A. Sivaprakash Vs. State of Kerala, on 10th May, 2016; Supreme Court of India – Read Judgement

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 131 OF 2007

A. SIVAPRAKASH |…..APPELLANT(S)
VERSUS
STATE OF KERALA |…..RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Four persons were implicated as accused persons in FIR
registered on 09.09.1993 under Sections 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘PC
Act’) and Section 409 read with Section 34 of Indian Penal Code (‘IPC’).
After investigation, when the chargesheet was filed on 19.01.1998, one more
person (who is the appellant before us) was also added as an accused.
Chargesheet was filed under Section 13(2) read with 13(1)(d) of the PC Act
and under Sections 468 and 471 read with Section 34 of IPC. Charges were
framed by the trial Court against the accused persons. Matter went on
trial and resulted in acquittal of A-2 and A-3 from all the charges and
conviction 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 IPC.

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.

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 Rozgar Yojana
(JRY). As per the procedure followed under the D.R.D. Scheme the work was
included in the JRY to be carried out by a nominee selected from the
beneficiary of the work. Accordingly, one Rajarathinam (A-3) was selected
as nominee, awarding the said work of construction. Appropriate agreement
was executed by him. The total estimate was for Rs. 4 lakhs which was to
be met out of the fund of JRY and of Panchayat. Payment for the work was
to be effected as per the guidelines issued by the Government including Ex.
P/17 which provided that the Panchayat could make advance payment upto 50%
of the estimate amount. It was also mentioned therein non-adherence to the
aforesaid procedure would be termed as irregular.

The case of the prosecution was that all the accused persons colluded
together and A-1, A-2 and A-4 disbursed the amount to A-3, the nominee, on
the basis of the ‘stage certificate’ which was issued by A-5, the Assistant
Engineer in respect of the part completion of the work. Ex. P/16(a) was
treated as the stage certificate, which in fact is the letter dated
9.6.1992 wherein the appellant had certified that 25% of the work in
question had been completed. Payments were effected to the nominee on
25.03.1992, 21.04.1992, 16.05.1992 and 21.10.1992 at the rate of Rs.25,000/-
, Rs. 50,000/-, Rs.7,000/- and Rs. 1 lakh. Payments were effected by
Ex.P/7, P/10, P/12 and P/14 respectively. The prosecution alleged that the
last and largest of these payments, i.e. Rs. 1 lakh, was made on the basis
of purported ‘stage certificate’ [Ex.P/16(a)] issued by the appellant. It
was alleged that the false stage certificate was issued as 25% of the work
had not been completed. In this way, the appellant abused his official
position to obtain pecuniary advantage.

In nutshell, the gravamen of the charge against the appellant is that while
working as the Assistant Engineer, he issued stage certificate in respect
of the contract that was awarded to A-3 and on the basis of these
certificates, payment to the extent of 50% of the contract value was
received by A-3. As per the prosecution, that was the false certificate
which did not depict the correct progress or the position of the work.
This was surfaced on the inspection of the work which was carried out by PW-
2 on the direction of Deputy Superintendent of Police (Vigilance) wherein
it was found that 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.

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 1½ years under Section 13(2) read with Section 13(1)(d) of
the PC Act.

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 record to reveal that payments were made on the basis of the
said letter dated 9.6.1992 [Ex.P/16(a)], wrongly termed as ‘stage
certificate’. It was also argued that this letter was not the basis for
making payments as payments were effected either before or after the date
of Ex.P/16(a). It was also argued that payments were not dependent upon
the stage at which the work was and the advance payment upto 50% could be
released at the start of the work. Itself, as per the procedure laid down.

The High Court did not find any merit in the aforesaid arguments of the
appellant. It concurred with the findings of the trial court and held that
there was hardly any work done at the spot by A-3 when he was released the
payments. Ex.P/2 which was the report prepared by PW-2 on 19.07.1994
showed that only Pillar work had been completed and the cost of the said
work was to the tune of Rs.42649.89. The High Court accepted the
contention of the appellant that payments of Rs.25,000/-, Rs.50,000/- and
Rs.7,000/- were made to A-3 before the issuance of Ex.P/16(a). However, it
held that after the issuance of the said certificate, an amount of Rs.1
lakh (largest among the payments made) was released in favour of A-3 on
21.10.1992. The High Court also conceded the position that Ex.P/16(a)
could not be termed as ‘stage certificate’ as it was accepted even by PW-4
that it was not a stage certificate. Notwithstanding that, the High Court
opined that the appellant being a responsible officer knew how the stage
certificate is to be issued. In spite thereof he issued Ex.P/16(a) which
was the letter to the Panchayat informing the Panchayat that the percentage
valuation cost of completion of one work was 75% (with which we are not
concerned) and that of other work, it was 25% and this information was
obviously furnished for the purposes of releasing payment to A-3. From
this, the High Court concluded that the appellant intended that payment be
released on the basis of said certificate and writing of this letter
(allegedly termed as certificate) amounted to abusing his official
position. These are the reasons given by the High Court in dismissing the
appeal of the appellant.

Mr. R. Basant, learned senior counsel appearing for the appellant, made a
vehement plea that the trial court as well as the High Court has totally
misread the circular pertaining to JRY under 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.

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.

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We have considered the respective submissions with reference to the record.

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 suggestions. Para 2 thereof is
relevant for our purposes which mentions about the manner in which 50% of
the advance can be released by the Panchayat. It reads as under:
“2. It was directed that for all works under J.R.Y. contractors shall be
avoided and the works shall be directly taken up by the panchayats or by
the convenors elected by the consumers. It was directed that the amount
for such works will be paid in advance. As per the circular of village
Development Commissioner No. 29786/J.R.Y 1/90/CRD dated 23.7.1999,
instructions have been issued to panchayats to give necessary funds in
advance. By this way preparing bills every now and then can be avoided and
the 50% of estimated cost can be given in advance. But such funds have to
be sanctioned considering the work in hand in part installments. Otherwise
without starting a project work 50% advance expenditure cannot be given in
advance. To do so will not be in order. Money required to start a work
can be given in advance and as the work progresses according to the work,
more funds can be sanctioned. Funds entrusted with the panchayats for the
works of JRY are included in the public funds and the panchayats are
reminded that unnecessary withdrawals from such funds would tantamount
temporary misutilisation of public funds. When 50% of budget work is given
as advance and when works are completed, a part bill can be prepared and
advance amount can be written off against completed works. Panchayats are
further informed that without preparing part bill more than 50% advance
payment cannot be allowed and doing so would amount to misutilisation of
Government funds.”
Based on the aforesaid paragraph, submission of Mr. Basant was that it was
permissible for the Panchayat to release 50% of the estimated cost of the
Project as advance payment, though it was to be sanctioned only after the
project/work has started. This Circular, however, mentioned that money
required to start the work can be given in advance and as the work
progresses, more funds can be sanctioned. He, thus, submitted that release
of 50% payment was not contingent upon the stage of the execution of the
work, but on the mere start of the work.

There appears to be merit in the aforesaid submission of the learned senior
counsel. PW-4 who was the Assistant Executive Engineer in his deposition
has categorically admitted that in JRY Scheme Work, 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.

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 extent of 50% of the
estimated cost, i.e. up to Rs. 2 lakhs. Thus, Panchayat could have made
further payment of Rs.1,18,000/- even without Ex.P/16(a). Payment of Rs.1
lakh was made on 09.06.1992, which was well within defined limits.

In this hue, let us consider the nature of Ex.P/16(a). It is issued on the
request of Panchayat President. It mentions that “valuation cost” of the
said project is 25%. This letter never stated that A-3 had ‘completed’ 25%
work. It only mentioned “valuation cost”. A specific plea was raised by
the appellant that it was the cost which was mentioned by him and that
included the cost of material as well which was brought on site by A-3.
High Court rejected this argument which is clearly erroneous. It was
equally wrong in terming it as the stage certificate. The High Court
wrongly proceeded on the basis that advance payment could be given only on
installment basis depending upon the percentage of the work completed. We,
thus, are of the opinion that there is no causal connection between release
of payment to A-3 and letter Ex.P/16(a).

Section 13(1)(d) of the PC Act reads as under:
“13. Criminal misconduct by a public servant

(1) A public servant is said to commit the offence of criminal misconduct,-

xxxx
(d) If he,-

(i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or
for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any
valuable thing or pecuniary advantage without any public interest; or”
The prosecution has sought to cover the case of the appellant under sub-
clause (ii) and not under sub-clause (i) and sub-clause (iii). Insofar as
sub-clause (ii) is concerned, it stipulates that a public servant is said
to commit the offence of criminal misconduct if he, by abusing his position
as a public servant, obtains for himself or for any other person any
valuable thing or pecuniary advantage. Thus, the ingredients which will be
required to be proved are:
(1) The public servant has abused his position.
(2) By abusing that position, he has obtained for himself or for any
other person any valuable thing or pecuniary advantage.

It was not even the case set up by the prosecution 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.

In C. Chenga Reddy & 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 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, none 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 appellants and wholly incompatible with their innocence. In Abdulla
Mohd. 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 contractors,
without conclusively establishing, beyond a reasonable doubt, the guilt of
the officials and contractors concerned, 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….”
We, therefore, are of the opinion that the prosecution has miserably failed
to prove the charge beyond reasonable doubt and the courts below have not
looked into the matter in a proper perspective. We, thus, allow this
appeal and set aside the conviction of the appellant. The appellant is
already on bail. His bail bonds shall stand discharged.
………………………………………J.(A.K. SIKRI)
………………………………………J.(PRAFULLA C. PANT)
NEW DELHI;
MAY 10, 2016

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