on the side of the prosecution.
113. It will be seen from the evidence that as per intend No.31/85-86 (Ext.P18A) and vide intend No.30/85-86 (Ext.D4 series) the contractors namely accused 4 and 5 were authorized to collect the articles from Thanneermukkam store and quantity and rate of article and total value recoverable from the contractor were also mentioned in the intends. It is also clear from the provisions in the PWD Manual and the Accounts Code that it is the duty of the contractor to lift the articles from the store to the work site and it must be entrusted to the Assistant Engineer, who is in charge of the site and thereafter it would have to be collected from him after giving unstamped receipt (USR). It is also seen from the documents produced by the prosecution that the articles intended to be supplied from the stores will have to be issued and delivered to the Assistant Engineer through the messenger who was authorized to collect the same and it is the duty of the contractor to bring the articles to the site and entrust the same to the Assistant Engineer in charge of the work site and satisfy him about the quantity delivered and it will be entered in the workspot order book maintained in the site by the Overseer and it will be verified by the Assistant Engineer and then USR will be obtained from the contractor and the articles will be Crl. Appeal Nos.126, 127, 128 & 129 of 2001 83 handed over to the contractor and it is thereafter that the contractor has to use the material as per the directions of the officials for the work for which the materials were supplied. Till the materials were entrusted to the contractor, it will be deemed to be the property of the Government and the contractor who has been authorized to collect the material from the store, act as an agent of the department for this purpose and entrustment of the articles to them by the store authorities will be only for and on behalf of the department and they are only carrying the same as a trustee for the department, thereby there is a fiduciary relationship created impliedly between the contractor to whom the articles were entrusted from the store and the department. If the articles so entrusted were not properly reached the place and if it is not accounted by the person to whom it was entrusted, then it will be deemed to have been misappropriated by him. So in view of the above provisions discussed above, the dictum laid down in the decisions reported in State of Gujarat v. Jaswantlal Nathlal (AIR 1968 SC 700) and Jaswatrai Manilal v. State of Bombay (AIR 1956 SC 575) are not strictly applicable to the facts of this case.
114. It will be seen from the documents produced and the evidence adduced on the side of the prosecution that the third accused was working as Assistant Engineer Stores at Crl. Appeal Nos.126, 127, 128 & 129 of 2001 84 Thanneermukkam and it was he who had issued Exts.P17A(a),P17A
(b) and P5(a) to P5(d) gate passes. Ext.P18A(a) and Ext.D4 series were also intends relating to the same transaction and they were also certified by the third accused as Assistant Engineer in charge of stores at Thanneermukkam. PW9, Chandrasekhara Pillai, was the agent of both the contractors. According to him, except Ext.P17 A
(b) gate pass, in all other gate passes on the reverse side, he had acknowledged having received the quantity of articles mentioned in those gate passes issued from the stores at Thanneermukkam and according to his evidence, at Kudayathoor 28 metric tones tore steel of 32 MM was received and at Kolapra, 48.65 metric tones tore steel of 32 MM was received. According to him, the articles were dumped in the work site and gate passes were entrusted with the contractor. But he was declared hostile by the prosecution. In the cross examination, he had admitted that no steel rods were stolen from the site or missing from the site and it was not taken to workshop for fabrication purpose. According to him, at Kolapra, three loads of 32 MM steel rods were received and it will have the quantity of 40 metric tones and he was satisfied with the quantity received. His evidence will go to show that he was not sure about the site at which the articles taken delivery as per Ext.P5(c) was unloaded and according to him, the articles will be delivered at the site as Crl. Appeal Nos.126, 127, 128 & 129 of 2001 85 directed by the contractor. So his evidence will go to show that the explanation given by accused 4 and 5 as there was theft of articles from Kolapra and the articles were lifted to the workshop for fabrication work was not correct.
115. According to PW4, the record attender, that the two invoices in respect of intend Nos.30 and 31/85-86 were sent on 31.3.1986. PW15 was the Assistant Engineer Stores of Thannermukkam and he had identified the handwriting and signature of the third accused in the gate passes. Ext.P27 was the letter dated 31.1.1986 sent by the third accused to the Executive Engineer, Thannermukkam division which was received by him on 4.2.1986 in which the third accused had intimated the return of passed intends 30 and 31/85-86 after issuing 32 MM steel rod as per intend No.30/85-86, 28 metric tones steel was issued and under intend No.31/85-86, 48.65 metric tones steel was issued and Ext.P27(a) is the document relating to the same which was the writing of the third accused on the back of Ext.P27 letter dated 31.1.1986. It will be seen from the document that the articles covered by intend No.30/85-86 were issued on 26.12.1985 and on 28.12.1985 at 14 metric tones each on each issue. It relates to Kudayathoor work. It will be seen from intend No.31/85-86 the issue was made as follows:
Crl. Appeal Nos.126, 127, 128 & 129 of 2001 86 12 MT steel rod on 3.1.1986 27 MT steel rod on 9.1.86 9.650 MT steel rod on 31.1.86.
116. Ext.P8 is the issue note book of Thanneermukkam project and as per Ext.P28 and P28(a), the supply of 28 metric tones and 48.650 metric tones of 32 MM steel rods were seen issued as per the above two intends mentioned above. Ext.P28 is dated 28.12.1985 and Ext.P28(a) is dated 31.1.1986 and as per the records at Thanneermukkam project area, the last issue as per intend No.30/85- 86 was on 28.12.1985 and the last issue as per intend No.31/85-86 was on 31.1.1986 which is clear from Ext.P27 series and Ext.P28 series documents produced on the side of the prosecution and proved through PW14. As per the passed intend-Ext.P18(a) (intend No.31/85-
86), the issues were shown as 26.12.1985 and 28.12.1985 and as per Ext.D4 series relating to intend No.30/85-86, the issues were shown on 3, 9 and 31 of January, 1986, which is contrary to the entries in Ext.P27(a) and as per Ext.P5(a) to (d), the name of the messenger was shown as Damodaran and the destination was shown as Kudayathoor and in Ext.P5(c) the destination was shown as Kolapra. In all these gate passes, the intend number was shown as 30/85-86. In Ext.P17A(a) and 17A(b) the destination was shown as Kolapra. It will be seen from the evidence that all the entries in these Crl. Appeal Nos.126, 127, 128 & 129 of 2001 87 documents were in the handwriting of the third accused. He had no explanation as to how the discrepancies in the gate passes occurred except stating that it was a mistake as the destinations were situated very nearby and the contractors being son and father, this mistake has occurred. But such a mistake was not made by him while he was entering the same in the registers maintained in the Thanneermukkam stores. So, that will go to show that the third accused had played some role in creating certain gate passes with some wrong entries so as to create confusion regarding the supply to be noted at the work spot so as to help accused 4 and 5.
117. It will be seen from the evidence of PW21, the Executive Engineer, Thanneermukkam division, who proved the entries in Exts.P31(b) to (f) in the stock register, which has been maintained by the third accused. It is seen from Ext.P31(a) entry in that register that on 9.10.1984, the third accused has taken charge of the stores at Thanneermukkam project and Ext.P31(g) shows the balance material available of 32 MM tore steel as entered by the third accused after the issues of materials covered as per intend Nos.30 and 31/85-
86. Ext.P32 was the invoice prepared for intend Nos.30 and 31 and Ext.P32(a) was the CSSA claim made. PW21 also deposed that it is the duty of the Assistant Engineer in charge of stores to issue gate passes. It is also seen from his evidence that Ext.P32 invoice was Crl. Appeal Nos.126, 127, 128 & 129 of 2001 88 prepared from the division office on the basis of the details furnished by the third accused, who was the Assistant Engineer Stores at Thanneermukkam. It will be seen from the evidence of Pws 4, 5, 6, 9, 10, 18, 19, 20, 22, 29 and 30 that how the articles from stores lifted were handled by the contractors. It will be seen from Ext.P2
(e),(f), Ext.P22 (h), (I), Ext.P3(a) and Ext.P4 that only 17.25 metric tones of 32 MM tore steel had reached Kudayathoor site in the place of 28 metric tones supplied. It will be seen from Ext.P13(a), P14 series, P17 to P19, P15 and Ext.D1 series, D2(a) and D8(a) that only 40 metric tones of 32 MM steel had reached at Kolapra instead of 48.65 metric tones lifted from the store. Pws 3, 11, 13, 16 and 27 have deposed about the transaction that had taken place at Kudayathoor while Pws 7, 8 and 11 had spoken about the transaction that had taken place at Kolapra. Pws 23 and 25 have deposed about the transaction that taken place at the division office at Thodupuzha regarding the receipt and return of claim made from Thanneermukkam project division in respect of the supply of articles. It will be seen from the evidence of PW4, the Station writer of City Traffic Police Station, Ernakulam who prepared Ext.P8 mahazer and registered Ext.P8 petty case against PW10, driver of the lorry with registration No.KRA 5382 at 10 a.m on 27.12.1985. It will be seen from his evidence that the vehicle was found parked in Crl. Appeal Nos.126, 127, 128 & 129 of 2001 89 the middle of the public road at Gopalakrishna Prabhu Road in front of the shop United Enterprises and on the basis of the petty charge sheet, a case was taken on file as S.T.No.833/86 on the file of the Judicial First Class Magistrate Court, Ernakulam and PW10 pleaded guilty, convicted and fined Rs.25/-. It will be seen that a copy of the gate pass - Ext.P12 with No.19/85-86 dated 26.12.1985 showing supply of 40 metric tones of 32 MM tore steel was issued from the stores under intend No.30/85-86 and name of the messenger was shown as Damodaran and the destination was shown as Kolapra, the vehicle number was shown as KRA 5382 and time of issue of the gate pass shown as 5 p.m on 26.12.1985. PW5 was the Assistant Sub Inspector of Police attached to the City Traffic Police Station, who detected the crime and Ext.P10 was the GVR in respect of the vehicle which will go to show that a load of steel was carried in the vehicle at the time of detection and Ext.P10(a) is the relevant entry which will go to show that the date of travel was shown as 26.12.1985 and the supply was made in the name of the 4th accused from Thanneermukkam project to Kolapra and article weighed 10 tones and the starting point was shown as Thanneermukkam.
118. It will be seen from Ext.P10(a) that the seal of the sales tax check post at Aroor and Perumannur were affixed on this gate pass which will go to show that the articles carried in the lorry Crl. Appeal Nos.126, 127, 128 & 129 of 2001 90 had passed through these two check posts and there was no necessity for the vehicle to pass though these check posts to reach either kudayathoor or Kolapra. PW6, who was the officer attached to sales tax check post at Perumannur and ExtP11 is the vehicle check register which will go to show that on 27.12.1985 at 1.17 a.m the vehicle with registration No. KRA 5385 carrying 32 MM steel road of 14 tones quantity taken from Thannermukkam to Kolapra was passed through the check post and the gate pass number was shown as 40 dated 26.12.1985 and PW10 the lorry driver had affixed his signature. Gate pass serial No.48 was the gate pass relating to gate pass No.19/85-86 dated 26.12.1985 which is Ext.P17A(b), a copy of which was marked as Ext.P12. Ext.P12 contains endorsement of the Perumannur check post on the back side of the document.
119. It will be seen from the evidence of PW9 that except the load covered by Ext.P17A(b) dated 26.12.85, all other loads under different gate passes were received by him and according to him the load covered by the above gate pass was received by the 4th accused. Though PW10 had admitted regarding the registration of the case and payment of fine as mentioned above, he had denied the transport of articles to Ernakulam and sale of the same as instructed by the contractors and he was declared hostile by the prosecution. Though PW29, the lorry cleaner was examined to prove the sale of Crl. Appeal Nos.126, 127, 128 & 129 of 2001 91 the steel rod carried in the vehicle KRA 5382 at Ernakulam, he did not support the case of the prosecution. PW30, who was working at way bridge at Chellanam - Vyttila also deposed that on 26.12.1985 the lorry with registration No.KRA 5382 with load was weighed. All these evidence will go to show that after lifting the material from Thannermukkam project on 26.12.1985 it did not reach the site either at Kudayathoor or Kolapra but it was diverted and taken to Ernakulam. Though the actual sale of these articles were not proved by the prosecution, this evidence will go to show that a portion of the articles covered by the intends intended to be supplied for the work in connection with bridges at Kudayathoor and Kolapra were diverted by the 5th accused who has taken delivery from these stores for and on behalf of the 4th accused as well. So it is clear from the evidence that all these things can be possible with the connivance of the 4th accused as well and 5th accused alone cannot do the same. Further the false explanation given by accused 4 and 5 regarding shortage of articles found at the work spot also will give an indication of sharing of mind of these accused persons regarding diversion of the article which was entrusted to them for the purpose of delivery at the site to be delivered to them later in connection with the works of those two places. Merely because the 5th accused had later brought 8.65 metric tones of Crl. Appeal Nos.126, 127, 128 & 129 of 2001 92 steel rod on 5.4.1987 after notices were issued to him when the discrepancies were found on the basis of the report given by the second accused and PW3 will not absolve him from the criminal liability of conversion of the same at least for a temporary period without supplying the same to the site after he had taken the same from the stores. The false explanation given by them is an additional link to complete the chain of circumstances to prove the dishonest intention on the part of accused 4 and 5 regarding the shortage of articles found at the work site at Kudayathoor and Kolapra. So under the circumstances, the court below was perfectly justified in coming to the conclusion that there was entrustment of articles belong to the department to accused 4 and 5 and 5th accused on his behalf and on behalf of the 4th accused lifted the articles as per the intend Nos.30/85-86 and 31/85-86 from Thanneermukkam project store and diverted a portion of the same namely 18.40 metric tones of materials of which 8.65 metric tones of 32 MM steel was later produced and caused a loss of 9.75 metric tones of steel rod which were entrusted to them for the purpose of producing the same before the work spot but not produced and not accounted for the same till their contracts were terminated and thereby they have committed misappropriation of the articles and rightly convicted them for the offence under section 409 of the Indian Crl. Appeal Nos.126, 127, 128 & 129 of 2001 93 Penal Code read with section 120 B of the Indian Penal Code.
120. As far as the third accused is concerned the explanation given by him regarding the discrepancies made in the gate passes as against the entries made by him in the official registers though there was no short supply made from that place, it will be seen that he had also played a role in helping accused 4 and 5 in committing the misappropriation and this was done with the dishonest intention of helping accused 4 and 5 to get some unlawful gain and causing unlawful loss to the department misusing the official position and thereby he had committed the offence punishable under section 5(1)
(d) read with section 5(2) of the P.C. Act and also offences under sections 465 and 471 of the Indian Penal Code for creating false gate passes with false entries to make it appear that they are genuine documents to be used for transporting the articles from the store to the site. So under the circumstances, the court below as perfectly justified in convicting the third accused for the offence under section 5(1)(c) read with section 5(2) and also section 5(1)(d) read with section 5(2) of the P.C. Act, 1947 and sections 465 and 471 of the Indian Penal Code and also for the offence under section 409 of the Indian Penal Code invoking section 120 B of the Indian Penal Code for hatching criminal conspiracy with accused 4 and 5 for this purpose.
Crl. Appeal Nos.126, 127, 128 & 129 of 2001 94
121. As regards the conviction of accused 1 and 2 is concerned, in view of the discussions made above, it cannot be said that there was any direct or indirect liason between accused 1 and 2 or 4 and 5 to hatch conspiracy for the purpose of allowing them to misappropriate the government materials and cause unlawful loss to the government. At the most the evidence may be helpful to come to a conclusion that there were some laches on the part of the first and second accused in respect of initiating action against accused 4 and 5 though the discrepancy was brought to the notice of the first accused by PW3 and a conference was convened by the first accused and instructions have been given to accused 2, 3 and 13 to take appropriate action in this regard and the action was delayed and proper supervision was not made by him.
122. As far as the second accused is concerned, he could give intimation regarding the actual supply made to the superiors only later with delay and he had not mentioned anything about the discrepancies in the gate passes and also the short supply made. But it will be seen from the evidence that there is nothing on record to show that the second accused was informed about the actual supply made from the stores and the gate passes and copy of the intends with issue notes were entrusted to him though they were said to have been dispatched through messenger Thannermukkam stores. So Crl. Appeal Nos.126, 127, 128 & 129 of 2001 95 under such circumstances, it cannot be said that the prosecution was able to prove beyond reasonable doubt that he was aware of the actual supply as regards Kolapra is concerned. It is true that he could have made enquiries regarding the same and collected the materials, which he had not done. That may at the most amount to dereliction of his duty and it cannot be said that it was done with any dishonest intention so as to help the 5th accused who was the contractor in respect of Kolapra to make unlawful gain as suggested by the prosecution so as to convict him for the offence under section 5(1)(c) read with section 5(2) of the P.C. Act invoking section 120 B of the Indian Penal Code. So the conviction entered by the court below against accused 1 and 2 is unsustainable in law and the same are liable to be set aside. Accused 1 and 2 are entitled to get acquittal of the charges levelled against them giving them the benefit of doubt. As regards the conviction entered by the court below against accused 3 to5 are hereby confirmed.
123. Point No.viii: The third accused was sentenced to undergo rigorous imprisonment for 4 years under section 5(1)(c) read with section 5(2) of the P.C. Act and further sentenced to undergo rigorous imprisonment for two years under section 120 B of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for 4 years each and also to pay a fine of Rs.40,000/- each, in default to Crl. Appeal Nos.126, 127, 128 & 129 of 2001 96 undergo rigorous imprisonment for two years each under section 409 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years under section 465 of the Indian Penal Code and directed the sentences to run concurrently and set off was allowed for the period of detention already undergone under section 428 of the Code of Criminal Procedure. Accused 4 and 5 were sentenced to undergo rigorous imprisonment for two years each under section 120 B of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for 4 years each and also to pay a fine of Rs.40,000/ each, in default to undergo rigorous imprisonment for two years each under section 409 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years each under section 465 of the Indian Penal Code and directed the substantive sentences to run concurrently. No separate sentence was awarded for the offence under section 5(1)(d) read with section 5(2) of the P.C Act and section 471 of the Indian Penal Code and 5th accused is no more. So substantive sentence and default sentence against 5th accused cannot be enforced.
124. The third accused also now retired from service. It is true that offences of corruption has to be dealt with severely and showing undue leniency may only give a wrong signal to the society. The very purpose of the P.C Act is to curb corruption at all level Crl. Appeal Nos.126, 127, 128 & 129 of 2001 97 and persons who have been convicted for the offence of corruption should be dealt with severally. Considering the fact that third accused is now retired from service and there is no evidence to show that he had gained anything on account of this transaction by adducing any evidence and there was no short delivery effected from stores nor any excess delivery was made to the contract through messenger so as to make them unlawful gain, this court feels that the substantive sentence imposed appears to be on the higher side and sentencing him to undergo rigorous imprisonment for one year under section 5(1)(c) read with section 5(2) of the P.C. Act and also sentencing him to undergo rigorous imprisonment for one year under section 120 B and one year under section 409 of the Indian Peal Code and one year under section 465 of the Indian Penal Code and fine of Rs.40,000/- under section 409 of the Indian Penal Code with default sentence of six months will be sufficient and that will meet the ends of Justice. As regard the 5th accused is concerned, since he is no more, the substantive sentence and default sentence cannot be enforced against him and the fine of Rs.40,000/- imposed cannot be said to be on the higher side and the fine imposed can be realized from his estate in accordance with law.
125. As regards the 4th accused is concerned though there was no actual entrustment made to him and the entrustments were made Crl. Appeal Nos.126, 127, 128 & 129 of 2001 98 to the 5th accused on his behalf and he was convicted for the offence invoking section 120 B of the Indian Penal Code, this court feels that some leniency can be shown to him considering his age and the role played by him in imposing sentence and sentencing him to undergo rigorous imprisonment for one year under section 120 B and further sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.40,000/-, in default to undergo rigorous imprisonment for six months under section 409 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for six months under section 465 of the Indian Penal Code will be sufficient and that will meet the ends of justice. Since accused 1 and 2 were found not guilty and acquitted of the charge levelled against them, the sentence imposed against them is not proper and the same is set aside. So the sentence imposed against accused 3 and 4 are modified as follows:
The third accused is sentenced to undergo rigorous imprisonment for one year under section 5(1)(c) read with section 5 (2) of the P.C.Act and also sentenced to undergo rigorous imprisonment for one year under section 409 of the Indian Penal Code and one year under section 465 of the Indian Penal Code and fine of Rs.40,000/- under section 409 of the Indian Penal Code with default sentence of six months rigorous imprisonment.
Crl. Appeal Nos.126, 127, 128 & 129 of 2001 99 The fourth accused is sentenced to undergo rigorous imprisonment for one year under section 120 B of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.40,000/-, in default to undergo rigorous imprisonment for six months under section 409 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for six months under section 465 of the Indian Penal Code.
126. Since 5th accused is no more, the substantive sentence and default sentence cannot be enforced against him and fine can be realized from his estate. This will not preclude the department from realizing any loss if any sustained to the department on account of the dereliction of duty of respondents 1 and 2 by initiating action against them departmentally in accordance with law. The point is answered accordingly.
127. In the result: Crl.A.Nos.126/2001 and 128/2001 are allowed and order of conviction and sentence passed against accused 1 and 2 are set aside and they are acquitted of the charge levelled against them giving them the benefit of doubt. The bail bonds executed by them will stand cancelled. The fine amount, if any, remitted by them is directed to be refunded to them.
128. Crl.A.No.127/2001 is allowed in part. The order of conviction passed against the third accused under section 5(1)(c) Crl. Appeal Nos.126, 127, 128 & 129 of 2001 100 and 5(1)(d) read with section 5(2) of the P.C. Act, 1947 and sections 120 B, 465, 409 and 471 of the Indian Penal Code are hereby confirmed and fine of Rs.40,000/- imposed for the offences under section 409 are hereby confirmed but substantive sentence and default sentence imposed for the offences are set aside and the same is modified as follows:
The third accused is sentenced to undergo rigorous imprisonment for one year under section 5(1)(c) read with section 5 (2) of the P.C.Act and also sentenced to undergo rigorous imprisonment for one year under section 409 of the Indian Penal Code and one year under section 465 of the Indian Penal Code and fine of Rs.40,000/- under section 409 of the Indian Penal Code with default sentence of six months rigorous imprisonment.
129. Crl.A.No.129/2001 is allowed in part. The order of conviction and sentence passed against accused 4 and 5 for the offence under sections 120B, 409, 465 and 471 of the Indian Penal Code are hereby confirmed. Since the 5th accused is no more, the substantive sentence and default sentence cannot be enforced against him and the fine imposed can be realized from his estate in accordance with law. As regards the 4th accused is concerned, sentence of fine of Rs.40,000/- imposed under section 409 of the Indian Penal Code is hereby confirmed but the substantive sentence Crl. Appeal Nos.126, 127, 128 & 129 of 2001 101 and default sentence imposed are set aside and the same is modified as follows:
The fourth accused is sentenced to undergo rigorous imprisonment for one year under section 120 B of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.40,000/-, in default to undergo rigorous imprisonment for six months under section 409 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for six months under section 465 of the Indian Penal Code.
Office is directed to communicate a copy of this judgment to the concerned court at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
ss/cl