Kerala High Court
K.Padmanabhan vs Superintendent Of Police on 16 July, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 15TH DAY OF JANUARY 2013/25TH POUSHA 1934
Crl.Rev.Pet.No. 1964 of 2012 ()
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CC.23/2005 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
KOZHIKODE, DATED 16.7.2012
REVISION PETITIONER(S)/ACCUSED:
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K.PADMANABHAN
KUNIYIL HOUSE,ORKATTERI,ERMA
VATAKARA,KOZHIKKODE DISTRICT
BY ADVS.SRI.M.ZIYAD
SRI.SANU.S.PANICKER
RESPONDENT (S):
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1. SUPERINTENDENT OF POLICE
VIGILANCE & ANTI-CORRUPTION BUREAU,KOZHIKKODE.
2. STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
ERNAKULAM.
BY ADV.SRI.K.K.RAJEEV, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD ON
15-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.1964 of 2012
APPENDIX
EXHIBITS FOR THE REVISION PETITIONER :
ANNEXURE A1 : COPY OF THE CHARGE SHEET DATED 16.6.2005 SUBMITTED BY THE
1st RESPONDENT BEFORE THE LEARNED COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE.
ANNEXURE A2 : COPY OF THE ENQUIRY REPORT DATED 30.6.1999 PREPARED BY
THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI
CORRUPTION BUREAU, KOZHIKODE.
ANNEXURE A3 : COPY OF THE FINAL REPORT DATED 7.6.2001.
ANNEXURE A4 : COPY OF THE ORDER PASSED BY THE ENQUIRY COMMISSIONER AND
SPECIAL JUDGE, KOZHIKODE IN C.M.P.NO.233 OF 2010 IN
C.C.NO.23 OF 2005 DATED 6.6.2012.
ANNEXURE A5 : COPY OF THE COURT CHARGE FRAMED BY THE LEARNED COURT OF
ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE IN
C.C.NO.23 OF 2005 DATED 16.7.2012.
EXHIBITS FOR THE RESPONDENTS : NIL
//TRUE COPY//
P.A. TO JUDGE
ami/
V.K.MOHANAN, J.
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Crl.R.P.No.1964 of 2012
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Dated this the 15th day of January, 2013.
O R D E R
The petitioner herein is the sole accused in C.C.No.23 of 2005, which is pending before the Enquiry Commissioner and Special Judge, Kozhikode, and in this petition, his challenge is against Annexure A5, the court charge framed against him by the said court.
2. I have heard Adv.Sri.Venjaramoodu M.Ziyad, learned counsel for the petitioner and Adv.Sri.K.K.Rajeev, learned Public Prosecutor.
3. The allegation against the petitioner is that, while he was working as Secretary of Vanimel grama panchayat during the period 1992-98, he had abused his official position and mis-appropriated an amount of `85,372/- and had obtained undue pecuniary advantage of that amount and caused pecuniary loss of that amount to the Government by adopting fraudulent method and thereby he 2 Crl.R.P.No.1964 of 2012 had committed the offence punishable under sections 13(1)
(c), 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988 and under sections 409, 420, 461, 463, 468, 471 and 477(A) of IPC. From the materials produced along with the revision petition, it appears that the allegation is to the effect that above offences were committed by the petitioner during the execution of Bhoomivathukkal-Valayam Road, Bhoomivathukkal-Pakwai Road and Village office- Karuvanthazham Road undertaken by panchayat using Untied Fund without observing the legal procedures and without any authorisation and also by forging and falsifying the official documents and by creating false documents and thereby caused loss to the Government.
4. The specific allegation is to the effect that, the revision petitioner has misappropriated a sum of `29,822/- in the tarring work of Bhoomivathukkal-Valayam Road during the period of 13.5.1997 to 20.6.1997 and `16,929/- in the soling work of Bhoomivathukkal-Pakwai Road during the period from 18.1.1997 to 20.6.1997 and `38,621/- in the 3 Crl.R.P.No.1964 of 2012 soling work of Village Office-Karuvanthazham Road during the period from 21.1.1997 to 20.6.1997. It is also the case of the prosecution that, the petitioner had done the work without observing the legal formalities and without getting the Measurement Book Nos.5/96-97, 8/96-97, 7/96-97 authenticated by the President of the panchayat and without getting the vouchers countersigned by the President. According to the prosecution, the petitioner had also forged the documents by creating false and bogus vouchers and by making bogus entries in the muster roll and had drawn amount from the Untied Fund of Panchayat based on the bogus vouchers and bogus entries in the mister roll and had falsified the accounts of the Panchayat by entering false entries in cash book and had used the forged documents as genuine documents knowing fully well that they are forged documents and the petitioner had falsified the accounts with an intention to defraud the panchayat and the Government.
5. The counsel for the petitioner submitted that the 4 Crl.R.P.No.1964 of 2012 Inspector of the Vigilance Department, on an earlier occasion had conducted an investigation and nothing found against the revision petitioner but subsequently on a belated complaint, another investigation was conducted based upon which, the present charge is framed. It is also the contention of the counsel that the present allegation stemmed up on the basis of a report made by an Engineer who conducted the inspection of the site after 5 years from the date of execution of the work and therefore such report cannot be form basis for the charge. It is also the contention of the counsel that there is no specific mention regarding the documents on which the petitioner allegedly had committed the forgery etc. Therefore, according to the learned counsel, Annexure A5 charge is liable to be set aside.
6. At the outset it is to be noted that, before Annexure A5 charge, the very same petitioner had approached the trial court by filing an application for discharge, which resulted in Annexure A4 order rejecting that petition. Thus, 5 Crl.R.P.No.1964 of 2012 that order became final. From Annexure A4 order, it can be seen that, the learned Judge of the court below has narrated about the report of one Mr.R.Narayanan, the Assistant Executive Engineer, PWD (NH) Division, Kozhikode, and the three instances of works executed, which would show that the amounts covered by the vouchers were excess of the actual valuation of the work. For example, with respect to the work of Bhoomivathukkal-Valayam Road, as per the report of the said engineer, the valuation of the work was only `2,42,860/-, but the amount covered by the vouchers would show that, the amount expended was `2,72,682/-. So, there was excess payment. The specific case of the prosecution is that those vouchers are forged, illegal and improper. According to me, it is for the petitioner to convince the court, after the evidence, as to whether the valuation work shown with respect to the above work is correct or not, or whether the amounts alleged to have paid as per the vouchers mentioned therein, are improper or incorrect or a forged one etc. Similarly, all the works 6 Crl.R.P.No.1964 of 2012 referred to above has to be dealt with, on the basis of the evidence yet to be adduce during the trial of the case. So, at this stage, this Court cannot say that the allegations against the accused are baseless, or that, there is no ground to frame charge against him.
7. Another contention taken by the counsel is that, the so called inspection was conducted by R.Narayanan, after 5 years from the date of execution of the work and therefore it cannot be said that the report of the said Engineer is correct on comparison of the other factors, including the price factor with respect to the materials used, involved in the case. With respect to the above contention, according to me, it is for the petitioner to bring those facts at the time of evidence to convince the trial court that the valuation belatedly conducted by the said Engineer is incorrect or against the facts and no offence would attract on the basis of such and evidence.
8. Thus, going by Annexure A4 order of the court below, it can be seen that the learned Judge of the court 7 Crl.R.P.No.1964 of 2012 below has already considered every grounds of the petitioner for a discharge, by giving detailed answers to all his contentions and found that there are substances to proceed against the petitioner. It is consequent to the above order of the learned Judge of the said court, Annexure 5 charge was framed against the petitioner. Therefore, at this stage, this Court cannot come into a conclusion and say that Annexure A5 charge is illegal, irregular or improper, particularly in the light of the above discussion and the facts and circumstances referred to above. Therefore, I find no merit in this revision petition and accordingly the same is dismissed.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge