Criminal Appeal No. 350 of 2006. Case: V. S. Achuthanandan Vs R. Balakrishna Pillai and Ors.. High Court of Kerala (India)
| Case Number | Criminal Appeal No. 350 of 2006 |
| Counsel | For Petitioner: Ms. Malini Poduval, Advocate and For Respondent: E.M.S. Anam, Advocate. |
| Judges | P. Sathasivam and Dr. B. S. Chauhan, JJ. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 378; Indian Penal Code (45 of 1860) - Sections 120B, 409; Prevention of Corruption Act (49 of 1988) - Sections 5, 13 |
| Citation | 2011 CriLJ (Supp) 93 |
| Judgement Date | February 10, 2011 |
| Court | High Court of Kerala (India) |
Judgment:
P. Sathasivam, J.
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The challenge in this appeal, by special leave, is to the legality of the order dated 31.10.2003 passed by the High Court of Kerala at Ernakulam allowing Criminal Appeal Nos. 822, 823 and 824 of 1999 filed by the accused setting aside the order dated 10.11.1999 passed by the Special Judge Idamalayar Investigations, Ernakulam in C.C. No. 1 of 1991 convicting all the accused for the offences punishable under Sections 120-B and 409 of the Indian Indian Penal Code (in short 'IPC') and Sections 5(1)(c) and 5(2) of the Prevention of Corruption Act, 1947 (Act 2 of 1947) (hereinafter referred to as 'the P.C. Act') and sentencing them to undergo rigorous imprisonment.
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Brief Facts:-
(a) Idamalayar Hydro Electric Power Project, a multi-purpose power project in Kerala was conceived and completed in the year 1985. The project report was approved by the Central Water and Power Commission in 1973.
(b) After the completion of the Dam, the remaining construction work relating to the power tunnel and surge shaft, which are integral part of the water conductor system of the project, was awarded on contract basis to one K.P. Poulose (A4), as per the decision of the Kerala State Electricity Board (hereinafter referred to as the "Board"), on 19.11.1982. The work relating to power tunnel was awarded at 188% above the Probable Amount of Contract (PAC) and the work relating to surge shaft and allied works at 162% above the estimated amount with many special conditions, as requested by the contractor, involving heavy financial implications/advantages to him at the expense of the Board. Further, there was inordinate delay in completion of the work.
(c) During the trial run, on 15.07.1985, several leaks and cracks were noticed in the tunnel lining which was a matter of great public concern and caused considerable anxiety and fear among the public and State as well. Discussions and debates were held in this regard in the State Legislative Assembly. There was a public outcry for a judicial probe in this matter. Extensive rectification work to remedy the defects in the tunnel lining and surge shaft was undertaken at a considerable cost which was to the tune of Rs. 1.75 crore.
(d) On 02.08.1985, the Public Undertaking Committee of the State Legislature inspected the site and submitted its report recommending a judicial probe. The State Government appointed a sitting Judge of the Kerala High Court as Commissioner of Inquiry to conduct the probe. The Commission recorded its enquiry, collected considerable evidence and submitted its report in June, 1988. The Commission came to the conclusion that materials placed before it prima facie disclosed commission of offences punishable under I.P.C. and P.C. Act against persons responsible for the same and recommended for investigation into these offences. The State Government accepted the recommendations and constituted a special team, headed by Superintendent of Police for Investigation. The report of the special squad was filed in the Court of Special Judge on 14.12.1990 in Crime No. C.C. No. 1 of 1991.
(e) During pendency of the case, an application for withdrawal of the prosecution against accused No. 5 - G. Gopalakrishna Pillai, who was the Secretary to the Kerala Government, Irrigation and Power Department was made by the then Special Public Prosecutor on 24.08.1992 under Section 321 of the Code of Criminal Procedure (in short 'Cr.P.C.') on the ground of absence of any material to sustain a successful prosecution of offences alleged against him. At this stage, the appellant herein - V.S. Achuthanandan, the then Opposition leader in the Assembly, in public interest, filed statement of objections against the move for withdrawal of the case against G. Gopalakrishna Pillai (A5). After full-fledged enquiry, the application filed by the Special Public Prosecutor was dismissed by the Special Judge on 16.10.1992.
(f) On 03.02.1993, Criminal Revision Petition No. 762 of 1992, filed by the State against the order of Special Judge was allowed by the High Court. On the strength of the observations made in the order of the Kerala High Court, the State Government took the decision to withdraw the criminal case against all other accused.
(g) The appellant challenged the above order of the High Court in Criminal Appeal No. 122 of 1994 before this Court which set aside the order of the High Court and restored the order of the Special Judge declining consent for withdrawal [vide V. S. Achuthanandan v. R. Balakrishna Pillai and Ors., (1994) 4 SCC 299]: (AIR 1995 SC 436). Subsequently, the matter was further proceeded in the Court of Special Judge.
(h) During trial, Accused No. 22, Paul Mundakkal became insane and the case against him was allowed to split, Accused No.4 - K.P. Poulose, Contractor, died, Accused nos. 11 and 14 to 21 were discharged by the Court of Special Judge in the final report holding that there was no prima facie case made against them.
(i) On 14.12.1995, charges were framed against other accused for various offences under Sections 120-B, 409, 430 and 201, IPC and Section 5(2) read with Section 5(1)(c) and (d) of the P.C. Act. This order of the Special Judge was confirmed by the High Court, but found that the charge under the P.C. Act is not sustainable against A5 and A8 for want of proper sanction as per the orders passed in Criminal Revision Petitions filed by the accused in the High Court. Charge was amended accordingly and the accused were re-arranged as A1 to A11. In the meantime, A7 died.
(j) The Special Court, after analyzing the oral and documentary evidence on record, vide its judgment and order dated 10.11.1999 found R. Balakrishna Pillai (A1), P.K. Sajeev (A3) and Ramabhadran Nair (A6) guilty of the offences punishable under Section 120-B and 409, IPC and Sections 5(1)(c) and 5(2) of the P.C. Act read with Section 120-B of IPC. They were sentenced to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 120-B of IPC and to undergo rigorous imprisonment for a period of four years each under Section 409, IPC and Section 5(2) of the P.C. Act read with Section 120-B, IPC and to pay a fine of Rs.10,000/- each, in default, to undergo simple imprisonment for one year each. However, A1, A3 and A6 were acquitted of the charges under Sections 161, 201 and 430, IPC read with Section 5(1)(d) of the P.C. Act. It was also directed that the sentences shall run concurrently. Accused Nos. 2, 4, 5, 8, 9, 10 and 11 were found not guilty of the offences and they were acquitted of all the offences with which they were charged.
(k) Aggrieved by the order of conviction and sentence, all the three accused i.e. (A1), (A3) and (A6) filed separate appeals before the High Court of Kerala at Ernakulam. By the common impugned judgment dated 31.10.2003, the High Court set aside the conviction and sentence of all the three accused and acquitted them from all the charges levelled against them.
(l) Questioning the order of acquittal, the appellant - V.S. Achuthanandan, filed special leave petition against the common impugned judgment and, this Court, by order dated 27.03.2006, granted leave to appeal.
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Heard Mr. Shanti Bhushan, learned senior counsel for the appellant, Mr. U.U. Lalit, learned senior counsel for R.Balakrishna Pillai (A1), Mr. Amarendra Sharan, learned senior counsel for P.K. Sajeev (A3), Mr. S. Gopakumaran Nair, learned senior counsel for Ramabhadran Nair (A6) and Mr. R.S. Sodhi, learned senior counsel for the State of Kerala.
Submissions:
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Mr. Shanti Bhushan, learned senior counsel for the appellant after taking us through the entire materials relied on by the prosecution, stand taken by the defence, elaborate reasonings of the trial Court in convicting the accused and the reasonings of the High Court in acquitting them, raised the following submissions:-
i) There was enough material to show that (A1) was very much interested in favour of (A3) and with the connivance/assistance of the Board officials, more particularly through (A6) Member of the Board, made the Board to accept the tender offered by K.P. Poulose (A4) at an exorbitant rate with various special conditions.
ii) The criminal breach of trust has been committed by the accused in the following ways:-
(a) By awarding both the works of Idamalayar at a very high and exorbitant rate with special conditions having heavy financial implications.
(b) By reducing the retention and security amount.
(c) By allowing the contractor to return only fifty per cent. of the empty cement bags.
(d) By accepting the special condition for the sale of T and P items (tools and plants) which could not be sold as per the general conditions of the contract.
iii) Contrary to the norms and circulars/procedures of the Board, in order to favour K.P. Poulose (A4), who was a friend of (A1), the Board has accepted all the conditions just to favour (A1) and (A3).
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Mr. U. U. Lalit, Mr. Amarendra Sharan and Mr. S. Gopakumaran Nair, learned senior counsel appearing for (A1), (A3) and (A6) respectively supporting the ultimate decision of the High Court submitted that:
i) The outcome of the contract in favour of K.P. Poulose (A4) was based on a "collective decision" by the Board and there was no external pressure from anyone including (A1).
ii) All the decisions taken were in terms of rules/norms applicable to the contract including accepting special conditions.
iii) Mere acceptance of higher rate would not amount to criminality.
iv) There is no allegation that by awarding contract in favour of K.P. Poulose (A4), (A1) was monetarily benefited.
v) No material to show that there is any wrongful loss to the Board.
vi) Inasmuch as the High Court acquitted all the accused in respect of all the charges on appreciation of oral and documentary evidence, interference by this Court is very limited. In the absence of perversity in such conclusion, normally, this Court would not interfere with...
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