IMPORTANT POINT
The prosecution must establish a clear and conclusive inference of conspiracy for a conviction under corruption laws; mere irregularities are insufficient.

JUDGMENT :

1. The 1^st accused in C.C.No.23 of 2001 on the files of the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram is the appellant. He along with the 2^nd accused was tried for offences punishable under Sections 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and Section 120B of the Indian Penal Code, 1860 (IPC). The Special Court as per the judgment dated 02.12.2008 convicted and sentenced the appellant for both the offences, however, acquitted the 2^nd accused. Challenging his conviction and sentence, the appellant filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Code).

2. Heard the learned counsel for the appellant and the learned Special Public Prosecutor (Vigilance).

3. The case of the prosecution is the following:

The appellant was the contractor of the work “KIP RBC Formation of Vallikunnam Distributory Package-I from Ch.40-M to 2000-M including CD works”, an agreement in regard to the work was executed on 12.11.1987. Several additional works were to be undertaken. Regarding each such work, separate supplemental agreement was executed. One of such additional work was construction of toe wall and drain regarding which supplemental agreement No.5 dated 11.12.1990 was executed between the appellant and the then Superintending Engineer. In terms of that, additional work was undertaken.

4. The allegation is that the appellant, the 2^nd accused and the then Superintending Engineer hatched a conspiracy and the said additional work, which was estimated at Rs.13,57,688/- was allotted to the appellant after negotiation, for an amount of Rs.21,07,050/-. Although the Chief Engineer authorised the Superintending Engineer to get the work done after negotiation through the appellant, fixing the price of work at such an exorbitant amount was unauthorised. By allotting the work at such a rate, the Government sustained a loss of Rs.9,91,533.81. The then Superintending Engineer and the 2^nd accused misused their position as public servants in allotting the work at such a higher rate and in consequence thereof, the appellant obtained pecuniary advantage of the aforesaid amount. Thereby, they have committed the aforementioned offences.

5. Based on the aforesaid allegations, a charge was framed and read over to the appellant and the 2^nd accused. They pleaded not guilty. Therefore, the prosecution has examined PWs.1 to 9 and proved Exts.P1 to P28. After closing the prosecution evidence, the appellant and the 2^nd accused were examined under Section 313(1)(b) of the Code. They denied the incriminating circumstances appeared against them in evidence. In the statement submitted by the appellant, he justified the supplemental agreement as lawful. He maintained that he quoted a reasonable rate for the work in the negotiation and the Superintending Engineer after deliberations fixed the price even at a lower rate. He contended that there was no element of mischief in the said contract. He added that more than Rs.12 lakhs remained due to him for the work in question and even if any amount is due from him, the Government can well realise the same from that sum. He, however, did not adduce any evidence.

6. The Special Judge considered the entire evidence in detail. After quantifying the amount paid in excess to the appellant as Rs.9,89,913.81/-, it was concluded that the appellant and the then Superintending Engineer hatched a conspiracy resulting in execution of supplemental agreement No.5, which is Ext.P3(e). It was also held that the said conspiracy fructified in undertaking the work and resultant loss of such an amount to the State amounting an offence under Section 13(1)(d) of the PC Act. The 2^nd accused was, however, found not guilty.

7. The learned counsel for the appellant would submit that the view taken by the Special Court regarding financial powers of the Superintending Engineer and application of Ext.P26 Government Order to the work in question, which was unde