JUDGMENT :- 1. The appellants are accused 1 and 2 in C.C. 23/1998 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. In the final report, the 2nd accused was the 3rd accused. They were working as the Superintending Engineer and Executive Engineer from 6.7.1990 to 28.2.1991 and 28.9.1990 to 1.11.1990 respectively in Kallada Irrigation Project LBC formation of Kottiyam branch canal from chainage 6486M to 8735M. Late K.Y. Abraham, who was originally arrayed as the second accused, was the contractor to whom the said work was awarded. Accepting the lowest tender submitted by late Abraham, Ext.P3(a) original agreement dated 24.8.1987 was executed between the Contractor Abraham and PW.4, the then Superintending Engineer. Work site was handed over on 16.12.97. After executing the agreement, it was brought to the notice that some changes were required in the levels. Consequently, proposals were made and in terms of the revised proposal supplemental agreement No.1, which was marked as Ext.P15 dated 13.9.1988, was executed between PW.4 and the contractor. The period for execution of the work was twelve months from 21.1.1988. Due to various reasons the contractor could not complete the work within the time frame. Hence, supplemental agreements No. 2 and 3, which were marked as Exts.P20 and P21 respectively, were executed on 22.2.1990 for extending the period for execution. During the course of the execution of the work, the contractor advanced certain claim for revised rates and extra claims. The claim by the contractor was duly processed and after a negotiation with the contractor, PW.6, the then Superintending Engineer, on 22.2.1990 itself, executed supplemental agreement No.4 which was marked as Ext.P23. The contractor continued to lodge claim for revision of rates and demanded payments as if various items of the work were extra. According to the prosecution, the present second accused, by Ext.P22(g) letter, recommended to treat the construction of the culvert as extra item. The prosecution would allege that the said letter was a result of the conspiracy between accused 1 and 2 and the contractor (original second accused) and in pursuance to Ext.P22(g), after negotiation between the first accused and the contractor, supplemental agreement No. 6 dated 19.10.1990, which was marked as Ext.P33 was executed agreeing for an exorbitant rate in respect of items of work covered by Ext.P33 whereby the Contractor got undue pecuniary advantage of Rs.8,40,010.69/-. The period for the execution of the work extended by Exts.P20 and P21 was further extended till 31.3.1991 by executing supplemental agreement No.5, which was marked as Ext.P39 on 19.10.1990, i.e. on the date on which Ext.P33 was executed. The contractor again requested for revision of rates and to make payments as if extra items as per letter dated 13.2.1991, copy of which was marked as Ext.P24(O). Simultaneously the 1st accused and contractor again conspired and in pursuance to the conspiracy between the first accused and the contractor, executed supplemental agreement No.7 which was marked as Ext.P25 on 20.2.1991 whereby the contractor had obtained undue pecuniary advantage amounting to 12,81,031.78/-. 2. The prosecution would allege that as a result of the conspiracy between accused 1 and 2 and the contractor, supplementary agreement No.6 was executed and thereafter, supplementary agreement No. 7 was executed as a result of the conspiracy between the first accused and the contractor and that accused 1 and 2 abused their office and committed misconduct whereby the contractor had obtained undue pecuniary advantage altogether amounting to Rs. 21,21,041.29 (Rs.8,40,161.69 + 12,81,031.78). Having brought to the notice of the Vigilance and Anti Corruption Bureau, a preliminary enquiry was conducted wherein misconduct and conspiracy was revealed. Basing upon the report of the preliminary enquiry, PW.17, the then Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau registered a case as Crime No.5/94 on 23.9.1994 for offences under Section 120B IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act (hereinafter referred to as `P.C. Act') against the first accused and the contractor as second accused. Ext.P51 is the First Information Report. PW.18, another Deputy Superintendent of Police, took over the investigation. He completed the investigation and laid the charge sheet against the two accused in the First Information Report and against the second accused herein as the third accused. 3. The learned Special Judge took cognizance and issued process. In the meanwhile, the contractor who was the second accused left to his heavenly abode. Consequently, accused 1 and 3 were heard after furnishing them the copies of the records. On finding that there are materials to send accused 1 and 3 for trial, a charge was framed for offences under Section 120B IPC and section 13(2) r/w 13(1)(d) of the PC Act. When the charge was read over and explained, they pleaded not guilty to the charge. On finding that there are materials to send accused 1 and 3 for trial, a charge was framed for offences under Section 120B IPC and section 13(2) r/w 13(1)(d) of the PC Act. When the charge was read over and explained, they pleaded not guilty to the charge. Thereafter, accused 1 and 3 were re-arrayed as accused 1 and 2 after omitting the deceased original second accused from the party array. 4. On the side of the prosecution, PWs 1 to 18 were examined and Exts.P1 to P69 were marked. During cross examination of PW.6, a portion of the case diary statement was marked as Ext.D1. After closing the evidence for the prosecution, accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure. They admitted their official status and denied the incriminating evidence. Responding to the call for adducing defence evidence, the second accused examined the Secretary to Government, Public Works Department, as DW.1. On appraisal of the evidence, the learned Special Judge arrived at a finding of guilt. Consequently, both accused were convicted. The first accused was sentenced to rigorous imprisonment for four years and a fine of five lakh rupees for offence under Section 13(2) r/w Section 13(1)(d) of the PC Act. The second accused was sentenced to rigorous imprisonment for one year and a fine of Rs. 20,000/- under Section 13(2) r/w 13(1)(d) of the PC Act. For offence under Section 120B IPC, the first and second accused were sentenced to rigorous imprisonment for two years and one year respectively. Assailing the above conviction and sentence, these appeals were preferred. 5. I have heard Sri. Sunny Mathew, learned counsel appearing for the appellants and Sri. B. Vinod, the learned Government Pleader. 6. The allegation that the appellants were working as Superintending Engineer and Executive Engineer, Kallada Irrigation Project, during the period from 6.7.1990 to 28.2.1991 and 28.9.1990 to 1.11.1990 respectively and as such they were public servants coming under Section 2(c) of the PC Act is not only not disputed but also admitted. The fact that the canal formation work including cut and cover and construction of the culverts were awarded to late Abraham for which Ext.P3 (a) agreement dated 24.8.87 was executed is also not only not disputed but also admitted by the appellants. Therefore, the finding of the lower court on that aspect is hereby confirmed. 7. The fact that the canal formation work including cut and cover and construction of the culverts were awarded to late Abraham for which Ext.P3 (a) agreement dated 24.8.87 was executed is also not only not disputed but also admitted by the appellants. Therefore, the finding of the lower court on that aspect is hereby confirmed. 7. PW.1 was the Assistant Executive engineer during the year 1985-88 in the Kallada Irrigation Project. PW.2 was the Executive Engineer from 1.9.1987 to 8.8.1988. PW.3 was the Executive Engineer who succeeded PW.2. PW3 was holding the office from 1.12.1988 to 18.3.1989. PW.4, as mentioned earlier, was the Superintending Engineer who executed Ext.P3(a) agreement with the contractor. PW.5 was the Executive Engineer who succeeded PW.3. He was holding the office from 18.3.1989 to 17.11.1989. PW.6 was the Superintending Engineer from 20.3.1989 to 26.4.1990. The evidence of PWs 1 to 6 would show that after the execution of Ext.P3(a) agreement, but before starting the execution of the work, it was felt that change of design was warranted. Accordingly, proposal was sent by PW.2. Accepting the proposal, after negotiation between the first accused and the contractor, Ext.P15, the supplemental agreement No.1 was executed on 13.9.1988. Thereafter, the contractor had been making requests for revision of the rates and for treating the work as extra item stating change of designs. Pursuing the request of the contractor, proposal was made by PW.5 which was accepted by PW.6 and after negotiation with the contractor, Ext.P23 supplementary agreement No.4 was executed on 22.2.1990. Since the time for execution of the work expired by then, supplemental agreement Nos. 2 and 3, Exts.P20 and 21 were executed for extension of the period for completion. The prosecution has no case that till the execution of Ext.P23, there was any abuse of the office or any conspiracy between the contractor or any official of the Department. Succeeding to PW.6, the first accused took charge as Superintending Engineer. The conspiracy and abuse of the office by the appellants and misconduct thereon were alleged subsequent to the first accused assuming the office of the Superintending Engineer. According to the prosecution, though there was some change of designs there was no reason to vitiate the contract and that the contractor was not entitled to claim any extra rate or payment as extra item due to the change of designs. According to the prosecution, though there was some change of designs there was no reason to vitiate the contract and that the contractor was not entitled to claim any extra rate or payment as extra item due to the change of designs. Ext.P33 and P25 were executed on 19.10.1990 and 20.2.1991 respectively agreeing for an exorbitant rate whereby the contractor had undue pecuniary advantage as mentioned earlier. 8. For a correct appraisal of the prosecution case, a reading of the relevant portions of the evidence of the prosecution witnesses would be relevant. PW.1 would depose that the estimate for the formation of the left Bank canal, Kottiyam Branch chainage 6486 M to 8735 M was prepared by the Assistant Engineer, Varghese Leen, who was reportedly abroad at the time of taking evidence and that Ext.P1 is the file relating to the estimate and Ext.P1(b) is the estimate for Rs. 49,25,000/-. The estimate covers five culverts and two cut and cover. PW.1 forwarded the same to PW.4 who accepted the proposal. Ext.P2 is the file maintained in the office of PW.4. The proposal was sent to the Chief Engineer who accepted the proposal and accorded technical sanction for executing the work at a cost of Rs. 46,25,000/- and was given orders to execute the work after calling for tender. Tender was invited. Late A.Y. Abraham was selected as the lowest bidder. Work was awarded to him. Ext.P3 is the file relating to the inviting of tender and Ext.P3 (a) is the agreement executed between PW.4 and the contractor. Ext.P3(a-1) is the LCB conditions, P3(a-2) is the schedule and Ext.P3(a-3) is the drawings. PW.1 would further depose that the schedules, drawings etc. would form part of Ext.P3(a). While making temporary Bench mark corrections, it was noticed that there was difference in investigation levels and a revised estimate was prepared. Ext.P4 is the file relating to the revised estimate. The revised estimate prepared by the Assistant Engineer Varghese Leen was forwarded to the Superintending Engineer. It was forwarded to the Chief Engineer who accorded Ext.P5 technical sanction. Ext.P5(b) is the revised sanctioned estimate. Revised technical sanction was accorded for Rs. 38,75,000/-. As per the revised proposal, there was reduction in the length of the canal by 21 meters and there was proposal for flume canal for a length of 50 meters and other changes and that was how the estimate amount was reduced. Ext.P5(b) is the revised sanctioned estimate. Revised technical sanction was accorded for Rs. 38,75,000/-. As per the revised proposal, there was reduction in the length of the canal by 21 meters and there was proposal for flume canal for a length of 50 meters and other changes and that was how the estimate amount was reduced. PW.1 would further depose that the work site was handed over to the contractor on 16.12.1987 and the work was started as per the revised estimate and that Ext.P6 is the file relating to the starting of the work and Ext.P6(a) is the document relating to the handing over the site to the contractor. 9. PW2 would depose that while he assumed charge of the office on 1.9.1987, Ext.P3 (a) agreement was executed and that the work site was handed over to the contractor after he assumed the office and that before starting the execution of the work, the proposal for revision was obtained and Ext.P5(a) technical sanction for the revised work was accorded by the Chief Engineer during the tenure of PW.2. PW.2 was directed by Ext.P4(b) letter addressed by the Chief Engineer to arrange the work through selected contractor, negotiate and fix the reasonable rates. According to PW.2, even if there was change in drawings, as per Clause 10, 11 and 12 of LCB conditions, the contractor was bound to execute the work and the contractor started execution of the work. After completing a portion of the work, measurement was recorded on the basis of which part Bill No.1 was prepared. Ext.P8 is the part bill and Ext.P9 is the M Book. In pursuance to Ext.P8, a sum of Rs. 7, 72,787/- was passed and released in favour of the contractor. 10. PW3 would depose that he succeeded PW2 as the Executive Engineer in KIP RB Division No.1 and that at the time when PW3 took charge, the agreement was executed and work was begun. Part payment was also made. He prepared second part bill, which is marked as Ext.P11. He noted the measurements in Ext.P9 M book and that the payment was made by cheque and that Ext.P12(a) is the counter foil. Ext.P13(a) is a copy of the letter submitted by the Contractor to the Superintending Engineer and the same was forwarded to him for his report. But he could not give the report as he was transferred. He noted the measurements in Ext.P9 M book and that the payment was made by cheque and that Ext.P12(a) is the counter foil. Ext.P13(a) is a copy of the letter submitted by the Contractor to the Superintending Engineer and the same was forwarded to him for his report. But he could not give the report as he was transferred. It was further deposed that during the course of the execution of the work the Contractor had lodged so many claims and that Ext.P13(b) is a copy of the petition submitted by the Contractor to the Superintending Engineer on 23.11.1988 and that Ext.P3(c) is the reply given from the office of the Superintending Engineer. PW3 would further depose that Ext.P13(e) is the reply given by PW3 to the Superintending Engineer in relation to the petitions submitted by the Contractor on 14.9.1988, 23.11.1988 16.12.1988 and 8.2.1989. In that reply it was specifically mentioned that the claim made by the Contractor was false and that the claim is therefore not allowable. 11. PW4 would depose that from 22.6.1987 to 2.3.1989 he was the Superintending Engineer, KIP RB Circle and that ExtP3(a) original agreement was executed between himself and the Contractor and that after the execution of Ext.P3(a), a revised estimate was necessitated and that Ext.P4(a) is the proposal given by the Executive Engineer for the revised estimate. After scrutiny, PW4 forwarded the same to the Chief Engineer and that in pursuance to the proposal, the Chief Engineer had issued revised technical sanction. Ext.P5(a) is the revised technical sanction. In pursuance to Ext.P5(a), he sent a letter to the Contractor to suggest reasonable rates and that Ext.P5(c) is the letter given by him to the Contractor. Responding to Ext.P5(c), the Contractor suggested revised rate. Ext.P14(a) is the letter given by the Contractor. In pursuance to Ext.P14 (a), a negotiation was made and thereafter Ext.P15 supplemental agreement No.1 was executed 13.9.1988. On 8.2.1989, the Contractor submitted another letter, which is marked as Ext.P14(d), wherein it was stated that because of the revised proposal there was decrease in the earthwork quantity as well as in the thickness of the reinforced concrete. Therefore, he had demanded revised rate for the earthwork, cement concrete and the reinforced cement concrete. Ext.P14(d) was forwarded to the Executive Engineer on 16.2.1989 for his report. Therefore, he had demanded revised rate for the earthwork, cement concrete and the reinforced cement concrete. Ext.P14(d) was forwarded to the Executive Engineer on 16.2.1989 for his report. Ext.P14(e) is yet another letter given by the Contractor stating that there was change in the nature and scope of work and that the work that was being done then was different. Hence for all CD (Cross Drainage) works mutually agreed rates were sought to be fixed and that Ext.P14(f) is the reply given by PW4 to the Contractor. It was acknowledged as per Ext.P14(g) acknowledgment. In Ext.P14(g) it was intimated that the changes made were within the scope of the agreement and that the Contractor was entitled to request for drawings or for getting instructions as provided for in the agreement and that, if any, extra items were necessitated it would be dealt as provided for in the agreement. 12. PW5 would depose that he was working as Executive Engineer, KIP, RB Division No.1, from 18.3.1989 to 17.11.1989 in succession to PW3 and that the report in pursuance to Ext.P14(d) was sent by him. Ext.P13(f) is the copy of the report. In Ext.P13(f) it was stated that only 50% of the cut and cover work was executed and that whether there is any extra item could be found only after the completion of the work and that on 21.7.1989 the Contractor had given a letter to the Superintending Engineer and it was forwarded to PW5 for his report and that Ext.P13(g) is the report. In Ext.P13(g) it was mentioned that there was change in the design of the bridges and difference in the quantity and therefore, the work had to be treated as pure extra items and the Contractor was entitled to extra rate for the said work and that Ext.P13(g) is the copy of the report submitted by him wherein the quantity variation is specifically mentioned. Responding to Ext.P13(g), the Superintending Engineer on 4.9.1989 sent Ext.P13(i) letter asking PW5 to report the actual quantity of the work executed by the Contractor and that Ext.P13(g) is the reply narrating the details of the work executed by the Contractor. PW5 would further depose that 3rd part bill was prepared by him. Ext.P17 is the 3rd part bill and that in pursuance to Ext.P17, a sum of Rs.1,37,510/- was paid through cheque and that Ext.P19(a) is the counterfoil of the cheque. 13. PW5 would further depose that 3rd part bill was prepared by him. Ext.P17 is the 3rd part bill and that in pursuance to Ext.P17, a sum of Rs.1,37,510/- was paid through cheque and that Ext.P19(a) is the counterfoil of the cheque. 13. PW6 would depose that he was the Superintending Engineer, KIP, RB Circle from 20.3.1989 to 26.4.1990 and that he succeeded the first accused and that during his tenure supplemental agreement Nos.2 and 3 were executed between the 1st accused and PW6; and that Exts.P20 and 21 are the supplemental agreement Nos.2 and 3, whereby the term for completion of the work was extended till 31.3.1991. He would further prove that Ext.P22 is Volume No.7 file maintained in the office and that Ext.P22 (a) is the original of Ext.P13(h) report and that in pursuance to the demand made by the Contractor a negotiation was conducted and that on 22.2.1990, Ext.P23 supplemental agreement No.4 was executed. 14. PW7 would depose that from 1.11.1990 to 2.9.1991 he was working as Executive Engineer. He took charge from the 2nd accused. He would further depose that Ext.P24 is the Vol.No.8 file maintained in the office regarding the execution of the work and that Ext.P24(a) is the letter given by the Contractor on 10.10.1990. In Ext.P24(a) the Contractor had demanded revised rate for certain items of work. Ext.P24(a) was forwarded to the Executive Engineer for his report. Ext.P24(b) is the report submitted by the 2nd accused on 30.10.1990. In Ext.P24(b), the 2nd accused had stated that the claim made by the Contractor in respect of para 1 and 2 in Ext.P24 and 24(a) is not sustainable. But he had recommended to consider the claim in 3rd para for the reason that there required a lead of 200ms by headload. Thereafter, on 12.11.1990, the 1st accused again sought for a report and that Ext.P24(c) is the copy of the letter and that Ext.P24(d) is the reply given by PW7 to the Superintending Engineer. In Ext.P24(d), PW7 had recommended payment at the rate of Rs.27.4/m3 for embankment forming. Rs.5.41/m3 was recommended for rehandling charges for refilling the cut and cover. Thereafter, the 1st accused again asked a report by Ext.P24(e) letter dated 30.1.1991. In Ext.P24(d), PW7 had recommended payment at the rate of Rs.27.4/m3 for embankment forming. Rs.5.41/m3 was recommended for rehandling charges for refilling the cut and cover. Thereafter, the 1st accused again asked a report by Ext.P24(e) letter dated 30.1.1991. In that letter it was enquired as to whether the Contractor could be given extra rate for cut and cover in addition to what was agreed in the supplemental agreement No.4 and whether the Contractor was eligible for negotiation. PW7 was also asked to report whether the Contractor was entitled to extra claim towards the charges for refilling the cut and cover area and whether the Contractor was entitled to extra claim for filling earth in chain-age 6600m to 6850m. Ext.P24(f) is the reply given by PW7 on 6.2.1991. In Ext.P24(f), PW7 had reported that there is change in the chain age regarding cut and cover and there is difference in the thickness of barrel and therefore it was for the Superintending Engineer to decide whether there was design change. As against the claim No.2, it was reported that the said claim is admissible. Regarding Claim No.3, it was mentioned that there was an earlier letter from the office. In pursuance to that, on 19.2.1991, the 1st accused arranged a negotiation between the Contractor and thereafter, Ext.P25 supplemental agreement No.7 was executed. In Ext.P25, forming of embankment was considered as an extra item for which Rs.98/m3 was allowed as against his recommendation at the rate of Rs.18.75/m3. The original agreement for cut and cover earthwork excavation was R.15/m3. Instead of that, Rs.45/m3 was agreed. For item No.2 cement concrete 1:4:8, as against agreed rate of Rs.300/m3, Rs.815/m3 was agreed. For item No.3, RCC 1:2:4, as against the original agreed rate of Rs.70/m3, Rs.1950/- m3 was agreed. For item No.4, reinforced cement, as against original agreed rate of Rs.7,000 per Ton Rs.12,600/ Ton was agreed. For reinforced cement 1:1, as against agreed rate of Rs.200/m3, Rs.650/m3 was agreed. For Item No.6 cement plastering (Cement mortar) 1:3 in 15mm thickness, as against the original agreed rate of Rs.10/m2, Rs.35/m2 was agreed in Ext.P25. 15. For item No.4, reinforced cement, as against original agreed rate of Rs.7,000 per Ton Rs.12,600/ Ton was agreed. For reinforced cement 1:1, as against agreed rate of Rs.200/m3, Rs.650/m3 was agreed. For Item No.6 cement plastering (Cement mortar) 1:3 in 15mm thickness, as against the original agreed rate of Rs.10/m2, Rs.35/m2 was agreed in Ext.P25. 15. PW7 would further depose that cement and steel were supplied from the department for the casual work and that during his tenure 6th part bill was prepared including certain items in Ext.P25 and that against the withholding of another bill of the Contractor, the Contractor filed an original petition before this Court and obtained an order for making payment. He would further depose that the rate agreed in Ex.P25 was exorbitant and thereby the State had suffered huge pecuniary loss and that in pursuance to the order of this Court, Ext.P26 bill was passed and payment was effected. 16. PW8 would depose that he was working as Draftsman in KIP RB Circle from 1983 to 1991 and that Ext.P32 is the Note file Vol.No.1 relating to the work and that Ext.P32(a) is the note prepared by him in pursuance to the letter dated 21.7.1989 submitted by the Contractor and the letters of the Executive Engineer dated 26.10.1989 and 8.11.1989, 13.8.1990 and 27.12.1989 and that Ext.P14(h) is another letter dated 21.7.1989 submitted by the Contractor. In Ext.P14(h) the Contractor had requested to treat the construction of the culvert as an extra item alleging change in design. In pursuance to the note prepared by PW8, the Superintending Engineer (1st accused) asked to put up the file for inspection. Thereafter, the 1st accused had put a note that he had inspected the site and asked the Executive Engineer to inspect the work and to submit a report. The 2nd accused (Executive Engineer) was asked to insist the points offered by the by the Executive Engineer – Quality Controller. In pursuance to that note, a letter was communicated to the 2nd accused and that Ext.P22(f) is the copy of the letter and that Ext.P22(g) is the reply dated 3.10.1990 sent by the 2nd accused. In Ext.P22(g), it was mentioned that since there is change in design of the culverts, all the culverts might be treated as extra item. The 2nd accused had also mentioned about the anticipated quantity of every item of work. In Ext.P22(g), it was mentioned that since there is change in design of the culverts, all the culverts might be treated as extra item. The 2nd accused had also mentioned about the anticipated quantity of every item of work. That report was approved by the 1st accused and the Contractor was asked to quote the minimum rate. Accordingly, the Contractor was given notice and thereafter, on 12.10.1990, there was negotiation in between the Contractor and the 1st accused and that Ext.P24(g) is the negotiation statement put up by PW8. Thereafter, supplemental agreement No.(6), which was marked as Ext.P33 was executed between the 1st accused and the Contractor. PW8 would further depose that the rate mentioned in Ext.P33 was exorbitant. Agreeing the rate the Contractor had given a letter, which is marked as Ext.P24(i). On the same day, another letter, Ext.P24 (a), was given by the Contractor requesting for extra claim in respect of the refilling of the cut and cover area in the canal reach between 6600m and 6850m and he had demanded headload lead as extra claim. In pursuance to that, PW8 put a note. On the basis of that note, the 1st accused ordered inspection and the Executive Engineer was asked to furnish a report. Ext.P24(b) is the report submitted by the Executive Engineer. It was submitted to the 1st accused by PW8 along with his note. The 1st accused ordered to get a detailed report from the Executive Engineer. PW8 put a note that since the Contractor had executed supplemental agreement No.4 regarding the quantity variation in the cut and cover area the Executive Engineer had not recommended for another supplemental agreement. In pursuance to that note put up by PW8, the 1st accused put a note to submit detailed proposal and to get orders from the Chief Engineer. But when the draft letter was sent for approval, the 1st accused didn't approve the same and put a note which reads: "Wait, Ask EE to show me the site and explain the position in detail". By Ext.P24(k) note, the Financial Assistant requested the 1st accused to refer the matter to the Chief Engineer. As against that, the 1st accused put a note on 24.1.1991, "need not send this letter to CE. By Ext.P24(k) note, the Financial Assistant requested the 1st accused to refer the matter to the Chief Engineer. As against that, the 1st accused put a note on 24.1.1991, "need not send this letter to CE. Get a detailed report from the EE clarifying all the points and claims raised by the Contractor - put up a draft letter to the Executive Engineer". In pursuance to that, a letter was sent to the Executive Engineer calling upon the Executive Engineer to give a report and that Ext.P24(f) is the report submitted by the Executive Engineer. To Ext.P24 (f) report, PW8 put a note to take a decision as to whether the claim under the said item can be admitted. Following that, on 15.2.1991, the 1st accused put a note to treat the same as extra item. Following that, PW8 sent a letter to the Contractor to quote the rate and that Ext.P24(m) is the letter submitted by the Contractor quoting the rate. In pursuance to that, Ext.P24(m) negotiation statement was prepared by PW8. Following that, a negotiation was conducted and on 20.2.1991, Ext.P25 supplemental agreement No.7 was executed. PW8 would further depose that the rates agreed in Exts.P33 and P25 are exorbitant. PW8 would further depose that he had prepared separate statements regarding the pecuniary liability in pursuance to Exts.P33 and P25 and Exts.P34 and P35 are tabulation statements and as per his calculation the excess amount paid to the Contractor in pursuance to Ext.P33 and P25 are Rs. 9,52,238.61/- and Rs.14,69,102.01/- respectively. 17. PW9 would depose that from 1990 to 1992 he was working as Financial Assistant in KIP RB division and that during his tenure, the 1st accused was working as Superintending Engineer. According to PW9, all files wherein there is financial involvement should be forwarded to him by the Draftsman after routing through the Head Draftsman and that he had handled Ext.P32 file, wherein he had put a note: "since there is a change of design it has to be looked into whether change in design has made the whole item as extra item. Recommendation of EE may be called for." On that note the 1st accused, on 5.12.1990, put an order to submit a detailed proposal to the Chief Engineer and get orders. But when the draft letter to the Chief Engineer was submitted by the 1st accused it was not approved. Recommendation of EE may be called for." On that note the 1st accused, on 5.12.1990, put an order to submit a detailed proposal to the Chief Engineer and get orders. But when the draft letter to the Chief Engineer was submitted by the 1st accused it was not approved. On the same time, he put an order to wait and asked the Executive Engineer to show him the site and explain the position in detail. Following that, the Draftsman prepared a detailed note stating that: "regarding the cut and cover at chainage 7524m and 7650m and at 7828m and 8133m, the matter has to be referred to the Chief Engineer (as already ordered in page 175). Since the necessity of a further negotiation will be against the conditions of the Contract. It may be noted that the Contractor has already negotiated the rates for this item and executed a supplemental agreement. Hence, orders of CE may be obtained in this matter". Along with that note, a draft letter to CE was put up. Thereupon, the 1st accused put a note: "need not serve this letter to the CE" and asked to get a detailed report from the Executive Engineer clarifying all the points raised by the Contractor. PW9 was asked to put up a draft letter to the Executive Engineer. Overruling the note of the draftsman, the 1st accused put an order to arrange negotiation. Thereafter, a tabulation statement was prepared and negotiation was conducted on 19.2.1991 and in pursuance to that negotiation Ext.P25 supplemental agreement was executed. PW9 would further depose that even if there is design change, the Contractor was not entitled to treat the same work as an extra item as per the canal specification and LCB conditions. 18. PW10 was the Assistant Engineer, KIP, RB Section from 1988 to 1992. He would depose that after the execution of Ext.P3(a) agreement it was noticed that there was difference in the initial levels taken for preparation of the estimate and that a revised estimate was necessitated and that in pursuance to that, Ext.P15 supplemental agreement No.1 was executed between the Contractor and the Superintending Engineer after a negotiation. He would depose that after the execution of Ext.P3(a) agreement it was noticed that there was difference in the initial levels taken for preparation of the estimate and that a revised estimate was necessitated and that in pursuance to that, Ext.P15 supplemental agreement No.1 was executed between the Contractor and the Superintending Engineer after a negotiation. It was further deposed that since it was brought to the notice that there was variation in the actual quantity, after a further negotiation, Ext.P23 supplemental agreement No. 4 was executed and in pursuance to that he had prepared six bills and payment was effected. It was further deposed that Ext.P39 supplemental agreement No.5 was executed for extending the period of execution of work to 31.3.1991. PW10 would further depose that supplemental agreement Nos. 6 and 7 were executed during his tenure and that Ext.P40 is a comparative statement prepared by him with reference to supplemental agreement No.1, 4, 6 and 7 and that Exts.P41 and P42 are the comparative statements showing excess financial involvement following the execution of supplemental agreement Nos. 6 and 7 and that the financial liability as per supplemental agreement No. 6 was Rs.12,83,057.18/- as against Rs.4,43,046.57/- and that the excess benefit that the Contractor had obtained as per Ext.P33 is Rs.8,40,010.61/-. The excess payment to which the Contractor was entitled as per Ext.P25 was Rs. 12,81,031.68/- i.e., Rs.23,72,364.73/- as against Rs.10,91.333.50. 19. PW11 would depose that he was Superintending Engineer (Technical) in the office of the Chief Engineer, KIP from July 1985 to July 1988 and that in pursuance to the proposal submitted from the office of the Superintending Engineer regarding the work in dispute, the file was put up to the Chief Engineer, who issued Ext.P44 technical sanction for Rs.46,25,000/- and that there was revised proposal and that Ext.P5(a) is the revised technical sanction and that the revised technical sanction was for Rs.38,75,000/-. PW11 would further depose that the work was expected to be done as per LCB conditions and Canal Specifications (CS) and that even if there is revised plan and design the Contractor was not entitled to get any additional allowance because of clause 34 of the Canal Specification. So also, if the quantity variation is not exceeding 30%, the Contractor is not entitled to get any extra rate. So also, if the quantity variation is not exceeding 30%, the Contractor is not entitled to get any extra rate. He would further depose that if there is any change of item, that has to be got approved by the authority, who issued the technical sanction and that the rate for the work cannot be varied without the knowledge of the authority granting technical sanction. 20. The evidence of PW12, the Draftsman is relating to the execution of the supplemental agreements. PW13 and 15, two Superintending Engineers, were examined to prove the factum of handing over the documents. PW14 and 16 are the sub Treasury Officer, Punalur and the Manager, Catholic Syrian Bank respectively. They were examined regarding the encashment of the amount paid to the Contractor in pursuance to the supplemental agreements in dispute. PW17 and 18 are the investigating officers. 21. I had earlier mentioned that the work in dispute was awarded in favour of late Abraham for which Ext.P3(a) original agreement dated 24.8.1987 was executed. But before the starting of the work it was brought to the notice that certain modifications were required. Accordingly, Ext.P15 supplemental agreement No.1 dated 13.9.1988 was executed. Exts.P20 and 21 supplemental agreement Nos.2 and 3 dated 22.2.1990 are relating to the extension of the period for completion of the work upto 31.12.1989. Thereafter, during the course of execution of the work, in pursuance to the representation made by the Contractor with certain additional modifications Ext.P23 supplemental agreement No.4 dated 22.2.1990 was executed. Thereafter, Ext.P39 supplemental agreement No.5 dated 19.10.1990 was executed for extension of time till 31.3.1991 for completion of the work. Ext.P33 supplemental agreement No.6 was executed on the same day. The evidence on record which I mentioned earlier would show that it was in pursuance to Ext.P24(a) letter dated 10.10.1990 given by the Contractor, Ext.P33 was executed. Along with Ext.P24(a) letter, the Contractor had submitted Ext.P24(h) on the same day claiming revised rates in respect of certain other items of work. It is in pursuance of that Ext.P25 dated 22.9.1990 supplemental agreement No.7 was executed. The abuse of the office alleged against the 1st accused is in respect of Exts.P33 and P25. According to the prosecution, Ext.P33 was executed in pursuance to a criminal conspiracy in between the 1st and 2nd accused and the Contractor. The 2nd accused left the office on 1.11.1990. The abuse of the office alleged against the 1st accused is in respect of Exts.P33 and P25. According to the prosecution, Ext.P33 was executed in pursuance to a criminal conspiracy in between the 1st and 2nd accused and the Contractor. The 2nd accused left the office on 1.11.1990. PW7 assumed charge in succession to the 2nd accused. Ext.P25 was executed when PW7 was the Executive Engineer. Regarding Ext.P25, conspiracy is alleged against the Contractor and 1st accused. As per Exts.P41 and P42 comparative statements prepared by PW10, by Exts.P33 and P25, in respect of items of work covered therein, the amount payable to the Contractor was raised to Rs.12,83,057.18/- and 23,72,364.73/- respectively as against Rs.4,43,046.18/- and Rs.10,91,333.5/- respectively. Therefore, according to the prosecution, the undue pecuniary advantage obtained to the Contractor as per Ext.P33 and P25 is Rs.8,40,010.16/- and Rs.12,81,031.68/- respectively. The fact that the Contractor had such additional pecuniary advantage is not assailed by the appellants. The receipt of the amount in pursuance to the bills on completion of the work was also not disputed. Referring to the evidence on record, the learned Special Judge in paragraph Nos. 130 to 149 arrived at the following finding: "130. Item No.1 of Ext.P33 (S.A.No.6) relates to Appendix-G - Constructing Road culverts, 5 numbers. It was in lieu of Appendix-G of Ext.P3(a). Item No.1 of Appendix-G shown in Ext.P3(a) is exactly the same, shown as item No.1 of Appendix-G in Ext.P33. The rate fixed as per Ext.P3(a) was Rs.15/M3. The quantity shown therein was 295 M3. In Ext.P33 the rate fixed by A1 was Rs.60/M3. The quantity was shown as 370 M3. The excess increase in quantity was below 30%. Therefore, it was not an item that can be treated as extra as per clause 31 of LCB. In Ext.P24(g) the officer who prepared the tabulation statement had shown that the estimate rate was Rs.13.90/M3 and that the rate fixed earlier was Rs.15/M3. But inspite of that A1 fixed the rate at Rs.60/M3. That is exactly 4 times of the rate originally fixed. Thus the excess payment ordered to be effected as per this item comes to Rs.16,650/-. But as per CC.VII and part bill the payment was affected only for Rs.316.71 M3. Thus excess payment effected on this count comes to only Rs.14,251.95. Hence this payment is illegal. 131. That is exactly 4 times of the rate originally fixed. Thus the excess payment ordered to be effected as per this item comes to Rs.16,650/-. But as per CC.VII and part bill the payment was affected only for Rs.316.71 M3. Thus excess payment effected on this count comes to only Rs.14,251.95. Hence this payment is illegal. 131. The next item was relating to cement concrete - M.75 (1:4:8) of a quantity of 125 M3. It was shown as item No.2 of Appendix-G of Ext.P3(a). In Ext.P3(a) the quantity of that item was shown as 75 M3 and the rate was fixed at Rs.300/M3. In Ext.P33 for this item the rate fixed by A1 was Rs.780/M3. It is more than 250% of the rate originally fixed. Of course, there was increase in the quantity by more than 30%. But the extra or increased rate was allowable only for the quantity exceeding 30% of the quantity fixed as per the original agreement. That means the enhanced rate was allowable only for 27.5 M3. As stated by PW4, PW6 etc. the reasonable enhancement can be only up to 50% of the rate originally fixed. There was no special reason for granting more than that rate. Therefore, even for 27.50 M3 the enhanced rate allowable if at all, was a maximum of Rs.450/M3. Therefore, it can be found without any iota of doubt that the payment ordered for the entire quantity of 125 M3 at the rate of Rs.780/- was clearly illegal and was a clear abuse of the power conferred on A1. The excess payment ordered to be effected on this item comes to Rs.55,875/-. But it may be noted that the quantity actually gone, relating to this item was only 96.47 M3. If so the variation was within 30%. Hence the excess payment effected as per CC.VII and part bill was worked out to Rs.46,305.60. (See Ext.P41). 132. The 3rd item coming under Appendix-G was cement concrete-M.100 (1:3:6). This was shown as item No.3 of Appendix-G of Ext.P3 (a). The similar item was shown as item No.3 of Appendix-G of Ext.P33. The rate shown as per Ext.P3(a) was only Rs.450/M3. The quantity shown in Ext.P3(a) was 243 M3. There was a slight deduction in the quantity. In Ext.P33 the quantity was shown as 225 M3. This was shown as item No.3 of Appendix-G of Ext.P3 (a). The similar item was shown as item No.3 of Appendix-G of Ext.P33. The rate shown as per Ext.P3(a) was only Rs.450/M3. The quantity shown in Ext.P3(a) was 243 M3. There was a slight deduction in the quantity. In Ext.P33 the quantity was shown as 225 M3. The reduction was far below 30% and hence it could not be treated as extra item in view of clause 31 of the LCB. As against the rate of Rs.450/- shown in Ext.P3(a), the rate fixed and allowed by A1 was Rs.1,850/M3. It is more than 4 times of the rate fixed earlier. At the rate of Rs.450/M3; the amount allowable and payable to the contractor was only Rs.225 x 450 = Rs.1,01,250/-. Whereas the amount shown as total as per Ext.P33 was Rs.4,16,250/-. Thus the excess payment ordered to be effected by A1 as per Ext.P33 comes to Rs.3,15,000/-. But as per CC VII and part bill the total quantity done was shown as 199.09 M3 and it was for that, the payment was effected. The amount paid in excess was worked out to Rs.2,78,726. (See Ext.P41). Hence this payment was clearly illegal. 133. Item No.4 of Appendix-G of Ext.P33 is Reinforced cement concrete - M.150 (1:2:4) etc. This is exactly the same item shown as item No.4 of Appendix-G of Ext.P3(a). The rate allowed as per Ext.P3(a) was only Rs.0.80/dm3. (Equivalent to Rs.800/M3). The quantity shown in Ext.P3(a) was 1,51,500 dm3. There was reduction in the quantity by more than 30%. The quantity shown in Ext.P33 was 78,000 dm3. In view of clause 31 of the LCB even if it is treated as extra because there was reduction in quantity by more than 30%, the total cost after giving enhancement of the rate can only be up to 70% of the total cost of that particular item. If so the total cost of that item would be 1,51,500 x 0.80 x 70 /100. It would come to Rs.84,840/-. But the rate fixed as per Ext.P33 was Rs.2.70/dm3; equivalent to Rs.2,700/m3. The total amount payable for this item as per Ext.P33 was shown as Rs.2,10,600/-. Hence the excess payment ordered to be effected come to Rs.1,25,760/-. But in Ext.P41 it was noted that the actual quantity done was Rs.77,786 dm3 and payment was effected for that item at the rate of Rs.2.70/dm3. The total amount payable for this item as per Ext.P33 was shown as Rs.2,10,600/-. Hence the excess payment ordered to be effected come to Rs.1,25,760/-. But in Ext.P41 it was noted that the actual quantity done was Rs.77,786 dm3 and payment was effected for that item at the rate of Rs.2.70/dm3. Noting therein the eligible amount at the rate of 0.80/dm3 the excess payment already effected was shown as Rs.1,47,793.40. This payment was also clearly illegal. 134. The 5th item of Ext.P33 is reinforcement for RCC works, bent, tied and placed in position etc. which is exactly the same, shown as item No.5 of Ext.P3(a). As per Ext.P3 (a) the rate fixed was Rs.6,900/tonne. The quantity shown in Ext.P3(a) was 15.2 tonnes. In Ext.P33 the rate allowed was Rs.10,000/tonne. True that there was reduction in quantity. The quantity shown therein was 7.05 tonne. Hence the variation due to reduction was more than 30%. It is contended by the prosecution that the fact that in clause 31 it was stated that the enhancement can be up to 70% of the total cost does not mean that the rate should be enhanced in such a way as to make it 70% of the total cost of that particular item. In this connection, it is further pointed out by the prosecution that the main ground urged by A1 for justifying the rate fixed by him was the so called escalation in price of materials and labour charges, but A1 seems to be obviously oblivious of the fact that he had not collected any data relating to the same. More over, it is the admitted case that materials like cement, MS rods etc. were supplied by the Department itself. Since the materials were supplied by the Department, the question of escalation in price of material affecting the rate of the particular item of work does not arise at all. The only other fact that can be taken note of, is the increase in the labour charges. But in this connection, the earlier supplemental agreements executed between A1 and the then S.E. Referred to earlier also cannot be lost sight of. As per those agreements it was stipulated that due to the extension of time for completion of the work, the contractor shall not claim any extra rate due to escalation in price of material or increase in the labour charges etc. As per those agreements it was stipulated that due to the extension of time for completion of the work, the contractor shall not claim any extra rate due to escalation in price of material or increase in the labour charges etc. Those supplement agreements were accepted and agreed to by the Contractor. 135. One more aspect assumes importance here. It was stated by PW7, the Executive Engineer, that in the supplemental agreements, the recovery value of the materials like cement, steel rods etc. supplied by the Department were not mentioned at all. Regarding certain other item, the recovery value was shown as mentioned in the original agreement. In other words, the contractor who wants to claim extra rate because of the so- called escalation in price of materials was getting deduction of the materials supplied to him by the Department only at the rate originally fixed. Since the materials were supplied by the Department and the recovery value of those items were deducted from the concerned bills of the contractor, the increase in price of materials was not a cause or criterion for increase of the rate for execution of a particular item. As said earlier, there was no justification for increasing the rate of RCC work shown as item No.5 up to Rs.10,000/tonne, the rate originally fixed was only Rs.6,900/tonne. No data was obtained or furnished by A1 to show what was the increase in the labour charges so as to enhance the rate from Rs.6,900/- to Rs.10,000/tonne. Even if a reasonable increase was given still the rate cannot be beyond Rs.8,000/tonne. Calculating at that rate the total excess payment under this item would come to Rs. 14,000/-. But in Ext.P41 it is seen mentioned that the actual quantity done in this item was only 7.029888 tonne and showing the rate as Rs.6900/- per tonne the excess payment already effected was shown as Rs.21786.00/-. 136. Item No.6 of Ext.P33 is RR on cement mortar 1:6 etc. This is exactly the same, shown as item No.6 of Appendix-G of Ext.P3 (a). The quantity shown therein was 230 M3 whereas in Ext.P33 the quantity shown is 407.5 m3. The rate fixed as per Ext.P3(a) was only Rs.170/M3, but as per Ext.P33, A1 enhanced the rate to Rs.445/M3 . Since there was increase in quantity by more than 30%, it can be treated as extra item coming under clause 31. The quantity shown therein was 230 M3 whereas in Ext.P33 the quantity shown is 407.5 m3. The rate fixed as per Ext.P3(a) was only Rs.170/M3, but as per Ext.P33, A1 enhanced the rate to Rs.445/M3 . Since there was increase in quantity by more than 30%, it can be treated as extra item coming under clause 31. But that enhancement can be only in respect of the quantity which was in excess of 130% of the original quantity fixed as per the contract. In other words, for the quantity of 299 m3, the rate allowable and payable to the contractor was only Rs.170/M3. Therefore, the increased rate was allowable only for a quantity 108.50M3 Since no exceptional reasons was shown the maximum enhancement could have been only up to 50% of the rate originally fixed. Therefore, the rate that could be allowed for 108.50 M3 if at all was only 255/M3. Thus the total cost of that item could be 299 x 170 x 108.50 x 255. The total would be Rs.78498/-. Whereas by allowing Rs.445/M3 for the entire quantity of 407.53 M3 the total amount allowed to be paid to the contractor was Rs.1,81,338/-. Thus the excess payment intended to be effected would come to Rs.102840/-. But in Ext.P41 it is noted that the actual quantity done in this item was only 290.78 M3 and for that quantity payment was effected. Adopting the payable rate at Rs.170/M3 the excess payment affected as per CC VII and part bill was found out to be Rs.79,964.50. For the reasons mentioned above, this payment also is clearly illegal. 137. Item No.7 of Ext.P33 is - "plastering with cement mortar 1:4, 15 mm thick etc." This is exactly the same as shown in Ext.P3(a) (item No.7 of Appendix -G). The rate fixed as per Ext.P3(a) was Rs.10/M2, whereas the rate fixed as per Ext.P33 was Rs.28/M2. It was 280% of the rate originally fixed. The quantity shown in Ext.P3(a) was 190/M2. In Ext.P33 the quantity was shown as 370 M2. Therefore, it can be found that the increase in quantity was more than 30%. But in view of clause 31, the contractor was entitled to get the same rate of Rs.10/M2 upto 130%. Even if the increase was allowed upto 50% even then the rate would be only Rs.15/M2. That was allowable only for the quantity of 123 M2. Therefore, it can be found that the increase in quantity was more than 30%. But in view of clause 31, the contractor was entitled to get the same rate of Rs.10/M2 upto 130%. Even if the increase was allowed upto 50% even then the rate would be only Rs.15/M2. That was allowable only for the quantity of 123 M2. If so the total cost could have been only Rs.4315/-. But, A1 allowed enhancement for the entire quantity at Rs/28 M2 and allowed Rs.10360/. So Rs.6045/- was ordered to be paid in excess as per this item alone. Hence the order relating to this payment also is illegal. But Ext.P41 would show that the actual quantity done in this item was only 121.53 M2. Hence showing the rate at Rs.10/M2, the excess paid as per CC VII and part bill was found to be Rs.2,187.54. 138. Item No.8 of Ext.P33 relates to providing wearing coat with C.C. 1:2:4. This is exactly the item shown as item No.8 of Appendix-G of Ext.P3(a). As per Ext.P3(a) the rate allowed was Rs.0.80/dm3. But as against 80 paise mentioned above the rate allowed by A1 as per Ext.P33 was Rs.1.55/dm3. There was increase in that quantity by more than 30%. But in view of clause 31 of LCB for a quantity upto 9750 dm3, the contractor was entitled to get the rate only at 80 paise/dm3. Even if 50% increase was allowed for the remaining quantity that increase can be given only for a quantity of 1430 dm3. Applying the same principle the enhanced rate if at all for that much extent of work could be only Rs.1.20/M3. But A1 allowed the enhanced rate at Rs.1.55/dm3 for the entire quantity of 11180 dm3 which was per se illegal. Thus the total cost allowable for that item was only Rs.9,516/-, but as per Ext.P33, the amount ordered to be paid to the Contractor was shown as Rs.17,329/-. Thus the excess payment ordered to be effected was Rs.7,813/-. Hence this order of A1 was also illegal. But Ext.P41 would show that under this item the quantity actually carried out was only 11165 dm3. Adopting the rate, 0.80/dm3, the excess amount paid as per CC VII and part bill was calculated at Rs.8,373.75. 139. Item No.9 of Ext.P33 relates to Dry Rubble mansonry as per specification etc. That is exactly the same shown as item No.9 of Ext.P3(a). Adopting the rate, 0.80/dm3, the excess amount paid as per CC VII and part bill was calculated at Rs.8,373.75. 139. Item No.9 of Ext.P33 relates to Dry Rubble mansonry as per specification etc. That is exactly the same shown as item No.9 of Ext.P3(a). The rate allowed as per Ext.P3 (a) was only Rs.30/M3. The quantity shown therein was 58 M3. The quantity shown as per Ext.P33 is 56 M3. Therefore, it was not a case where there was variation (reduction) in quantity by more than 30%. Thus for 56 M3, at the rate of Rs.30/M3 the amount payable was only Rs.1,680/-. But the rate allowed by A1 was Rs.195/M3 as against Rs.30/- shown in Ext.P3(a). That means it was 6= times of the rate originally fixed. There was absolutely no reason for that much enhancement. Thus the excess payment intended to be effected as per this item was Rs.9,240/-. But Ext.P41 would show that no payment was effected, on this count as per CC VII and part bill. 140. In Ext.P33 under Appendix G, the 10th item was shown as forming approaches of culverts at Ch.6796 M to 7990 M with suitable materials available from canal excavation to lines and levels including spreading in layers of 15cm compacting with any approved equipment asper specification and drawing and as directed by the Engineer-in-charge. The rate allowed by A1 was Rs.65/M3. The quantity was shown as 1720 M3. Thus the total cost of work of that time was shown as Rs.1,11,800/-. It was shown in Ext.P24(g) that the estimate rate of this item of work was Rs.23.33/M3. It was so shown in Ext.P41 also. It was shown in Ext.P41 that the quantity actually done in this item was 1,061.95 M3. The excess payment effected for this item was calculated at Rs.44,251.45. 141. Appendix-G shown in Ext.P33 relates to constructing cut and cover - three numbers. Item No.1 therein is Random Rubble in cement mortar 1:6 for protective works. The quantity shown therein is 434 M3. In Ext.P24(g), it was noted that the rate for this item was fixed as per the original estimate at Rs.220.64/M3. But as against this, the rate was fixed by A1 at Rs.445/M3. The total amount payable for the item was calculated at Rs.1,93,130/-. As per Ext.P41, the actual quantity executed was shown as 290.78 M3. The excess payment effected was shown as Rs.79964.50/-. 142. But as against this, the rate was fixed by A1 at Rs.445/M3. The total amount payable for the item was calculated at Rs.1,93,130/-. As per Ext.P41, the actual quantity executed was shown as 290.78 M3. The excess payment effected was shown as Rs.79964.50/-. 142. The next item in that Appendix, in Ext.P33, was cement concrete - M.150 (1:2:4) using 20 mm broken stone etc. In Ext.P24(g) the negotiation statement prepared by the Executive Engineer and seen by other officers would show that the estimate rate for this item was 0.656/dm3. In Ext.P41, the eligible rate for this item was shown as 0.80/dm3. But as against this the rate fixed by A1 as per Ext.P33 was Rs.1.55/dm3. It would be equivalent to Rs.1550/M3. The quantity of the work was shown as 3000/dm3, equivalent to 3 M3. The cost of that work was shown as Rs.4650/-. For that work the cement was supplied by the department itself. The actual quantity done in this item was shown in Ext.P41 as 3100 dm3. The excess payment effected as per CC 7 and part bill was calculated at Rs.2325/-. 143. The 3rd item in Appendix-C of Ext.P33 is 'plastering with cement mortar 1:4 (15 mm thick) one coat etc. This is exactly the 6th item of Appendix-C of Ext.P3(a). There the rate fixed was Rs.10/M2. The quantity shown in the schedule to Ext.P3(a) was Rs.198/M2. In Ext.P33 the quantity was 200 M2. There was only very slight difference in the quantity. As such for the entire quantity of 200 M2, the contractor was entitled to get only the rate originally fixed; namely, Rs.10/M2. But A1 fixed the rate for the entire 200 M2 at Rs.28/M2. In Ext.P41 the actual quantity done was noted as 213.72 M2. The excess payment effected for this item as per CC 7 and part bill was calculated at Rs.3847. It was an unreasonable and illegal payment. 144. The 4th item of Appendix-C of Ext.P33 was relating to supplying and fixing in position to lines and levels the precasted RCC guard stones of size 80 cm x 20 cm x 20 cm made of RCC 1:2:4 using 20mm hard broken stone. The total number of such guard stones was shown as 90. Ext.P24(g) shows that the estimate rate was 98.69 per one such guard stone, but A1 fixed the rate as per Ext.P24(g) at Rs.160 per one stone. The total number of such guard stones was shown as 90. Ext.P24(g) shows that the estimate rate was 98.69 per one such guard stone, but A1 fixed the rate as per Ext.P24(g) at Rs.160 per one stone. Ext.P33 shows that for 90 such stones at the rate of Rs.160/- the total amount payable was quantified at Rs.14,400/-. It was also against the estimate rate. There was no basis for making this unreasonable enhancement. Hence that also must be termed as illegal. Ext.P41 shows that the excess payment effected for this item, as per CC VII and part bill was Rs.5518/-. 145. The last item of Appendix-C in Ext.P33 relates to forming approaches of cut and cover with suitable materials available form canal excavation to lines and levels including spreading in layers of 15 cm compacting with any approved equipment as per specification and drawing and as directed by the Engineer-in-charge. The work was quantified at 1243 M3 and its rate was fixed by A1 at Rs.65/M3. In Ext.P24(g)- negotiation statement, it was noted that the estimate rate fixed for this item was Rs.23.33/M3. But as against this the rate allowed by A1 was Rs.65/M3; nearly three times of the estimate rate. The amount payable for this item was calculated at Rs.80,795/-. The actual quantity done in this item was shown in Ext.P41 as 1225.35 M3. Payment was effected for this item at the rate of Rs.65/M3. Hence the total excess payment effected in this item was worked out to be Rs.51,060/-. This payment is also an illegal one. 146. It was testified by PW7 that for the work of reinforcement only steel rods and cement are required and both those items were supplied by the Department. It was also sworn by him that as per the original agreement rate for reinforcement was Rs.7,000/- tonne. As per that agreement, the price of steel rods for that work was shown as Rs.6500/- tonne and that was to be deducted as recovery value. The unit rate was fixed based on that price. It is not disputed that even though the materials were supplied by the Department at the time of the work shown in Ext.P25 as well, the recovery value was shown at Rs.6,500/- tonne only. Therefore, it is crystal clear that the escalation in price of materials did not affect the work so as to justify enhancement of rate. It is not disputed that even though the materials were supplied by the Department at the time of the work shown in Ext.P25 as well, the recovery value was shown at Rs.6,500/- tonne only. Therefore, it is crystal clear that the escalation in price of materials did not affect the work so as to justify enhancement of rate. At the risk of repetition, it may be noted here that the Contractor had agreed as per all supplemental agreements that he will not claim extra rate on the ground of escalation in price of materials or increase in labour charges. If at all what was allowable was only regarding increase in the labour charges. 147. As per Ext.P25, (the S.A.No.7 dated 20.2.1991) the enhanced rates were given for 8 items of work. Out of this, the first item is relating to Canal Formation and Lining which was of Appendix-L. The quantity shown is 6400 M3. This item of work was - "Forming compacted embankment with department earth cut and cover with all leads and lifts etc." The rate allowed was Rs.98/M3. That is the work shown as item No.6 of Appendix-L shown in Ext.P3(a). In order to make this item as a new or pure extra item something more was added in the description of this work shown in Ext.P25. But, for the purpose of categorising it as a different item than as show in item No.6 of Appendix-L in Ext.P3 (a), no separate data was obtained by A1. It may be noted that Appendix-L of Ext.P3(a) is relating to the canal work from Ch.6486 M to 8735 M. Item No.1 of Ext.P25 is relating to the formation of canal between Ch.6600 M and 6850 M which is within the area mentioned in Appendix-L of Ext.P3(a). Therefore, it cannot be said that this work related to a canal situated somewhere else. So much so the contention that this work was not contemplated earlier is devoid of any merit. The contention raised by the defence is that there was change of site and so the earth had to be conveyed by headload and the distance for headload conveyed was found at 200 metres as reported by the Executive Engineer and so that should be taken note of. The contention raised by the defence is that there was change of site and so the earth had to be conveyed by headload and the distance for headload conveyed was found at 200 metres as reported by the Executive Engineer and so that should be taken note of. The difference between the two items is that; in item No.6 of Ext.P3(a), the compacted embankment was to be formed with 'suitable materials available from canal excavation' whereas in item No.1 of Ext.P25, it was said that the work was to be done "with departmental earth cut and conveyed with all leads and lifts". The rate allowed as per Ext.P3 for the said work was only Rs.1/M3. In this connection Ext.P14(d) also assumes importance. That letter was sent stating that as a result of the reduction in the length of the canal, barrel etc. the item of work became extra warranting fixation of rates for all items under clause 32 of LCB. In that letter the rate claimed by him for earth work was only Rs.55/M3 which according to the prosecution would include the rate for embankment etc. mentioned as item No.1 of Ext.P25. Whatever that be, even if it is assumed that earth had to be conveyed to a further distance of 200 metres by head load still the rate of Rs.98/M3 can at no stretch of imagination be said to be reasonable. Not only that, no basis what so ever was relied on by A1 to fix that rate. As said earlier, no data from the Site Engineer (A.E), having been verified by the Asst. Executive Engineer and checked by the Executive Engineer was relied upon by A1. The total amount calculated for this item at the rate of Rs.98/M3 was Rs.6,27,200/-. 148. Ext.P24(d) is the report submitted by PW7 to A1. It was stated in the last paragraph of Ext.P24(d) that because of the revision of original proposal a quantity of 6400 M3 earth is required for forming the embankment from Ch.6600 M to 6850 M. The data was prepared by him taking 200 metres head lead; consolidation charges, man mazdoor for ploughing the surface and woman mazdoor for collection of root etc. The rate thus arrived at by him was Rs.18.78/M3. The total estimate amount for filling the embankment was calculated at Rs.1,75,360/-. The rate thus arrived at by him was Rs.18.78/M3. The total estimate amount for filling the embankment was calculated at Rs.1,75,360/-. It may be noted that originally the rate arrived at by him was shown as Rs.27.40/M3. It was at that rate the total cost for 6400 M3 was arrived at Rs.1,75,360/-. But it is seen that the rate per M3 was later corrected as Rs.18.78/M3. But as per Ext.P25 the rate was fixed by A1 at Rs.98/M3. It may also be noted that in Ext.P24(n) the relevant column it was mentioned that the estimate rate for this item was only Rs.16.84/M3. Last para of page 174 of Ext.P32 also may be seen where also it was noted that the rate was worked out to Rs.16.84/M3. When that was the estimate rate and when PW7 has furnished the data (even if the subsequent reduction is ignored) it can only be found that the rate allowable was only Rs.27.40/M3. If so by allowing the rate at Rs.98/M3 without any data or basis the excess amount allowed to be paid as per this item alone comes to Rs.4,51,840/-. But since the actual quantity executed in this item was only 3986.918 the excess payment effected as per CC VII and part bill was calculated at Rs.323578/-. 149. The next item seen in Ext.P25, is the earth work excavation in all classes of soil relating to the construction of cut and cover; (three numbers). It is said that it was made in lieu of item No.1 of Appendix-C of cut and cover as per the original agreement (Ext.P3) and as per S.A.No.4 (Ext.P23). The description of this item is exactly the same as shown in item No.1 of Appendix - C of Ext.P3 (a). The quantity of work mentioned in the original agreement (Ext.P3(a)) was 385 M3 and the rate fixed therein and accepted by the Contractor was Rs.15/M3. The quantity shown in Ext.P25 is 164.79 M3 and its rate was shown as Rs.45/M3. That means it is three times, the rate agreed and accepted by the contractor as per Ext.P3(a). Even if it was assumed that there was reduction in the quantity of that particular work and so it should be treated as extra item in view of clause 31 of LCB, whereupon enhancement of rate was permissible, still that could be done only as provided under clause 31. Even if it was assumed that there was reduction in the quantity of that particular work and so it should be treated as extra item in view of clause 31 of LCB, whereupon enhancement of rate was permissible, still that could be done only as provided under clause 31. As per Ext.P3(a), the total cost of that item (if the quantity was 385 M3) would have been, only Rs.5,775/M3. Clause 31 says that if the quantity was reduced by more than 30%, bid unit price of the affected item can be revised in accordance with the procedure indicated under 'extra items'. But, it was made further clear that in such cases, the total cost of such item should not exceed the cost of 70% of the item quoted. If so, even after enhancement the total cost cannot exceed Rs.4,042.50. But as per Ext.P25, the total cost at the rate of Rs.45/M3 comes to Rs.7,416/-. That is clearly in excess of the maximum rate that can be allowed for that item. The excess payment comes to Rs.3,374/-. More over this item was covered by S.A.No.4 (Ext.P23) and since that binding contract showing the rate Rs.21/M3 was there, there was no justification for allowing any rate in excess of Rs.21/M3. Hence the excess payment made as per CC VII and Part for this item was worked out to Rs.3,995/-. (Vide Ext.P42). 150. The next item - item No.2 of Appendix-C of Ext.P25 is cement concrete M.75, 1:4:8. The quantity shown therein was 166.53 M3. In Ext.P25 it was shown that it was in lieu of item No.2 of Appendix-C cut and cover of the original agreement. In that item, as per Ext.P3(a), the rate allowed was Rs.300/M3 and the quantity shown therein was 346 M3. Since there was change in the nature of work, S.A.No.1 happened to be executed and at that time the rate was refixed because there was reduction in the quantity by more than 30%. The rate was then enhanced to Rs.450/M3. As per Ext.P15, the quantity shown was 258 M3. That rate (Rs.450/M3) was followed in S.A.No.4 (Ext.P23) also. In Ext.P23 the quantity was shown as 158 M3. In Ext.P23 also it was shown that item was in lieu of item No.2 of Ext.P3(a). It was so mentioned in Ext.P42 also. The rate was then enhanced to Rs.450/M3. As per Ext.P15, the quantity shown was 258 M3. That rate (Rs.450/M3) was followed in S.A.No.4 (Ext.P23) also. In Ext.P23 the quantity was shown as 158 M3. In Ext.P23 also it was shown that item was in lieu of item No.2 of Ext.P3(a). It was so mentioned in Ext.P42 also. That means as on the date of Ext.P23, the reduction in the quantity and whatever change that was necessitated was taken note of and that was why the rate was enhanced to Rs.450/M3. That rate was accepted and agreed to by the contractor. Since that rate was accepted by the contractor as per Ext.P15 and P23, the contractor was not entitled to get any enhanced rate for the very same item. His claim was totally unfounded. The variation in quantity was only from 158 M3 to 166.53 M3. It was only about 6%. 151. In Ext.P25 for that item, the rate fixed by A1 was Rs.815/M3. The total quantity of that work was shown as 166.53 M3. The total amount payable for that item was shown as Rs.1,35,722/-. Since the rate that could have been allowed in view of Ext.P15 and P23 was only Rs.450/M3, what was paid in excess of that rate is clearly illegal. Even if it is assumed that there was reduction in the quantity by more than 30%, the maximum allowable for the total quantity of that unit item was only Rs.81,270/-. Whereas what was ordered by A1 to be paid as per Ext.P25 was Rs.1,35,722/-. If viewed on that ground also the payment made in excess of Rs.81,270/- was clearly illegal. Going by the rate, Rs.450/M3 for 166.53 M3, the illegal excess payment on this score would come to Rs.60,783.50. 152. The next item for which, enhancement rate was made as per Ext.P25 is reinforced cement concrete M-150 (1:2:4) etc. It is said that this item was in lieu of item No.3 of Appendix-C of Ext.P3(a) and of Ext.P23. Except the quantity and the rate, the description of the work is exactly the same. The rate mentioned in Ext.P3(a) for that item was 70 paise/dm3, which is equivalent to Rs.700/M3. The quantity shown in Ext.P3 (a) was 10,72,500 dm3, which is equivalent to 1072.5 M3. There was no change of specification of that work with regard to Ext.P3(a) and item No.3 of Appendix-C of Ext.P25. The rate mentioned in Ext.P3(a) for that item was 70 paise/dm3, which is equivalent to Rs.700/M3. The quantity shown in Ext.P3 (a) was 10,72,500 dm3, which is equivalent to 1072.5 M3. There was no change of specification of that work with regard to Ext.P3(a) and item No.3 of Appendix-C of Ext.P25. As against Rs.700/M3 the rate allowed as per Ext.P25 for that work was Rs.1.95/dm3 equivalent to Rs.1,950/M3. Of course, the quantity shown therein was only 511950 dm3, equivalent to 511.950 M3. Therefore, the reduction in quantity was more than 30%. The total amount payable as per that item, shown in Ext.P25 is Rs.9,98,303/-. At the rate of 70 paise/dm3, the total amount payable for that item as per Ext.P3(a) was Rs.7,50,750/-. As per clause 31, the total maximum amount that could be paid for that item on the ground of quantity variation would be only Rs.5,25,525/-. But as per Ext.P25 the total amount payable was shown as Rs.9,98,303/-. Therefore, by adopting that calculation also the amount ordered to be paid by A1 to the Contractor was more than Rs.Four lakhs. It may also be noted that as per S.A.No.4 (Ext.P23) the quantity of that item was determined at 5,12,000dm3 equivalent to 512 M3. Its rate was fixed as per Ext.P23 (S.A.No.4) at Rs.1/dm3, equivalent to Rs.1000/M3. That rate was agreed and accepted by the contractor. Therefore, there was no justification for awarding anything in excess of Rs.1/dm3 for that item; since regarding that item of work, there was a concluded contract (Ext.P23). There was not even quantity variation. There was only a very negligible variation; namely 50 dm3, for which amount payable was only at Rs.1/dm3 as shown in Ext.P23. Ext.P42 shows that the quantity carried out under this item was 5,16,831 dm3. It further shows that excess amount paid as per CC VII and part bill was Rs.4,90,989/-. 153. The next item for which the rate was enhanced by A1 as per Ext.P25 is shown as item No.4 under Appendix-C. The said item was - "Providing reinforcement for RCC work bent, tied and placed etc." It was shown in Ext.P25 itself that this was in lieu of item No.4 of Appendix-C of Ext.P3. That item was shown in Ext.P23 also. The rate shown as per the original agreement (Ext.P3(a)) was Rs.7,000/- tonne. The quantity of work shown in Ext.P3(a) was 134.1 tonne. That item was shown in Ext.P23 also. The rate shown as per the original agreement (Ext.P3(a)) was Rs.7,000/- tonne. The quantity of work shown in Ext.P3(a) was 134.1 tonne. There is no change regarding specification or description of that item as shown in Ext.P3(a) and Ext.P25 and also with regard to the same item shown as item No.4 in Appendix-C of Ext.P23. The rate fixed as per Ext.P3 (a) was Rs.7,000/tonne. As per Ext.P23 the rate allowed for the same item was only Rs.7,750/-. The quantity shown in Ext.P23 was 50.50 tonne. There was reduction in the quantity of that item by more than 30% from the quantity of that item shown in the original agreement. But that fact was taken note of at the time of S.A.No.4 (Ext.P23) and the rate was then fixed after negotiation at Rs.7,750/tonne. That was accepted and agreed to by the contractor and an agreement (Ext.P23) was executed relating to the same. Hence, there was no justification for awarding enhanced rate for the very same item. 154. As per Ext.P25 the rate allowed for that item was Rs.12,600/-. The quantity shown in Ext.P25 was 50.139299 tonne. As there was only very negligible variation the contractor was not entitled to get enhanced rate. He was entitled to get only at the rate of Rs.7,750/- as agreed upon by him as per Ext.P23. Hence the enhanced rate allowed by A1, for this item alone was Rs.4,850/- tonne. The actual executed quantity was 50.703109 tonne. The excess payment effected for this item as mentioned in Ext.P42 is Rs.2,45,910/-. That payment is also clearly illegal. 155. The next item for which enhancement was made as per Ext.P25 was in respect of item No.5 of Appendix-C. The item was Random Rubble in cement mortar, 1:5 including pointing the exposed faces simultaneously with the same mortar for foundation and super structure of transition. It was shown to be in lieu of item No. 5 of Ext.P3(a). There was no change of specification or description of the work from that of Ext.P3(a) relating to that item. The quantity shown therein was 94 M3 and the rate fixed as per the original agreement was Rs.200/M3. As per Ext.P25 the quantity was shown as 79.61 M3. As against Rs.200/- shown in Ext.P3(a) the rate fixed by A1 as per Ext.P25 was Rs.650/M3. The quantity shown therein was 94 M3 and the rate fixed as per the original agreement was Rs.200/M3. As per Ext.P25 the quantity was shown as 79.61 M3. As against Rs.200/- shown in Ext.P3(a) the rate fixed by A1 as per Ext.P25 was Rs.650/M3. That meas, it was more than three times of the rate originally fixed. Since the quantity shown in Ext.P25 is 79.61 M3, the reduction in the quantity was less than 30%. Hence it cannot be treated as extra item, under clause 31 of the LCB. So much so, enhancement of rate for that item was not permissible at all. The rate paid in excess was Rs.450/M3. Hence regarding this item alone the excess payment effected as per Ext.P25 comes to Rs.35,824.50 (See Ext.P42 also). This payment was clearly illegal. 156. The other item mentioned in Ext.P25 was shown as item No.6 of Appendix-C. The said item of work is described as 'plastering with cement mortar 1:3, 15 mm thick, one coat floated hard and trowelled smooth. It was shown as in lieu of item No.6 of Ext.P3 (a). There is no change in the description or specification of that work. The quantity of work shown in Ext.P3(a) was 198 M2 and the rate fixed was Rs.10/M2. There was slight increase in that work. In Ext.P25, the quantity of that work was shown as 217.6 M2 and the rate fixed by A1 was Rs.35/M2. Since there was no increase of the quantity by more than 30% it cannot be treated as extra item as per clause 31 of the LCB. Hence, the contractor was entitled to get only the rate as shown in Ext.P3(a), namely at the rate of Rs.10/M2. As said above the rate fixed by A1 as per Ext.P25 is exactly 3= times of the rate originally fixed. Thus the excess payment effected as per CC bill 7 and part in respect of that item alone comes to Rs.5,440/- (see Ext.P42). That payment is also illegal. 157. The last item for which enhancement was made as per Ext.P25 was shown as item No.7 of Appendix-C. That item is shown as "refilling top and sides of cut and cover with departmental earth cut and removed for the construction within initial lead and lift (Rehandling charges only)". The quantity shown therein is 3,300 M3. 157. The last item for which enhancement was made as per Ext.P25 was shown as item No.7 of Appendix-C. That item is shown as "refilling top and sides of cut and cover with departmental earth cut and removed for the construction within initial lead and lift (Rehandling charges only)". The quantity shown therein is 3,300 M3. This item according to A1 is not covered by the original agreement and so the rate can be fixed as shown in Ext.P25 which according to him was reasonable. Though, this item was not shown under the category of cut and cover in Ext.P3(a), it cannot be said that any rate can be fixed by him arbitrarily without obtaining any data regarding the same. If no rate was fixed as per the original agreement or as per the supplemental agreement, the practice was to obtain datas from the Site Engineer (Asst. Engineer) and then it should be checked and verified by the Asst. Executive Engineer and also by the Executive Engineer and only thereafter it could be considered by the Supdtg. Engineer. But here, without obtaining any data from any of his subordinate Engineers a rate was arbitrarily fixed by A1 at Rs.40/M3. 158. PW7 has stated that he had furnished the data relating to this item - rehandling charges for refilling the cut and cover at Rs.5.41/M3. It was ignoring the data furnished by him showing the rate of Rs.5.41/M3, A1 fixed the rate of that item at Rs.40/M3. That itself shows the ulterior motive or the dishonest intention of A1 in fixing such a totally unreasonable and exorbitant rate. To say that the data furnished by the Executive Engineer was unfounded or unreasonably low there should have been another data justifying the granting of such an exorbitant rate as shown in Ext.P24(n) and Ext.P25. Even if a reasonable enhancement is made using the power conferred on him as the Supdtg. Engineer, still the rate cannot go beyond Rs.10/M3. Thus stretching to a maximum of Rs.10/M3 the total amount payable for this item was only Rs.33,000/- = (Rs.3,300 x 10). But as against this, the amount paid to the contractor for this item was Rs.1,32,000/-. Thus the illegal and excess payment ordered to be effected under this item alone comes to Rs.99,000/-. Adopting the rate Rs.5.41/M3 the total excess payment effected for a quantity of 3311.68 M3 was shown in Ext.P42 as Rs.1,14,551/-. But as against this, the amount paid to the contractor for this item was Rs.1,32,000/-. Thus the illegal and excess payment ordered to be effected under this item alone comes to Rs.99,000/-. Adopting the rate Rs.5.41/M3 the total excess payment effected for a quantity of 3311.68 M3 was shown in Ext.P42 as Rs.1,14,551/-. As stated earlier excess payment was effected in respect of the first and last item also. Including those excess payments the total excess payment made by A1 was calculated as per Ext.P42 at Rs.12,81,032/-. 159. It may also be noted that Ext.P24(n) is the Tabulation Statement prepared for the purpose of entering into negotiation by A1 and the Contractor. That negotiation statement was prepared on 16.2.1991. It is noted in Ext.P24(n) that the negotiation took place on 19.2.1991. Regarding item No.1 of Appendix-L it was specifically mentioned in Ext.P24(n), that the estimate rate was Rs.16.84/M3. So it was as against Rs.16.84 the rate was fixed by A1 at Rs.98/M3 as per Ext.P24(n)and showing that rate Ext.P25 was executed. Similarly, the estimate rate in respect of all the 7 items shown in Appendix-C, were also noted in Ext.P24(n). Therefore, it is not a case where A1 was kept in dark, as to what was the original rate shown in the estimate. Similarly, except regarding item No.7 of Appendix-C and item No.1 of Appendix-L, regarding all other items, the rates fixed as per the earlier agreement were referred to. Regarding item No.7 of Appendix-C the estimate rate was shown as Rs.5.41/M3. It was in respect of that item, A1 fixed Rs.40/M3; nearly more than 7= times of the rate shown in the estimate." 22. The learned counsel for the appellant had not at all assailed the above facts and conclusion arrived by the learned Special Judge regarding the pecuniary advantage that the Contractor had obtained in pursuance to Exts.P33 and P25. On the other hand, the contention that was advanced is that due to the mistake levels, there was change in designs and since the work was executed as per the changed levels and designs major part of the work had become extra items and the claim lodged by the Contractor was justified. On the other hand, the contention that was advanced is that due to the mistake levels, there was change in designs and since the work was executed as per the changed levels and designs major part of the work had become extra items and the claim lodged by the Contractor was justified. It is in appreciation of the justified claim by the Contractor, Ext.P33 and P25 were executed and that there is no conspiracy in between the accused 1 and 2 and the Contractor or any abuse of the office by accused 1 and 2 amounting to criminal misconduct. It was also submitted that as per clause 32 of the LCB conditions, the Contractor is entitled to extra payment which is to be negotiated and settled in between the Superintending Engineer, namely, the 1st accused and the Contractor. According to the learned counsel for the appellants, Ext.P33 and P25 were entered into after such negotiation and it is perfectly legal and justified. So, for a correct appraisal of the evidence on record a reading of clause 31 and 32 of LCB conditions and clause 34 of the Canal Specification would be appropriate. Clause 31 and 32 of LCB conditions read as follows: "31. SCHEDULE OF QUANTITIES: Variation in the quantities of work in the bill of quantities shall not vitiate the contract. The rates quoted for the individual items shall apply for the quantities of work increased or decreased by not more than thirty percent for each of the items. Should quantities of work actually involved under any item exceed quantities provided in the tender by more than thirty percent the rate of such excess over thirty percent of quantity provided in the tender may be revised in accordance with the procedure indicated under clause "extra items". However, the said revised item rate shall not exceed the item rate quoted, subject to adjustment in accordance with price adjustment clauses. Should the quantity of work actually involved under any items be reduced by more than thirty percent of quantity provided in the tender, the bid unit price of the affected item may be revised in accordance with the procedure indicated under "extra items". However, the total cost of such item should not exceed the cost of seventy percent of the item quoted, subject to adjustment in accordance with price adjustment clauses. However, the total cost of such item should not exceed the cost of seventy percent of the item quoted, subject to adjustment in accordance with price adjustment clauses. The payment of the item will continue to be made at the original rate until the revised rate is decided. 32: Extra items: Extra items of work shall not vitiate the contract. The contractor shall be bound to execute extra items of work as directed by the Supdtg. Engineer. The rates of extra item to be mutually agreed." Clause 34 of the canal specification reads as follows: "34. CONSTRUCTION OF STRUCTURES: The structures to be constructed will include, pressure aqueduct, open aqueduct, turn cut to laterals, farm turnouts, drainage inlets, culverts, syphons, overchutes, escaped, bridges and such other structures. The structures will be located at various points along the canal as shown in the drawings or as designated by the Engineer-in-charge. The order of construction of the structures and the construction of structures in advance of or after the performance of the canal excavation shall be subject to the approval or direction of the Engineer-in-charge. All structures shall be built in a workman like manner and to the lines, grades and dimensions shown in the drawings. The contractor shall place and attach to each structure all timber, metal or other accessories necessary for its completion as shown in the drawings. The cost of such work for which specific unit rates are not provided in the schedule shall be included in the unit rate in the schedules for the work to which it is appurtenant. Some of the drawings, included in these specifications are typical only of the structures to be constructed and the detailed dimensions of the structures that are to be constructed will be fixed by the Engineer-in-charge to adopt the structure to the existing condition at the structure sites and the contractor shall be entitled to no additional allowance above the rate bid in the schedule by reason of the dimensions fixed by the Engineer-in-charge or by reason of any such modifications or extensions." 23. Referring to clause 10, 11 and 12 of LCB conditions PW2 and 11 would harmoniously depose that even if there is changes in the drawings, the Contractor had to execute the work under the direction of the Executive Engineer and for that reason the Contractor is not entitled to any additional allowance or payment. Referring to clause 10, 11 and 12 of LCB conditions PW2 and 11 would harmoniously depose that even if there is changes in the drawings, the Contractor had to execute the work under the direction of the Executive Engineer and for that reason the Contractor is not entitled to any additional allowance or payment. The above evidence of PWs 2 and 11 remains unimpeached. For a correct appraisal I find that reading of clause 10, 11 and 12 of the LCB conditions attached to Ext.P3(a) also would be relevant. Clause 10, 11 and 12 read as follows: "10. PURPOSE OF DRAWING AND SPECIFICATIONS AND CONFORMANCE THERETO: The contract drawings read together with the contract specifications are intended to show and explain the manner of executing the work and to indicate the type and class of materials to be used. The work shall be carried out in accordance with the directions of Executive Engineer, in accordance with the drawings and specifications which form part of the contract and in accordance with such further drawings, details and instructions as may, from time to time, be given by the Executive Engineer. It shall be the responsibility of the contractor to promptly bring to the notice of the Executive Engineer any error or discrepancy in the contract documents and obtain his orders thereon. Only stated dimensions are to be taken and not those obtained from scaling the drawings. In case of any discrepancy between the descriptions of items in the schedule of quantities and the specifications the latter shall prevail. In case any feature of the work is not fully described and setforth in the drawings and specifications, the Contractor shall forthwith apply to the Executive Engineer for further instructions on drawings, specifications. 11. MODIFICATIONS: The Executive Engineer may order modifications at any time before the completion of the work. No modification shall be made unless so ordered. For all modifications, the Executive Engineer will issue revised plans, or written instructions or both. 12. SIGNED DRAWINGS NO AUTHORITY TO THE CONTRACTOR: Signed drawings alone shall not be deemed to be an order for work unless it is entered in the agreement or schedule of drawings under proper attestation of the Contractor and the Superintending Engineer or unless it has been sent to the Contractor by the Executive Engineer with a covering letter confirming that the drawing is an authority for work to the contractor. The above clause would show that the drawings and specifications are intended only to show and explain the manner of executing the work and to indicate the type and class of the materials used and are liable to be modified at any time before the completion of the work. The evidence of PWs 2 and 11 which I mentioned above is in tune with LCB conditions. There is no provision in LCB conditions enabling the contractor to claim the revised rate for the reason that any modification was made as provided by clause 11. 24. I had earlier mentioned that the execution of Exts.P33 and P25 was in pursuance to Ext.P24(a) letter dated 10.10.1990 and Ext.P24(h) claim for extra payments. A reading of Ext.P24 (a) and P24(h) also would be relevant for correct appraisal of the case. Ext.P24(a) reads as follows: "The work order to proceed with the above work was given to me on 16.12.1987 and I have started the work in good intention to complete the same as per the agreement condition. But during execution of the work the estimate was revised and the design of the structures like cut and cover, culverts etc. were changed and I have to carry out the above structure as per the revised designs. As per the Agt:- Two Nos. of cut and covers of 431 m has to be constructed between Ch.7524 m to 7650 m and 7828 m to 8133 m as per App: C. In the design the foundation concrete has to be carried out for 30cm thickness and the barrels 28cm thickness. As per the revised estimate I have to construct 3 Nos. of cut and covers for only 250m length. The design for which have also been changed. The foundation thickness has been reduced to 20cm from 30cm and that of barrel to 25cm from 28cm. Due to this change of design and the shortage in length I had to incur losses since I had proceeded to construct the cut and covers as per the original design. But your good self has negotiated with me and extra rates were sanctioned to me only for the variation in quantities below 30% as per supplemental Agt.No.4, dt.22.2.90. I am entitled for the extra claim for design change also. More over there was no provision for refilling the cut and covers. Now I am engaging large Nos. But your good self has negotiated with me and extra rates were sanctioned to me only for the variation in quantities below 30% as per supplemental Agt.No.4, dt.22.2.90. I am entitled for the extra claim for design change also. More over there was no provision for refilling the cut and covers. Now I am engaging large Nos. of coolies to covey earth by head load for refilling the cut and covers as per the direction of the officers at site, and I have to spent Rs.65/m3 for the refilling work. As per the L.S. supplied to me along with the agt. there was only cutting and forming the canal from Ch.6600 to 6850 m. But as per the revised proposal filling was necessitated. There is no road along the canal side and the earth for filling is to be conveyed by head load. An additional expenditure of Rs.65/m3 of earth is incurring for the filling work. Considering all the above aspects I request that your goodself may be kind enough to issue orders to compensation the excess amounts incurring for the above said items of works." Ext.P24(h) reads as follows: "As required in the above references I am furnishing below the minimum rates for the extra items to be executed for your acceptance and further orders. PURE EXTRA ITEMS. Appendix G. Cut and Cover. 1. Random Rubble masonry in C.M.1:6 for protective works Rs.750/m3 2. C.C. 1:2:4 using 20mm metal for wearing coat for inside of drain & in bead of culvert. Rs.2.00/dm3 3. Plastering with C.M. 1:4, 15mm thick one coat Rs.40/m2 4. Supplying and Fixing Guard Stone in position to lines and levels. Rs.200/E. 5. Filling and forming approaches to the cut and cover Rs.80/m3. APPENDIX 'G' Construction Road Culverts (5 Nos.) at Ch.6796m, 6970m, 7990m, 8420m and 8608m (In lieu of Appx. "G" of agreement) 1. Earth work excavation. Rs.100/m3. 2. C.C. 1:4:8 for foundation. Rs.1800/m3. 3. C.C. 1:3:6 for abutment Rs.2250/m3. 4. R.C.C. 1:2:4 Rs.4/dm3. 5. Reinforcement for R.C.C. Work. Rs.14000/t 6. R.R.in Cement Mortar 1:6 Rs.750/m3. 7. C.C. 1:2:4 for wearing Coat Rs.2.00/dm3. 8. Plastering with C.M. 1:4, 15mm thick Rs.40/m2. 9. D.R.work Rs.250/m3. 10. Filling and Forming approaches to the Culverts at Ch.6796m and 7990m. Rs.80/m3. 25. A reading of Ext.P24(a) would show that there is no much mention entitling the Contractor to get a higher rate. Rs.14000/t 6. R.R.in Cement Mortar 1:6 Rs.750/m3. 7. C.C. 1:2:4 for wearing Coat Rs.2.00/dm3. 8. Plastering with C.M. 1:4, 15mm thick Rs.40/m2. 9. D.R.work Rs.250/m3. 10. Filling and Forming approaches to the Culverts at Ch.6796m and 7990m. Rs.80/m3. 25. A reading of Ext.P24(a) would show that there is no much mention entitling the Contractor to get a higher rate. What is mentioned is regarding the change of design. It is also pertinent to note that in Ext.P24(a) there is mention about execution of Ext.P23 (Supplemental agreement No.4 on 22.2.1990). But there is no mention as to how the Contractor was entitled to a higher rate in respect of the items claimed therein. Ext.P23 is a mutually agreed contract. Ext.P24(h) does not give any reason so as to entitle the Contractor to claim a higher rate. Ext.P24(a) letter was forwarded to the 2nd accused, who was the then Executive Engineer. Ext.P24(b) dated 30.10.1990 is the reply given by the 2nd accused. In Ext.P24(a) there are three grounds of claim. Regarding the 1st ground of claim in Ext.P24(a), it is reported that the estimate of all work was revised and sanctioned by the Chief Engineer and due to the revision of estimate to suit the site condition, the design of the cut and covers and culverts were also changed and the Contractor had carried out the construction of the cut and cover and culverts as per the revised rates of the estimate. Regarding the 2nd ground of claim, it is mentioned in Ext.P24(b) that 'due to the reduction in the length and thickness of the barrels and that of foundation, the quantity of the work has to be reduced and the same has been negotiated for quantity variation and as supplementary agreement No.4 dated 22.2.1990 was executed. Accordingly, the payments were made to the Contractor. Regarding the refilling of the cut and cover the Contractor has (sic) bound to do the refill cut and cover as per the specification and agreement. Regarding claim No.3, it is reported as follows: "(3) As per original proposal, the formation of canal betn dis.6600 m & 6850m was of full cutting. But, now at this portion the filling was necessitated due to revision of original proposal. The quantity of earth filling done by re-handling with data may be furnished." 26. Regarding claim No.3, it is reported as follows: "(3) As per original proposal, the formation of canal betn dis.6600 m & 6850m was of full cutting. But, now at this portion the filling was necessitated due to revision of original proposal. The quantity of earth filling done by re-handling with data may be furnished." 26. In conclusion, the 2nd accused reported that the claim of the Contractor in para 1 and 2 cannot be accepted. Evidently that claim is relating to a work already executed strictly as per supplementary agreement No.4. The claim in para 3 may be considered and a lead of 200m by headload can be given. In pursuance to Ext.P24(b) the Superintending Engineer wrote a letter dated 12.11.1990, a copy of which was marked as Ext.P24 (c). Ext.P24(d) is the reply given by PW7, who succeeded the 2nd accused . Thereafter, the 1st accused again sought for a report from PW7 on 31.1.1991 and that Ext.P24(e) is the letter. Responding to Ext.P24(e), PW7 sent Ext.P24(f) reply dated 6.2.1991. In Ext.P24(f), PW7 had reported that there is difference in the chainage of cut and cover and thickness of the barrel and the matter has to be decided by the Superintending Engineer. As regards the claim No.2, it is mentioned that the claim is admissible. As regards claim No.3 it is reported that it has already been reported earlier. In pursuance to Ext.P24(f) a negotiation was arranged on 19.2.1991 following which, Ext.P25 (supplemental agreement No.7) was executed. 27. The evidence of PW8 would show that in pursuance to Ext.P14(h), a letter dated 21.7.1989, the 2nd accused had sent a reply dated 3.10.1990, which was marked as Ext.P22(g). The 2nd accused had reported that since there was change in design of the culvert and two culverts were newly proposed, all culverts were treated as extra items. In Ext.P22(g), a report regarding the anticipatory quantity of the work to be executed was also mentioned. It is thereupon a negotiation was arranged on 12.10.1990 between the 1st accused and the Contractor, in pursuance to which, Ext.P33 (supplemental agreement No.6) was executed. According to PW7, Appendix (g) and (c) regarding the culvert in cut and cover is the same as in the original agreement. The rate settled in Ext.P33 is exorbitant. It is thereupon a negotiation was arranged on 12.10.1990 between the 1st accused and the Contractor, in pursuance to which, Ext.P33 (supplemental agreement No.6) was executed. According to PW7, Appendix (g) and (c) regarding the culvert in cut and cover is the same as in the original agreement. The rate settled in Ext.P33 is exorbitant. A comparative look at Exkt.P24(b) and P25 would show that though inExt.P24(b) the 2nd accused had recommended negotiation only in respect of the filling and forming of the canal a headlead for 200m alone was recommended. While executing Ext.P25 there was a revision of eight items, one in Appendix-L and seven in Appendix-C and exorbitant rate was agreed as negotiated. Ext.P33 would show that the agreement was executed in respect of 10 items in Appendix-G and 5 items in Appendix- C. The evidence of PW8 would show that the execution of Ext.P33 was in pursuance to Ext.P14(h) letter dated 21.7.1989 given by the Contractor. Ext.P22(g) is the reply of the 2nd accused with reference to Ext.P14(h). Ext.P22(f) and P33 would show that there was negotiation between the 1st accused and the Contractor in respect of items which were not even covered by Ext.P22(g) and exorbitant rates were agreed by the 1st accused. 28. The evidence of PW11 would show that as per Ext.P5(a), revised estimate, technical sanction was accorded for an amount of Rs.38,75,000/-. According to PW11, even if, there is design change in view of clause 34 of Canal Specification, which is quoted earlier, the Contractor is not entitled to any additional allowance. By virtue of Clause 31 of LCB conditions, which is also quoted earlier, according to PW2 and 11, even if there is quantity variation exceeding 30%, the Contractor is not entitled to enhanced rate. PW11 would further depose that without the knowledge of the authority granting technical sanction there shall not be any variation in the change of rate. Though PWs 2 and 11 were subjected to searching cross examination, no material was disclosed to disbelieve the evidence of PWs 2 and 11. Going by clause 34 of Canal Specification and clause 31 and 32 of the LCB conditions, I find that the evidence of PWs 2 and 11 is in tune with the LCB conditions and Canal Specifications, which form part of Ext.P3(a) agreement. 29. Going by clause 34 of Canal Specification and clause 31 and 32 of the LCB conditions, I find that the evidence of PWs 2 and 11 is in tune with the LCB conditions and Canal Specifications, which form part of Ext.P3(a) agreement. 29. I had earlier mentioned that before the starting of the execution of the work Ext.P15supplemental agreement No.1 was executed on 13.9.1998. Thereafter, Exts.P20 and 21 supplemental agreement Nos.2 and 3 were executed on 22.2.1990 whereby the period of completion of the work was extended upto 31.12.1989. Simultaneous to Exts. P20 and 21, Ext.23 (supplemental agreement No.4) was also executed. Clause No.2 of Exts.P15 and P23 read as follows: "2. The contractor shall not claim any enhanced rate or compensation whatsoever for or on account of such extra items due to the increase in rate of labour or materials or on any other grounds." It is not in dispute that Ext.P15and P23 were executed voluntarily by the Contractor. Ext.P14(h) as well as Ext.P24(a) and P24(h) are long after Ext.P23. In the light of 2nd clause of Exts.P15 and P23 quoted above, the Contractor is not entitled to any enhanced rate or any claim or compensation, whatsoever, on account of such extra item due to increase in the rate of labour or materials or on any other grounds. It is in violation of the above clause, Exts.P33 and P25 supplemental agreements were executed in between the 1st accused and the Contractor entitling the Contractor to get undue pecuniary advantage which I mentioned earlier. A reading of Clause 10, 11, 12, 31 and 32 of LCB conditions and clause 34 of the Canal Specification would show that the Contractor was not entitled to any revised rate as agreed upon by the 1st accused in Exts.P33 and P25. There is nothing on record to show that Ext.P33 and P25 are in respect of any item of work which is not covered by Exts.P15 or P23 or that there was any change of design or drawing after Ext.P15 and P23. The evidence of PW11, which I mentioned earlier, would show that it is without the knowledge of the authority granting technical sanction, the enhanced rate was agreed in respect of the items of work covered by the schedule attached to Ext.P33 and P25. The evidence of PW11, which I mentioned earlier, would show that it is without the knowledge of the authority granting technical sanction, the enhanced rate was agreed in respect of the items of work covered by the schedule attached to Ext.P33 and P25. Ext.P24(g), negotiation statement, leading to the execution of Exts.P33 and Ext.P24(n), negotiation statement, leading to the execution of Ext.P25 would show that the rates agreed in Exts.P33 and P25 is without any basis. There is nothing on record to show that exorbitant rates agreed by the 1st accused is anyway reasonable or justified. In the light of Clause (2) in Exts.P15 and P23, which is quoted earlier, despite the agreement of the Contractor that he would not claim any extra rate on any ground, the 1st accused had agreed for an exorbitant rate for which Ext.P33 and P25 were executed. The evidence on record would show that it is in abuse of the clause 32 of the LCB conditions, Exts.P33 and P25 were executed. Both Exts.P33 and 25 were executed under the cover of change of design. It is pertinent to note that the design was changed even before the starting of the work. In consequent to the change in design Ext.P15 was executed on 13.9.1988. Thereafter, Ext.P23 was executed on 22.2.1990. In both those agreements, in Clause (2), which is quoted in para 29, there is an unconditional undertaking by the contractor that he would not claim any enhanced rate or compensation. There is nothing revealed out to show that there was any change of design or any additional work subsequent to Ext.P23. The evidence of PW3 coupled with Ext.P13(e) would show that the contractor was advancing various claims and by Ext.P13(e) reply, PW3 had reported that the claims made in the letters dated 14.9.1998, 23.11.1998, 16.12.1998 and 8.2.1999 are false and not allowable. Those claims are revived and granted by Exts.P33 and P25. That too at exorbitant rate, which is discussed detail in paragraphs 147 to 152 of the trial court judgment quoted earlier. Major items deposed by PW7 is reproduced in para 14 above. For brevity I am not referring it again. Those claims are revived and granted by Exts.P33 and P25. That too at exorbitant rate, which is discussed detail in paragraphs 147 to 152 of the trial court judgment quoted earlier. Major items deposed by PW7 is reproduced in para 14 above. For brevity I am not referring it again. A look at the amount quoted by the contractor which forms part of Ext.P3(a) and which was revised twice in Exts.P15 and 23 as a consequence of the change in designs with the amount agreed by Ext.P33 and P25 would show that to loot the public money 1st accused and contractor conspired together and Exts.P33 and P25 were executed only to have undue pecuniary advantage to the contractor. In other way it is really a conspiracy against the State. The technical sanction for the work in dispute accorded by the Chief Engineer was for Rs.38,75,000/-. Noticing the exorbitant claim by the contractor the Financial Assistant and Draftsman put note in the file to refer the matter to the Chief Engineer. Overruling their notes, 1st accused managed negotiation with the contractor. No data was relied on by the 1st accused to revise the rates for the items covered by Exts.P33 and 25. Unconscionable rate was agreed. Result is the undue pecuniary advantage that the contractor had got for certain items of work i.e., Rs.21,21,041.84/- as against a technical sanction of Rs.38,75,000/- for the whole work. For no good reason, it can be justified. The criminal conspiracy between the 1st accused and the Contractor criminal misconduct are very evident as rightly found out by the trial court. In pursuance to the criminal conspiracy, by abusing the office, the 1st accused had entered into Exts.P33 and P25 whereby the Contractor had obtained undue pecuniary advantage. 30. It is not in dispute that the 2nd accused left the office on 1.11.1990, that is, before the execution of Ext.P25. But he was in the office when Ext.P33 was executed. He was found involved in the criminal conspiracy mainly basing upon ext.P22 (g) letter given by him to the 1st accused. It was also found by the trial court that Ext.P22(g) is really a copy of the letter by the Assistant Executive Engineer. The trial court observed that a responsible officer (2nd accused) should not have recommended the suggestion made by the Assistant Executive Engineer. It was also found by the trial court that Ext.P22(g) is really a copy of the letter by the Assistant Executive Engineer. The trial court observed that a responsible officer (2nd accused) should not have recommended the suggestion made by the Assistant Executive Engineer. The trial court also found that the 2nd accused should have noticed that the claim made by the Contractor is not sustainable in view of Exts.P15 and P23 and that fact should have been brought to the notice of the 1st accused. Ext.P22 (g) dated 3.10.1990, is in reply to a letter dated 19.9.1990 sent by the 1st accused to the 2nd accused. Ext.P22(f) is the copy of the letter. It would show that in Ext.P22(f) the 1st accused had mentioned that it had become clear that all the above culverts proposed in different chainages to suit the site would become pure extra work. 31. Having carefully gone through the evidence of PWs 7 and 8, I find nothing on record to come to a conclusion that there was any meeting of mind between the 1st and 2nd accused or between the 1st accused, 2nd accused and the Contractor. Of course, the 2nd accused had a duty to bring to the notice of the 1st accused that the Contractor was not entitled to any extra claim In the light of Ext.P22(f), wherein the 1st accused himself had stated that there is extra item of work eventhough the 2nd accused had not objected the same, I am persuaded to conclude that the 2nd accused might have thought that in the light of the observationinExt.P22(f) by the 1st accused there might not be any merit in again objecting the proposal of the 1st accuse to have a negotiation between the Contractor and the 1st accused for arriving at another supplemental agreement. The judgment impugned would show that in finding the 2nd accused guilty the trial court had taken note that the 2nd accused had prepared a bill for payment of the amount covered by Ext.P33. If that is so, the Executive Engineers who had prepared bills subsequent to Ext.P25 also should have been arrayed as an accused. So also, PWs 7 and 8 also should have been arrayed as an accused. If that is so, the Executive Engineers who had prepared bills subsequent to Ext.P25 also should have been arrayed as an accused. So also, PWs 7 and 8 also should have been arrayed as an accused. Having carefully gone through the evidence on record, I fail to find anything for placing the 2nd accused in a different position, I find that the 2nd accused is entitled to the benefit of reasonable doubt. 32. To sum up, I find that the trial court had correctly analysed the evidence on record and arrived at a conclusion regarding criminal conspiracy and criminal misconduct as against the 1st accused. The conviction under challenge against the 1st accused is based upon cogent evidence and requires no interference. Whereas the 2nd accused is entitled to the benefit of reasonable doubt. So, the 2nd accused is entitled to an order of acquittal. Regarding the sentence, I find that the sentence awarded against the 1st accused is a little harsh. He retired from service in February, 1991. Of course, it is revealed out in evidence that on the verge of the retirement the 1st accused had entered into more than 200 supplemental agreements, whereby many Contractors, even long after the period of the execution of the work, were awarded exorbitant rates. But, taking into account that now the 1st accused is more than 75 years, I find that the minimum sentence prescribed under Section 13(2) and a fine of Rupees eight lakhs would be just and appropriate. The sentence under Section 120B IPC also requires a reduction. 33. In the result, appeal No. 538/2003 is allowed in part. While confirming the conviction, the sentence for offence under Section 13(2) r/w. Section 13(i)(d) is reduced to simple imprisonment for one year and a fine of Rs.8,00,000/- (Rupees eight lakhs only). In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of one year. For the offence under Section 120B IPC, the sentence is reduced to simple imprisonment for one year. The substantive sentences shall run concurrently. Undertrial imprisonment, if any, shall be set off. While allowing Crl. A. 539 of 2003 the conviction and sentence under challenge are set aside. The appellant therein would stand acquitted. The fine amount, if any, paid shall be refunded.