Public Work; A. Sivaprakash Vs. State of Kerala [Supreme Court of India, 10-05-2016]

Prevention of Corruption Act, 1988 – Ss. 13(2) r/w. 13(1)(d) – Penal Code, 1860 – Ss. 468, 471 r/w. 34 – Public Work – Jawahar Rozgar Yojana (JRY) – Criminal misconduct by a public servant – the ingredients which will be required to be proved are: (1) The public servant has abused his position. (2) By abusing that position, he has obtained for himself or for any other person any valuable thing or pecuniary advantage.

Public Work

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(A.K. SIKRI) AND (PRAFULLA C. PANT) JJ.

MAY 10, 2016

Criminal Appeal No. 131 of 2007

CRIMINAL APPEAL NO. 131 OF 2007

A. SIVAPRAKASH …..APPELLANT(S)

VERSUS

STATE OF KERALA …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Four persons were implicated as accused persons in FIR registered on 09.09.1993 under

Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988

(hereinafter referred to as the ‘PC Act’) and Section 409 read with Section 34 of Indian Penal Code (‘IPC’). After investigation, when the chargesheet was filed on 19.01.1998, one more person (who is the appellant before us) was also added as an accused. Chargesheet was filed under Section 13(2) read with 13(1)(d) of the PC Act and under

Sections 468 and 471 read with Section 34 of IPC.

Charges were framed by the trial Court against the accused persons. Matter went on trial and resulted in acquittal of A-2 and A-3 from all the charges and conviction of A-1, A-4 and A-5 (i.e. the appellant) under Sections 13(2) read with 13(1)(d) of the PC Act. These accused persons i.e. A-1, A-4 and A-5 were, however, acquitted of the charges under Sections 468 and 471 read with Section 34 of IPC.

2) No appeal was filed by the State against the acquittal of A-2 and A-3. A-1, A-4 and A-5 filed appeals in the High Court challenging their conviction. A-1 and A-4 passed away during the pendency of their appeals and, therefore, those appeals have abated. Thus, it is only the appellant who remains in the fray. His appeal was taken up by the High Court for hearing and was ultimately dismissed by the High Court vide the impugned judgment dated 25.05.2006. Thus, in this appeal, we are only concerned with A-5 (the appellant). With these introductory remarks, we advert to the meat of the matter.

3) The appellant was working as Assistant Engineer in the Public Works Department (PWD) attached to Arudai, NES Block within the jurisdiction of which Vandiperiyar Panchayat situates. The said Panchayat decided to construct the first floor of the existing high school building situated in the Panchayat area, by including the work under Jawahar Rozgar Yojana (JRY). As per the procedure followed under the D.R.D. Scheme the work was included in the JRY to be carried out by a nominee selected from the beneficiary of the work. Accordingly, one Rajarathinam (A-3) was selected as nominee, awarding the said work of construction. Appropriate agreement was executed by him. The total estimate was for Rs. 4 lakhs which was to be met out of the fund of JRY and of Panchayat. Payment for the work was to be effected as per the guidelines issued by the Government including Ex. P/17 which provided that the Panchayat could make advance payment upto 50% of the estimate amount. It was also mentioned therein non-adherence to the aforesaid procedure would be termed as irregular.

4) The case of the prosecution was that all the accused persons colluded together and A-1, A-2 and A-4 disbursed the amount to A-3, the nominee, on the basis of the ‘stage certificate’ which was issued by A-5, the Assistant Engineer in respect of the part completion of the work. Ex. P/16(a) was treated as the stage certificate, which in fact is the letter dated 9.6.1992 wherein the appellant had certified that 25% of the work in question had been completed. Payments were effected to the nominee on 25.03.1992, 21.04.1992, 16.05.1992 and 21.10.1992 at the rate of Rs.25,000/-, Rs. 50,000/-, Rs.7,000/- and Rs. 1 lakh. Payments were effected by Ex.P/7, P/10, P/12 and P/14 respectively. The prosecution alleged that the last and largest of these payments, i.e. Rs. 1 lakh, was made on the basis of purported ‘stage certificate’ [Ex.P/16(a)] issued by the appellant. It was alleged that the false stage certificate was issued as 25% of the work had not been completed. In this way, the appellant abused his official position to obtain pecuniary advantage.

5) In nutshell, the gravamen of the charge against the appellant is that while working as the Assistant Engineer, he issued stage certificate in respect of the contract that was awarded to A-3 and on the basis of these certificates, payment to the extent of 50% of the contract value was received by A-3. As per the prosecution, that was the false certificate which did not depict the correct progress or the position of the work. This was surfaced on the inspection of the work which was carried out by PW-2 on the direction of Deputy Superintendent of Police (Vigilance) wherein it was found that the work completed was only to the extent of Rs.42,649.89, that too as on the date of inspection which was much after the date on which stage certificates were issued by the appellant. Since the contract value was Rs.4 lakhs, even on the date of inspection only 10% work was completed.

6) Entire case of the prosecution rested on Ex.P16(a) coupled with the Inspection Report (Ex.PW2). On the basis of the aforesaid documentary evidence produced on record, the trial court came to the conclusion that in issuing the certificate (Ex.P/16(a)), the appellant had abused his official position only to enable either for himself or for others to obtain peculiar advantage and, therefore, guilty of offence punishable under Section 13(1)(d) of the PC Act. Trial Court, accordingly, sentenced the appellant to undergo rigorous imprisonment for the period of two years and to pay fine of Rs.75,000/- and in default to undergo rigorous imprisonment for a further term of 1½ years under Section 13(2) read with Section 13(1)(d) of the PC Act.

7) Challenging the conviction and sentence imposed by the trial court, the appellant in his appeal to the High Court contended that there was no evidence on record to reveal that payments were made on the basis of the said letter dated 9.6.1992 [Ex.P/16(a)], wrongly termed as ‘stage certificate’. It was also argued that this letter was not the basis for making payments as payments were effected either before or after the date of Ex.P/16(a). It was also argued that payments were not dependent upon the stage at which the work was and the advance payment upto 50% could be released at the start of the work. Itself, as per the procedure laid down.

8) The High Court did not find any merit in the aforesaid arguments of the appellant. It concurred with the findings of the trial court and held that there was hardly any work done at the spot by A-3 when he was released the payments. Ex.P/2 which was the report prepared by PW-2 on 19.07.1994 showed that only Pillar work had been completed and the cost of the said work was to the tune of Rs.42649.89. The High Court accepted the contention of the appellant that payments of Rs.25,000/-, Rs.50,000/- and Rs.7,000/- were made to A-3 before the issuance of Ex.P/16(a). However, it held that after the issuance of the said certificate, an amount of Rs.1 lakh (largest among the payments made) was released in favour of A-3 on 21.10.1992. The High Court also conceded the position that Ex.P/16(a) could not be termed as ‘stage certificate’ as it was accepted even by PW-4 that it was not a stage certificate. Notwithstanding that, the High Court opined that the appellant being a responsible officer knew how the stage certificate is to be issued. In spite thereof he issued Ex.P/16(a) which was the letter to the Panchayat informing the Panchayat that the percentage valuation cost of completion of one work was 75% (with which we are not concerned) and that of other work, it was 25% and this information was obviously furnished for the purposes of releasing payment to A-3. From this, the High Court concluded that the appellant intended that payment be released on the basis of said certificate and writing of this letter (allegedly termed as certificate) amounted to abusing his official position. These are the reasons given by the High Court in dismissing the appeal of the appellant.

9) Mr. R. Basant, learned senior counsel appearing for the appellant, made a vehement plea that the trial court as well as the High Court has totally misread the circular pertaining to JRY under which such payments are to be released and a proper reading of the provisions of the said circular would manifest that the appellant had no role in making the payment, by the Panchayat, to A-3. He referred to the chargesheet and argued that what was stated in the chargesheet was totally different from what was ultimately held against him.

10) Learned counsel for the respondent, on the other hand, justified the reasoning given by the trial court as well as by the High Court in support of their conclusion.

11) We have considered the respective submissions with reference to the record.

12) It is not in dispute that two works were awarded to A-3: one was known as “JRY – consignment semi permanent building in Vandiperiyar” and other was known as “JRY – construction of permanent building in Vandiperiyar”. In the present case, we are concerned with release of payments to A-3 in respect of second work contract. As is clear from the nomenclature of these two contracts, they were under JRY. The Commissioner, Village Development, Thiruvananthapuram had issued Circular No. 14514/J.R.Y. 1/91/C.R.D. dated 23.04.1991 which prescribes the procedure for implementation of JRY and contains certain suggestions. Para 2 thereof is relevant for our purposes which mentions about the manner in which 50% of the advance can be released by the Panchayat. It reads as under: