Prosecution must establish prima facie evidence of pecuniary loss to the government or gain to the accused for misappropriation charges under the P.C. Act.

ORDER :

A. Badharudeen, J.

These Criminal Revision Petitions have been filed by accused Nos.2, 5 and 6 respectively in C.C. No.5 of 2014 on the files of the Court of the Enquiry Commissioner and Special Judge, Kottayam, challenging the dismissal of the discharge petitions filed by them viz. Crl.M.P. Nos.104, 578 and 670 of 2018 as per the common order dated 05.06.2024 in the above case.

2. Heard the respective counsel for the revision petitioners as well as the learned Public Prosecutor, in detail. Perused the order impugned and the decisions placed.

3. Parties in these criminal revision petitions shall be referred as ‘2^nd, 5^th and 6^th accused’ and ‘prosecution’, hereafter.

4. The prosecution case is that, the 1^st accused, while working as Executive Engineer, Public Works Department, Roads Division, Alappuzha, during the period from 02.12.2002 to 31.05.2003 and as such being public servant, abused his ofÏcial position and entered into criminal conspiracy with accused Nos.2 and 6, the Conveyance contractor of packed bitumen and his authorized agent respectively for the period 2003-04 and in furtherance of the criminal conspiracy, five loads of packed bitumen vide invoice no. 303057 dated 12.05.2003, 304050 dated 23.05.2003, 304228 dated 26.05.2003, 304674 dated 30.05.2003 and 306783 dated 26.06.2003 taken delivery from Kochi Refinery Ltd. on behalf of Executive Engineer, Public Works Department Division, Alappuzha was dishonestly and fraudulently misappropriated wholly causing a loss of Rs.6,27,265.30 to the Government and corresponding gain to the accused by illegal and corrupt means without any public interest. The 5^th accused, who succeeded the 1^st accused as the Executive Engineer, PWD Division, Alappuzha, during the period 27.06.2003 to 31.08.2005, later on with malafide intention of obtaining pecuniary advantage to the said accused Nos.2 and 6, conspired with accused Nos.3 and 4, who worked as Assistant Engineer of the PWD Section, Alappuzha, during the period from November, 1999 to October, 2004 and Assistant Engineer, PWD Section, Cherthala, during the period 03.06.2002 to 31.01.2005 respectively and also with the 7^th accused, who worked as Divisional Account, Public Works Department, Roads Division, Alappuzha, during the period from 24.09.2001 to 31.05.2005, the 8^th accused, who worked as Assistant Executive Engineer (Technical Assistant), Public Works Department, Roads Division, Alappuzha, during 14.07.2003 to 30.09.2006, the 9^th accused, who worked as Assistant Engineer (Works), Public Works Department, Road Division, Alappuzha, during the period from 17.04.2000 to 27.07.2006, 10^th accused, who worked as the Junior Superintendent, Public Works Department Roads Division, Alappuzha, during the period from 03.07.2003 to 18.01.2007 and the 11^th accused, who worked as the Clerk in the PWD Roads Division, Alappuzha, during 02.06.2003 to 10.09.2009 and in furtherance of the said conspiracy hushed up the matter by delivering two loads of packed bitumen each to Pattanakkad and Cherthala PWD Sections vide USR dated 03.11.2003. Thereafter, accused Nos. 3 and 4 forged and falsified the documents such as the stock register, invoices etc. and used them as genuine so as to make it appear that the bitumen loads with invoices mentioned were delivered directly to the concerned sections and accused Nos.7 to 11 and the 5^th accused admitted all the invoices in respect of the above mentioned misappropriated loads of packed bitumen including the falsified duplicate for transporter in respect of invoice no. 303057 dated 12.05.2013 and as such t