9911796707
TMI Blog2016 (5) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage - It was not even the case set up by the prosecution that Appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the Appellant under the provisions of Section 13(1) (d)(ii). The attempt of the prosecution was to bring the case within the fold of Clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the chargesheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the Appellant in issuing the said letter. In C. CHENGA REDDY AND ORS. VERSUS STATE OF ANDHRA PRADESH [ 1996 (7) TMI 596 - SUPREME COURT] , this Court held that even when codal violations were established and it was also proved that there were irregularities committed by allotting/ awarding the work in violation of circulars, that by itself was not sufficient to prove that a criminal case was made out. The prosecution has mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struct 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 ₹ 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 42649.89. The High Court accepted the contention of the Appellant that payments of ₹ 25,000/-, ₹ 50,000/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: 2. It was directed that for all works under J.R.Y. contractors shall be avoided and the works shall be directly taken up by the panchayats or by the convenors elected by the consumers. It was directed that the amount for such works will be paid in advance. As per the circular of village Development Commissioner No. 29786/J.R.Y. 1/90/CRD dated 23.7.1999, instructions have been issued to panchayats to give necessary funds in advance. By this way preparing bills every now and then can be avoided and the 50% of estimated cost can be given in advance. But such funds have to be sanctioned considering the work in hand in part installments. Otherwise without starting a project work 50% advance expenditure cannot be given in advance. To do so will not be in order. Money required to start a work can be given in advance and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent could not be made without starting a project/work. It means that as per Panchayat itself, A-3 had started work which resulted in the aforesaid payment. Once the work is started, Panchayat was empowered to release advance to the extent of 50% of the estimated cost, i.e. up to ₹ 2 lakhs. Thus, Panchayat could have made further payment of ₹ 1,18,000/- even without Ex.P/16(a). Payment of ₹ 1 lakh was made on 09.06.1992, which was well within defined limits. 16. In this hue, let us consider the nature of Ex.P/16(a). It is issued on the request of Panchayat President. It mentions that valuation cost of the said project is 25%. This letter never stated that A-3 had 'completed' 25% work. It only mentioned valuation cost . A specific plea was raised by the Appellant that it was the cost which was mentioned by him and that included the cost of material as well which was brought on site by A-3. High Court rejected this argument which is clearly erroneous. It was equally wrong in terming it as the stage certificate. The High Court wrongly proceeded on the basis that advance payment could be given only on installment basis depending upon the percentage of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal case was made out. The Court went on to hold: 22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the Appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the Appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu) (1980) 3 SCC 110, under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
