2011 Supreme(SC) 320

2011 (2) Supreme 625
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
R. Ramachandran Nair — Appellant(s)
versus
The Deputy Superintendent Vigilance Police & Anr. — Respondent(s)
Criminal Appeal No. 792 of 2011
(Arising out of S.L.P. (Crl.) No. 9818 of 2010)
Decided on : 28-3-2011

Headnote:Criminal Procedure Code,1973- Section 239 - Appeal against order passed by High Court whereby High Court dismissed the petition filed by the appellant seeking discharge from the criminal case pursuant to a charge sheet filed in the Court of the Enquiry Commissioner and Special Judge, Thrissur, by the Vigilance Police Department- Perusal of communication at the highest level showed that on examination of the entire facts in the 3 cases, which were pending before the Special Judge, and the sincere and speedy action taken by the appellant as Vice-Chancellor of the University and also acted in good faith in the discharge of the function imposed on him under the Act, Government requested Director Vigilance, Anti-Corruption Bureau to take action to withdraw all the 3 cases pending before respective Courts- Apart from the legal issues which were in favour of appellant, even on merits, prosecution could not be allowed to proceed against the appellant- When the appellant was asked to take required steps for formation of the University under the Act, Government allotted 42.5 acres of land which was water logged and any development work could be started only after it was to be filled up with earth- Evidence on records that estimate was prepared by Assistant Executive Engineer and based on which tenders were called for -No dispute that appellant accepted lowest tender which was of lesser amount than the one prescribed by the Engineer- Further, though in the FIR, complainant had claimed that the appellant had obtained a pecuniary advantage of around Rs. 59,51,543/- whereas in the charge-sheet filed by the prosecution in the Court, it had come down to less than 5 per cent of the original estimate, nearly, Rs. 2,68,358/— Both Trial Court as well as High Court committed an error in dismissing his petition filed for discharge-Impugned orders passed by Enquiry Commissioner and Special Judge, and order of High Court set aside- Appeal allowed. (Paras 11 to 14)

       Facts of the Case :

        Present Appeal has been filed against order passed by High Court whereby the High Court dismissed the petition filed by the appellant seeking discharge from the criminal case pursuant to a charge sheet filed in the Court of the Enquiry Commissioner and Special Judge, Thrissur, by the Vigilance Police Department.

       Findings of the Court :

        Perusal of communication at the highest level showed that on examination of the entire facts in the 3 cases, which were pending before the Special Judge, and the sincere and speedy action taken by the appellant as Vice-Chancellor of the University and also acted in good faith in the discharge of the function imposed on him under the Act, Government requested Director Vigilance, Anti-Corruption Bureau to take action to withdraw all the 3 cases pending before respective Courts.In spite of such decision at the highest level, no follow up action was taken before the concerned courts seeking permission to withdraw the criminal proceedings pending against appellant. In terms of Section 114 of the Evidence Act, 1872 Court may legitimately draw a presumption that the Government had taken a conscious decision exonerating appellant even in 2006 and there is no reason to doubt the integrity of the appellant. Apart from the legal issues which were in favour of appellant, even on merits, prosecution could not be allowed to proceed against the appellant. When the appellant was asked to take required steps for formation of the University under the Act, Government allotted 42.5 acres of land which was water logged and any development work could be started only after it was to be filled up with earth. Evidence on records that estimate was prepared by Assistant Executive Engineer and based on which tenders were called for .No dispute that appellant accepted lowest tender which was of lesser amount than the one prescribed by the Engineer. Before work was started, appellant had consulted several experts in the field including the higher officials of the State and actually brought them to the site regarding the filling up of the earth. Further, though in the FIR, complainant had claimed that the appellant had obtained a pecuniary advantage of around Rs. 59,51,543/- whereas in the charge-sheet filed by the prosecution in the Court, it had come down to less than 5 per cent of the original estimate, nearly, Rs. 2,68,358/Admittedly, no mention in the chargesheet about the huge difference in the calculation of the loss between the FIR and the chargesheet. Even on merits respondents were not justified in continuing the criminal proceedings. Both Trial Court as well as High Court committed an error in dismissing his petition filed for discharge. Impugned orders passed by Enquiry Commissioner and Special Judge, and order of High Court was set aside. Appeal was allowed.

       Result : Appeal allowed.