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2025 DIGILAW 1702 (KER)

Saji Varghese Son Of Varghese v. State Of Kerala

2025-06-24

A.BADHARUDEEN

body2025
ORDER : A. BADHARUDEEN, J. The 1st accused in C.C. No. 8 of 2021 on the les of the Enquiry Commissioner and Special Judge, Thalassery, Kannur has led this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure , seeking the following prayers:- “To quash Annexure A6 final report and all further proceedings in C.C. No. 8 of 2021 pending on the les of the court of Enquiry Commissioner and Special Judge (Vigilance), to secure ends of justice.” 2. Heard the learned counsel for the petitioner and the learned public prosecutor representing VACB. Perused the records. Facts of the case:- 3. On 20.07.2015, Naduvil Grama Panchayath passed a resolution and requested DTPC Kannur to start a new tourism project at Palakkayam Thattu. On 25.07.2015, DTPC Kannur submitted this proposal to the Director, Department of Tourism, Thiruvananthapuram vide ref. No. DTPC/3153/2015, with the request to sanction the proposal to develop this area as a major Tourist spot in North Kerala. Sri.Vijayakumar, Techno Architect, Malappuram (empanelled Architect of DTPC) prepared the Detailed Project Report for an amount of Rs.2,70,96,887/-. The Project report was submitted to the working group, Department of Tourism, Thiruvananthapuram, and the Department of Tourism accorded Administrative Sanction to the tune of Rs.1 Crore as per GO (Rt) No. 642/15/TSM, Dtd. 23.12.2015. Consequently, the DTPC Executive Committee approved the Project. 4. Subsequently, FACT-RCF Building Products LTD (FRBL), Cochin, an accredited agency of DTPC, informed their willingness to implement this project, vide letter No. FRBL/MD/2016/01, Dated 11.01.2016. Accordingly on 21.01.2016, the District Collector & Chairman DTPC Kannur has accorded Administrative Sanction for the Construction of Palakkayam Thattu Tourism Triangle Circuit at an estimated cost of Rs. 1 Crore and the implementation of the work was entrusted to FRBL, Kochi, with direction that all relevant procedural code formalities should be observed strictly and the work would be completed within a period of 6 months. The work was completed within the stipulated time. 5. When complaint was obtained alleging misappropriation of money by the accused persons in implementing the project, all the allegations in the petition were considered in detail. The petitioner and witnesses were questioned and their statements were recorded, available documents from New Naduvil Village Office, DTPC Office Kannur, Taluk office Taliparamba, FRBL Cochin, etc., were perused, and the disputed land was physically inspected. The allegations were investigated, and final report led. The petitioner and witnesses were questioned and their statements were recorded, available documents from New Naduvil Village Office, DTPC Office Kannur, Taluk office Taliparamba, FRBL Cochin, etc., were perused, and the disputed land was physically inspected. The allegations were investigated, and final report led. As per the final report, the prosecution alleges that accused persons 1 to 3 conspired together with regard to the entrustment of the work for the Palakkayam Thattu Tourism Triangle Project – 2015, after preparing a revised estimate of Rs. 92,58,11,587/- by A3, the SRD, under the guise of a plan prepared by A2, the empanelled architect of the District Promotion Council. Subsequently, the work was awarded to a subcontractor, M/s Easy Infra INC. It is alleged by the prosecution that, in consequence thereof, the Government sustained a loss of Rs. 46,34,622.48/-. On this basis, the prosecution alleges the commission of o ences punishable under Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 , and under Section 120B of the Indian Penal Code . 6. While seeking quashment as prayed for, the learned counsel for the petitioner argued that the entire prosecution is ill-motivated. According to him, although the petitioner had periodically led criminal miscellaneous petitions to ensure an effective and fair investigation, the Investigating Agency has led final report alleging the commission of offences punishable under Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 , and under Section 120B of the Indian Penal Code , as against the petitioner also without any basis. 7. According to the learned counsel for the petitioner, the decision taken by the Tourism Promotion Council, of which the 1st accused was the Secretary during the relevant period, to undertake the construction of the Palakkayam Thattu Tourism Triangle Circuit 2015 is not in dispute. According to the learned counsel for the petitioner, as per Annexure A4/11 letter dated 21.01.2016, the District Collector and Chairman of the District Tourism Promotion Council (for short, ‘DTPC’), Kannur, addressed the Managing Director of FACT RCF Building Products Ltd. (for short, ‘FRBL’) Kochi. In that letter, the District Collector entrusted the work with an estimated cost of Rs. 1 crore. Therefore, the entrustment of the work was made by the District Collector and not by the 1st accused. In that letter, the District Collector entrusted the work with an estimated cost of Rs. 1 crore. Therefore, the entrustment of the work was made by the District Collector and not by the 1st accused. The learned counsel for the petitioner further pointed out that, in accordance with Annexure A4/13, an agreement was executed between the 1st and 3rd accused, incorporating terms for the completion of the project, which also included provisions for the engagement of subcontractors. According to the learned counsel for the petitioner, as per the Annexure A4/13 agreement, the work was carried out based on the revised estimate prepared by A2, the empanelled architect. He also pointed out that, as per Annexure A4/37, GOP No.311/2014, dated 30.07.2014, the Government xed guidelines for entrusting works to Government-approved agencies, and the work was carried out in accordance with the guidelines. It is pointed out that the 1st accused, who held the post of Secretary, acted in accordance with the directions and with the knowledge of the District Collector. Therefore, none of the allegations against him hold merit. 8. Per contra, the learned Public Prosecutor zealously opposed the contention raised by the learned counsel for the petitioner and pointed out that there are serious anomalies in this matter, particularly after the issuance of Annexure A4/11 letter by the District Collector to the Managing Director of FRBL. 9. According to the learned Public Prosecutor, as per Annexure A4/11, it was specifically requested that the 3rd accused to execute an agreement on stamp paper worth Rs. 100 with the District Collector and Chairman of the DTPC to commence the work, and the format of the agreement was also forwarded for reference. Instead of executing an agreement by the 3rd accused in favour of the District Collector, an agreement was executed in between the 1st accused, Secretary, and the 3rd accused by incorporating terms acceptable to them with a view to grab the Government money, and therefore the execution of the agreement is illegal and therefore the terms of the agreement have no binding e ect on this project. It is argued by the learned public prosecutor that, originally, the project was proposed to be constructed for a sum of Rs.2,70,96,887/-, and as per Annexure A4/8 dated 23.12.2015, the Government approved the plan for Rs.1 crore only. It is argued by the learned public prosecutor that, originally, the project was proposed to be constructed for a sum of Rs.2,70,96,887/-, and as per Annexure A4/8 dated 23.12.2015, the Government approved the plan for Rs.1 crore only. Accordingly, administrative sanction was accorded for the project, and the order indicated that a revised plan for Rs. 1 crore should be prepared by the 2nd accused. Instead of preparing the estimate through A2, as stated by CW27, who worked alongside A2, the estimate was prepared by A3, who obtained the signature of CW27 on behalf of the 2nd accused. Therefore, the revised estimate also was not prepared by A2 as stipulated, instead the same was prepared by the 3rd accused with ulterior motives. 10. It is further pointed out that, in the revised estimate, certain items which were not found in the original estimate were also included, mainly solar lights and ornamental nished FRP sitting. According to the learned public prosecutor, as part of the investigation, a special team assessed the work of the project, and it was reported that a total loss of Rs.19,96,89,745/- was sustained to the Government. 11. It is argued by the learned public prosecutor further that, as part of conspiracy hatched in between A1 to A3, after getting the work order from the District Collector, Kannur, an agreement was executed in between A1 and A3, without knowledge of the District Collector, Kannur, and entrusted the work to a subcontractor. Therefore, a total loss of Rs.46,34,622.48/- sustained to the Government. Therefore this matter would require trial, and the contentions raised by the accused can be considered only after the trial. Therefore, the prayer for quashing the proceedings is only to be dismissed. 12. The learned Public Prosecutor argued further that when the High Court considers the quashment of criminal proceedings, by exercising extraordinary jurisdiction cannot undertake a mini-trial nor engage in the appreciation of evidence in the particular case. He has placed decisions in Priyanka Jaiswal v. State of Jharkhand , 2024 KHC 8198; C entral Bureau of Investigation v. Aryan Singh Etc. 2023 KHC 6364; and Just Rights for Children Alliance v. S. Harish, 2024 KHC 6515 in support of his contention. 13. He has placed decisions in Priyanka Jaiswal v. State of Jharkhand , 2024 KHC 8198; C entral Bureau of Investigation v. Aryan Singh Etc. 2023 KHC 6364; and Just Rights for Children Alliance v. S. Harish, 2024 KHC 6515 in support of his contention. 13. Thus, the learned Public Prosecutor argued that in the instant case, the allegations are supported by statements of the witnesses and documents, where the Government has su ered a loss to the tune of Rs. 46,34,662.48/- under various heads – [loss to the Government as per the Technical report prepared by CW4 AEE, building Taliparamba) – Rs.19,96,897.48/-, A1 spent the amount unauthorisedly without the permission of DTPC to obtain electric connection to the KIOSK & Toilet Block (should have been remitted by A3) – Rs.1,20,750/-, A1 accepted the amount from DTPC towards expense for inauguration of the project (subsequently he collected Rs.33,750/- from the Sub Contractor – Rs.27,950/-, and Excess amount spent for street light – Rs.24,89,025/- (Total Rs.46,34,622.48/-)] is prima facie made out, warranting trial. 14. The learned counsel for the petitioner disputed the above calculation and submitted that apart from the calculation of the special team supported by the statement of CW4, no additional amounts to be considered as unnecessary expenses incurred for the project. He has placed judgment in WP (c) 37071 of 2022 dated 29th May 2024. It is pointed out that in the counter led in the writ petition, the District Collector, Kannur (who is the 4th respondent therein), in paragraph No. 6, the contention was that as per proceedings No. DTPC/3153/2016 dated 20.07.2016, the District Collector, Kannur gave permission for issuing building number to the Secretary, D.T.P.C., Kannur for constructing facilitation center, including cafeteria and toilet. Moreover, as per the letter No..B8/2016/20776/13 dated 30.11.2016, the District Collector, Kannur gave permission for temporary electricity connection also for the tourism project. Therefore, none of the o ences would attract. 15. Addressing the rival arguments, the question to be decided is whether the prosecution material prima facie established commission of o ences punishable under Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 , and under Section 120B of the Indian Penal Code , by A1 along with A2 and A3. 16. Section 13 (1)(d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 act provides as under:- Section 13 . 16. Section 13 (1)(d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 act provides as under:- Section 13 . Criminal misconduct by a public servant – (1) A public servant is said to commit o ence of criminal misconduct: – (a) xxxxxx (b) xxxxx (c) xxxxx (d) If he, – (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding o ce as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; Xxxxxxxxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than (four years) but which may extend to (ten years) and shall also be liable to fine. 17. In the instant case, a preliminary enquiry was conducted in C.M.P. No. 716 of 2016, whereby it was revealed that the alleged land at Palakkayam Thattu is included in resurvey No.292/1A of New Naduvil Village. In this resurvey, a total 22352 acres of land is available and it was in the joint possession of Naduvil Devaswom Uralar, Velladu Devawam Uralar, and 11 others. During 1976, Sri. Pothera Kalloorveettil Narayanan Nambiar surrendered 15 acres of land in RS No 292/1A, and the Government had taken over the possession of the said land as per TLB 1378/73 dated 07.07.1976 of the Taluk Office, Taliparamba. As per Revenue records proper boundary of the surplus land was not demarcated, and it was kept idle without handing over to the beneficiaries. Naduvil Grama Panchayath Administration council held on 20.07.2015 informed the District Tourism Promotion Council that 25 acres of surplus land is available at Palakkayam Thattu and it can be utilized for the development of Tourism project. Accordingly, the District Collector and Chairman of DTPC Kannur requested to the Director, Department of Tourism, to sanction the proposal to develop this area as a major tourist spot in North Kerala. Accused 2 Sri. Vijayakumar, empanelled architect of DTPC, prepared the detailed project report for Tourism Triangle at Palakkayam Thattu, proposed for providing Rain Hut, View Point, Entrance way, Fruits garden, Kiosk, Truck path way, Fencing, Check Dam Park, etc for an amount of Rs.27096887/-. Accused 2 Sri. Vijayakumar, empanelled architect of DTPC, prepared the detailed project report for Tourism Triangle at Palakkayam Thattu, proposed for providing Rain Hut, View Point, Entrance way, Fruits garden, Kiosk, Truck path way, Fencing, Check Dam Park, etc for an amount of Rs.27096887/-. Department of Tourism, Thiruvananthapuram, accorded Administrative Sanction of Rs 1 crore vide GO (Rt) No 642/15/TSM dated 23.12.2015. The Director Tourism Department engaged the DTPC Kannur as its accredited agency for the execution and project management for the construction of Palakkayathattu Tourism Project. As the accredited agency of Tourism Department, accused 1, Sri. Saji Varghese, Secretary DTPC Kannur, without obtaining the land from the Revenue Department to the Tourism Department and obtaining permission from Naduvil Grama Panchayath for the construction of buildings, executed the project through FACT RCF Building Products Ltd (FRBL), Kochi. During the preliminary enquiry, constructions were inspected by an expert team, and it was revealed that 35 numbers of Solar Street light systems were executed with an estimated cost of 1,18,000/- per unit in a total amount of Rs 4130000/-. Enquiry revealed that the maximum cost of one 100 W solar LED Street light as per MNRE (Govt of India) guidelines is 34,000/-. Thus, the Government sustained loss of Total Rs 29,40,000/in the execution of 35 Solar Street lights. Similarly, in the execution of Ornamental nished FRP Sitting, 15 nos of cast iron benches were constructed for an estimated cost of Rs 75000/- for a single unit and a total cost of Rs. 11,25,000/-. As per local market rate, the approximate rate of a single unit comes only 25,000/-, and hence the Govt had sustained loss of Rs.7,50,000/- in the execution of this work. Accused 2 prepared the detailed project report and estimate of 1 crore in a huge rate than that of the proved DSR rate, and A3 issued technical sanction for this irregular estimate and executed the work, caused huge nancial loss to the Government. Accused 2 prepared the detailed project report and estimate of 1 crore in a huge rate than that of the proved DSR rate, and A3 issued technical sanction for this irregular estimate and executed the work, caused huge nancial loss to the Government. Accused 1 being public servant, colluded and conspired with A2 and A3, with dishonest intention to obtain pecuniary benefits, A2 prepared irregular estimate with huge rate than that of approved DSR rate, A3 executed the work as per this irregular estimate and thus caused huge financial loss to the Government and corresponding pecuniary benefits to the accused persons and thereby the accused persons had committed the offences punishable under section 13 (1)(d) r/w 13 (2) of Prevention of Corruption Act 1988 and under section 120B of IPC . 18. On perusal of Annexure A4/11 dated 21.01.2016, the District Collector and chairman DTPC, Kannur issued letter to FRBL intimating that the Government had accorded administrative sanction for the project construction of Palakkayam Thattu tourism triangle circuit for an estimated cost of Rs.1 crore, and the same letter requested to the managing director that “you to execute an agreement in stamp paper worth Rs.,100/- with District Collector and chairman DTPC for starting the work. Copy of the agreement format enclosed for reference.” As pointed out by the learned public prosecutor, Annexure A4/13 is the agreement executed as per Annexure A4/11 and the agreement was executed not in between the District Collector and FRBL as directed by the District Collector, Kannur. But it was executed between the 1st accused and FRBL. Therefore, the execution of agreement of the work itself is not as specifically directed, and thus the terms thereof would not bind the Tourism Promotion Council. In this matter, the allegations of prosecution are mainly threefold. 19. On perusal of the records of the prosecution, though it is pointed out by the learned counsel for the petitioner that the entire work has been commenced and executed at the connivance of the government and District Collector, the records would show that the agreement was not executed in between the District Collector and the 3rd accused as mandated. Therefore, the terms of the agreement are not within the knowledge of the District Collector, though the bills for the works were encashed as on completion of the work. Therefore, the terms of the agreement are not within the knowledge of the District Collector, though the bills for the works were encashed as on completion of the work. It is true that the accused petitioner has certain contentions to be addressed after evaluating the evidence, and the same cannot be addressed at the pre-trial stage. In fact, it is the settled law that a court exercising power under section 482 of the Code of Criminal Procedure could not conduct mini-trial by evaluating evidence. Since the prosecution allegations are made out prima facie, contention raised by the petitioner, raising plea of innocence, is a matter to be considered by the trial court on evidence. Therefore, in this matter trial is necessary since the prosecution case is prima facie made out. Thus, the inevitable conclusion is that this petition deserves dismissal. In the result, the petition is dismissed. The interim order of stay stands vacated. Registry is directed to forward a copy of this order to the trial court for information and compliance forthwith.