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A Call Attention Motion was moved in the Andhra Pradesh Legislative Assembly in 1981 alleging large scale fraud, irregularities and il- legalities committed in the execution of jungle clearance work by the engineers and contractors in various divisions of Nellore District during 1978-1981. Consequent upon the Call Attention Motion, the Government directed the then Deputy Engineer-in-Chief. Shri L.R. Kapoor PW. to examine and inquire into the allegations. He visited Nellore and after conducting a preliminary inquiry submitted his report on 17.4.1981 pointing out various illegalities and irregularities committed by the Engineers, The Secretary, Irrigation Department of the Government of Andhra Pradesh also directed the then Chief Technical Examiner. Mohd, Rahamathullak-han PW, to make an inquiry in to the allgations made on the floor of the assembly during the Call Attention Motion. It further transpires that the Government of Andhra Pradesh issued G.O. Ms. No. 313 Irrigation and Power Department dated 20.7.1981. Ex. P1. appointing Shri N.V.M. Krishna, the then Chief Engineer, for carrying out departmental enquiry into the works allegedly carried out in three Divisions, namely, Nellore North Division, Nellore South Division and Gandipalem Project Division and the role of the concerned engineers.

From the prosecution case, as emerging out of the evidence of PW 1 to PW 21 and documents Ex. P1 to Ex. P 34 , it transpires that Irrigation Circle, Nellore comprises of four Divisions, namely, (i) Nellore North Division,

(ii) Nellore South Division (iii) Gandipalem Project Division and (iv) Special Investigation Division. During 1978-81, Shri Duggi Reddy was posted as the Superintending Engineer of Irrigation Circle, Nellore. He was having control over all the four Divisions .Different Executive Engineers, Deputy Executive Engineers, Assistant Executive Engineers, Sec-lion Officers and other staff were posted in the four divisions to look after the affairs of their respective divisions. In these appeals we are concerned with the allotment of jungle clearance work in the first three divisions of Nellore Irrigation Circle only. The work of the clearance of the jungle is normally required to be undertaken departmentally through Luscars, since it is treated as maintenance work, but it is the case of the prosecution that in these cases work for clearance of jungles was allegedly allotted to contractors on nomination basis in 1979-80 but without any such work having actually been done it was "represented" that jungles had been cleared and payments made to the contractors, which amount was in fact misappropriated by the departmental officials and the contractors. The total expense involved was Rs. 1,15,663 for 12 +1 works in the Nellore North Division ; Rs. 1,95,108 for 17 works in the Nellore South Division and Rs. 26,068 for 8 works in the Gandipalem Project Division. According to the prosecution ease, the Executive Engineers were not authorised to allot work on nomination basis to the contractors without inviting tenders but with a view to bring each of the 'contracts' within their pecuniary jurisdiction, they 'broke' the contracts into smaller amounts and without any work of jungle clearance having been actually undertaken payments for the work shown to have been made which were actually misappropriated by the accused thereby causing loss to the State Exchequer and wrongful gain to themselves. The prosecution, at the trial also tried to establish that "less work" was done though payments were made for "excessive work" and the difference in the payments was misappropriated. There is no dispute that though the jungle clearance work was supposed to have been done in 1979-80, the matter only came to light, through the call attention motion in the Legislative Assembly in 1981 and even then it was not till 1984 that any physical inspection of various sites was undertaken, except some random checks made by PW Shri Krishna in 1982. The substratum of the prosecu-tion case has emerged out of the inspections carried out in 1984.

On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet. non of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellant and wholly incompatible with their innocence. In Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu), [1980] 3 SCC 110, under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and con-tractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the concerned officials and contractors, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper. That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the Stale may have suffered financially, particularly by allot-ment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them. We may reiterate that once the report, Ext, P 11, is ruled out of consideration as inadmissible, then it is not safe to rely on the mere impressions of the witnesses to hold the appellants guilty of the offences alleged against them. The prosecution has failed to establish that in 1979-80, no work of jungle clearance in the Gandhipalem Project Division was undertaken and that false and fabricated documents were prepared with a view to misappropriate government funds. The prosecution has not even been able to establish that less work of jungle clearance was undertaken but payment was shown to have been made for excessive work and some amount out of the payments made for the work were thus misappropriated by the appellants in connivance with the con-tractors. The conviction and sentence imposed against the appellants (which had been reduced by the High Court to a token sentence) under the circumstances cannot be sustained and we accordingly accept the appeal and set aside their conviction and sentence. Fine paid by the appellants shall be refunded to them, Criminal Appeal Nos. 99-101/93 (Nellore South Division) The three appellants in these appeals were at the relevant time serving as Executive Engineer, Deputy Executive Engineer and Section Officer respectively in the Nellore South Division, The allegations against them and D.B. Duggi Reddy, Superintending Engineer (since dead) relate to the clearance work undertaken in the year 1979 in respect of Juliflora Jungle at North Mopur, Large Tank 1800 M to 2000 M in Kovur Taluk, Nellore District, The contract with regard to the clearance of the jungle work was given by the accused Executive Engineer, to the accused contractor on nomination basis for which payment was made on alleged completion of the clearance work though in fact no payment should have been made as 'no work' was done and the entire amount was misappropriated by the appellants and the contractor. The contractor has filed a separate appeal. The accused were put to face their trial on the following charges :

CRIMINAL APPEAL NOS. 128-130 OF 1993 (NELLORE NORTH DIVISION) These appeals arise out of Crime Case No. 1 of 1986 and relate to the clearance of Juliflora jungle on Krakatur small tank .on the reach 0/0 to 1450 meters.

The prosecution case against the appellants A2 (Executive Engineer), A3 (Deputy Executive Engineer) and A4 (Assistant Executive Engineer), who were tried along with Al Superintending Engineer (since dead) and A5 the contractor who has filed a separate appeal, is that with dishonest intention of misappropriating Government funds, the accused floated work called clearance of Juliflora jungle and up-rooting slumps having width of 50 cms. to 100 cms. on the reach 0/0 to 1450 metres on Krakatur small tank and without execution of that work misappropriated an amount of Rs 5169 allegedly paid to the contractor A5 by cheque by entering into a criminal conspiracy with him. The matter like the cases of Gandipalem Project and Nellore South Division came to be entrusted for investigation, after the Call Attention Motion was moved in the State Assembly in 1.981, alleging large scale bungling and embezzIement of government funds in various Division of Nellore District for clearance of jungles etc. !o the ACB. We have already referred to the history of the case in the beginning of the judgment and need not repeat the same.