TaxTMI 
TaxTMI 
TaxTMI 
2016 (5) TMI 1568
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of A-1, A-4 and A-5 (i.e. the Appellant) Under Sections 13(2) read with 13(1)(d) of the PC Act. These accused persons i.e. A-1, A-4 and A-5 were, however, acquitted of the charges Under Sections 468 and 471 read with Section 34 of Indian Penal Code. 2. No appeal was filed by the State against the acquittal of A-2 and A-3. A-1, A-4 and A-5 filed appeals in the High Court challenging their conviction. A-1 and A-4 passed away during the pendency of their appeals and, therefore, those appeals have abated. Thus, it is only the Appellant who remains in the fray. His appeal was taken up by the High Court for hearing and was ultimately dismissed by the High Court vide the impugned judgment dated 25.05.2006. Thus, in this appeal, we are only concerned with A-5 (the Appellant). With these introductory remarks, we advert to the meat of the matter. 3. The Appellant was working as Assistant Engineer in the Public Works Department (PWD) attached to Arudai, NES Block within the jurisdiction of which Vandiperiyar Panchayat situates. The said Panchayat decided to construct the first floor of the existing high school building situated in the Panchayat area, by including the work under Jawahar ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the work completed was only to the extent of Rs. 42,649.89, that too as on the date of inspection which was much after the date on which stage certificates were issued by the Appellant. Since the contract value was Rs. 4 lakhs, even on the date of inspection only 10% work was completed. 6. Entire case of the prosecution rested on Ex.P16(a) coupled with the Inspection Report (Ex.PW2). On the basis of the aforesaid documentary evidence produced on record, the trial court came to the conclusion that in issuing the certificate (Ex.P/16(a)), the Appellant had abused his official position only to enable either for himself or for others to obtain peculiar advantage and, therefore, guilty of offence punishable Under Section 13(1)(d) of the PC Act. Trial Court, accordingly, sentenced the Appellant to undergo rigorous imprisonment for the period of two years and to pay fine of Rs. 75,000/- and in default to undergo rigorous imprisonment for a further term of 1 1/2 years Under Section 13(2) read with Section 13(1)(d) of the PC Act. 7. Challenging the conviction and sentence imposed by the trial court, the Appellant in his appeal to the High Court contended that there was no evidence on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which such payments are to be released and a proper reading of the provisions of the said circular would manifest that the Appellant had no role in making the payment, by the Panchayat, to A-3. He referred to the chargesheet and argued that what was stated in the chargesheet was totally different from what was ultimately held against him. 10. Learned Counsel for the Respondent, on the other hand, justified the reasoning given by the trial court as well as by the High Court in support of their conclusion. 11. We have considered the respective submissions with reference to the record. 12. It is not in dispute that two works were awarded to A-3: one was known as "JRY-consignment semi permanent building in Vandiperiyar" and other was known as "JRY-construction of permanent building in Vandiperiyar". In the present case, we are concerned with release of payments to A-3 in respect of second work contract. As is clear from the nomenclature of these two contracts, they were under JRY. The Commissioner, Village Development, Thiruvananthapuram had issued Circular No. 14514/J.R.Y. 1/91/C.R.D. dated 23.04.1991 which prescribes the procedure for implementation of JRY and contains certain su....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... there is a provision to give advance amount of 50% of work. The total cost of the work in question, for which the payments were made, was Rs. 4 lakhs and 50% thereof comes to Rs. 2 lakhs. 15. Ex.P/16(a) which is dated 09.06.1992 shows that this letter was written on the request of Panchayat President as it start with the words "as requested by you....... ". In respect of work in question, it is averred that "...Also the percentage valuation cost of the JRY construction of permanent building in Vandiperiyar is 25 (twenty five only)." Prior to the writing of this letter, A-3 had already released three payments of Rs. 25,000/-, Rs. 50,000/- and Rs. 7,000/-. Thus, it is nobody's case that those payments were made to A-3 on the basis of any 'stage certificate' or any such letter issued by the Appellant. Thus, much before the issuance of Ex.P/16(a), A-3 was given the payment of Rs. 82,000/-. As noted above, as per circular dated 23.04.1991, payment could not be made without starting a project/work. It means that as per Panchayat itself, A-3 had started work which resulted in the aforesaid payment. Once the work is started, Panchayat was empowered to release advance to the e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on that Appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the Appellant under the provisions of Section 13(1) (d)(ii). The attempt of the prosecution was to bring the case within the fold of Clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the Appellant in issuing the said letter. 19. In C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, this Court held that even when codal violations were established and it was also proved that there were irregularities committed by allotting/ awarding the work in violation of circulars, that by itself was not sufficient to prove that a criminal case was made out. The Court went on to hold: 22. 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 irregulari....