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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
N.Natarajan and Ors. - Appellant
Versus
State by Inspector of Police, Vigilance and Anti-Corruption, Dharmapuri - Respondent
Crl.A.Nos.956 and 984 of 2002
Decided on : 21-09-2017
Indian Penal Code,1860 - Sections 120B, 109, 167, 420 - PC Act – Section 5(1)(d) r/w 5(2) – Ofence of Criminal conspiracy – Cheating and dishonestly inducing delivery of property – Charged – Appeal against conviction - Village District, was breached and found in a dilapidated condition covered with shrub of jungle and not in use for more than 20 years - Hence, Public Works Department proposed to restore by clearing shrub jungle and strengthen bund with channel to drain excess water stored in the lake - Accordingly, an estimation was prepared by the Public Works Department for restoration work and same was approved by Government according administrative sanction vide Order - On receipt of Administrative sanction given by Government, Superintending Engineer, PWD Department, inspected site on suggested certain technical changes in plan and instructed Executive Engineer to prepare a revised plan and estimation based on technical changes in maximum flood estimation and alignment and cost based on schedule of rates prevailing - [A1], then Assistant Engineer and [A2], then Assistant Executive Engineer were entrusted with task of preparing revised estimation as per instruction of Superintending Engineer – Held, prosecution can be successful only if they could prove that extra work carried out in restoration of was unwarranted or without carrying out the work, bill was raised by contractor in connivance with officials - For said purpose, prosecution would rely upon report of PW9 marked as Ex.P69 - While deposition of PW9 indicates that he accompanied with investigation team to inspect and submitted report Ex.P69, in his cross examination, he admits that Ex.P69 does not contain his signature - PW9 claims to be an expert accompanied with the investigation team since he has retired as Superintending Engineer, he was not able to tell source of water to (or) which direction bund of Eri is located (or) whether there was any hard granite present in Eri - For all these questions during cross examination, he has just replied that he is not aware of details and he admits that he did not examine inspection notes - Under these circumstances, reliability of report submitted by PW9 becomes highly doubtful and no conviction can be passed on such truncated report of expert, who is not even able to say about topography or layout of bund which is subject matter of the investigation - For said reason, this Court has no hesitation to reverse finding of trial court and acquit accused extending the benefit of doubt - Accordingly, these Criminal Appeals are allowed - Convictions and sentences imposed on appellants by learned First Additional District and Sessions Judge-cum-Chief Judicial Magistrate, in C.C.No. are hereby set-aside
1. The appellants in Crl.A.No.956 of 2002 are arrayed as A5, A7 and A8; the appellant in Crl.A.No.984 of 2002 is arrayed as A2; the appellant in Crl.A.No.998 of 2002 is arrayed as A1; the appellant in Crl.A.No.991 of 2002 is arrayed as A3 and the appellant in Crl.A.No.1008 of 2002 is arrayed as A6 in C.C.No.1 of 1987 on the file of the First Additional Sessions Judge cum Chief Judicial Magistrate, Krishnagiri. Pending appeals, the 1st accused S.Murugan, 6th accused M.A.Yesudoss and the 3rd accused viz., A.N.Vedhachalam died.
2. The trial Court, under judgment, dated 14.06.2002, has convicted the appellants/accused and sentenced them as follows:
Rank of the accused
Conviction for the offence under section
Sentence imposed by the trial Court
A2
120(B) of IPC
167 of IPC
420 of IPC
5(1)(d) r/w 5(2) of PC Act
to undergo RI for 1 year
to undergo RI for 2 years
to undergo RI for 2 years and imposed a fine of Rs.1000/- i/d, to undergo 3 months imprisonment
to undergo RI for 2 years and imposed a fine of Rs.1000/- i/d 3 months imprisonment
A5
102(B) of IPC
420 of IPC
5(1)(d) r/w 5(2) (2 counts) of PC Act
109 r/w 5(1)(d) r/w 5(2) 2 counts
to undergo RI for 1 year
to undergo RI for 1 year
to undergo RI for 1 year in each counts
to undergo RI for 1 year (each count)
A7
102(B) of IPC
420 of IPC
5(1)(d) r/w 5(2) (2 counts) of PC Act
109 r/w 5(1)(d) r/w 5(2) 2 counts
to undergo RI for 1 year
to undergo RI for 1 year
to undergo RI for 1 year in each counts
to undergo RI for 1 year (each count)
A8
102(B) of IPC
420 of IPC
5(1)(d) r/w 5(2) (2 counts) of PC Act
109 r/w 5(1)(d) r/w 5(2) 2 counts
to undergo RI for 1 year
to undergo RI for 1 year
to undergo RI for 1 year in each counts
to undergo RI for 1 year (each count)
The trial Court has directed that the sentences to run concurrently. Aggrieved by the said conviction and sentence, these present appeals are filed.
3. Background of the case is as follows:
Kumarachetti Eri in Athimutlu Village, Palacode Taluk of Dharmapuri District, was breached and found in a dilapidated condition covered with shrub of jungle and not in use for more than 20 years. Hence, the Public Works Department proposed to restore Kumarachetti Eri by clearing the shrub jungle and strengthen the bund with channel to drain the excess water stored in the lake. Accordingly, an estimation was prepared by the Public Works Department for restoration work and the same was approved by the Government according administrative sanction vide Order in G.O.Ms.No.560, Revenue Department, dated 10.03.1977 for the estimated cost of Rs.19.45 lakhs.
4. On receipt of the Administrative sanction given by the Government, the Superintending Engineer, PWD Department, inspected the site on 27.04.1977, suggested certain technical changes in the plan and instructed the Executive Engineer to prepare a revised plan and estimation based on the technical changes in the maximum flood estimation and alignment and the cost based on the schedule of rates prevailing. Mr.S.Murugesan [A1], then the Assistant Engineer and Mr.G.A.Palanisami [A2], then the Assistant Executive Engineer were entrusted with the task of preparing revised estimation as per the instruction of the Superintending Engineer. Accordingly, a revised estimate of Rs.24.89 lakhs was submitted by them and tenders were floated for the said work by the Tender Committee constituted for the said purpose. The restoration of the brea
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