1. A 'Call Attention Motion' No. 329 of 1981 was moved in the Andhra Pradesh Legislative Assembly in 1981 regarding the execution of jungle clearance works in the Irrigation Circle, Nellore District, allegating that works costing more than 60 lakh rupees were entrusted to the contractors without calling for tenders.
2. Thereupon, the Secretary, Irrigation Department, Government of Andhra Pradesh directed Mr. L. R. Kapoor, the then Chief Engineer, Major Irrigation, to conduct an enquiry into the allegations in the execution of the works. In that connection, he visited Nellore and conducted an enquiry from 4-4-1981 to 6-4-1981 and submitted his preliminary report to the State Government on 17-4-1981 pointing out various irrgularities and illegalities committed by the Engineers in the execution of the jungle clearance works in the Nellore Irrigation Circle. Then the State Government issued G.O.Ms. No. 313 dated 20-7-1981 appointing Mr. N. V. M. Krishna, the then Chief Engineer, (Investigation) as Enquiry Officer to conduct a departmental enquiry into the allegations against four Executive Engineers. Accordingly he conducted an enquiry from 10-8-1981 to 18-8-1981 and from 17-9-1981 to 19-9-1981 and submitted his report to the Government on 27-1-1982. Basing on his report, the accused engineers were kept under suspension as per G.O.Ms. No. 202 Irrigation (Serv. IV) Department, dated 18-5-1982. P. Sitarama Superintending Engineer, Nellore Irrigation Circle, Nellore, also submitted a report on 22-10-1981 to the Chief Engineer, Major Irrigation and Minor Irrigation, Andhra Pradesh, Hyderabad, regarding the irregularities committed in the execution of works. After considering these reports, the State Government referred the matter to the Anti-Corruption Bureau for a detailed enquiry. The State Government also issued orders on 16-8-1986 according sanction for prosecuting the accused-Engineers. The Anti-Corruption Bureau after enquiry and investigation into the case, registered cases against the accused-Engineers and also the concerned contractors under sections 120B, 420, read with Sections 34, 477-A read with S. 34, IPC and under S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act and laid the charge-sheet before the Special Judge for SPE and ACB cases, Nellore.
3. In all, 38 cases filed before the Special Judge involving 186 accused. The learned Special Judge tried all these cases separately i.e., C.C. Nos. 1 to 13 of 1986 and C.C. Nos. 1 to 25 of 1987, examined 942 witnesses in all for the prosecution and 92 witnesses for defence. Four witnesses were examined as Court witnesses. 1182 documents were marked on behalf of the prosecution and 53 documents were marked on behalf of the accused. 126 documents were marked in 'X' series and 10 documents were marked in 'C' series.
4. In this case arising out of C.C. No. 1 of 1986 A-1 who worked as Superintending Engineer, Irrigation Circle, Nellore from 4-9-1978 to 15-6-1981 retired on superannuation on 30-4-1983 but died on 23-12-1986 and hence the case against him was abated. A-2 worked as Executive Engineer, North Division at Nellore from 20-6-1979 to 23-5-1981. A-3 worked as Deputy Executive Engineer, North Division, Nellore, from March, 1978 to 24-10-1981. A-4 worked as Assistant Engineer or Section Officer, North Division, Woolapalem Section from October, 1976 to August, 1979. A-5 is a resident of Lakshmi-nagar, Nellore Town and he was the contractor in this case.
5. The main allegations levelled against the accused are that they have entered into a criminal conspiracy during the year 1979-80 to flout the work called 'Juliflora Jungle clearance work' on Krakatur small tank situate at a distance of 1 KM West of Krakatur, village, Kavali Taluk, Nellore District, with intent to cheat the State Government and thus misappropriated huge sums of money in collusion with the contractor, A-5.
6. The learned Special Judge framed the following charges against the accused :
'That you abovenamed A-2 to A-5 and one D. B. Duggi Reddy (deceased A-1) during the year 1979-80 conspired to flout the work known as Juliflora jungle clearance at Krakatur small rank situated at a distance of 1 KM West of Krakatur village in Kabali Taluk, Nellore District, in violation of the established rules under PWD Code with intent to cheat Government of Andhra Pradesh and that the said act was done in pursuance of the agreement between you all and thereby committed an offence punishable under S. 120B of the Indian Penal Code and within my cognizance.
Secondly, that you the abovenamed accused A-2 to A-4 being public servants employed as formerly Executive Engineer, Deputy Executive Engineer and Section Officer of Nellore North Division respectively during the period between 1979-80 at the work spot i.e. Krakatur small tank mentioned in charge one above by corrupt and illegal means in abuse of your official position as such public servants obtained advantage to the extent of Rs. 5,169/- and thereby committed the offence punishable under S. 5(2) r/w S. 5(1)(d) of the Prevention of Corruption Act, 1947 and within my cognizance.
Thirdly that you the abovenamed accused A-2 to A-5 at about the same time, place and date cheated the Government of AP with regard to the work of Juliflore jungle clearance at Krakatur small tank to a tune of Rs. 5,169/- and that you thereby committed an offence punishable under S. 420, IPC r/w 34 of the Indian Penal Code and within my cognizance.
Fourthly that you the abovenamed accused A-2 to A-5 along with deceased A-1 by name D. B. Duggi Reddy at about the same date, time, place as stated in charge No. 1 above being the public servants and contractor of P.W.D. Dept. of Government of A.P. wilfully and with intent to defraud the Government created false records with regard to the work mentioned in charge No. 1 above which belonged to the Government and you thereby committed an offence punishable under S. 477-A, IPC r/w 34 of the Indian Penal Code and within my cognizance.'
7. In support of the above charges, the prosecution examined P.Ws. 1 to 28 and marked Exs. P-1 to P-29. On behalf of the accused, D.Ws. 1 to 3 were examined and Exs. D-1 and D-2 were marked. Exs. X-1 to X-4 were also marked. The plea of the accused is one of total denial.
8. On a consideration of the entire evidence on record, the learned Special Judge found A-2 to A-5 guilty of the offences with which they are charged, convicted them thereunder and sentenced A-2 to A-5 to undergo R.I. for one year under S. 120B, I.P.C. R.I. for two years each and to pay a fine of Rs. 1,000/- in default to suffer R.I. for 4 months each under S. 420 read with S. 34, I.P.C., to undergo R.I. for 2 years each under S. 477A read with S. 34, IPC A-2 to A-4 are further sentenced to undergo R.I. for 2 years each and to pay a fine of Rs. 1000 in default to undergo R.I. for 4 months each for the offence under S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act. All the sentences were directed to run concurrently. It was also further directed that the sentences awarded in this case shall run concurrently with the sentences awarded in the other connected cases against the accused.
9. Aggrieved against their convictions and sentences, A-3 filed Crl. Appeal No. 43 of 1989, A-5 filed Crl. Appeal No. 50 of 1989, A-4 filed Crl. Appeal No. 51 of 1989 and A-2 filed Crl. Appeal No. 101 of 1989.
10. With the consent of all the advocates appearing on behalf of the appellants, all these appeals were heard together and a common judgment is delivered.
11. The procedure to be followed for clearance of jungle on canal tanks, tank bunds and channel bunds was spoken to by P.W. 3 who was working as Deputy Executive Engineer and P.W. 16 who was working as Divisional Accounts Officer, and it is not disputed by the accused. The procedure as spoken to by these two witnesses is as follows :
If there is any necessity for clearance of jungle on any canal bank or tank bund, the concerned Section Officer will prepare the estimate for that work basing on the rates mentioned in the standard schedule of rates of that particular year. He will send a report to his immediate superior officer i.e. the Deputy Executive Engineer of the Sub-Division. The Deputy Executive Engineer will check up that estimate, countersign the same and send it to the Executive Engineer for sanction. After the estimate is received in the office of the Executive Engineer it will be entrusted to Draughtsman Section for scrutiny. After scrutiny in that section, the Head Draughtsman will send it to the Divisional Accounts Officer who is also working in the Office of the Executive Engineer for verification regarding the classification and budget provision. After verification the Divisional Accounts Officer will submit it to the Executive Engineer and the Executive Engineer will sanction the same, if it is found in order. After the estimate is sanctioned, an agency to execute that work will be fixed by calling tenders or by nominations by the Executive Engineer. Thereafter, an agreement will be concluded between the Executive Engineer and that agency regarding the quantum of the work to be done and the rates agreed between them. The agency has to deposit the earnest money. But before the work is entrusted to that agency, the Section Officer will take the premeasurements in the presence of the contractor and note them in the Measurement Book and the contractor will sign in token of his acceptance of those measurements. Thereafter, the Deputy Executive Engineer will check measure the same. Then the site will be handed over to the contractor and the contractor will commence the work. After the work is completed, the Section Officer will issue a certificate of clearance and it will be verified by the Deputy Executive Engineer. After the work is completed, the Section Officer will prepare the bill to the extent of the work done on the basis of the measurements noted in the Measurement Book and he will submit the same to the Deputy Executive Engineer who in turn forwards the same to the Executive Engineer. The Executive Engineer thereafter will entrust that bill to the auditor attached to his office for scrutiny. The auditor will check the arithematical accuracy and the rate at which the claim is preferred with reference to the estimate. The Divisional Accounts Officer will look into the recoveries to be made from the contractor like income-tax, cost of material issued to the contractor, scenerate charges etc. If the bill is found in order, then the Divisional Accounts Officer will place it before the Executive Engineer for pass order with remarks. Thereafter the Executive Engineer will pass that bill if he is also satisfied. If the auditor or the Divisional Accounts Officer finds any defects while scrutinising the bill, those defects will be noted and they will be communicated to the Deputy Executive Engineer. If the executed work relates to earth work, then the bill will be sent to the draughtsman sanction to check up the levels recorded in the field level book, section sheet and quantity calculation sheet. If it does not relate to the earth work, then it will be entrusted to an auditor for scrutiny. Before the final bill is passed, the contractor should issue 'release and discharge certificate' to the effect that he will not make any further claim with respect to that work. If the Executive Engineer finds the work as defective, he can withhold the bill. After the Executive Engineer passes the bill, then the payment will be made to the contractor through a cheque and the cheque will be encashed by the Contractor through the State Bank of India concerned where the Executive Engineer, Nellore, North Division, is having an account.
12. The case of the prosecution, in brief, is as follows :
A-4 as Section Officer, Ullapalem Irrigation Section prepared the estimate, Ex. P-4 for clearing light jungle and uprooting and removing of stumps on the tank bund of Krakatur small tank or Vippala tank between o/o KM to 1.45 KM as that jungle was causing danger to the tank bund and as per the instructions of the Superintending Engineer, Irrigation Circle, Nellore, A-4 prepared that estimate Ex. P-4 for Rs. 5,500/- on 3-6-1979 for clearance of jungel on an extent of 23,000/- sq. Metres, and for uprooting 3500 stumps of other kinds of trees including stacking of girth of 50 cms. to 100 cms. A-4 submitted this estimate along with his report Ex. P. 4A and detailed estimate Ex. P. 4C to the Deputy Executive Engineer i.e. A-3. A-3 countersigned it on 14-6-1979 and forwarded it to A-2 the Executive Engineer. A-2 sanctioned the said estimate in Dvl. No. 212/79-80 for Rs. 500/- on 17-7-1979. Ex. P. 4-B is the said sanction order of A-2. A-2 entrusted that work for execution to A-5 on nomination basis. Ex. P. 11 is the application of A-5 addressed to A-2, Nellore North Division to entrust this work on nomination basis to him. He submitted that application on 14-6-1979 through A-4 and A-3. A-3 forwarded it to A-2 on 1-7-1979 and A-2 accepted the said proposal of A-3 and entrusted the work on nomination to A-5 by his order dated 17-7-1979. This order of A-2 entrusting the work to A-5 also finds place on the reverse of Ex. P. 11. It was despatched in Memo. No. 552 AD, dated 19-7-1979. A-2 and A-5 concluded the agreement Ex. P. 5 bearing No. 114/79-80 on 26-7-1979. As per the conditions incorporated in this agreement Ex. P. 5, the contractor should complete the work within a period of one month from the date of handing over the site to him. A-5 has not put the date beneath his signature in this agreement.
13. The premeasurements for jungle clearance work to an extent of 22100 sqm. were recovered by A-4 on 14-6-1979 and A-3 check-measured the same on 17-6-1979. Ex. P. 6 is the M. Book bearing No. 2829-A wherein the premeasurements were recorded. Ex. P. 6A are the entries at page 20 in Ex. P. 6 relating to the premeasurements recorded by A-4 for jungle clearance and check measured by A-3. A-4 issued the certificate of clearance of jungle on 28-6-1979 and it was verfied by A-3 on 2-7-1979 Ex. P. 6B is the said certificate for clearance of jungle issued by A-4 and verified by A 3. A. 4 recorded the premeasurements for uprooting and removing the stumps of 3507 numbers on 28-6-1979 and it was check-measured by A-3 on 2-7-1979. Ex. P. 6C are the relevant at page 22 in Ex. P. 6 relating to the recording of premeasurments for uprooting stumps by A-4 and check measuring the same by A-3. A-4 issued the certificate for uptooting and removal of stumps on 11-7-1979, and it was verified by A-3 on 16-7-1979. Ex. P. 6D are the relevant entries at page 22 in Ex. P. 6 relating to the said certificate for uprooting and removal of stumps issued by A-4 and verified by A-3. A-4 prepared the bill for Rs. 5275/- on 5-8-79 towards the cost of execution of that work and it was countersigned by A-3 on 30-8-1979. A-2 passed the said bill for Rs. 5169/- after deducting Rs. 106/- towards income-tax on 11-9-1979. A-2 issued a cheque bearing No. 806883 dated 11-9-1979 in favour of A-5 and A-5 encashed that cheque on 17-9-1979 in the state Bank of India, Nellore Branch.
14. The prosecution alleges that these accused by entering into a criminal conspiracy falsified the records relating to jungle clearance and they have withdrawn and misappropriated Government funds without actual execution of the jungle clearance thus caused wrongful loss to the Government.
15. The main contentions put forth by the accused before the learned Special Judge are :
(i) the 'call attention motion' does not relate the works in this case as they are completed prior to 1980 and it only refers to certain secret tenders conducted in Nellore South Division at that time;
(ii) there was no valid sanction of the prosecution under section 6(1) of the Prevention of Corruption Act and that the Sanctioning authority did not apply its mind to each individual accused to find out whether a prima facie case is made out for according sanction against A-1 to A-4;
(iii) that the technical report Ex. P-12 submitted by P.W. 13 has come into existence during the course of investigation and as such it is hit by Section 162 Cr.P.C. and inadmissible in evidence;
(iv) P.W. 13 is not an 'expert' within the meaning of Section 45 of the Evidence Act and as such his report Ex. P. 12 is hit by Section 162 Cr.P.C.;
(v) the investigating agency did not visit the work-spot but prepared the panchanamas sitting in the office of the Deputy Superintendent of Police, ACB, Nellore;
(vi) that the prosecution witnesses have obliged the ACB people in drafting the panchanamas under fear of threat as there will not be anything on the work spot for verification after a lapse of 4 or 5 years to find out whether there was actual clearance of jungle or not;
(vii) that the investigating officer and the engineering staff have not taken the actual measurements at the work-spot in that the widths as noted in the M. Book were taken and out of which the widths of the permanent structures like revetment area have been deducted;
(viii) there are no milestones or kilometre stones on the work-spot and as such the visit of the investigation agency is highly doubtful;
(ix) the agreement is a formal one for audit purposes and for preparation of bill only;
(x) the case of the prosecution was not that the judgle clearance was actually done by the date of the report submitted by the investigating officer but only excess payment was made; and
(xi) the work has been executed as per the Codal rules only.
16. On a consideration of the evidence of P.W. 13 and Ex. P. 12 and after referring to the decisions the Supreme Court, the learned Special Judge came to the conclusion that Ex. P. 12 is not hit by Section 162 Cr.P.C. and P.W. 13 is an expert in his own field and his evidence has to be given credence to.
17. With regard to the sanction issued by the Government under Ex. P.W. 3, the learned Special Judge came to the conclusion that the order of Sanction Ex. P. 13 is legal and valid and it does not contravene the provisions of Section 6(1) of the Prevention of Corruption Act.
18. With regard to the entries in the M. Book. Ex. P-6, the Court below found that excess area was recorded by the accused with a mala fide intention to defraud the Government with a view to misappropriate the Government funds.
19. With regard to the entrustment of work on nomination basis, the Court below held that it is highly irregular and illegal and it is in violation of the Codal provisions as there is nothing on record to show that A-2 had obtained necessary sanction from his immediate superiors. It was also held that the execution of the work was done long before sanction of the estimate, appointment of agency and conclusion of the agreement. It was also held that the certificates issued by A-4 that the work was completed in all aspects is palpably false. Ultimately the learned Special Judge gave his conclusions in paragraph 67 of his judgment and found accused 2 to 5 guilty of all the offences and convicted and sentenced them as stated above.
20. All the contentions that have been raised before the learned Special Judge have been reiterated before this Court.
21. The first and foremost submission made by Sri C. Padmanabha Reddy, who addressed leading arguments in these appeals, is that there was no valid sanction for prosecuting the accused-Engineers and the sanctioning authority did not apply its mind to each individual accused to find out whether a prima facie case has been made out for according sanction. He also argues that the evidence of P.W. 15, Section Officer in the Irrigation Department, Secretariat belies the recitals in Ex. P. 13 and in view of the conflict between the oral evidence and the documentary evidence, it is necessary for the Court to see whether the sanctioning authority has applied its mind or whether it is only a proforma prepared by the Anti Corruption Bureau sent for the signature of the Minister concerned. The learned counsel requested the Court to call for the file relating to the sanction accorded for prosecuting the accused in this case, to ascertain the fact whether the authority empowered to sanction the same has applied its mind or not. According to him, if the sanction is invalid, the whole case must be thrown out and the accused are entitled for an acquittal.
22. P.W. 15, who was working as Section Officer, Irrigation Department, Secretariat, Hyderabad, has been examined to identify the signature of Sri T. R. Prasad, Secretary to Government, Irrigation Department, who issued the sanction order Ex. P. 13. But there is no cross-examination by any one of the accused. On the ground that P.W. 15 stated that Sri Prasad accorded sanction and issued the sanction order, the learned counsel contended that there is a discrepancy in the evidence of P.W. 15. It must be borne in mind that P.W. 15 was examined to produce the sanction order issued by the Government which is marked as Ex. P. 13.
23. As desired by the learned counsel, the entire file connecting the sanction of prosecution has been called for from the Irrigation Department. The file shows that the entire material with regard to the enquiry reports and the statements given by different persons has been placed before the sanctioning authority. The file has been circulated through various officers of the Secretariat and Ministers concerned i.e., the Secretary. (Irrigation). Principal Secretary, Finance, the Chief Secretary, Minister for Medium Irrigation, Minister for Law and finally the then Chief Minister also signed on the note file. The entire material has been placed before these Officers and Ministers. This part of the file relating to launching of criminal prosecution contains 87 pages. Therefore, a perusal of the notings in the file clearly shows it is not a case where a pro forma has been submitted and the Secretary, Irrigation Department alone has passed orders. The statement of P.W. 15 that the sanction order has been issued by Sri T. R. Prasad has no relevance particularly when the file relating to sanction order was routed through several authorities as stated above. The allegation that there is conflict between the oral evidence and the contents in the sanction order has no relevance at all as the sanction order spelt out the details.
24. In the State of Bihar v. Rani Sonabati Kumari, : [1961]1SCR728 while dealing with a Notification issued under section 3(1) of the Bihar Land Reforms Act issued in the name of the Governor and authenticated as prescribed by Art. 166(3) the Supreme Court observed :
'Even assuming that the order did not originate from the Governor personally, but was made by some one duly authorised by him in that behalf with in Art. 154(1), the Governor nevertheless remains responsible for the action of his subordinates taken in his name.'
25. In A. Sanjeevi Naidu v. State of Madras, : [1970]3SCR505 the ground on which the validity of the draft scheme framed under section 68(C) of the Motor Vehicles Act by the Madras Government was that the opinion requisite under the said Section was not formed by the State Government but by the Secretary to the Government in the Industries, Labour and Housing Department, acting in pursuance of the powers conferred on him under Rule 23(A) of the Madras Government Business Rules. The contention advanced on behalf of the appellants in that case was that a Minister cannot deal with the business of other Department except the business allocated to him and as the then Transport Minister was not in charge of the Home Department, his Department could not have dealt with functions arising under the above Act. Further the Governor could not have allocated any business to a Secretary. It was held therein at page 1106 :
'Under the Constitution, the Governor is essentially a constitutional head and the administration of State is run by the Council of Ministers. The Constitution has authorised the Governor under Article 166(3) to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function.'
It is nobody's case that the secretaries to Government have no power to deal with these matters. Neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government. Those matters have to be attended to and decisions taken by various officials at various levels. When those Officials discharge the functions allotted to them, they are doing so as limbs of the Government and not as persons to whom the power of the Government had been delegated.
26. In Halsbury's Laws of England Vol. 1 3rd. End. at page 170, it is observed :
'Where functions entrusted to a Minister are performed by an official employed in the Minister's department there is in law no delegation because constitutionally the Act or decision of the official is that of the Minister.'
27. In R. Chitralekha v. State of Mysore, : [1964]6SCR368 , the validity of the Orders made by the Government of Mysore in respect of admissions to Engineering and Medical Colleges in the State of Mysore were challenged on the ground that the letter was not issued in the name of the Governor but was signed by the Under Secretary to Selection Board communicating the decision of the Government to prescribe interviews for regulating admission to colleges. The averments of the Government in the counter affidavit that the Government had given the direction contained in the letter communicated to the selection board was not denied by the petitioners therein. In these circumstances, the Supreme Court rejected the contention of the appellants therein that the order did not conform to the requirements of Article 166(3) of the Constitution. Subba Rao, J. (as he then was) delivering the majority judgment explained the scope of Art. 166(3) thus :
'Under Art. 166(3) of the Constitution all executive action of the Government of a State shall be expressed to be taken in the name of the Government, and that Orders made in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order which is so authenticated shall not be called in question on the ground that it is noto an order made by the Governor.'
28. In M/s. Bijoya Lakshmi Cotton Mills Ltd. v. State of West Bengal, : [1967]2SCR406 , the Supreme Court after referring to various earlier decisions including the decision in Chitralekha's case (cited supra) observed :
'We are also in agreement with the views expressed by the High Court that the Governor's personal satisfaction was not necessary in this case, as this is not an item of business, with respect to which, the Governor is, by or under the Constitution, required to act in his discretion. Although the executive government of a State is vested in the Governor, actually it is carried on by Ministers, and in this particular case under Rules 4 and 5 of the Rules of Business referred to above, the business of Government is to be transacted in the various departments specified in the First Schedule thereof.'
29. The contention of the learned counsel for the appellants that the file has not been routed through the Home Minister has no relevance as the file has been circulated to the Chief Minister who is the final authority as Head of the Govt.
30. It is therefore, necessary to extract the entire F.O.Ms. No. 382 dated 16-8-1986 which is marked as Ex. P. 13.
'GOVERNMENT OF ANDHRA PRADESH ABSTRACT.'
Public Services - Irrigation Department - Irrigation Circle, Nellore - Allegations of Corruption and Malpractices against Sarvasri D. B. Duggi Reddy, Superintending Engineer, R. Narayana Reddy, Executive Engineer, Irrigation Department M. Srinivasalu Reddy, Deputy Executive Engineer and D. Balakrishna Reddy, Assistant Executive Engineer - Sanction under section 197 of the Code of Criminal Procedure 1898 and Section 6(1)(b) of the Prevention of Corruption 1948 for prosecution - Accorded.
Irrigation and Command Area Development (Ser. IV) Department.
G.O.Ms No. 382. dt. 16-8-86.
ORDER.
Whereas it is alleged that Sri D. B. Duggi Reddy, Superintending Engineer, Irrigation Circle, Nellore, Sri R. Narayana Reddy, Executive Engineer, Irrigation Circle, North Division, Sri M. Srinivasulu Reddy, Depputy Executive Engineer, Kavali Irrigation Circle, North Division, Sri D. Balakrishna Reddy, Assistant Executive Engineer, Irrigation Circule, North Division were public servants within the meaning of Section 21 of I.P.C.
2. Where it is further alleged that Sarvasri D. B. Duggi Reddy, R. Narayana Reddy. M. Srinivasulu Reddy and D. Balakrishna Reddy and T. Bhaskara Reddi, Contractor, Lakshminagar, Nellore were parties to a criminal conspiracy during the years 1979 and 1980 at Nellore, Kavali, Krakatur and other places to commit illegal acts and or acts by illegal means to cheat the Government of Andhra Pradesh and to commit the offences of criminal misconduct by creating false documents pertaining to the contract work given on nomination to the said Sri R. Bhaskar Reddy, called 'Clearing light jungle' (Juliflora) on Krakatur Chinna Tank, Kavali Taluka' under Divisional Agreement No. 114/79-80, dated 26-7-1979 without executing the work of clearing jungle on the Krakatur Chinna Tank and also removing stumps etc. and in pursuance of the said criminal conspiracy they committed the following acts.
1. That Sri D. Balakrishna Reddy prepared estimate on 13-6-1979 pertaining to the work of clearing the jungle on Krakatur China Tank and the same was counter-signed by Sri M. Srinivasulu Reddy on 14-6-79 and submitted the same to Sri R. Narayana Reddy for technical sanction and the said Sri R. Narayana Reddy in turn sanctioned the estimate for Rs. 5,500/- in D.R. No. 212/79-80 dt. 17-7-79.
2. That at the instance of Sri D. Balakrishna Reddy, Sri R. Narayana Reddy entrusted the work of clearing the jungle (Juliflora) on Krakatur China Tank in Kavali Taluk to Sri T. Bhaskar Reddy under Divisional Agreement No. 114/79-80 dt. 26-7-1979 on nomination without any valid reasons.
3. That Sri D. Balakrishna Reddy recorded false measurements of jungle clearance in the measurement Book No. 2879-A and Sri M. Srinivasulu Reddy falsely made entries in the M. Book as though he had checkmeasured the work and Sri T. Bhaskara Reddy signed in the measurement book at the relevant pages in token of having executed the work though in fact no work was executed and further Sri D. Balakrishna Reddy falsely certified in the measurement book showing uprooting and burning of stumps and Sri M. Srinivasulu Reddy falsely counter-signed in token of having checkmeasured the same and further Sri D. Balakrishna Reddy prepared the first and final bill for a gross sum of Rs. 5,275/- and Sri M. Srinivasulu Reddy countersigned the same certifying its correctness and after the bill was passed for payment by Sri R. Narayana Reddy after deducting the Rws. 106/- towards income-tax, cheque bearing No. 806883/8069 806883/8069 dt. 11-9-79 for Rs. 5,169/- was paid to the said contractor Sri T. Bhaskara Reddy and the said Sri T. Bhaskara Reddy without executing the work received the cheque and thereby they all cheated the Government of Andhra Pradesh in furtherance of common intention of all of them and Sarvasri D. B. Duggi Reddy, R. Narayana Reddy, M. Srinivasulu Reddy and D. Balakrishna Reddy by corrupt and illegal means or otherwise abusing their official position as public servants obtained for the said Sri T. Bhaskara Reddy and for themselves pecuniary advantage of Rs. 5,169/-.
3. And whereas the said acts constituted offences punishable under Sections 120B IPC read with 420 IPC and5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 and substantive offences punishable under section 420 IPC read with Section 5(1)(d) of Prevention of Corruption Act.
4. And whereas the Government of Andhra Pradesh after fully and carefully examining the material placed before them including the C.D. file, statements of witnesses etc. in regard to the said allegations and circumstances of the case consider that the said Sarvasri D. B., Duggi Reddy, R. Narayana Reddy. M. Srinivasulu Reddy, D. Balakrishna Reddy and Sri T. Bhaskara Reddy should be prosecuted in a court of law for the said offence.
5. Now, therefore, in exercise of the powers conferred by Section 197 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) and Section 6(1)(b) of the prevention of Corruption Act, 1947 (Act 2 of 1947) the Government of Andhra Pradesh hereby accord sanction, for the prosecution of the said Sri D. B. Duggi Reddy, Superintending Engineer, R. Narayana Reddy, M. Srinivasulu Reddy and D. Balakrishna Reddy for the offences punishable under section 120B IPC read with 420 IPC and Section 5(1) read with Section 5(1)(d) of Prevention of Corruption Act 1947 and substantive offences punishable under section 420 IPC read with Section 34IPC, 477-A IPC and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, and any other offences punishable under other provisions of law in respect of the aforesaid acts and for the taking cognizance of the said offences by Court of competent jurisdiction.
(BY ORDER AND IN THE NAME OF GOVERNOR OF ANDHRA PRADESH)
Sd. T. R. Prasad.
Secretary to Government.'
A reading of the above order clearly shows that the Government have carefully examined the material including the C.D. File, statements of witnesses and ultimately accorded sanction. This Order contains the entire facts of the prosecution case in detail. Particular mention has been made about the illegal acts committed by these accused and the said order has been issued in the name of the Governor of Andhra Pradesh and it has been signed by T. R. Prasad, Secretary to Government.
31. The learned counsel for the appellants attacked the conviction of the accused as bad on the ground that there is no proper sanction as required under section 6(1)(b) of the Prevention of Corruption Act.
32. Section 6(1)(b) of the Prevention of Corruption Act reads thus :
'6. Previous sanction necessary for prosecution.
1. No court shall take cognizance of any offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under sub-section (2) or sub-section 3A of Section 5 of the Act, alleged to have been committed by a public servant except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government.
(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government.
(c) In the case of any other person of the authority competent to remove him from his office.'
33. A bare reading of this provision would indicate that it aims at preventing harassment and vexatious prosecution of a public servant. It assures that an honest public servant would not be in a position to oblige every one and may, therefore, incur displeasure of many of them. This displeasure may even result in his vexatious and malicious prosecution for offence relating to discharge of his official duties. The Legislature, therefore thought of providing a reasonable protection to public servants in the discharge of their official functions so that they continue performing their duties and obligations undeterred by vexatious and unnecessary prosecution. The said provision was analysed by the Supreme Court in Jaswant Singh v. State of Punjab, : 1958CriLJ265 to hold that the object of the provision for sanction was that the authority giving the sanction should be able to consider for itself the evidence before it and come to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In this connection, the following passage from the decision being important may be quoted for ready reference;
'4. The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; Basdeo Agarwala v. Emperor, 1945 FC 93 at p. 98, AIR 1945 FC 16 : (46 Cri LJ 510) at p. 18. The object of the provision for sanction is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarakadas Morarka v. The King, 75 Ind. App. 30 at p. 37, AIR 1948 PC 82 : (49 Cri LJ 261) at p. 84 the Judicial Committee of the Privy Council also took a similar view when it observed :
'In their Lordships' view, to comply with the provisions of Clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.'
It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore, unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusofalli Mulla v. The King 76 Ind. App. 158, AIR 1949 PC 264 : (50 Cri LJ 889) it was held that a valid sanction on separate charges of hoarding and profiteering was essential to have the Court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction.'
34. Applying the aforesaid law in Indu Bhusan v. State of West Bengal, : 1958CriLJ279 the Supreme Court examined the sanction order and found it satisfying the basic requirement of application of mind by the sanctioning authority.
35. In Shiv Raj v. Delhi Administration, : 1969CriLJ1 the Supreme Court once again considered the subject and re-affirmed the guidelines given by it in Jaswant Singh's case (supra). In this case also, the sanction order Ex. P. 13 not only stated the facts of the prosecution case in detail which are necessary to constitute the offence but the sanctioning authority after carefully examining the C.D. File, statement of witnesses etc., came to the conclusion that the accused, who are public servants, have to be prosecuted in a Court of law and upon a consideration thereof the authority decided to sanction prosecution. Therefore it satisfies all essential requirements of the sanction.
36. In Somnath v. Union of India, : 1971CriLJ1422 the Supreme Court again considered the matter and observed at Page 1425 (of Cri LJ) :
'For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. Though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities.'
In this case, the sanction order, Ex. P. 13 contains all the details in regard to the allegations made against the accused separately and they are in respect of the facts consituting the offence with which the accused are proposed to be charged.
37. In a subsequent decision in Mohd. Iqbal Ahmed v. State of A.P., : 1979CriLJ633 the Supreme Court restated the said law as under at Page 635 (of Cri LJ) :
'It is incumbent on the prosecution to prove that a valid sanction has been granted by the Santioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways, either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducting evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (sic-defect) in the prosecution the entire proceedings are rendered void ab initio ........'
In this very case, the Supreme Court observed as under at page 635 :-
'...... What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not idle formality or an acrimonious exercise but a solemn and sancrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.'
38. Similarly in Raghubir Singh v. State of Haryana, : 1974CriLJ1062 it was held that prosecution must fail for an infirmity in the sanction order.
39. In Shiv Raj's case (7, Supra) a Police Officer was prosecuted for an offence under section 5(2) of the Prevention of Corruption Act and Section 161 IPC. The trial Judge accepted the prosecution case as correct and convicted the accused and sentenced him to undergo rigorous imprisonment under both the counts and also to pay a fine amount. The High Court maintained the conviction and sentences under each count except with regard to the payment of fine. The Supreme Court referred to the decision of the Judicial Committee in Gokulchand v. The King, AIR 1948 PC 82 : (49 Cri LJ 261) relied upon by Mr. M. C. Chagla, appearing for the appellant, wherein it was held that a sanction which simply names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is not a sufficient compliance with Clause 23. Mr. Chagla then referred to the evidence of P.W. 9, Sub-Inspector Ascharaj Lal who said that 'all the papers relating to the case were sent to the D.I.G.' When Cross-examined, he could not say which were the documents which were sent to the D.I.G. because they were in a sealed cover. The Supreme Court then opined that there was no substance in the argument put forward on behalf of the appellant therein. The Supreme Court observed :
'The order of sanction dated December 10, 1963 shows on the face of it what were the facts constituting the offence charged and that a prima facie case was made out against the appellant. The Order also further recites that Mr. M. P. Singh, D.I.G. 'after fully and carefully examining the material before him in regard to the aforesaid allegation' in the case, considered that a prima facie case is made against the appellant. It is manifest that the decision of the Judicial Committee has no application to the present case, for the order of sanction in that case was much more criptic and materially different. We are satisfied that the order of sanction in the present case fulfils the requirements of S. 6 of the Prevention of Corruption Act. We accordingly reject the argument of Mr. Chagla on this aspect of the case.'
40. In State of Rajasthan v. Tarachand Jain, AIR 1973 SC 2113 : (1973 Cri LJ 1396) Court following the decision of the Judicial Committee in Gokulchand's case (supra) observed :
'The burden of proof that the requisite sanction had been obtained rests upon the prosecution. Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after these facts had been placed before the sanctioning authority.'
It was further held :
'Where the facts constituting the offence appear on the face of the sanction accorded by the Chief Minister, it is not necessary for the prosecution to lead separate evidence to show that the relevant facts were placed before the Chief Minister. Hence it cannot be said that the prosecution has failed to prove that the Chief Minister has accorded his sanction after applying his mind to the facts of the case. The fact that the Chief Minister signed the sanction for the prosecution on the file and not the formal sanction produced in the Court, which bears the signature of Special Secretary to the Government, makes no material difference.'
41. In Parmanand Das v. State of Andhra Pradesh, : 1978CriLJ1802 the sanction order was issued by the Special Officer appointed under section 2 of the Hyderabad Municipal Corporation (Amendment) Act 11 of 1970 and he was empowered to exercise the powers and perform the duties and discharge the functions of the Standing Committee of the Municipality. But by a resolution the Standing Committee accorded sanction under section 6(1)(c) of the Prevention of Corruption Act and authorised the Special Officer to sign the order according sanction and accordingly the Special Officer issued the sanction order. In these circumstances it was held that the sanction order was not valid as the Special Officer who was entitled under the Act has not given the sanction as a Special Officer or by himself exercising the powers of the Standing Committee but issued the sanction order in pursuance of the sanction given by the Standing Committee. The plea that the Standing Committee and the Special Officer are one and the same was not accepted by the Supreme Court. Therefore, this decision is not relevant to the case on hand.
42. In a recent judgment in State of Bihar v. P. P. Sharma, : 1991CriLJ1438 the Supreme Court observed at page 1450 (of Cri LJ) :
'The sanction under section 197, Cr.P.C. is not an empty formality. It is essential that the provisions therein are to be observed with complete strictness. The object of obtaining sanction is that the authorities concerned should be able to consider for itself the material before the investigating officer before it comes to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. To comply with the provisions of S. 197 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on the face of sanction, it is open to the prosecution, if challenged to prove before the Court that these facts were placed before the sanctioning authority. It should be clear from the form of sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case it sanctioned the prosecution.'
43. In the present case also, the investigation into the alleged irregularities and illegalities in the clearance of jungle on Krakatur Chinna tank was completed by the date of sanction. In Ex. P. 13 it has been specifically mentioned that the material papers including the case diary and statements of witnesses in respect of the said allegations were taken into consideration by the sanctioning authority. The case diary is a complete record of the police investigation. It contains total material in support or other-wise of the allegations. When the sanctioning authority has carefully examined the entire material including the case diary and the statements of the witnesses it cannot be said that there was non-application of mind on the part of the sanctioning authority. The facts referred to in the sanction order, Ex. P. 13 are the facts which are adduced in this case. The case of each individual accused has been scrupulously gone through by the authority before issuing Ex. P. 13. The order of sanction is only on administrative act and not a quasi-judicial nor a lis involved. As borne out from Ex. P. 13 the basic facts that constitute the offence were mentioned and the authority also has given the reasons for according sanction. When the Government accorded sanction, Section 114(e) of the Evidence Act raises a presumption that the official acts have been regularly performed. The burden is heavier on the accused to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject the grant or refusing to grant sanction was made by the appropriate authority. At any time before the Court takes cognizance of the offence the order of sanction could be made. It is a settled principle of law that issuance of the process to the accused to appear before the Court is sine qua non of taking cognizance of the offence. The emphasis of S. 197 or other similar provision makes it clear that before taking cognizance of the offence alleged the prior sanction given by the competent authority must be before the Court. Therefore, at any time before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction. A perusal of Ex. P. 13 clearly indicates that the Government appears to have applied its mind to the facts placed before it and considered them and then granted sanction. Moreover there is no cross-examination of P.W. 15. The case was enquired into at the preliminary stages and ultimately after due enquiry the facts and the previous reports have been placed to the effect that there was large scale fraud with regard to the utilisation of the funds in connection with awarding of contracts. A perusal of the file relating to the sanction produced before the Court shows that each and every aspect in regard to this case have been considered by the Government before according sanction. The offence alleged to have been committed by the accused relate to Krakatur Chinna Tank. All the material was gathered by the Government and considered the same. Therefore, it cannot be said that a separate file has to be maintained in each and every alleged act of the accused. The circumstances justify for initiation of one file. What we have to see is whether the relevant material has been placed before the sanctioning authority or not. When every material relating to this case has been placed before the sanctioning authority including the case diary and the statements of the witnesses it cannot be said that non-maintenance of a separate file in the case of each individual accused is fatal to the prosecution. Therefore, I am clearly of the opinion that the Government have accorded sanction after fully satisfying itself the material facts placed before it and after considering the case diary and statements of witnesses and it is not a pro forma as contended by the accused and it is a valid sanction order. The provisions of S. 6(1) of the Act have been duly complied with in according sanction for prosecution of the accused.
44. The learned counsel for the appellants contends that P.W. 13 and other Engineering staff have not taken the actual measurements existing at the work spot.
45. P.W. 13 was working as Deputy Executive Engineer in Somasila Project circle at Nellore from 1-6-1984 to 8-8-1985. He was directed to assist the investigation into this case and cases by the Anti-Corruption Bureau. He assisted the ACB till the end of August, 1985. According to his version, he prepared his technical report Ex. P. 12 on 19-8-1984. In that report, P.W. 13 mentioned the various irregularities and illegalities committed by the accused while preparing the estimate Ex. P. 4, while appointing an agency for jungle clearance work and uprooting of stump. As per his opinion there is no possibility for the existence of 3500 stumps for clearance as recorded in the Measurement Book (M. Book) Ex. P. 6. Exs. P. 4 to P. 6 were looked into by P.W. 13 at the time of preparation of Ex. P. 12.
46. The argument advanced by the learned counsel for the appellants is that P.W. 13 submitted Ex. P. 12 during the course of the investigation itself and therefore it is hit by the provisions of S. 162, Cr.P.C. and the lower Court was not justified in arriving at the conclusion that it is the report of an expert and that his report can be taken into consideration and it does not at all hit by S. 162, Cr.P.C.
47. The principle embodied in S. 162, Cr.P.C. is wholesome. It ensures that any statement made to the police which is reduced to writing be signed by the person who makes it and that no such statement or any record of such statement whether in a police diary or otherwise or any part of such statement or record shall be used for any purpose other than those stated in the section. They may be used by the accused or by the prosecution to contradict such witness in the manner provided by S. 145 of the Indian Evidence Act and when it is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. It means that statements made to the police can be used for contradicting a prosecution witness in the manner indicated in S. 145 of the Evidence Act. They cannot be used for corroboration of the evidence of a witness in Court. The provisions of S. 162, Cr.P.C. provide a safeguard to the accused and denial thereof may be justified only in exceptional circumstances. Certain kinds of statements which come within S. 27 or S. 32(1) of the Indian Evidence Act may be proved as against the persons making them. The evidence of a witness at a trial may be shown to be inconsistent with his previous statements. This may be done by producing his previous statements which have been reduced into writing and which are contradictory of the witnesses' evidence in Court. The principle is that a witness who makes inconsistent statements is unreliable and his evidence shall be ignored.
48. P.W. 13 was specifically entrusted to assist the investigation. He is the person working in the irrigation department. So it can be said that he is a person who has got special knowledge with regard to the entrustment of jungle clearance work and the other works that have to be carried by the Executive Engineer or his subordinate concerned. Though in the strict sense of the term he is not an 'expert' but by virtue of his special knowledge that has been acquired by him while in service he was directed to assist the investigating agency. In that sense, it can be said that he is an expert within the meaning of S. 45 of the Indian Evidence Act. When he was an expert and when his statement has not been reduced in writing by the investigating agency and during the course of the investigation basing on the documents Exs. B. 4 to P. 6 when he has prepared the statement, it cannot be said that it is hit by S. 162, Cr.P.C. It is only a technical report that has been prepared by P.W. 13 and that report can be looked into and it does not hit by S. 162, Cr.P.C.
49. In Central Excise Department v. P. Somasundaram, 1980 MLJ (Crl) 436 : (1980 Cri LJ 533), the services of a goldsmith were taken by the Central Excise Department in assessing the gold which was seized from the accused in that case and the said goldsmith issued a certificate to the effect that the seized gold biscuits were of 24-carat purity and were of foreign origin because of the markings found on those biscuits. In those circumstances it was held that the goldsmith had nowhere stated anything bout his experience in that particular branch or that he had made a special study of the subject of assaying so as to make him skilled in that branch. Hence it was held that the said goldsmith was not an expert within the meaning of S. 45 of the Indian Evidence Act.
50. In Thori Singh v. State of Uttar Pradesh, 1962 Cri LJ 259, a sketch map was prepared by the investigating officer pointing out the place where the deceased was hit by bullet and also the places where the witnesses were at the time of incident. He marked them on the basis of the statements made to him by the witnesses. In those circumstances, the Supreme Court held that those marks on the sketch map based on the statements made by the investigating officer are inadmissible under S. 162, Cr.P.C.
51. In Kaliram v. State of Himachal Pradesh, 1974 Cri LJ 1, a letter was addressed by a constable to the Station House Officer relating to the facts said to him by the accused during the course of investigation. The Supreme Court held that the letter containing the narration of facts addressed by a person to a Police Officer during the course of investigation is hit by S. 162, Cr.P.C.
52. In Vinod Chaturvedi v. State of Madhya Pradesh, 1984 Crl App Rep (SC) 181 : (1984 Cri LJ 814), also one of the prosecution witnesses sent a signed letter to the Police Superintendent during investigation of the case and it was held that the letter is not admissible in evidence as it is hit by S. 162, Cr.P.C.
53. Coming to the case on hand, Ex. P. 12 is not a statement as such of P.W. 13 made to the investigating officer. It contains the opinion and conclusions of P.W. 13 who was directed by the State Government to assist the prosecution in this case. He gave his opinion and conclusions on the facts and records made available to him by the investigating officer. He was then working as a Deputy Executive Engineer in the Irrigation Department. As the offence in this case relates to certain technical aspects regarding preparation of the estimate, sanctioning of the same, recording measurements and preparation of the bill etc. the State Government felt it necessary to make available an expert to assist the investigation and as such the services of P.W. 13 and others were made available to the investigation officer during the course of investigation in this case. Therefore, in that sense he is an 'expert' within the meaning of S. 45 of the Indian Evidence Act. Hence Ex. P. 12 is not hit by S. 162, Cr.P.C. This Ex. P. 12 can be considered along with the other evidence that has been adduced by the prosecution.
54. It is contended by the learned counsel for the appellants that the main ingredient which has to be proved by the prosecution in this case is whether there was jungle clearance and uprooting of stumps in the year 1979. So far as this aspect is concerned it is submitted that the necessity or otherwise of the jungle clearance in 1979 cannot be established by the investigating agency in the year 1984. After a lapse of 5 years, it is impossible for any investigating agency to find out whether any work was done at all at the spot and it is also not possible for any one to say that certain quantity was cleared or certain number of stumps were removed in 1979 by making any arithmetical calculation. It is a criminal trial not based on any mathematical calculations or on hypothesis or on conjunctures and assumptions.
55. The finding of the trial Court basing on the evidence is to the effect that no work connected with the jungle clearance alleged to have been taken place and it is only on paper it is shown as if it has been done.
56. The scheme envisaged with regard to the clearance of jungle commences with the preparation of estimate, sanctioning of that estimate, appointing an agency and after taking the premeasurements entrustment of the work to the agency for execution. After the said work was executed, the bills submitted by the contractor or agency will be verified with reference to the measurements already taken and the work done in that area and then only the bills will be passed and cheques will be issued.
57. The first and foremost thing that can be seen is that the whole case started with the 'Call Attention Motion' moved in the Andhra Pradesh Legislative Assembly in 1981. Thereupon the Government machinery moved to find out whether the allegations made in the Assembly are correct or not. During the course of that enquiry the then Deputy Engineer-in-Chief, Irrigation and Power Department, P.W. 7 was directed by the Secretary to Government Irrigation Department to enquire into the truth or other-wise of the allegations in exercise of the jungle clearance works in Nellore District. In that connection P.W. 7 visited Nellore and conducted enquiry from 4-4-1981 to 6-4-1981 and submitted his report on 28-4-1981 to the Govt. which is marked as Ex. P. 7 along with the Annexure Ex. P. 8. In his report, P.W. 7, after summing up the entire facts, stated that it is evident that there had been a defiance of the authority of the Superintending Engineer by the Executive Engineers in that they have flouted a number of orders of the Superintending Engineer issued from time to time on the execution of works and spending of grants. Finally he recommended for the transfer of all officers who are natives of Nellore District immediately. He also recommended for the transfer of A-1 outside the Irrigation Circle, Nellore. After considering the report of P.W. 7, the State Government came to the conclusion that grave irregularities have been committed by the officers concerned and that there is a prima facie case for conducting a departmental enquiry and accordingly appointed N. V. M. Krishna, Chief Engineer (Investigation), P.W. 19, by its orders in G.O.Ms. No. 313 dated 20-9-1981 marked as Ex. P. 16, as Enquiry Officer to conduct a departmental enquiry against A-1 to A-4 in regard to the alleged irregularities. In that connection P.W. 19 visited Nellore and made enquiries from 10-8-1981 to 18-8-1981 and again from 17-9-1981 to 19-9-1981. During the course of enquiry he inspected certain work spots. After the enquiry he submitted a report Ex. P. 17 dated 27-1-1982. The various illegalities and irregularities commtted by the Executive Engineers relating to the work of clearance and Juliflora on Krakatur small tank were pointed out in his report. Some of the observations made by P.W. 19 in his report Ex. P. 17 are :
'these jungle clearance works are mostly imaginary and not real there is no trace of evidence that the jungle was cleared at any time in the recent past. The Executive Engineers concerned are solely responsible for this whole malady in sanctioning the jungle clearance estimate.'
Regarding entrustment of work on nomination basis he observed :
'The method followed is novel procedure. The method can be called 'as you like it.' On perusal of the pro forma, they do not indicate any justification for the selection of the contractor.
Regarding violation of Codal Rules, he observed :
'As per para 154 of the Departmental Code, tenders should invariably be called for when the amount involved in a particular contract exceeds Rs. 2500/-. If for any reason the tenders are dispensed with in the case of contract exceeding Rs. 20,000/- a report should be made by the officer entrusting the work on nomination to the next authority indicating reasons for dispensing with the tenders. The above codal rules are deliberately violated in not recording the reasons in the Register of Nomination meant for that purpose.'
Lastly he observed :
'No other Executive Engineer who worked in this Division in the three years of study i.e. from 1978-79 to 1980-81 have committed such large scale irregularities as this Executive Engineer (M. B. Muni Reddy) has done. In the interest of discipline and administration and in all fairness deterrent action has to be taken at least against one Executive Engineer to begin with, in awarding punishment to create a proper atmosphere in the department. Pending regular procedure of charge sheets and obtaining explanations, I recommend this Executive Engineer to be suspended from duties pending finalisation of action against him.'
58. In September, 1981 M. Rahamathulla Khan, the Chief Technical Examiner to Government of Andhra Pradesh, was directed to investigate into the allegations of irregularities in the execution of these irrigation works in Nellore Irrigation Circle. In that connection he visited Surveypalli Tank in Nellore District. According to him jungle clearance forms part and parcel of the work of improvement of tank bund and it is the first work to be done for improvement of the bund. The luscars have to attend to the maintenance of tank bund including the clearance of jungle growth. He further stated that by jungle clearance, cutting the jungle up to the ground level and it does not include removal of stumps and removal of roots.
59. After considering the report of P.W. 19 the Government referred the matter to Anti-Corruption Bureau for detailed enquiry. The Director, Anti-Corruption Bureau, Hyderabad, issued proceedings on 13-10-1981 marked as Ex. P. 21 along with memo dated 22-9-1981 (Ex. P. 22) to the Deputy Superintendent of Police, ACB, Nellore Range to investigate into the allegations against A-1 to A-4.
60. On the orders of the Principal Secretary to Government, dated 20-5-1982, (Ex. P. 29) the Superintending Engineer, Irrigation Circle, Nellore by his proceedings dated 10-6-1982 (Ex. P. 25) allotted the services of some Engineers including P.Ws. 3, 6 and 13 to assist the investigating officer P.W. 25.
61. P.W. 24, V. Ramachandrulu, the then Deputy Superintendent of Police, ACB, Nellore also conducted enquiry against A-2 and other Engineers and submitted his report, Ex. P. 24. In his report he mentioned that large scale fraud was made involving several laks of rupees in the jungle clearance works executed in the Nellore North Division, Nellore South Division and Gandipalem Project Division. His scrutiny of the records discloses that many Assistant Engineers, Junior Engineers and Supervisors connected with these works were also involved in that fraud. P.W. 20, who was working as Superintending Engineer, Irrigation Circle, Nellore, at that time of enquiry conducted by P.W. 19 also called for the estimates, agreements and M. Books relating to the jungle clearance works from all the three divisions and noticed that the work relating to the jungle clearance and uprooting and removal of stumps were undertaken and paid under two separate items and found it to be an irregularity and he submitted his report Ex. P. 19 to the Chief Engineer.
62. All these reports, which are mentioned above, ultimately resulted in registering a case in Crime No. 2/ACB-NLR/82. These reports are from 1981 onwards. It cannot be said that for the first time the investigating agency opened its eyes and commenced investigation and it is not a case where direct evidence is available. The whole case rests on circumstantial evidence. In such cases the prosecution must prove out the circumstances and the circumstances so proved should lead to the only inference that the accused have committed the offence.
63. It is a case of conspiracy alleged to have been made by A-1 to A-5 and they have drawn large sums of money under the guise of jungle clearance work, which itself is a maintenance work to be attended to by luscars. At each and every stage every authority that is dealing with the work has to apply its mind and satisfy itself on the material placed before it. Unless and until all the minds are put together to prepare all these things, it is not possible to withdraw moneys under the guise of execution of work. In order to prove a criminal conspiracy there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of offence. It is true that in most cases it will be difficult to get direct evidence of an agreement of minds to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
64. It must also be remembered that the investigating agency registered the case on the ground that no work was done at all. Simply because the 'call attention motion' has not mentioned about the works done during 1979-80 it does not mean that the 'motion' did not relate to these works. When large scale fraud has come to light, the Government initiated action and after considering the reports of P.Ws. 7 and 19, referred the matter to Anti-Corruption Bureau for detailed investigation. As the work involves technical aspects, the Govt. directed the Engineer-in-Chief to spare the services of one Executive Engineer, 4 Assistant Engineers and 7 Junior Engineers to assist the investigation by Anti-Corruption Bureau, Nellore, into this crime. It is very difficult for any one to point out exactly as to what was the position at that time, whether uprooting of stumps was done or the nature of jungle cleared. Therefore, the documents that were available at that time i.e. Exs. P. 1 to P 6 and the oral evidence has to be considered with close scrutiny to arrive at the conclusion whether any jungle clearance work as alleged did take place or not. We are not now considering the case whether a particular tree existed at a particular place was removed or not. We are only concerned whether the clearance work was entrusted to the agency as stated by the accused as contained in Exs. P. 4 to P. 6 and whether the stand taken by the accused that what was done by them is according to the Rules only is correct or not. That burden of proof is heavy on the prosecution. The prosecution cannot take advantage of the weaknesses of the defence or cannot take advantage of the inconsistent stand taken by the accused from time to time. The prosecution must stand on its own legs basing on the evidence that has been let in by it. Therefore, we have to scrutinise Exs. P. 4 to P. 6 with reference to the oral evidence let in by the prosecution.
65. A-4 who is then working as Section Officer, Ullapalem Irrigation Section prepared the estimate Ex. P. 4 on 13-6-1979 for clearing light jungle and uprooting and removing of stumps on the tank bund of Krakatur Chinna Tank also known as Vippala Tank between O/O KM to 1.45 KM as that jungle was causing danger to the tank bund as per the instructions of the Superintending Engineer, Irrigation Circle, Nellore, A-1 in the case. The Superintending Engineer, Irrigation Circle, Nellore issued a Circular dated 29-12-1978 as per Ex. X-2 which reads as follows :
'During inspection of the some of the minor irrigation tanks by the undersigned on 22-11-1978 to 24-11-1978, it is noticed that the growth of juliflora of tank bunds is very much extensive. It may adversely affect to the safety and strength of the bund as there is every possibility of penetration of roots into tank bund and formation of cracks which require periodical maintenance. Hence the Executive Engineers are hereby directed to inspect all the tanks personally and see that the growth of juliflora is uprooted. Action may be taken to close the gullies and the tank bunds strengthened. The Executive Engineers, are requested to report the amount required for carrying out the above operations immediately. The said Circular may be acknowledged.'
66. Accordingly, A-4 prepared the estimate Ex. P. 4 for Rs. 5,500/- on 13-6-1979 for clearance of jungle on an extent of 23000 sq. metres and for uprooting 3500 stumps of other kinds of trees including stacking of girth of 50 cms. to 100 cms. He submitted this estimate along with his report Ex. P. 4-A and detailed estimate Ex. P. 4-C to the Deputy Executive Engineer, A-3 in the case. A-3 countersigned the same on 14-6-1979 and forwarded it to A-2, the Executive Engineer, A-2 sanctioned the said estimate in Dvl. No. 212/79-80 for Rs. 5,500/- on 17-7-1979. Ex. P. 4B is the said sanction order of A-2. A-2 entrusted that work for execution to A-5 on nomination basis. Ex. P. 11 is the application of A-5 addressed to the Executive Engineer, A-2 to entrust the work on nomination basis to him. He submitted that application on 14-6-1979 through A-4 and A-3. A-3 forwarded it to A-2 on 1-7-1979 and A-2 accepted the said proposal of A-3 and entrusted the work on nomination basis by his order dated 17-7-1979. The order of A-2 entrusting the work to A-5 also finds place on the reverse of Ex. P. 11. It was despatched in Memo No. 552 AL, dated 19-7-1979. A-2 and A-5 concluded the agreement Ex. P. 5 bearing No. 114/79-80 on 26-7-1979. As per the conditions incorporated in this agreement, Ex. P. 5, the contractor should complete the work within a period of one month from the date of handing over the site to him, but A-5 has not put the date beneath his signatures in the agreement Ex. P. 5.
67. The premeasurements for jungle clearance work in an extent of 22100 sq. metres were recorded on 14-6-1979 by A-4 and A-3 check-measured the same on 17-6-1979. Ex. P. 6 is the M. Book bearing No. 2829A wherein the premeasurements were recorded. Ex. P. 6A are the entries at page 20 in Ex. P. 6 relating to the premeasurements recorded by A-4 for jungle clearance and check-measured by A-3. A-4 issued the certificate of clearance of jungle on 28-6-1979 and it was verified by A-3 on 2-7-1979. Ex. P. 6B is the said certificate for clearance of jungle issued by A-4 and verified by A-3 at page 20 in the M. Book Ex. P. 6. A-4 recorded the premeasurements for uprooting and removing the stumps of 3507 numbers on 28-6-1979 and it was check-measured by A-3 on 2-7-1979. Ex. P. 6C are the relevant entries at page 22 in Ex. P. 6 relating to the recording of premeasurements for uprooting stumps by A-4 and check-measuring the same by A-3. A-4 issued the certificate for uprooting and removal of stumps on 11-7-1979 and it was verified by A-3 on 16-7-1979. Ex. P. 6D are the relevant entries at page 22 in Ex. P. 6 relating to the said certificate for uprooting and removal of stumps issued by A-4 and verified by A-3.
68. A-4 prepared the bill for Rs. 5275/- on 5-8-1979 towards the cost of execution of that work and it was countersigned by A-3 on 30-8-1979. A-2 passed the said bill for Rs. 5169/- after deducting Rs. 106/- towards income-tax on 11-9-1979. Ex. P. 6E are the relevant entries at page 24 of Ex. P. 6 relating to the preparation of the bill by A-4, countersigned by A-3 and pass order of A-2. A-2 issued a cheque bearing No. 806883 dated 11-9-1979 in favour of A-5. A-5 encashed that cheque on 17-9-1979 in the State Bank of India, Nellore Branch. Ex. P. 20 is the relevant entry in the photostat copy of the debit scroll maintained in the State Bank of India, Nellore, relating to the said encashment of the cheque.
69. These facts have not been disputed by the accused. But the case of the prosecution as contended by Sri N. Harisesha Reddy, the learned Public Prosecutor, is that these documents have been prepared in the office only taking into account the measurements that are available and there was no entrustment of work and no clearance of jungle as there was no growth of juliflora at all and the amounts that have been shown in Ex. A-5 have been swallowed by A-1 to A-4 in collusion with A-5.
70. On the other hand, it is contended by the learned counsel for the appellants that these documents Exs. P. 4 to P. 6 have been prepared in the regular course of business and it cannot be said that after a lapse of five years the accused have not executed the work. Further, there is the evidence of P.Ws. 11, 12 and 17, with regard to the preparation of the estimate by A-4 forwarding the same to A-3 and sanctioning of the same by A-2, conclusion of the agreement Ex. P. 5 between A-2 and A-5 entrustment of the work to A-5 on nomination basis under Ex. P. 11, recording premeasurements by A-4, preparation of the bill by A-4 and sanctioning of the same by A-2.
71. On the above facts, the points that emerge for consideration in these appeals are :
i) Whether Ex. P. 4 has been prepared after inspection of work spot.
ii) Whether the agreement Ex. P. 5 is valid and whether the entrustment of work on nomination basis and the payments made thereunder are in accordance with the Codal Rules;
iii) Whether permanent structures have been excluded in Ex. P. 6.
72. The main case is that the clearance of juliflora has not been done at all and the prosecution relied upon Exs. P. 1 to P. 3 in particular the oral evidence to contend that it is not possible for a contractor to clear the jungle within the stipulated time of one month. The learned counsel for the appellants contends that no inspection of the work spot on 26-4-1984 and 27-6-1984 and no measurements of the work spot were taken and that the panchanama was prepared in the office of the Deputy Superintendent of Police, ACB, Nellore, and P.Ws. 4, 5, 6, 10 and 13 have deposed due to the fear of threats by the ACB people. It must be remembered that these witnesses are responsible Government Officers and they have no animosity against the accused and the accused have not stated anything in their examination under S. 313, Cr.P.C. or let in any evidence on their behalf that these witnesses have any animosity against them. In these circumstances, there is no reason to disbelieve their evidence.
73. Ex. P. 3 is the Panchanama drafted for the observations made for the measurements taken on 26-4-1984 P.W. 5 is the scribe of the Panchanama. P.Ws. 6, 13, 10, 5 and other mediators Krishna Murthy and I. Sudhakara Reddy, Assistant Engineer and the Investigating Officer P.W. 25 attested Ex. P. 3, P.W. 10 was working as Assistant Executive Engineer on Additional Charge, Irrigation Section, Kalagiri. Krakatur is within the jurisdiction of Kaligiri Section. He stated that on 26-4-1984 he showed the work spot on Krakatur small tank bund to the ACB Inspector, the Deputy Executive Engineer (P.W. 13) and other officials. He also showed them 0/0 Km point on the Krakatur tank bund. The evidence of P.W. 10 is corroborated by P.Ws. 5, 6, 13 and 25. The signatures and the attestations also have been duly proved. The contention of the learned counsel for the appellants that this Ex. P. 3 has been prepared sitting in the office has no basis at all. As already pointed above, these witnesses are holding Gazetted posts and in one way or the other they are all connected with the accused persons and it cannot be said that P.W. 5 in particular, the mediator, a Government employee, will co-operate with others in the preparation of Ex. P. 3 if it is a false document. The draft that was prepared by P.W. 25 was not retained by him is not a point to discredit his testimony. On the other hand, their evidence establishes that they have taken into consideration Exs. P. 4 and P. 6. The person who is in charge of that area cannot be expected that he will fail in his attempts to note 0/0 Km on the tank bund. The defence tried to elicit answers from these persons that there are no milestones or kilometre stones. P.W. 10 has got acquaintance with the area and he has pointed out 0/0 Km. The pointing out of the starting point i.e., 0/0 Km. from toe to toe is a matter within the exclusive knowledge of the person connected with the area and P.W. 10's evidence cannot be brushed aside. Nothing is elicited in the cross-examination of these witnesses to discredit their testimony. The recitals in Ex. P. 3 also corroborate the oral testimony of P.Ws. 5, 6, 10, 13 and 25. Under these circumstances it must be held that the Panchanama Ex. P. 13 is the one that was drafted on 26-4-1984 in the presence of P.Ws. 6, 10, 13 and 25 at the work spot.
74. P.W. 4 is one of the Government officials taken as a mediator by the investigating officer, P.W. 25 along with P.Ws. 13 and others to Ramaswamypilli tank. According to him, at the time of inspection they have taken three local people by name, Malkondaiah, Venkatakondaiah and Venkatasubbiah. They have also selected three Juliflora trees for cutting the branches and uprooting the stumps having a girth of 50, 75 and 100 cms., After the branches were cut off, the stump of the tree was measured and the circumference of the stump was 60 cms. Each of these local people were asked to cut the branches of one tree each. One of them took about 4 to 5 minutes time to cut off the branches of the tree. Each one of these local people were asked to cut the trees having different dimensions. Those labourers also removed the stumps of those trees-from the earth. Each of them had taken about 2 to 2 1/2 hours time to remove each of those stumps. Ex. P. 1 is the Panchanama drafted at that time and P.W. 4 is the scribe of Ex. P-1.
75. The prosecution strongly relied upon Ex. P. 1 to show the time that has been taken by the labourers with regard to the cutting of the branches, uprooting of stumps and removal of the trees from earth. This Ex. P-1 was sought to be made use of with regard to the time that has been consumed for uprooting the juliflora stumps so that they may point out that clearance and removal of the trees cannot be done with the amount that has been sanctioned with the number of persons and within the number of days that have been mentioned therein.
76. On the same day i.e. 27-6-1984 at 3-45 p.m. P.W. 25 took the above said mediators technical staff i.e., P.Ws. 4, 6 and 13 and Sriharimohan and the labourers to the field of Pichapati Rosaidh situate at a distance of 1 K.M. to the West of Ramaswamypalli village for collecting observation data for clearing and uprooting stumps of juliflora on black cotton soil. P.W. 25 selected 3 juliflora trees having girths of 60 cms., 80 cms and 90 cms. The labourer Venkatakondaiah took 4 minutes time for clearing the branches of a tree having a girth of 60 cms. and 2 hours time for uprooting the stumps. Another labourer Venkatasubbiah took 6 minutes to clear the branches of a tree having a girth of 80 cms. and 2 1/2 hours time for uprooting the stumps. Malakondaiah took 8 minutes for clearing the branches of a tree having a girth of 90 cms. and 2 hours 45 minutes time for uprooting its stumps. The spread area of the branches of these trees was also measured. Ex. P. 2 is the Panchanama prepared at that time. P.W. 4 is the scribe of the said Panchanama. They did not observe the growth of any other trees in that area. This Ex. P-2 also was sought to be challenged on the ground that it was prepared in the office. But nothing has been ellcited from the cross-examination of these witnesses to discredit their testimony. Those officials who are not having any animosity against the accused cannot be expected that they will yield to the pressures of higher officials or ACB officers. These Exs. P 1 to P. 3 are sought to be relied upon by the prosecution to say that it is impossible for the 5th accused to have the work done within the stipulated time. It is argued on behalf of the appellants that the timings for cutting and uprooting of stumps were different. The time taken for cutting of branches and uprooting of stumps depends upon the physical stamina and calibre of each labourers, nature of soil, nature of implements used and it differs from labourer to labourer. Therefore, the disparity of time from one labourer to another labourer may not be a safe test for arriving at a conclusion that so much time might have been taken for uprooting a particular stump. Ex. P. 3 is the observation data attested by P.W. 5. These three documents, Exs. P. 1 to P 3 as a whole and taking into account the contents therein as stated by these witnesses, it can be said without any hesitation that it is impossible for any contractor to remove the juliflora trees with the sanctioned amount within the time as stated by the accused. The cost of manual labourer per day is Rs. 6-05 and if that has been worked out, taking into account the number of stumps that have to be cleared and removed it can be said that it is impossible for anyone to remove the stumps within the short span of time with the amount that was sanctioned.
77. As seen from the entries in the M. Book Ex. P. 6, on an extent of 22100 sq. metres light jungle was said to have been cleared in a period of 12 days i.e. from 17-6-1979 to 28-6-79 and 3507 number of stumps were said to have been removed in a period of 10 days i.e. 2-7-1979 to 11-7-1979. As per the standard Schedule of rates for 1979-80, a man-mazdoor for a day of 8 hours work has to be paid Rs. 6-05 ps. As per the standard schedule of rates for 1979-80, 80 paise has to be paid for clearance of light jungle in 10 sq. metres area. At this rate a man getting Rs. 6-05 per day of 8 hours work should clear 75 sq. metres of light jungle. Thus for clearing light jungle of an extent of 22100 sq. metres 294 man mazdoors are required for a period of 12 days and on an average 25 man mazdoor should be employed by the contractor. It is highly improbable for a contractor to engage so many labourers on this petty work. On an average shade area of 7 sq. metres of one juliflora neither the existence of stumps nor the existence of the area can be assessed. The juliflora do not exist in orderly manner just as plantation. It is a wild growth. Hence we cannot assess the extent of stumps by dividing the area available for clearance with average shade area of 7 sq. metres. Further, the area ought to be available on tank bund to accommodate the stumps cannot be ascertained by multiplying the number of stumps with 7 sq. metres. For same reason the existence of stumps on diametre basis also cannot be assessed as juliflora trees do not exist in rows at specified distance. The data collected under Exs. P. 1 and P. 2 and Ex. P 1 can be utilised for ascertaining the labourers engaged for uprooting stumps. As seen from the entries in the M. Book, Ex. P. 6, 3507 stumps were said to have been uprooted in 10 days time i.e., from 2-7-1979 to 11-7-1979. If 4 stumps were removed in a day of 8 hours, 877 labourers might have been engaged for uprooting 3507 stumps in 10 days time. Thus on an average 88 men per day must have been engaged for all the 10 days for uprooting those stumps. In all probability, so much of labourers could not have been engaged by the contractor A-5 on this petty work. For uprooting and removing of the stumps having girth of 50 cms., necessarily a pit for a depth of more than half a metre has to be excavated and after uprooting the same that pit has to be closed to strengthen the tank bund. But in this case as seen from the estimate Ex P-4 there is no such proposal for earth work to fill up the pits excavated for uprooting those stumps. Further, there is also nothing on record to show that those pits excavated for uprooting the stumps wre filled up with mud subsequently. Further it must be noted here that the absence of provision in the estimate Ex. P. 4 for earth work casts a serious doubt with regard to the uprooting of the alleged 3507 stumps on the reach. The filling up of the pits with earth is a necessary corollary in the estimate prepared for this work. A provision ought to have been provided in the same estimate itself. If the pits are left without filling up with earth, they weaken the strength of the tank bund. Thus the absence of the provision of earth work excavation probabilises the prosecution version that no stumps were uprooted and that the measurements in the M. Book Ex. P. 6 have been fabricated with mala fide intention to defraud the Government funds. The learned Special Judge is perfectly justified in arriving at the conclusion that it is not possible to clear the jungle with the amount mentioned in the agreement.
78. With regard to the extents that have been noted, it is contended by the learned counsel for the appellants that excess area has been recorded and that it sought to be explained by saying that it is inclusive of permanent structures. According to the accused with regard to the toe points it is admitted by all the prosecution witnesses that the said toe points are not definite points and they are variable from time to time. The measurements on widths cannot be accurate. Therefore, the measurements of widths and the areas calculated are based on the above widths cannot be compared by the measurements recorded by the accused. If the spread-over of the area from the toe points is considered, the excess area in all these cases can easily be explained. Considering these factors viz., growth of juliflora on revetment area spreading over the area of branches of juliflora, fixation of toe points at O/O, growth over sluice area, according to the accused, there was no excess area measured by the accused. There is no semblance of truth in their contention that permanent structures have been taken into consideration in Ex. P. 6. If permanent structures have been taken into consideration, the measurements mentioned in Ex. P. 6 would have been different measurements. The tank in question is an old one and no repairs were affected to the permanent structures existing on tank since 1979. The accused have not disputed the existence of the permanent structures viz. surplus weir and the sluice, Ex. P. 6A is the premeasurements recorded by A-4. The premeasurements were taken for every 100 metres except one measurement for 50 metres length. On a perusal of the premeasurements recorded in Ex. P. 6A it is clear that the area occupied by those permanent structures were not deducted.
79. It was argued on behalf of the accused that P.W. 13 and other Engineering staff have not taken actual measurements at the work spot, that the widths as noted in the M. Book Ex. P. 6 have been adopted by P.W. 13 and out of it, the widths of the permanent structures and revetment and top width of the tank bund were deducted. P.W. 13 stated in his cross-examination :
'If the branches of juliflora spread over the revetment area, then that area over the revetment should also be calculated for the purpose of jungle clearance. In a disturbed revetment there is possibility for the growth of juliflora. For cyclonic action only the revetment is likely to be disturbed.'
A perusal of the evidence of P.W. 13 shows that the measurements of the work spot were taken. In the remarks column of Ex. P. 3, the actual length and width of the permanent structures and revetment are noted. In Column 4 of Ex. P. 3 the actual width after deducting permanent structures and revetment, the area available for jungle growth is noted, In column 6 the area available for jungle growth is mentioned. Thus according to P.W. 13 and others the total area available for jungle growth at the work spot was 14119.36 sq. metres or 14120 sq. metres and thus there is excess area of 7976.70 sq. metres as recorded in M. Book P. 6. It is the contention of the accused that the measurement book Ex. P. 6 shows that the permanent structures have been excluded. At the same time they contend that some other areas like burrow area and other places have to be included. If that be so, why they have omitted to mention the excess areas is left in doubt. At one breath they contend that excess area is there and on another breath they have included these areas and ultimately what has been found in M. Book Ex. P-6 does not indicate to even the semblance of truth that the accused have applied correct measurements with regard to the exact area. It is also to be borne in mind that in May, 1979 the area was affected by cyclone. According to P.W. 13 there were breaches to the tank and many works have to be undertaken. If that be so, we cannot expect the existence of juliflora in the area where breaches occurred. There is no material to show that they have done some work other than the work shown in Exs. P. 4 and P. 6. As already stated, premeasurements were taken for every 100 metres except one measurements for 50 metres length. There may be slight variance with regard to area due to cyclone. On a perusal of Ex. P. 6A, it is clear that the area occupied by those permanent structures was not deducted.
80. It is also further contended by the learned Counsel for the appellants that the revetment and surplus weir are not permanent structures, that there is possibility for the growth of jungle on the voids between the stones in the revetment and surplus weir and as such the relevant area and area occupied by surplus weir need not be excluded. It is no doubt true that there will be growth of jungle in the voids between stones in the area occupied by revetment and surplus weir. Obviously, these accused have included the area occupied by the permanent structures and revetment in the estimate to boost up the estimate amount with a view to misappropriate the same and to cause wrongful loss to the Government. Further while uprooting stumps the revetment and surplus weir gets damaged on account of excavation of the pits for uprooting the stumps. For filling those pits and for repacking the revetment and surplus weir there must be a provision in the estimate for dry repacking of revetment and surplus weir.
But as seen from Ex. P. 4 there is no such provision for dry repacking. Further, it also indicates that the estimate Ex. P. 4 has been prepared and the entries in Ex. P. 6 were made without actually visiting the site. Otherwise, there would have been necessary provision for excluding the area occupied by permanent structures and revetment.
81. The witnesses have admitted that juliflora can be grown on the earthen bund over sluice. It is no doubt true that there will be earthen bund over the sluice. All around the sluice there will be structure. Hence there will not be any scope for growth of jungle over that structure and also the mouth of the sluice. Therefore, the accused ought to have deducted that portion. It is in the evidence of P.Ws. 6 and 13 that the top width of the tank bund was excluded as there was no possibility for the jungle growth over that site. As seen from Ex. P. 3 the top width of the tank bund is shown as 1.2 metres. P.Ws. 8 and 9 deposed about the existence of the foot-path on the top of the tank bund. It is highly impossible for the growth of juliflora on the top of the tank bund. Hence the deduction of the top width of the tank bund by P.W. 13 was justified.
82. It is true that in general it can be said that juliflora can be grown on the revetment and on the earthen bund over the sluice. Whether these areas as are shown in Exs. P. 4 and P. 6 is a matter to be considered. If that entire area has been taken into consideration, the area that has been shown in Exs. P. 4 and P. 6 is not correct. If the area that has been stated excluding the revetment and earthen bund over the sluice is there, then the evidence of the technical expert and the measurements shown in Ex. P. 6 are correct. The prosecution has come forward with one version and the defence has come forward with another version and the defence version does not fit with the documents Exs. P. 4 and P 6 and the version that has been given by them and elicited from the prosecution witnesses that such area has been availed for the purpose of clearance. With regard to the technical report and the other evidence let in, this Court feels that the area that has been shown in Ex. P. 6 is not correct. P.W. 10 has categorically stated that he showed the work spot from 0/0 to 1450 metres at that tank bund. In his cross-examination he has categorically stated that he showed the work spot with the aid of copy of the memoir of that tank which he had with him at that time. Hence with the aid of memoir it may not be difficult for a Section Officer to point out the reach 0/0 to 1450 metres. It must be noted here that in the case of removal of juliflora on the revetment it will be disturbed on account of excavation of the pits for uprooting of the stumps. Again for filling those pits and for repacking the revetment and surplus weir there must be a provision in the estimate for dry repacking of revetment and surplus weir. But as seen from the estimate Ex. P. 4, no such provision is made for dry repacking. In view of this, the reasons put forward by the defence can be thrown out.
83. Another infirmity that can be said is that the work has been entrusted at 10% less than the estimated rates. An attempt has been made to show relying upon the evidence of A-20 that there is double payment one for clearance of jungle and the other for uprooting and removal of stumps having girth of 50 cms. to 100 cms. According to Exs. P. 4 and P. 6, the jungle clearance was said to have been effected on an extent of 27100 sq. metres and juliflora stumps of 3507 numbers were said to have been uprooted and removed in this case. A-4 proposed the rate for clearance of jungle at 0-75 ps. for 10 sq. metres and the rate for uprooting and removal of one stump at one rupee. A-2 entrusted the work on nomination basis to A-5 at the estimated rate i.e. Rs. 0-85 ps. for clearance of juliflora jungle two separate payments have been made i.e. one for cutting the branches and the other for uprooting the stumps. Even assuming that the Executive Engineer (A-20) got power to entrust the work on nomination basis, his power is limited to the extent of estimated rates only and not beyond that.
84. It is the case of the prosecution that separate payments have been made under the heads clearance of jungle and removing of stumps and there should be one payment under III(2)(e) of Standard Schedule of Rates of 1979-80.
85. The learned Public Prosecutor submits that the Standard Specification referred to in the agreement Ex. P. 5 is SS 17 of Madras Standard Specification which is equivalent to SS 201 of A.P. Standard Specification and according to SS 201 all brush wood shall be cleared along with their roots entirely and so clearing jungle and uprooting of stumps are one operation.
86. On the other hand, the learned counsel for the accused contends that the investigating agency misinterpreted paragraph 3 of the Standard Schedule of Rates stating that because 3(1)(d) was deleted from 1972-73 and 1(d) was absent in 1978-79, they say there is no provision and 1(b) covers both clearance of jungle and uprooting and removal of stumps. The learned Special Judge took a different view that the work would not come under 3(2)(f) but it would come under 3(2)(e).
87. Admittedly two separate payments were made i.e., one for clearance of jungle and the other for uprooting and removing of stumps having girth of 50 cms. to 100 cms. in this case, jungle clearance was said to have been effected on an extent of 27100 sq. metres and 3507 stumps were said to have been uprooted and removed. The rate proposed for clearance of jungle at 0-75 ps. for 10 sq. metres and one rupee for one stump. According to A-2 he entrusted the work on nomination to A-5 at 10% less than the estimated rates i.e., Rs. 0-72 ps. for clearance of jungle in 10 sq. metres and Rs. 0-90 ps., for uprooting and removing of one stump.
88. P.W. 1 J. Raja Rao, deposed that uprooting of juliflora jungle clearance except for trees is not a separate item in the estimate as per the schedule of rates for the year 1979-80. But he stated in the cross-examination that the schedule of rates for the year 1972-73 provides a separate rate for clearing heavy jungle including uprooting at the rate of Rs. 2-50 ps. for 10 sq. metres in Nellore District. When confronted with the standard schedule of rates, he stated that it was not specifically categorised as such in standard schedule of rates of 1979-80 and item 1(d) is omitted in the rates of 1979-80. In his considered opinion juliflora is not a tree. According to him jungle clearance means uprooting of it along with roots.
89. P.W. 2 deposed that by jungle clearance it means cutting the jungle up to ground level. It does not include removal of stumps and removal of roots. Juliflora according to him, is not a tree. It comes under the definition of heavy jungle. P.W. 7 deposed :
'There are two district (distinct) rates for jungle clearance. (1) If the girth of juliflora is less than 50 cms. the rate given under 1(a) or 1(b) of Standard Schedule of Rates of every year has to be applied and if the girth is more than 50 cms. the rate as given under item 2(e) or 2(f) in Standard Schedule of rates should be given.'
90. P.W. 12 stated that uprooting of stumps were shown as a separate item in Ex. P. 4, and there is a provision in 1979-80 Rates under III (2)(f) for uprooting and removal of stumps of other kinds of trees and it is also applicable for removal of the stumps of juliflora. P.W. 8 NVM Krishna stated that as per the standard specification uprooting the stumps and clearing jungle is one work only and one rate will be paid for those works. He also asserted that when there was no provision in the Standard Schedule of rates heavy jungle includes uprooting. P.W. 19 P. Seetharama Raju deposed :
'In a case of clearance of jungle, there is no question of removal of stumps in the sense it is mentioned in the standard schedule of rates. 10 sq. metres is unit for measuring jungle clearance work. Jungle clearance is only one operation as specified in the standard schedule of rates.'
91. P.W. 19 further stated that both jungle clearance and removal of stumps should be shown as single item as jungle clearance as per standard schedule of rates. Hence showing these two items as separate items in the estimate for jungle clearance work is an irregularity. He also stated that clearance of jungle is single operation and there cannot be two measurements in the M. Book Ex. P. 6.
92. Though the version that has been given by the accused is inconsistent, there is any amount of doubt about the double payment. But taking into account the recitals in the agreement Ex. P. 5 as it is, can it be said that what has been stated that the agreement has been entered into at 10% less than the standard Schedule of rates is correct The answer must be in the negative. The rates that have been mentioned in 1972-73 have been adopted in the year 1979-80 also. The rate that was adopted for clearance of jungle is under III(1)(a). The rates that have been mentioned are as follows :
'2-A. Clearing heavy jungle 10 sq. M. 1-10 P 0.80 1-B Clearing light jungle
2-E Cutting and removing other kinds of trees including stacking of girth 50 cms. to 100 cms. Each 1-65
-do- -do-
100 cms. to 200 cms. Each 3-30
-do- -do- above 200 each 5-00
2-F Uprooting and removing stumps of other kinds of trees including stacking of girth 50 to 100 cm. each 1-00
do. do. 100 to 200 cms. 1-80
do. do. above 200 cm. 2-40
93. It is contended that in the standard schedule of rates for 1972-73 there is a provision for separate payment for clearing heavy jungle including uprooting at Rs. 2-50 ps. for 100 sq. Meters and in the absence of such rate the payment under III(2)(f) of the Standard Schedule of rates is justified. It is no doubt true that the provision under 1(d) of 1972-73 does not find place in the standard schedule of rates of 1978-79. Under 1(d) of 1972-73 the rate is fixed for clearing heavy jungle including uprooting on area basis. The learned counsel contends that if III(2)(e) of 1970-80 has to be accepted, the payment should be made at Rs. 1-65 ps. for a tree for clearance up to the ground level and for uprooting and removal of stumps the payment must be under III(2)(f) i.e. Rs. 1-00 per stump and thus the payment has to be made at Rs. 2.65 ps. for clearing and uprooting one juliflora tree whereas in this case the accused have paid much less for clearance of branches of juliflora and its stump and thus the accused have saved some money for the Government. There is no substance in this argument. The payment under III(2)(e) of 1979-80 is applicable for both cutting the branches and removing of the stumps. This payment is not only for cutting the tree but for removing the stump also. There cannot be a separate payment under III(2)(f) for uprooting stump of tree if its branches were also cut at the same time. Therefore, the payment cannot be made either under III(2)(e) or III(2)(f).
94. The learned counsel for the appellants tries to take shelter under the resolution passed by the Board of Chief Engineers on 31-7-1984 marked as Ex. X-1 ratifying the separate payment for uprooting stumps of juliflora but that resolution was corrected in another meeting held on 19-5-1987 as per Ex. X-2. On behalf of the accused D.W. 2 was examined to prove those documents. He deposed that on 31-7-1984 a meeting of the Heads of Department of Irrigation was held and it was decided that uprooting of stumps may be paid according to the standard schedule of rates if measured and recorded in the M. Book provided the diametre of the girth of the tree is more than 50 cms. He further deposed than on 19-5-1987 another meeting of the Heads of Department was held and the earlier resolution was amended. According to Ex. X-2, the corrected resolution reads :
'Uprooting of stumps may be paid according to the standard schedule of rates if measured and recorded in the M. Book provided the girth of juliflora is more than 50 cms.'
95. Even though the resolutions are there, it cannot be said that the resolutions have ratified the action of the accused particularly when the rates are not in conformity with 10% less of the estimated rates that are prevailing during that year. Therefore either III(2)(e) or III(2)(f) are not at all applicable to this case. When they are not applicable, the question of giving any credence to the ratification that has been made does not arise. Retrospective effect cannot be given to this resolution to rectify illegal action. Hence this resolution of the Board of Chief Engineers did not justify the separate payment for uprooting of stumps in 1979. Therefore, the evidence of D.W. 2 is in no way helpful to the accused.
96. The next most important aspect that is to be considered in this case is regarding entrustment of this jungle clearance work on nomination basis under Exs. P. 5 to A-5. The case of the prosecution is that such entrustment on nomination violates the Codal rules and there is no urgency or necessity to entrust the work on nomination basis. The learned Public Prosecutor submits that clearance of jungle is a maintenance work and it has to be attended to by luscars attached to Krakatur China Tank and entrustment of contract is highly irregular. He is relied upon the evidence of P.Ws. 1, 2, 7, 8 and 18 and 19 to substantiate his plea.
97. On the other hand, the plea of the accused it that there were no luscars attending to the clearance of jungle growth on Krakatur tank. Their plea is that the prosecution witnesses 1, 2, 7, 8, and 18 and 19 have not stated that there are luscars attached to Krakatur Chinna Tank.
98. P.W. 1 deposed that as per the codal rules the luscars have to clear the weed growth etc., on the slopes and berms of the canal as it is part of their duty. P.Ws. 2, 7, 8, 18 and 19 have corroborated the version of P.W. 1. In the cross-examination P.W. 1 stated that luscars were being appointed for all irrigation channels of Pennar Delta system, and that he had no knowledge whether there were any luscars appointed for irrigation channels in Nellore North Division. P.W. 7 in his cross-examination stated that to his knowledge these were rules to show that it was the duty of the luscars to remove juliflora growth on bunds. But he was not able to quote any rule. He denied the suggestion that there was no rule as such. P.W. 19 also stated in his cross-examination that on the date of giving evidence he was not in a position to give the details regarding the appointment of luscars and their work-load. He further stated that without records he could not say whether there are luscars on minor irrigation tanks in Nellore Irrigation tanks.
99. On this evidence it cannot be said that any luscars are attached to Krakatur Chinna Tank. Therefore, it is within the discretion of the Executive Engineers i.e. A-2, to entrust the jungle clearance work on contract basis in the absence of any luscars available to maintain that work. But the question is whether the entrustment of clearance of jungle work on nomination basis by entering into an agreement with A-5 under P. 5 without calling for tenders is in consonance with the Codal rules and whether the terms of the agreement are clear and unambiguous and the action of A-2 is justified or not.
100. The methods to be adopted for carrying out the work in public works department are to be found in paragraph 150 of the APPWD Code which reads as follows :
'The works executed by the department are carried out by one of the undermentioned three methods;
(1) Departmentally by employment of daily labour;
(2) By piece work agreement -
(3) By an agreement based on a lump sum tender system as defined in the Andhra Pradesh Standard Specification.'
Rule 154 of the Code which is relevant for our purpose reads thus :
'Tenders, which should always be sealed, should invariably be invited in most open and public manner possible.
Note 1 of para 154 of the Code reads as follows :
'Tenders should invariably be called for when the amount involved in a particular contract is Rs. 2,500/- or more. If it is proposed in any case whether for urgency or any other reasons to be recorded, to depart from the rule, works may be entrusted on nomination at rates not exceeding estimate rates by the Executive Engineer, Superintending Engineer or Chief Engineer up to the following limits indicated against each; Executive Engineer Rs. 10,000 Superintending Engineer 25,000Chief Engineer 50,000
When tenders are dispensed with in the case of contract exceeding Rs. 20,000/- a report should be made by the Officer entrusting the work on nomination to the next higher authority indicating reasons for dispensing with the tenders. When the amount involved is less than Rs. 2,500/- the Executive Engineer may call for tenders or not at his discretion.
The rule does not admit of a major work being split up into parts and each part being given out on contract without calling for tenders.
Exception : This rule shall not apply to road works in the Agency contracts. In the case of such works, Executive Engineers are authorised to exercise their discretions as to whether tenders should be called for or not, even though the amount involved may exceed the limit of Rs. 2,500/-. In cases where the Executive Engineer decided not to call for tenders, the reasons for the decision should be recorded by him.'
101. Laying stress upon these Codal rules, the learned standing Counsel for ACB submits that as the estimate in this case exceeds more than Rs. 2,500/- A-2 ought to have called for tenders for execution of the work but in utter disregard of these Codal rules, A-5 was appointed as contractor or nomination. No reasons whatsoever have been assigned by A-2 for doing so and he has not also obtained the sanction of the higher authorities.
102. The accused tried to take shelter for invoking the urgency clause under a circular issued by A-1 on 29-12-1978 after inspecting the site, which is marked as Ex.-2. It reads as follows :
'During inspection of some of the minor irrigation tanks by undersigned on 22-11-78 to 24-11-1978, it is noticed that the growth of juliflora on tank bunds is very much extensive. It may adversely affect to the safety and strength of the bund as there is every possibility of penetration of roots into tank bund and formation of cracks which require periodical maintenance. Hence the Executive Engineers are hereby directed to inspect all the tanks personally and see that the growth of juliflora is uprooted. Action may be taken to close the gullies and the tank bunds strengthened. The Executive Engineers are requested to report the amount required for carrying out the above operations immediately. The said circular memo may be acknowledged.'
103. P.W. 2 has spoken to the issuance of this circular. A reading of the above circular shows that A-1 instructed all the Executive Engineers to make personal inspection of all the tank bunds and to report to him about the amount required to carry out the jungle clearance on the tank bund. A-2 has not produced anything to show that he had visited Kakatur China Tank and reported the amount required for carrying out jungle clearance work to A-1. He has also not stated anything when examined under S. 313, Cr.P.C.
104. P.W. 1 deposed that on 29-7-1979 he visited Nellore Irrigation Circle, that late E. A. Duggireddy (A-1) was Superintending Engineer, Nellore Irrigation Circle at that time, that after inspection he gave general instructions for removal of plants and vegetation on the slopes and berms of the canal. But in this case definitely the manner in which the work has been entrusted on nomination basis and the manner in which bills were prepared and cheques were issued, do not throw any light that they (the accused) have executed these works by duly taking into account the Circular issued in 1979 or the instructions of the year 1979. By 29-7-1979 the estimate has already been prepared and therefore they cannot rely on the instructions given on 29-7-1979. Perhaps it may be that heavy amounts are involved and as per the terms of G.O.Ms. No. 1007 they may be under the impression that the Executive Engineers need not call for tenders if the value of the work is less than Rs. 20,000/- and under the guise of that G.O. with the active assistance of A-5 the tenders were dispensed with and bills were passed. There is no direction in Ex. X-2 that the work can be done without sanction of the estimate and conclusion of the agreement.
Further, there is a positive direction in Ex. X-2 to take action to close the gullies on the tank bund but no provision is made in Ex. P. 4 for any earth work excavation to close the pits that were excavated for uprooting the stumps.
105. As already observed above this is not an emergency work to be given on contract on nomination basis without calling for tenders and this is only a maintenance to be attended to by the luscars. But as is revealed from the evidence of the prosecution witnesses, there were no luscars attached to this Krakatur China tank. Then it is for the Executive Engineer to decide whether it is urgent work or not. As is elicited from the evidence of the prosecution witnesses, jungle clearance is only a regular maintenance work and therefore these Engineers have to follow the procedure contemplated under the Codal rules but on the facts it is proved that they have not followed the Codal rules at all.
106. It is also submitted by the learned counsel for the appellants that the inspection of the office of the Executive Engineer is being done regularly by superior officers and none of superior officers who inspected the office of the Executive Engineer raises any doubt about the bona fides of execution of this work. They never raised any doubt and subsequently, a letter dated 26-9-1981 was addressed by the Chief Engineer, Minor Irrigation to the Secretary to Government, Irrigation and Power Department on the subject of Accountant General's factual note relating to the jungle clearance works executed in Nellore North Division and in that letter it is stated that the jungle was cleared as per the Codal Rules and within the powers of the Executive Engineer. Relying upon the fact that no objections have been raised by any superior authorities or by the concerned persons at the time of scrutinising the bill, it has been contended that the works have been completed as directed in Ex. P. 4 and as per the agreement Ex. P. 5 and as shown in Ex. P. 5. One thing has to be remembered that the authorities have not looked into the aspect whether there is fraud or not. Therefore, the question of entertaining a doubt by the superior officers does not arise. On the basis of the record naturally when an audit objection is raised they have to send a reply and merely because the office has been inspected periodically and the authorities have not reported adversely against any officer, does not mean that the contents of the letter Ex. X-1 will outweigh the reports submitted by the earlier enquiry officers viz. L. N. Kapoor (P.W. 7) N. V. M. Krishna (P.W. 19) and the investigation done by the ACB people.
107. It is also submitted by the learned counsel that the observation of the Court below that the accused have not followed the Codal Rules and they have manipulated the records to show as if the work of jungle clearance was done without actual execution of the work with a view to commit fruad is not correct. There may be an error of judgment with regard to the areas that have been mentioned therein. But any administrative lapse or error of judgment cannot be construed as though the accused have not conspired together with an idea to commit fraud.
108. In support of his contention the learned counsel relied upon a judgment of the Supreme Court reported in Union of India v. Major J. S. Kunna : 1972CriLJ849 . In that case, the Assam High Court opined that the allegations made against the two officers, assuming them to be true, amounted to administrative irregularities only, that such irregularities occurred as a result of emergency, namely, the Chinese aggression, when it was not possible to follow the procedure of peace time conditions, that the Tusker Project was itself an emergency operation, that it was not as if supplies were not received or that monies in respect of them were misappropriated, that even according to the prosecution, supplies in respect of the orders in question had in fact been received though it might be that those orders had not been placed in compliance with the procedure laid down therefor and that it could not find out any criminality in the action of the two officers. The High Court finally concluded that there was no prima facie case made out against the two officers and in that view quashed the order of the Special Judge. The Union of India carried the matter in appeal to the Supreme Court. The Supreme Court while considering the same on facts found that goods were purchased after making spot enquiries and without following the usual proceduring of calling for quotations, receiving them opening them in the presence of two officers and then selecting the firm from whom the articles should be purchased. It was, however, possible that the goods might have been required immediately especially in an emergency like the one which was then prevailing and an officer might find it difficult, if not impossible to go through the routine, possible and desirable in peace time. Therefore, no inference of fraud could be drawn from the fact of spot enquiries. In some cases a breach of procedure does not surely mean fraud or any other criminality. The Supreme Court took into consideration that the orders in question were placed during emergency period and the principles followed in piece time could not be adhered to. In those circumstances, duly taking into account the money that has been involved the Supreme Court, held that the High Court was perfectly justified in coming to the conclusion that no prima facie case had been made out against either of the two officers.
109. In Major S. K. Kale v. State of Maharashtra, : [1977]2SCR533 the gravamen of the allegations against the appellant before the Supreme Court was that although the supplies were to be made as quickly as possible, the appellant made a deliberate departure from the normal procedure which was adopted in the Department in that he followed the procedure of covering purchase order basis and placed orders with P.W. 2 (one of the contractors) alone without making any enquiries from the local market whether the tools were available there or not. The Supreme Court having found that the Courts below have drawn wrong inference from proved facts and had made a completely wrong approach to the whole case by misplacing the onus of proof on the accused, held :
'Even on the prosecution allegation the case of the appellant could fall only within the second part of S. 5(1)(d), namely abusing his position as a public servant. The abuse of position must necessarily be dishonest so that it may be proved that the appellant caused deliberately wrongful loss to the Army by obtaining pecuniary benefit for P.W. 2. The prosecution had miserably failed to prove this fact.
It was further held :
'Even assuming that the accused departed from the normal procedure in view of the current necessity of the articles it cannot be said that this was done with a corrupt or oblique motive. The appellant had been asked by the Jabalpur Depot to supply these articles immediately. The appellant, therefore had to take a quick decision and he was authorised to do so by his chief. Since P.W. 2 was prepared to supply all the goods in bulk at one stretch the appellant may have thought it better to place the orders with him. May be that this was an error of judgment or an act of indiscretion, but from that alone an inference of dishonest intention cannot be drawn.'
110. In Jageshwar Sarti Castopi v. State of Madhya Pradesh, : 1980CriLJ323 the accused, Principal of Basic Institute purchased a Binocular for his Institution and promised P.W. 12, the Divisional Forest Officer, that he would get a quotation for him also. Several quotations were received. Ultimately the accused met P.W. 12 and gave him the Binocular and also the quotation from Surinder Brothers. The case of the prosecution in that case was that the accused cheated P.W. 12 by making a representation that Surendra Brothers was a firm dealing with Binoculars and that the price quoted was not the proper one as he had himself purchased for the Institute. The High Court found that the price of Binoculars which was supplied at Rs. 586.00 is not the proper price as another Binocular had been supplied at Rs. 380/- to the Institute. The High Court has not found that the prosecution has succeeded in proving that P.W. 12 was induced to pay higher price than the worth of the article. The Supreme Court held that the charge under S. 5(1)(d) is equally unsustainable. The result is that the conviction under S. 420, I.P.C. and S. 5(1)(d) of the Prevention of Corruption Act are set aside.
111. In Sudhodo Jha Utpal v. The State of Bihar, : 1957CriLJ583 the case of the prosecution is that the accused as the General Manager of certain limited Company entered into a conspiracy with the Director and Manager for the purpose of cheating the Government by procuring petrol coupons during the years 1947-48 when petrol rationing was in operation in the State. The modus operandi attributed to the accused was that in the application for coupons for petrol, a number of trucks and buses which were not in a road-worthy condition and for which taxes had not been paid were included as being in a running condition and on that misrepresentation the rationing authorities were induced to part with petrol coupons which they would not have done if they were apprised of the real state of circumstances. The accused were acquitted of the offence of conspiracy but were convicted and sentenced under sections 420 and 193 I.P.C. The Supreme Court held that had the question of conspiracy been proved, the case against the accused might have been stronger but that having been found against the prosecution on the remaining evidence the accused could not be imputed with any knowledge of the falsity of the allegations made in the application. The Supreme Court opined that the explanation offered by him, though he has not been able to prove it conclusively is a reasonable one and that the prosecution has not been able to prove that the appellant appended his signature to Exs. 15 and 16 knowing or having reason to believe that the contents contained therein were false. It is the duty of the prosecution to prove affirmatively that the appellant knew that the representations made are false and in the absence of circumstances from which it can be gathered that and such knowledge can be imputed to the appellant, this is a case in which the benefit of reasonable doubt should be given to the appellant.
112. In Anil Kumar bose v. State of Bihar, : 1974CriLJ1026 it was found that it was a case of an error of judgment or breach of performance of duty which per se could not be equated with dishonest intention which was one equated with dishonest intention which was one of the essential ingredients of the offence of cheating under S. 420, I.P.C.
113. Each and every case depends upon its own facts and circumstances. In those cases even though the accused have deviated from the procedure the work has been completed and the goods have been delivered. But in the instant case which we are now considering, the case of the prosecution stands on a different footing. According to the prosecution, no work has been executed at all and these Exs. P. 4 to P. 6 were prepared sitting in the office and on the basis of those documents, false endorsements have been made as if the work has been executed and completed and bills have been prepared, cheques have been issued and the amounts were drawn. This all has been done with the active connivance and resistance rendered by A-5. He has encashed the cheques issued by the Department through the Banks. On the facts which have been found that no work has been done at all, can it be said that there is error of judgment or administrative lapse on the part of A-1 to A-4. The answer must be in the negative.
114. According to the version of the accused, the premeasurements have been taken on 14-6-1979 and obtained the signature of the contractor A-5 on the same day. When the agreement was concluded on 26-7-1979 how they obtained the signature on A-5 on the premeasurements, in what capacity and under what right A-5 has signed Ex. P. 5 is left in doubt. The signature of the contractor or his agent should be obtained in the M. Book after each set of measurements. The nomination of A-5 was approved long after the premeasurements were recorded in M. Book Ex. P. 6. It is not known how the signature of A-5 was obtained in the M. Book Ex. P. 6 before his nomination was approved by A-2; passing of sanction order does not mean that A-2 can entrust the work straightway to A-5 without issuing formal orders. It is also not known how the premeasurements for jungle clearance were recorded before the approval of the nomination of A-5. Under the Rules the agreement must be specific and unambiguous.
115. It is submitted by the learned Standing Counsel for ACB that the agreement Ex. P. 5 concluded between A-2 and A-5 is not in consonance with the codal rules and that the terms of the agreement are vague and therefore the agreement is a void agreement and the Executive Engineer A-2 ought not to have made payments under such a void agreement Ex. P. 5.
116. Para 152 of the A.P. Public Works Department Code reads thus :
'The terms of the contract must be precise and definite and there must be no room for ambiguity or misconstruction therein. No contract involving an uncertain or indefinite liability or any condition of an unusual character should be entered into without the previous consent of the competent financial authority.'
117. If the conditions under Para 152 have been followed, the signature of A-5 obtained on the M. Book even prior to the measurements being taken is highly irregular and it shows that the accused have not followed the Codal rules.
118. The agreement Ex. P. 5 has been entered into on 26-7-1979 and the work was entrusted to A-5 on nomination by A-2 on 19-7-1979 and by that date the premeasurements have been completed. The time that has been stipulated in the agreement is one month. In that case there is no meaning for incorporating the time factor particularly when both parties are aware of the fact that the jungle clearance and uprooting of stumps was alleged to have been completed by 11-7-79 i.e. long before the conclusion of the agreement.
119. The learned counsel for the appellants tried to argue that it is only K2 agreement and that in K2 agreement time is not the essential factor and it is only a formality and the agreement can be entered into even after the completion of the work. There is no substance in this argument. Even assuming that it is K2 agreement, the clause regarding time factor stipulated in the agreement is within the knowledge of both the parties. The incorrect stand taken by the Department casts any amount of doubt about the execution of the agreement on a particular day as is mentioned by them. There are many defects in the agreement also. The details of the estimate have not been mentioned. Though details are noted in the forwarding slip accompanying the agreement, it is not part and parcel of the agreement Ex. P. 5. The name of the work is described as clearing light jungle on Krakatur small tank but the quantity of jungle clearance work and quantity of the stumps to be uprooted and removed and the chainage also are not noted. There is any amount of ambiguity with regard to the quantity of the work to be done under the agreement. The date of handing over the site to the contractor also in not mentioned. It is kept blank. The clearance of jungle and uprooting of stumps was already completed before the conclusion of the agreement. So the agreement is not valid for the reason that its terms are vague and ambiguous and the date of its execution also is not mentioned, it is a defective agreement contrary to the Codal Rules.
120. After the agreement, the nomination that is said to have been made in favour of A-5 by A-2, as per the version of the prosecution, is contrary to the codal rules and A-2 has no power to entrust the work on nomination basis as there was no such an urgency as to handover the work on nomination. Evidence has been let in with regard to the powers of the Executive Engineers for entrustment of work on nomination basis. P.Ws. 1, 3, 16, 19 and 20 were examined at length on that point exhaustively by extracting the relevant portions in their evidence. As is clear from the evidence of these witnesses, there is no application of any other contractor, A-5 has only put in his application requesting for the entrustment of work on nomination. A-2 has not recorded any reasons nor explained anything when examined under S. 313, Cr.P.C.
121. According to have prosecution, as the estimate amount involved is more than Rs. 2,500/- A-2 ought to have called for tenders for fixing up the agency. On the other hand, the learned counsel for the appellants sought shelter under G.O.Ms. No. 1007 Transport and Buildings Department dated 5-11-1976 whereunder an Executive Engineer is competent to entrust the work on nomination without calling for tenders if the amount involved in that work is less than Rs. 20,000/- and therefore, there is no illegality in entrusting the work on nomination basis to A-5.
122. In pursuance of G.O.Ms. No. 1007 paragraph 154 of the Code has been amended and it reads as follows :
'As per the powers deleted under G.O.Ms. No. 1007 Transport and Buildings D/ - 5-11-1976 the powers got amended as follows :
Sub-para (ii) of para 154 :-
'When and where tenders are to be received and opened, the date of receipt of tenders should be at least 15 days for work costing Rs. 1,00,000/- and less and 21 days for works costing more than one lakh and up to Rs. 5/- lakhs and one month for works costing over 5 lakhs from the date of issue of the chit tender notice.
Note : 1 : Tenders should be invariably called for when the amount involved in a particular contract Rs. 20,000/- or more. If it is proposed in any case, whether for urgency or any other reason, to depart from this rule and entrust the works on nomination at rates not exceeding estimate rates the previous approval of the Superintending Engineer should be obtained in the case of works costing more that Rs. 50,000/- of the Chief Engineer in the case of work costing more than Rs. 1,00,000/-. When the amount is less than Rs. 20,000/- the Executive Engineer may call for tenders at his discretion. This rule does not however admit a major work being split up into parts each costing less than Rs. 20,000/- and each part being given on contract without calling for tenders. In the case of electrical works the powers of the Executive Engineer, Superintending Engineer and Chief Engineer to dispense with the call of tenders are limited to Rs. 1,000/-, Rs. 2,500/- and Rs. 5,000/- respectively.'
123. It is clear from the above amended note 1 of para 154 of the A.P.P.W.D. Code when the amount involved is less than Rs. 20,000/- the Executive Engineer may entrust the work on nomination without calling for tenders. But there is limitation to this power that a major work should not be split up into parts each costing less than Rs. 20,000/- with a view to entrust the work on nomination without calling for tenders.
124. The learned Public Prosecutor contends that the entire work was running into lakhs of rupees and it was split into parts so that it can be entrusted on nomination basis. According to Ex. P. 4B, A-2 sanctioned the estimate on 17-7-1979 for Rs. 5,500/- and registered it as working estimate No. 212/79-80. Ex. P. 11 is the application of A-5 submitted to A-2 to entrust the work on nomination basis for execution and it was recommended by A-3 and A-4. A-2 approved the nomination of A-5 on 17-7-1979. Except the application of A-5, there is no other application of any contractor found in the file. The Superintending Engineer, Irrigation Circle, Nellore, issued a memo No. 14-4-1980 to all the Executive Engineers in the circle to call for tenders if the cost of the work is more than Rs. 2,500/-. According to P.W. 3, G.O.Ms. No. 1007 had been repealed. Still the Executive Engineer A-2 ought to have obtained the permission of the higher authorities before entrusting the work to A-5 on nomination. He has not given any reasons for entrusting the work on nomination dispensing with tender system. Whether the removal of jungle is of an urgent nature or not is not mentioned. According to P.Ws. 19 and 20 the jungle clearance work is only a maintenance work and as such it is not an urgent work which necessitates the entrustment on nomination. No reasons have been assigned to show that the clearance of juliflora is of an urgent nature. The estimate was prepared on 14-6-1979 and the work was entrusted to A-5 on 17-7-1979. No doubt the agreement Ex. P. 5 was concluded on 26-7-1979. Thus there is substantial delay in sanctioning the estimate, in appointing the contractor and in concluding the agreement. If really the work was considered as urgent, there would not have been so much delay in sanctioning the estimate and in execution of the agreement. The reasons given in Ex. P. 4 to treat the work as urgent are far fetched.
125. P.W. 7 in his report Ex. P. 7 stated that the Executive Engineer A-2 in having split up the work without the approval of the S.E. is irregular. He also pointed out that the Executive Engineer have not followed the instructions at all given by the S.Es. On 27-5-1975 and 14-4-1980. This only proves that the directions of the Superintending Engineers have been taken very lightly by all the Executive Engineers which amounts to insubordination. He suggested for the transfer of these officers to other places. In paragraph 9.00 of the report he stated;
'During the enquiry the Superintending Engineer was asked as to why he has permitted the Executive Engineers to flout a number of orders issued by him or his predecessors from time to time. The Superintending Engineers gave the following reasons :-
1. Almost all officers i.e., the Executive Engineers, Assistant Engineers, Junior Engineers/Supervisors belong to Nellore and they are influenced by or have influence over the local contractors to very grate extent. This has affected the execution of works and also is responsible for eroding the authority of the Superior officers. He has therefore suggested that all the officers who are native of Nellore should be transferred immediately to another District.'
126. During the course of investigation, the area available for jungle growth was assessed at 14123 sq. metres only but the measurements were taken for an extent of 22100 sq. metres. It all indicates that the premeasurements were taken without actually going to the site but sitting in the office. It is not disputed that A-3 was using the vehicle APD 637 for his official visits. P.W. 26 seized the log book maintained for the vehicle APD 637 for the period from 23-3-1978 to 8-1-1980. As per Ex. P. 6A, A-3 is said to have check-measured the premeasurements recorded on 17-6-1979. There is an entry to that effect in the M. Book at page 20, But as seen from the entries at page 33 of the Log Book Ex. P. 26 A-3 went to Allur on camp from Nellore and returned back to Nellore on that day. There is no entry for the date 17-6-1979 in the log book that A-8 had visited Krakatur small tank and check measured the premeasurements recorded by A-3 on that day. Further as seen from the entire in Ex. P. 6D, A-3, had verified the certificate issued by A-4 for clearance of jungle and A-3 made endorsement in page 20 of Ex. P. 6, that the verified the certificate on 2-7-79 and also check-measured the premeasurements recorded by A-4 for uprooting of stumps of 2-7-1979. A-3 also signed at page 22 in the M. Book to the effect that he check-measured on 2-7-79. Ex. P. 27 is also an entry at page 34 of the log book maintained for the vehicle APG (APD) 637 and as seen from this entry, the vehicle was kept idle for the date 2-7-79. As seen from Ex. P. 6B A-3 made enforcement of page 22 of M. Book Ex. P. 6 to the effect that he verified the certificate issued by A-4 for uprooting stumps on 16-7-1979. Ex. P. 28 is the entry at page 35 of the log book for the vehicle APD 637. As seen from this entry the said vehicle was kept idle from 24-6-79 to 19-7-79 due to repairs. Thus the entries in Ex. P. 26, P. 27 and P. 28 in the log book of the vehicle APD 627 conclusively establish that A-3 did not visit Krakatur small tank on 17-6-79, 2-7-1979 and 16-7-79. Even without visiting the work spot on the said dates, A-3 had signed in the M. Book Ex. P. 6 as if he has check-measured the premeasurements for jungle clearance and uprooting stumps and verified the certificates Exs. P. 6B and P. 6D with regard to the jungle clearance and uprooting of stumps. These entires coupled with the evidence on record show that all the entries in the M. Book have been fabricated with a view to cheat the Government and to misappropriate the Government funds.
127. An extent of 22100 sq. metres of juliflora jungle was alleged to have been cleared and a total number of 3507 stumps were alleged to have been uprooted and removed. A-4 certified that he had destroyed the jungle cleared by burning it to ashes as they have no fuel value. According to P.Ws. 3, 7 and 20 the cleared juliflora jungle and uprooted stumps have got fuel value and so they should be brought to 7-F account and dispose of by public auction. As seen from the records 3508 stumps having girth of 50 cm. to 100 cm. are said to have been uprooted and removed. Considering the size of the uprooted stumps. Certainly they will have some fuel value, and they should have been auctioned and the sale proceeds should have been credited to the Government. But in violation of Art. 4 of the A.P. Financial Code, A-2 to A-4 allowed the uprooted stumps go waste. If not, the only presumption that has to be drawn is that there was no actual uprooting of the stumps and all the records were manipulated.
128. P.Ws. 8 and 9 who are residents of Krakatur village were examined but they turned hostile. They have not supported the case of the prosecution but their statements were marked. They stated that there was no possibility for the growth of thorny bushes on the top of the tank bund. When the persons belonging to that village were examined and they turned hostile, there is no point in contending that at the time of preparation of Exs. P. 1 to P. 3. local people were not taken. Generally in the case of preparation of panchanamas by the ACB they will take some officers. The officers taken by the ACB are Gazetted Officers and the action of the ACB in taking these officers an mediators is correct.
129. The accused examined D.W. 1 to show that some contractor got the Karratumma plants grown on the tank bund removed. He says that the stumps were removed and they were burnt. He admits that the removed branches will be used as firewood in villages. He also states that there was no demand in the village for the branches of juliflora as it is growing all round their village. In the cross-examination he stated that there was not necessity to pass through on the tank bund to reach his land. The jungle clearance work was done for a period of one month. About 25 to 30 coolies might have worked every day. He also stated that there was no firewood depot in their village. The suggestions that have been put to the prosecution witnesses are that the stumps removed have no fuel value at all. This witness in not a reliable witness and no value can be attached to his evidence.
130. Neatly it is contended by the learned counsel for the appellants that none of these officers A-1 to A-4 were called and no opportunity was given for them to show that work spot. If an opportunity is given to those officers, the alleged irregularities regarding measurements might have been cleared in the initial stage itself. Neither the provisions containd in the Prevention of Corruption Act nor the Code of Criminal Procedure contemplate giving an opportunity to the accused during the course of the investigation. If a technical person who is in charge of that section like P.W. 13 is available and he points out the spot with the aid of Exs. P. 4 to P. 6 and also with the aid of memories, it cannot be said that a person who has assisted the Investigation Agency is not a competent person and because of that there is failure of taking into account the exact point where 0/0 starts.
131. We are now considering a case arising under the Prevention of Corruption Act wherein it is alleged that the accused have fabricated records to defend and cheat the Government of Andhra Pradesh and to have pecuniary benefits by misusing their official position. The question whether in the course of investigation into the case of a public servant, the investigating agency i.e., Anti-Corruption Bureau should give an opportunity to be heard to the accused before submitting the final report, was decided by a Division Bench of this Court in W.A. No. 910 of 1988 dated 20-7-1988 and it was held that 'the law does not contemplate any opportunity to be given as of right to the officer before submitting the report by the Anti-Corruption bureau to the concerned authorities and we do not find any violation of the principles of natural justice at that stage.'
132. Another Division Bench of this Court in Criminal Petition No. 457 of 1988 dated 2-8-1988 (unreported) ruled out that the accused public servant is entitled to be given an opportunity to be heard by the investigating officer ACB before he finalises and submits charge-sheet in the case of a public servant having assets disproportionate to his known sources of income. But the earlier judgment in W.A. No. 910 of 1988 which was a binding precedent, has not been considered by the latter Division Bench in their judgment dated 8-8-1988 in Criminal Petition No. 457 of 1988 which is a judgment per incuriam not having any binding force. It is well settled that a Court is not bound to follow a decision of its own is given per incuriam. In Halsbury's Laws of England 3rd Edition Volume 22, page 1187 the Rule of per incuriam has been explained as under :
'The Court is not bound to follow a decision if given 'per incuriam'. A decision is given per incuriam when the Court has acted in ignorance of a pervious decision of its own or of a court of co-ordinate jurisdiction which covered the cases before it or when it had acted in ignorance of the decision of House of Lords.'
133. Identical view had been expressed at page 150 in Salmond's Jurisprudence (12th Edition) A Division Bench of this Court affirmed this principle in N.V.S.Ra. v. M. V. Panduranganarakulu 1983 (47) Fac LR 308 : (1983 Lab IC 577) at 312.
134. In the recent judgment of the Supreme Court in State of Bihar v. P. P. Shara, (cited supra) the Supreme Court while considering the wide powers given to the investigating officer under the Criminal Procedure Code held :
'He has to perform his duties with the sole object of investigation the allegations and in the course of the investigation he has to take into consideration the relevant materials whether against or in favour of the accused. Simply because the investigating officer while acting bonafide, rules out certain documents as irrelevant, it is no ground to assume that he acted mala fide. The police report submitted by the investigating officer has to pass through the judicial scrutiny of a Magistrate at the stage of taking cognizance. Although the accused person has no right to be heard at that stage but in the case the accused person has any grouse against the investigating officer or with the method of investigation he can bring to the notice of the Magistrate his grievance which can be looked into by the Magistrate. When the police report under S. 173, Cr.P.C. has to go through the judicial scrutiny it is not open to the High Court to find fault with the same on the ground that certain documents were not taken into consideration by the investigating officer. Therefore, it cannot be said that the FIR and the investigation was vitiated because of the mala fide on the part of the informant and the investigating officer.'
135. It is well settled that the accused have no right to be heard at the stage of the investigation. It is only when the report has been filed before the Magistrate and after the case has been taken cognizance of by the Court and summons are issued to the accused, he can raise the grounds that are available to him. The question of issuing any notice during investigation by the investigating agency to the accused does not arise. In a case arising under the Prevention of Corruption Act, the accused has no right to participate at the instance of the investigation and he has no right to be heard during course of the investigation. When such a right has not been conferred either under the provisions of the Criminal Procedure Code or under the provisions of the Prevention of Corruption Act or the Rules made thereunder the question of giving any notice before finalising the charge-sheet does not arise. Therefore, the contention of the appellants that A-2 would have been summoned by the ACB to point out the spot has no legs to stand.
136. In this case the accused are responsible officers of the State Government occupying higher positions. As already stated above, from the beginning till the end of the alleged execution and payment of bills, certificates were given by the officers by endorsing on the files without raising any objection. It indicates that the accused conspired together with the sole object of the defending the Government to part with money. It is the consolidated act of all the accused with the dishonest intention of misappropriating the Government funds that lead to the investigation by the Government.
137. 'Willfully' as used in S. 477-A means 'intentionally' or 'deliberately.' But from the mere fact that certain entries were made 'wilfully' by an accused, does not necessarily follow that he did so 'with intent to defraud' within the meaning of S. 477-A, IPC. In pursuance of that intention to defraud the Government A-4 prepared Ex. P. 4 with incorrect particulars and submitted to A-3 and A-3 forwarded that estimate to A-2 and A-2 sanctioned that estimate. A-4 issued a certificate of completion of work and the same was verified by A-3. A-4 prepared the bill and A-2 passed the bill, and issue the cheque to A-5. The evidence let in by the prosecution clearly points out that with a view to defraud the Government, these accused have prepared these documents as if they have followed the Codal Rules etc.
138. P.W. 24, V. Ramachandrudu, who worked as Deputy Superintendent of Police, ACB Nellore who was asked to enquire into this case stated that in his report Ex. P. 24 he has mentioned that fraud was committed in respect of several lakhs of rupees. He gave a list of works in which excess amount was paid to the contractors. On this evidence the learned counsel for the appellants wants to point out that it is not the case of the prosecution that no jungle clearance work was done but ony excess payment was made to the contractor. P.W. 24 only suggested for registering a case against the accused Officers. His report Ex. P. 24 shows that jungle clearance work was shown as having been executed on paper without actually doing any work in collusion with the contractor. Therefore, this contention also must fail.
139. The procedure to be followed for clearance of jungle work is stated by P.Ws. 3 and 16 Right from the beginning from the preparation of the estimate till the payment is made under the bill, at each and every stage every accused, through whom the file has been moved and orders have been moved and orders have been passed, has got knowledge whether the work is being carried out or not. Since in this case, it is the definite finding of the learned Special Judge which has been affirmed by this Court, no work at all has been done and the documents have falsely prepared in the office without verifying the work spot, it can definitely be concluded that each and every accused has got knowledge and the contention of the learned counsel that no objection have been raised by the audit party cannot be accepted.
140. It is also feebly contended that some of the accused have worked for smaller periods in these areas and therefore no criminal intention can be attributed to them. Whether an officer has worked for smaller period or not, when a file has been routed through him and when an endorsement has been made by him on the files, it is the primary duty to see whether the work as stated in the file has actually been carried out or not. When they failed to perform their duty duly entrusted to them, they cannot escape from the criminal liability.
141. The learned Special Judge has gone through the evidence of the witnesses and also the documents very minutely and has discussed each and every point raised by the prosecution as well as the accused ang gave valid and cogent reasons for coming to the conclusion that the prosecution had made out a case against the accused beyond all reasonable doubt.
142. On a careful analysis and reapprisal of the entire evidence and the material available on record, this Court positively feels that there is no reason to come to a different conclusion than the one arrived at by the learned Special Judge.
143. The prosecution has established beyond doubt that with the dishonest intention of misappropriating the Government funds, the accused have flouted the work without actual execution of the work and thus caused wrongful loss to the Government to the tune of Rs. 5169. The accused have violated the Codal rules in the preparation on of estimates, sanctioning the same, fixing up the agency, conclusion of the agreement, entrustment of work for execution and preparation and passing of the bills with the dishonest intention of cheating the Govt. and thus misappropriating the Government Funds.
144. An excess area of 8577 sqm. was shown in Ex. P6 and the existence of stumps also was boosed up without visiting the work spot with the dishonest intention to draw more funds and thus misappropriate the same. The accused have not deducted the area occupied by the permanent structures and revetment area in Ex. P-6 where there is no possibility for jungle growth.
145. Though the jungle clearance work is a maintenance work, the same has been entrusted on nomination basis on the sole application of A-5 on the ground that there are no luscars attached to this tank, without recording any valid reasons under Ex. P. 5, which contains vague and ambiguous terms.
146. A-2 to A-4 are well educated persons and are holding higher ranks in the State Government. Instead of protecting the interests of the Government by scrupulously following the Codals Rules and as ordained in Art. 4 of the A.P. Financial Code, they have resorted to this sort of Criminal misconduct.
147. Before concluding the judgment. I feel it necessary to mention a few facts about the circumstances that took place after the filing of the appeals.
148. The Special Judge for ACB & SPE Cases, Nellore, who tried all the 38 cases convicted the accused in all the cases who are public servants belonging to the Irrigation Department and some contractors for various offences of misconduct. The convicted accused preferred appeals in this Court and the accused-Engineers sought for suspension of the operation of the judgment, which include the convictions as well as the sentences imposed against them. The learned Judge who admitted the criminal appeals gave a direction in the Crl. M.Ps. filed by the accused, suspending the operation of the judgment and also the sentence, pending disposal of the Criminal Appeals.
149. The accused-Engineers also took advantage of the forum that is available by approaching the A.P. Administrative Tribunal and got the suspension orders suspended by the Tribunal. When those orders have not been implemented by the Department they have approached this Court. As per the directions of this Court in the Writ Petitions filed by them, they were reinstated into service and as such they have been continuing in service. Normally when an enquiry is pending against the Government Servants, benefit will be given duly taking into account the serious nature of the allegations made against them and at sometimes they may be reinstated into service pending enquiry. But when once the Special Judge after giving due opportunity to the accused under S. 313 Cr.P.C. and after assessing the entire evidence came to the conclusion that the accused have committed fraud and accordingly convicted them, the question of suspension of that conviction does not arise. Nowhere in the provisions of the Criminal Procedure Code or under any Rules or Regulations under any other enactment, a provision is made for suspension of the conviction pending an appeal.
150. After the orders were passed in the Cr.M.Ps. suspending the operation of the judgment and also the sentence, the learned Standing Counsel for ACB filed a letter requesting the matters to be posted for 'being mentioned'. When the matters came up before my learned Brother Bhaskara Rao, J. it was contended on behalf of the prosecution that under S. 389(1), Cr.P.C. the High Court, as an Appellate Court, has power only to suspend execution of the sentence, and not the conviction, much less, the 'judgment' as a whole. It was contended on behalf of the accused that under S. 389(1) the High Court, as an Appellate Court, has got ample power to suspend the operation of the judgment and that even otherwise also, this court can invoke the power under S. 482, Cr.P.C. and suspend the operation of the judgment.
151. It may be mentioned that in another Crl.M.P. No. 1257 of 1989 in Cr. Appeal No. 450 of 1989 my learned brother, Jagannadha Raju, held that under S. 389(1), Cr.P.C. the Appellate Court can suspend only the Sentence but not the judgment under which the accused are convicted. The learned Judge further held that where a Government servant in convicted by a Court, the normal course that should follow is that he should be removed from service and that only when he is exonerated and acquitted in the appeal he would be entitled to be reinstated with retrospective effect and the, therefore, there was no justification for suspending the judgment. When this order was brought to the notice of Bhaskara Rao, J. the learned Judge could not agree with the said view taken by Jagannadha Raju, J., and accordingly having explained the scope and ambit of S. 389(1), Cr.P.C. referred the matter to a Division Bench.
152. In V. Sundararami Reddy v. State through Inspector of Police ACB Guntur and two others 1989 (3) ALT 213 : (1990 Cri LJ 167) the Division Bench consisting of Jayachandra Reddy J. (as he then was) and Panduranga Rao, J. to whom the matter was referred to, held that under S. 389 Cr.P.C. the Appellate Court can order suspension of the execution of the sentence as well as the 'Order appeals against'. The words 'appealed against' must be given a wider meaning as to include 'conviction' also so that the Court in appropriate or exceptional cases can suspend an order of conviction. The Bench further held (at page 171 (of Cri LJ)) :
'But, what we are holding is that even if it is to be held under S. 389(1) of the Code, a conviction cannot be suspended, the convicted person may invoke S. 482 of the Code, and it is for the Court to consider whether any relief can be granted or not.'
While agreeing with the view expressed by my learned Brother, Bhaskara Rao, J., the Division Bench held that since the petitioners therein were in service on the date of conviction, they can be continued in Service.
153. Basing on the above judgment, the appellants are still continuing in service. Answering the reference is one thing and giving a direction is another thing. After answering the reference the Division Bench went ahead and said that since the petitioners therein were in service on the date of conviction, they can be continued in service and ultimately ordered suspension of the judgment.
154. The learned Special Judge by its well considered judgment has come to the conclusion that the ingredients of Sections 120B, 420 read with 34 and 477-A read with 34, IPC against A-2 to A-5 and S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act as against A-2 to A-4, have been made out. On a re-apprisal of the entire evidence on record, both oral and documentary and on a conspectus of all the facts and circumstances of this case this Court feels that the prosecution has made out a case under sections 120B, 420 read with 34, IPC and 477-A read with 34, IPC against A-2 to A-5 and under S. 5(2) read with 5(1)(d) of the Prevention of Corruption Act against A-2 to A-4 and the convictions thereunder are confirmed.
155. Regarding sentence, it should being home the guilty party the consciousness that the offence committed by him was against his own interest as also against the interests of the society of which he happened to be a member. What is to be considered while awarding punishment within the permissible limits is, firstly, the gravity of the offence; secondly, the circumstances under which it is committed; thirdly, the circumstances of the accused; and fourthly, the object and policy of law. The offences committed by the accused in this case are more dangerous than the other crimes. But when we consider that an unpunishable crime leaves the path of crime open not only to the same delinquent but also to all those who may have the same motives and opportunities for entering upon it, we perceive that the punishment infliction on the individual becomes a source of security to all. Normally in cases like this, where an allegation has been made and departmental enquiry has been ordered, in public interest, the delinquent is kept under suspension. In the case on hand, the learned Special Judge found that A-2 to A-4 being public servants, have committed the offence with the active connivance of A-5 with an intention to defraud the funds of the Government, and the said finding in confirmed by this Court. The conviction will naturally result in their dismissal from the service. The sentence, whether nominal or maximum has no bearing with regard to the continuance of the accused in service when it had been found that they defrauded the Government funds by misusing their official position. It is only the conviction that had to be taken into consideration but not the sentence inflicted against the accused. In view of the fact that A-2 to A-4 have suffered mental agony for the last seven years, though they are able to continue in service by virtue of this Court's direction, this Court feels that instead of sending them back to jail, they shall be sentenced under all the counts till the rising of the Court and to pay an additional fine amount under each count.
156. As regards the sentence to be inflicted on the contractor, A-5, who has been charged and tried for the offences along with A-2 to A-4, who are Government employees, the same yardstick cannot be used. With the active co-operation and connivance of A-5 alone, A-2 to A-4 have committed the offence and A-5 assisted them by subscribing himself to the agreement and other documents. So, A. 5 must be dealt with severely.
157. In the Upshot, the conviction of A-2 to A-4 under S. 120B, 420 read with 34 and 477-A read with 34, IPC and under S. 5(2) read with 5(1)(d) of the Prevention of Corruption Act are confirmed and they are sentenced till the rising of the Court. Further A-2 to A-4 are sentenced to pay an additional fine of Rs. 1000 (Rupees one thousand) each under each count in default to suffer R.I. for three months in addition to the fine imposed by the court below under S. 420 read with 34, IPC and S. 5(2) r/w 5(1)(d) of the Prevention of Corruption Act.
158. Time granted for payment of fine is one one month from today.
159. The conviction of A-5 under sections 120B 420 read with 34 and 477-A read with 34, IPC are confirmed and he is sentenced to suffer rigorous imprisonment for six months under each Count. The sentence of fine imposed by the learned Special Judge under S. 420 read with 34, IPC is confirmed. All the sentences of imprisonment are directed to run concurrently.
160. With the above modification in the sentence these Criminal Appeals are dismissed.
161. Before parting with the judgment, I would like to place on record my appreciation for the kind co-operation extended by all the learned counsel appearing for the appellants in these appeals and other batch of appeals and also the learned standing counsel for ACB cases, for the early disposal of the cases.
162. I must also place on record for the able assistance rendered by my Personal Secretary Mr. K. Satyanarayana, and for the pains he has taken and hard work he has put in, in completing 38 voluminous judgments in the time frame fixed by me.
163. Appeals dismissed.