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Kerala High Court · body

2004 DIGILAW 205 (KER)

E. Rajarathinam v. State

2004-05-26

K.A.ABDUL GAFOOR

body2004
Judgment :- The appellants in these appeals faced conviction in C.C.No.6/95 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. Crl.A.No.660/96 is by the second accused and Crl.A.No.704/96 is by the first accused. They faced trial for offences punishable under Section 5 (1)(c)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (for short “the Act”) and Sections 409,468,471,and 477 A read with Section 120 B of the Indian Penal Code. The first accused has been convicted for the offences under the Act and also for offences punishable under Sections 465,477 and 477 A read with Section 120B of the Indian Penal Code. He has been sentenced to undergo rigorous imprisonment for a period of six months under Sections 465 and 471, for a period of one year each under Sections 477 A and 120 B and for a period of three years each under Section 409 and under the provisions of the said Act. The second accused has been sentenced to undergo rigorous imprisonment for a period of six months under Sections 465 and 471, and for a period of one year each under Sections 477A and 120B of the Indian Penal Code. The sentences were directed to run concurrently. This is under challenge in these appeals. 2. The case of the prosecution was that in March and April, 1988, the accused conspired together and agreed to forge certain documents to make it appear that a road was constructed at the Jersey Farm, Vithura at a cost of Rs.19,500/- and that in furtherance of the criminal conspiracy, the accused forged quotations, work agreement, the earth level graph, calculation sheet and measurement book and also falsified the records and accordingly Rs.19,500/- was enchased from the Sub Treasury on 30.3.1988 and misappropriated that amount, thereby gaining pecuniary advantage by themselves and consequent loss to the State. 3. There was an anonymous letter addressed to the District Animal Husbandry Officer, PW.1, about this incident. He conducted an enquiry, as is revealed by Ext.P1. The matter was sent to the Vigilance. A detailed investigation was ordered. PW.18, the Deputy Superintendent of Police, directed the Vigilance Director to register a case. Accordingly, PW19 registered Ext.P19 F.I.R. on 9.11.1991 and he conducted the investigation. Finally his successor, PW.20, filed the final report. Earlier, the first accused alone was implicated. The matter was sent to the Vigilance. A detailed investigation was ordered. PW.18, the Deputy Superintendent of Police, directed the Vigilance Director to register a case. Accordingly, PW19 registered Ext.P19 F.I.R. on 9.11.1991 and he conducted the investigation. Finally his successor, PW.20, filed the final report. Earlier, the first accused alone was implicated. Later, Ext.P20 remand report, arraying the second accused also in the case and incorporating offences under Sections 468 and 471 IPC, was filed. At the investigation stage, the services of the first accused were terminated. Ext.P14 sanction was accorded to prosecute the second accused. Accordingly, the court farmed charges for offences under Section 5(1) (c) and (d) read with Section 5(2) of the Act and Sections 409,465,468,471,477A and 120B IPC. 4. Altogether 20 witnesses were examined and 29 documents were marked on the side of the prosecution. There was no defence evidence in this case. 5. The allegations revealed that the first accused created false documents to appear that a road has been constructed in the Jersey Farm under his control. For this purpose, he approached PW.5, the Assistant Executive Engineer, to make necessary estimate and other documents. As the work was to be arranged by the first accused, he showed reluctance, as he could prepare estimate only in respect of the work done by the Public Works Department. The first accused prevailed over PW.5 that the former will obtain necessary sanction from the Government. Thereupon PW.5 directed PW.12 to go to the site and prepare necessary documents and papers. PW.12 was asked to take the help of the second accused, a Second Grade Overseer in the office of PW.5. Both of them visited the place indicated by the first accused where the road had to be constructed. But, as spoken to by PW.12, he did not give any estimate or plan or any other document to the first accused, as it was not proper for the Public Works Department, without sanction from the government, to give an estimate in respect of any work to be arranged by the first accused of another department. He had spoken to that the necessary details collected by him and the second accused who accompanied him had been kept in the almirah in his office. 6. He had spoken to that the necessary details collected by him and the second accused who accompanied him had been kept in the almirah in his office. 6. Ext.P9 discloses that the first accused had presented a bill to the treasury for an amount of Rs.19,500/- and the amount had been cashed, as is seen from Ext.P10 cash book. The bill was prepared as is revealed by Ext.P2 based on the Administrative sanction for the work, Ext.P2 (u) and P2 (r) letter of the Assistant Executive Engineer about the check measurement and that the work has been completed. Ext.P2(s) is the letter seeking certificate for completion of the work, addressed to Pw.5. Ext.P2(t) is the certificate for withdrawal of the amount. It is also seen from Ext.P2 file that earth level graph has been prepared, as is revealed by Ext.P2(i) and earth work calculation has been made as per Ext.P2(j). Ext.P3 reveals that there was an official measurement of the work done. Based on these materials, it was made to appear that a new road has been constructed and in the farm under the control of the first accused and an amount of Rs.19,500/- had been drawn from the treasury, as is revealed by Ext.P9 and had been cashed by the first accused as is revealed by Ext.P10. The investigation revealed that the aforesaid necessary documents were also prepared to show that the work had been completed in a usual and official manner to enable withdrawal of the amount from the treasury. The earth level graph Ext.P29(h), Level Field Book Ext.P2(i) and Ext.P3 Field Measurement Book was made part of the file to show that the work has been duly completed. These documents bear a signature of PW.5 as if he had signed the said documents and as if the office seal has been impressed thereon. It is in continuation of these, that Ext.P2(r) and (s) letters and Ext.P2 certificate had been issued or made so that everything shall culminate in drawal of the amount as is revealed by Exts.P9 and P10. The investigation revealed that Ext.P2(h),(i),(j)and Ext.P3 were in the handwriting of the second accused. That was why he was also arrayed, on the basis of Ext.P29 report, as an accused. The judgment discloses that, more than at one place, the “first accused had admitted that no road was constructed”. 7. The investigation revealed that Ext.P2(h),(i),(j)and Ext.P3 were in the handwriting of the second accused. That was why he was also arrayed, on the basis of Ext.P29 report, as an accused. The judgment discloses that, more than at one place, the “first accused had admitted that no road was constructed”. 7. PW.5, the Assistant Executive Engineer, has categorically deposed before the court below that the signatures on Ext.P2(h), P2(i) and P2(j) and in Ext.P2(t) certificates are not his signatures. 8. Ext.P2(x) is a tender issued by PW.11. But he had deposed that he had not submitted such a tender. 9. PW.13, the successor in office to the first accused had also deposed before the court below that for the amount encashed as per Ext.P9 treasury bills, a Demand Draft has been drawn in the name of PW.11, as is disclosed by the register of valuables kept in the office. 10. Thus, it is clear, as found by the court below, that the first accused had created certain documents such as Ext.P2(x), the tender, Ext.P2(r) a letter to show that the work has been completed, Ext.P2(s) a letter to PW.5 seeking for a certificate regarding completion of the work, Ext.P2(t) the proceedings for sanction for withdrawal of the amount etc. and also Ext.P2 treasury bills and the entry in Ext.P10 cash book. 11. PW.10, the Section Clerk under the first accused has stated that as per the work schedule, Ext.P2 file ought to have been handled by him and that with reference to the work, he should have put up the file to the first accused. But he deposed before the court that he had never handled the file and that the file had been kept, maintained and written by the first accused himself. Thus, it is clear that first accused had with an intention to misappropriate an amount of Rs.19,500/- created documents to appear that the work had been sanctioned and the work had been executed and the work had been completed and as if the payment was due to PW.11 in whose favour a demand draft was also taken for the amount in question. 12. 12. This evidence is sufficient enough to rope the first accused within the fold of Section 5(1)(c) and (d) read with Section 5(2) of the Act as he had, by corrupt and illegal means, as a public servant, obtained for himself valuables and pecuniary advantage and had misappropriated dishonestly the property entrusted to him and that he had made false documents with intention to cause damage to the public to support a claim and also to appear that a contract had been entered with an intention to commit fraud and was therefore, punishable under Section 465 IPC. The evidence also revealed that he had used such forged documents as genuine ones thereby committing offence punishable under Section 471 IPC. He had also by creating these documents, falsified the files, using his official position, with an intention to defraud the Government, thereby committing offence under Section 477A IPC. 13. In order to commit the offence as mentioned above, first accused had to forge and obtain necessary documents to appear that a work has to be done, estimate has been prepared for the work, tender has been submitted, work has been done, check measurement has been obtained, certificate of completion is made ready, treasury bills are presented and the amount is cashed. This can be done only with the aid of one working in the Public Works Department. That was why he had first approached PW.5 to depute officers to take necessary estimates and to prepare plan and other necessary documents, representing to him that he will obtain necessary sanction from the Government. As spoken to by PW.5, he had instructed one among his subordinates- PW.12, to go to the spot and to prepare necessary estimate. According to PW.12 he had gone to the spot and taken down necessary details for the work, with the help of the second accused. The entire details collected by himself and kept in his office almirah. He had never given these details to the first accused because the first accused did not obtain necessary sanction from the Government. 14. But Ext.P2 official file kept in the office of the first accused discloses that earth level graph has been taken in respect of the work. The entire details collected by himself and kept in his office almirah. He had never given these details to the first accused because the first accused did not obtain necessary sanction from the Government. 14. But Ext.P2 official file kept in the office of the first accused discloses that earth level graph has been taken in respect of the work. Necessary entries in the Level Field Book has done in respect of the work and the earth work calculation has also been made in respect of the same work as is revealed by Exts.P2(h),(i) and (j) and those have been signed by PW.5 with his office seal. 15. Ext.P3 is a measurement book. That has been put in the file to show that the work done had been measured by a competent officer. Then alone, the necessary work completion certificate can be obtained as is revealed by Ext.P2(c) and (t) to present Ext.P9 treasury bills and to get the amount cashed, as is revealed by Ext.P10 cash book. 16. According to the prosecution, these documents have been made by the second accused. But there is no signature of the second accused in Ext.P2(h), (i) and (j) or Ext.P3. It has been spoken to by PW.5 that Ext.P3 appears to be a measurement book not issued with a certification to a particular office. Therefore, it cannot be taken as an official measurement book. He has already stated that similar book can be obtained from open market as it has been used for learning purpose by students. PW.5, under whom the second accused was working at the relevant point of time stated in chief examination that the writings on Ext.P2(h), P2(i) and P2(j) appears to be that of the second accused and that the writings in Ext.P3 are also similar to the handwriting of the second accused. But in cross-examination, with reference to the writing in Ext.P3, he has stated that he could not confirm it as that of the second accused. But, with regard to Ext.P2, there is no specific cross-examination. Equally so is with reference to the evidence given by PW.12. Of course, Pw.12 was not his superior, as rightly pointed out by the second accused. Therefore, it will not be possible for him to identify his writings. But, with regard to Ext.P2, there is no specific cross-examination. Equally so is with reference to the evidence given by PW.12. Of course, Pw.12 was not his superior, as rightly pointed out by the second accused. Therefore, it will not be possible for him to identify his writings. So, the evidence of PW.12 stating that Exts.P2(h),(i)and (j) and Ext.P3 are in the hand writing of the second accused cannot be taken as conclusive. 17. PWs.16 and 17 are the star witnesses in this case. According to PW.16, the second accused had worked with him for about 10 years. According to PW.17, the second accused had worked with him as well. Both of them had also stated that they are familiar with the handwriting of the 2nd accused. PW.16 had categorically stated that Ext.P2(h), (i) and (j) are in the handwriting of the second accused. But the verification in Ext.P2(j) is in another handwriting. With respect to Ext.P3, he had deposed that everything except Ext.P3(a) and (b) and to the heading of other entries were in the handwriting of the second accused. When PW.16 was cross-examined, the only question put to him was whether he could say conclusively that the heading in Ext.P3 was in the handwriting of the second accused. The answer elicited is that “it looks like so”. Except that there was no cross-examination challenging the evidence of PW.16 that Exts.P2(h), (i) and (j) are in the handwriting of the second accused. 18. When I come to the evidence of PW.17, who was also familiar with the handwriting of the second accused, he has also categorically stated that writings in pages 191 and 149 of Ext.P18 are in the handwriting of the second accused. That is a file in the office of the Assistant Executive Engineer where the second accused had been working. PW.17 has also stated that the handwriting in Ext.P2(h), (i) and (j) is also that of the second accused, except, the writing “countersigned, verified and approved” in Ext.P2(j). He has also stated that everything except the signature and the initials in Ext.P3 was also in the handwriting of the second accused, including the amount mentioned therein to the effect that a work to the tune of Rs.1,77,336/- had been executed. With reference this handwriting aspect, there is absolutely no cross-examination of PW.17. He has also stated that everything except the signature and the initials in Ext.P3 was also in the handwriting of the second accused, including the amount mentioned therein to the effect that a work to the tune of Rs.1,77,336/- had been executed. With reference this handwriting aspect, there is absolutely no cross-examination of PW.17. In such circumstances, when PWs.16 and 17, who had worked with the second accused for long time, had thus identified the handwriting in Exts.P2(h), (i) and (j) and in Ext.P3 as that of the second accused, there is no reason to disbelieve them. PW.12 also says that those are the handwriting of the second accused. Thus, it has been proved in this case that the said documents have been made by the second accused. 19. It is submitted by the counsel for the appellants that even if it is taken that those documents are in the handwriting of the second accused, it will not amount to forgery as defined in Section 463 IPC, as those are not intended as official documents and those do not bear his signatures. Merely because the entries made by him had been made use of by the first accused, it cannot be stated that the second accused did deceive the Government or caused loss to the Government. Mere writing in loose papers of certain details or measurement will not amount to forgery of a document. So, no offence under Section 465 IPC has been made out in this case. It is further submitted that these documents were not made for the purpose of falsification of any document or account by the second accused, where he has been working as a public servant. Therefore, no offence under Section 477 A IPC is also made out in this case. Merely because some of his writings had been made use of by the first accused as part of the files kept by him in order to encash some amount as if some work had been done, it will not amount to conspiracy to attract the provisions of Section 120 B of the IPC. Therefore, no offence is made out against him even if the evidence of PWs.16 and 17, coupled with the evidence of Pw.12 that the entries in Exts.P2(h), (i) and (j) and Ext.P3 are in his handwriting is accepted. 20. Therefore, no offence is made out against him even if the evidence of PWs.16 and 17, coupled with the evidence of Pw.12 that the entries in Exts.P2(h), (i) and (j) and Ext.P3 are in his handwriting is accepted. 20. The second accused has no case either in the court below or before me that he had anything to do with the affairs of the office of the first accused. In such circumstances, there was no reason for him to write anything and to give it to the first accused. The second accused also has no case before the trial court or before this court that he has been engaged by the first accused for any private work to prepare such documents and made use of those for the purpose of this case. 21. Exts.P2(h) is a long graph sheet prepared with certain measurement. It is not a mere scribbling in any paper. It can be prepared only with a purpose. What was the purpose was not indicated by the second accused in his statement when he was questioned under Section 313 of the Code of Criminal Procedure. It forms part of Ext.P2 files kept with the first accused with reference to the work in question. Ext.P2(h) graph is proved to be in the handwriting of the second accused. So, it was handed over to the first accused for the purpose of completing the records in respect of the work concerned. 22. Ext.P2(i) is a note book containing certain technical scribbling and measurement. It also forms part of the file kept by the first accused in connection with the work. Ext.P2(i) forms pages 107 to 146 of the said file containing several sheets. It had the continuity not only as a book, but also with reference to the entries. Necessarily, it is also prepared for some purpose. The purpose is not explained by the second accused. It has been proved to be in the handwriting of the second accused. It has reached the hands of the first accused to form part of the files relating to the work in question. 23. Ext.P2(j) are loose sheets, containing 4 sheets with certain calculations of earth work in respect of the main road. This is written in the handwriting of the second accused as mentioned above. Necessarily, this also must be prepared for some purpose. 23. Ext.P2(j) are loose sheets, containing 4 sheets with certain calculations of earth work in respect of the main road. This is written in the handwriting of the second accused as mentioned above. Necessarily, this also must be prepared for some purpose. The tabulation at the end of Ext.P2(j) indicates the total length and total quantity of earth work for the main road and two branch roads. Thus, it is prepared for a purpose viz., for the construction of a road. It is seen in the files that it is relating to the construction of a road. 24. Ext.P3 is the measurement book. It is in a particular form as the Government has prescribed. But it is certain, as spoken to by PW.5, that it is not an officially printed one, but used for study purpose. The entry therein are is in relation to the earth work for the construction of the internal road in Jersey Farm with calculation sheet attached, and with other necessary entries regarding calculation. This also has been proved to be in the handwriting of the second accused. The total quantity of the earth work is mentioned as 1233 M the total quantity of tabulation extract in Ext.P2(j). Therefore, Ext.P2(j) and Ext.P3 have mutual relativity. Both these are in the handwriting of the second accused. Ext.P3 is also thus prepared for a purpose. 25. Hence, these are documents meant for some purpose, though an illegal one. Necessarily, preparation of those documents to take the place of a genuine document amounts to forgery punishable under Section 465 IPC. 26. Those documents prepared by the second accused had come in the hands of the first accused. The subject of these documents is “construction of a road in the farm” managed by the first accused. Therefore, the intention of the first accused, to create documents as if a road has been constructed, has been made known to the second accused. That was why he had given those documents to the first accused. Necessarily, there is meeting of the minds by both these accused for a particular purpose thereby resulting in an agreement to constitute an offence under Section 120 B for creating false documents for an illegal purpose. Therefore, an offence under Section 120 B IPC is also made out against the second accused. Necessarily, there is meeting of the minds by both these accused for a particular purpose thereby resulting in an agreement to constitute an offence under Section 120 B for creating false documents for an illegal purpose. Therefore, an offence under Section 120 B IPC is also made out against the second accused. When both of them had thus met together for an agreement, conviction under Section 120 B IPC against the first accused has to be sustained. 27. But these evidence will not constitute an offence under Section 477 A IPC, so far as the second accused is concerned. Accordingly, appeals are disposed of as follows: (1) Crl.A.No.704/96 filed by the first accused is dismissed confirming the conviction and sentence passed on him by the court below. (2) Crl.A.No.660/96 filed by the second accused is partly allowed, setting aside the conviction and sentence passed against him for the offence punishable under Section 477 A IPC. (3) The conviction and sentence passed against the second accused in respect of the offence punishable under Sections 465 and 120 B IPC are confirmed.