Dismissal of discharge petition confirmed due to prima facie evidence of conspiracy and misappropriation involving public servants.

ORDER :

A. Badharudeen, J.

Accused Nos.1 and 2 in C.C.No.43/2015 on the files of the Enquiry Commissioner and Special Judge, Kottayam, have filed this revision petition under Section 397 r/w Section 401 of the Code of Criminal Procedure and the prayer in the petition is to set aside the order in Crl.M.P.No.394/2020 in the above case, whereby the learned Special Judge dismissed the plea of discharge, at the instance of accused Nos.1 and 2.

2. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor appearing for the Vigilance and Anti-Corruption Bureau.

3. As per the final report, the prosecution allegations are as under:

That the accused A1 while working as the Municipal Secretary during the period from 03.03.2004 to30.08.2005, A2 while working as the Municipal Engineer during the period from 17.06.2004 to 30.08.2006 and A4 while working as the Municipal Chair Person during the period from July 2003 to September 2005 in Alappuzha Municipality and as such being public servants they abused their official pension with intention to obtain pecuniary advantages to A3 who was the Asst.Engineer worked in Alappuzha Municipality during the period from 23.09.2003 to 28.08.2005 and the implementing officer of departmentally executed works under maintenance grant for the year 2004-05 of Alappuzha Municipality, the A1, A2 & A4 entered in to criminal conspiracy with A3, and in furtherance of the conspiracy a total amount of Rs.90,61,200/- was unauthorizedly sanctioned as advance to A3 in several instances for implementing 29 maintenance works. A3 being the implementing officer, without adjusting any of the amount he had received as advance, dishonestly misappropriated an amount of Rs.67,26,272/- by spending only Rs.23,34,928/- there by the accused persons cheated the Government in the implementation of 26 maintenance works against the advance drawn of Rs.90,61,200/- during the period from 7.3.2005 to 28.7.2005. For concealing the above misappropriation A3 forged the documents such as bills, M Books etc. pertaining to the above works and used them as genuine. Thus A1 to A4 committed offences punishable u/s.13(1)(c) & (d) r/w 13(2) of PC Act 1988 and 409,420,468, 471 and120(B) IPC.

4. The learned counsel for the revision petitioners would submit that as per the documents produced as Ext.B4 along with the final report now produced before this Court as Annexure A, it could be gathered that when the Government granted Rs.139.74 Lakh to Municipality, Alappuzha, out of which, Rs.126 Lakh for the purpose of maintenance of building and Rs.13 lakh for maintenance of roads, with direction to spend the same on or before 31.03.2005, a decision was taken to make use of the fund by the Municipal Council and in consequence of thereof, as stated in Annexure C of this revision petition, it was decided to keep Rs.1 Crore in the account of the Municipal Secretary and the same was sanctioned by the Council. Thereafter, work was entrusted to be done by the 3^rd accused, who is the Assistant Engineer during the relevant period and while so, on his request, initially, Rs.20 Lakh was given as advance and a total sum of Rs.1,39,74,000/- entrusted with him. According to the learned counsel for the revision petitioners, even though guidelines issued by the Government relied on by the learned Public Prosecutor vide G.O.P.No.516/04/Fin. dated 03.11.2004, it has been provided that no amount shall be drawn as advance in anticipation of expenditure and money shall be drawn only according to the actual requirement, advances in absolutely essential cases are permitted to be drawn.

5. In this case, in order to spend the money within the time bound manner, the 3^rd accused was authorized to do the work and