Point of law: Prevention of corruption – Good faith - Section 17A of the Prevention of Corruption Act cannot be made applicable in those cases where the act of the public servant that amounts to an offence appears on the face of it lacking in good faith. Issuing public building license and no objection certificates for the 11th respondent cannot be said to be acts done in good faith. Where the performance of public function is grossly improper, the safe conclusion at least at the initial stage can be that it was in anticipation of or in consequence of accepting an undue advantage from the beneficiary

JUDGMENT :

R.NARAYANA PISHARADI, J

1. The petitioner is the fourth accused in the case registered as V.C.01/2019 by the Vigilance and Anti-Corruption Bureau (VACB), Ernakulam Unit under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Section 120B of the Indian Penal Code.

2. The facts leading to the registration of the above criminal case are as follows: The Palarivattom Flyover was constructed on the National Highway-66 at Palarivattom Junction in Ernakulam District for reducing the acute traffic congestion there. The flyover was opened for traffic on 12.10.2016. Within a few weeks, potholes and hairline cracks appeared on the flyover.

The Minister of Public Works Department, Government of Kerala sent a communication as letter No.141/M(PWD&R)/2019 dated 03.05.2019 to the Chief Minister of Kerala in which it was alleged that irregularities had been committed in the construction of the flyover. The Chief Minister passed an order on this letter to conduct vigilance enquiry in the matter. As per letter No.156/E(2)/2019/Vig dated 06.05.2019, the Government of Kerala ordered the Director, VACB to conduct a vigilance enquiry in the matter. As per letter No.C-(VE-01/2019/(CRE)14247/ 2019 dated 07.05.2019, the Director, VACB forwarded the same to the Superintendent of Police, VACB, Central Range, Ernakulam for conducting the enquiry. As per order No.VE-01/2019/CRE dated 07.05.2019, the Superintendent of Police, VACB directed the Deputy Superintendent of Police, VACB, Ernakulam Unit to conduct the enquiry. Since the vigilance enquiry revealed commission of the offences under Section 13(1)(d) read with 13(2) of the Act and under Section 120B of the I.P.C, Ext.P2 first information report (FIR) was registered on 03.06.2019 as V.C.No.01/2019 of the VACB, Ernakulam Unit.

3. The material averments/allegations in Ext.P2 FIR read as follows: “The enquiry revealed that Kerala Road Fund Board (KRFB) was directed by the Government of Kerala to provide financial assistance for the implementation of the Palarivattom Fly over at NH 66 in Ernakulam District during the period from 2013 to 2017. The work was entrusted to Roads and Bridges Development Corporation of Kerala Ltd (RBDCK) under SPEEID Kerala Project of PWD. M/s Kerala Industrial and Technical Consultancy Organization Ltd (KITCO) was appointed as the design and supervision consultant for the project. Technical sanction for the work was issued for an amount of Rs.47.70 Crores. The work was awarded to M/s RDS Project Ltd on Engineering, Procurement and Construction (EPC) mode. The design and drawing were prepared by M/s Nagesh Consultant, Bangalore on behalf of the contractor and the work was executed as per the drawings and design approved by the consultant M/s KITCO Ltd. After the opening of the flyover, within a few week, damages like potholes are seen. Now the bridge is closed and the rectification work is going on as per the supervision of IIT Madras. The hairline cracks found on the girders and piers during the inspection as may be due to several reasons such as improper structure design, lack of quality of the concrete and lack of proper supervision of the work. All the agencies involved in the implementation of the work of the flyover are responsible for the distress of the flyover. As part of the vigilance enquiry the documents were perused, site inspection conducted, and lab report examined revealed that the work of the Palarivattom Fly over is a substandard one and thereby it caused financial loss to the public exchequer. As financial loss sustained to the Government exchequer, due to the substandard work executed, the accused persons ie, A1 Shri.Sumeet Goyal, M.D, RDS Project Ltd (contractor), A2 M/s Nagesh Consultancy, Bangalore (Designer), A3 officials of KITCO (consultant), A4 officials of RBDCK (implementing agency) and unknown others (A5) are responsible and it is substantiated in evidence for it. From the enquiry