1. These criminal revision petitions have been filed by the accused Nos.1 and 4 in CC No.8/2012 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short, “the court below”) to quash the order framing charge.

2. The accused No.1 is the revision petitioner in Crl.

R.P.No.792/2019, and the accused No.4 is the revision petitioner in Crl. R.P.No.796/2019. The offences alleged are punishable under sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (for short, “the PC Act”) and 120B of the Indian Penal Code (IPC).

3. The accused Nos.1 to 3 were employees of the Kerala State Electricity Board (for short, ‘KSEB’). During the relevant period (1999), the accused No.1 was working as Deputy Chief Engineer at KSEB Civil Circle, Kottarakkara, the accused No.2 was working as Assistant Executive Engineer, SS Sub Division, KSEB and the accused No.3 was working as Finance Officer, Account Closing Unit, KSEB Kottarakkara. The accused No.4 was a contractor who was the managing partner of M/s T.O.Abraham and Company.

4. The KSEB awarded tunnel work related to the Kakkad Hydro Electric Project at Pampa Basin to M/s T.O.Abraham and Company on 19/2/1990 after fulfilling the tender procedures. An agreement specifying the terms and conditions of the contract was executed between the accused No.4 and the Chief Engineer, Civil Construction (South), KSEB, on 30/3/1990. The total probable amount of the contract of the work was `1,65,84,535/-. As per the agreement, the work was to be completed within a period of one year, i.e., on 18/2/1991. The KSEB took over the project for commissioning on 25/6/1999 after the completion of the major part of the work. Accused No.4 submitted 24 numbers of part bills, and all of them were passed retaining a sum of `60,66,531/- by KSEB as retention amount, as per the terms of the agreement. However, out of the said retention amount, accused No.1 released an amount of `59,36,531/-. The prosecution case is that the accused Nos.1 to 3, abusing their official position and conspiring with accused No.4, released the sum of `59,36,531/- out of the retention amount to the latter in violation of the terms of the agreement and without obtaining completion certificate from the Chief Engineer and thereby sustained a loss to the KSEB and undue pecuniary advantage to the accused No.4. The court below after hearing both sides and overruling the plea of discharge made by the revision petitioners framed charge against all the accused under sections 13(1)(d) r/w 13(2) of the PC Act and also under 120B of the IPC on 6/3/2019. It is challenging the said charge, these criminal revision petitions have been filed.

5. I have heard Sri. S. Rajeev and Sri. P. Chandrasekharan Pillai, the learned counsel for the revision petitioners and Sri. A. Rajesh, the learned Special Public Prosecutor.

6. The learned counsel for the revision petitioners submitted that even if the allegations made in the final report, along with the entire materials collected during the investigation, are taken at their face value, there is no ground for presuming that the revision petitioners have committed the offences alleged. The counsel further submitted that the court below framed the charge against the revision petitioners without exercising its judicial mind to determine whether a case for trial has been made out. Reliance was placed on the decisions of the Apex Court in Sanjay Kumar Rai v. State of Uttar Pradesh and Another (2021 KHC 6274) and Asim Shariff v. National Investigation Agency (2019 KHC 6611). The learned counsel further submitted that the prosecution for the offence under section 120B of IPC is bad since there is no sanction under section 197 of Cr.P.C. In support of the said submission, the learned counsel relied on the decisions of the Apex Court in Ganguly N. K.(Prof.) v. CBI, New Delhi (2015 KHC 4753) and Indra Devi v. State of Rajasthan and Another (2021 KHC 6319). Per contra, the learned Special Public Prosecutor submitted that the final report, together with materials collected during the investigation, discloses serious allegations of criminal misconduct and criminal conspiracy against the revision petitioners, and it is impermissible to set aside the charge when there are serious triable allegations in the final report. The truthfulness and falsity of allegations are questions of fact and matters of evidence to be let at a trial and cannot be prejudged at this stage, submitted the learned Public Prosecutor. The learned Public Prosecutor relied on the following decisions of the Apex Court in support of his submission: State of Rajasthan v. Ashok Kumar Kashyap (2021 (3) KLJ 1022), State of Rajasthan v. Fatehkaran Mehdu (AIR 2017 SC 796 [LQ/SC/2017/182] ), State of Gujarat v. Mansukhbhai Kanjibhai Shah (AIR 2020 SC 2203 [LQ/SC/2020/452 ;] ), State v. J.Doraiswamy (AIR 2019 SC 1518 [LQ/SC/2019/449] ), Amit Kapoor v. Ramesh Chander and Another [(2012) 9 SCC 460] [LQ/SC/2012/789] and Sajjan Kumar v. Central Bureau of Investigation [(2010) 9 SCC 368] [LQ/SC/2010/998] . The learned Public Prosecutor added that it is not part of the duty of a public servant to enter into a criminal conspiracy while discharging official duties or to indulge in criminal misconduct, and therefore, want of sanction under section 197 of Cr.P.C. is not a bar to proceeding against the revision petitioners under section 120B of IPC. Reliance was placed on the decision of the Apex Court in State of Kerala v. Padmanabhan Nair (1999 KHC 418).

7. It is not in dispute that accused No.4 undertook the work related to the Kakkad Hydro Electric Project at Pamba Basin awarded by the KSEB as per the agreement dated 30/3/1990. The date of the completion of the work was 18/2/1991. According to the KSEB, the major part of the work was carried out by the accused No.4, and they took over the project for commissioning on 25/6/1999. The total probable amount of the contract of the work as per tender was `1,65,84,535/- and tender excess was 58.99% above the estimated rate. Since the PWD rate was revised in 1992, accused No.4 requested rate enhancement and ultimately, the KSEB accorded sanction for enhancement in rates at 45% of the quoted rates. The rate enhancement was given to some items of work that have already been executed. Later, the KSEB found that the rates given to the contractor for some extra items executed were high. The KSEB maintained the stand that accused No.4 received an excess amount, and it has to be returned. The said dispute was pending between the KSEB and the accused No.4. The retention amount was released by the accused No.1 to the accused No.4 while the said dispute was pending. After the KSEB took over the project, accused No.4 submitted 24 numbers of part bills, and all of them were passed. Clause El. 011 of the agreement stipulates that from each bill of the contractor, a 10% deduction will be made towards additional security and will be retained to ensure that they are sufficient to cover all possible liabilities. It further stipulates that the retention amount shall not be released until the work is completed in all respects to the satisfaction of the Engineer in charge and taken over by the Board. The crux of the allegations against the revision petitioners is that the retention amount was released by the accused No.1 in collusion with the remaining accused without ascertaining the excess amount due to be recovered from the accused No.4 and without obtaining a completion certificate from the Chief Executive Engineer. It is further alleged that accused No.1 was not competent to release the retention amount. Whereas, according to the revision petitioners, the retention amount was released after completion of the work in all respects to the satisfaction of the KSEB and after fulfilling all the contractual obligations by the accused No.4. It is further contended that the accused No.1 was competent to release the amount inasmuch as the entire powers of the Chief Engineer were delegated to him.

8. The retention money is explained in Clause E1. 011 of the agreement. As per the said clause, from each bill of the contractor, a 10% deduction will be made towards additional security subject to the condition that the maximum amount that may be retained by way of guarantee fund, i.e., by way of security deposit and deductions in part bills in respect of a contract as security for the due fulfillment of the terms of contract shall not ordinarily exceed 10% of the Probable Amount of contract for works costing upto `5 lakhs, 8% of Probable Amount of contract of work costing `5 lakhs to `25 lakhs and 5% of Probable Amount of contract for works costing above `25 lakhs. The above clause stipulates that the retention amount, including the security amount, will not be released until the work is completed in all respects to the satisfaction of the Engineer in Charge and taken over by the Board. It further stipulates that the Engineer shall make a review of liabilities to satisfy himself of the position before making payment, and any dues to the Board will be recovered from his bills or otherwise. As per clause E1. 001

(iv) of the agreement, the Engineer in Charge is the Chief Engineer (Civil), Kerala State Electricity Board and not Deputy Chef Engineer or any other officer who sanctioned the payment. Thus, on a conjoint reading of Clauses E1. 001(iv) and E1. 011, the Chief Engineer is the competent authority to release the retention amount, and it shall not be released until the work is completed in all respects to the satisfaction of the Chief Engineer. Here, admittedly, the retention amount was released not by the Chief Engineer but by the accused No.1, who was the Deputy Chief Engineer. The completion certificate was also not given by the Chief Engineer.

9. Clause E1. 114 of the agreement stipulates that the contractor should raise a claim before the agreement authority, i.e., the Chief Engineer and not before any subordinate authority. However, the records would show that accused No.4 made a claim for the release of the retention amount before accused No.2, who in turn recommended to accused No.1 for releasing the same. In the file, a note was prepared by the Senior Assistant of Civil Circle, KSEB, Kottarakkara. In his note, he remarked that as per the agreement condition E1. 011, the retention amount, including the security deposit, will not be released until the work is completed in all respects to the satisfaction of the Engineer in Charge (Chief Engineer). The Senior Superintendent and the Executive Engineer also pointed out that sanction from Chief Engineer is necessary for releasing the retention amount. However, the accused No.1. overlooked those remarks and ordered to release the amount. The learned counsel for the revision petitioners submitted that the power of the Chief Engineer had been delegated to the Deputy Chief Engineer, and thus the accused No.1 was competent to make the payment. But, as per Clause E1. 001, the Chief Engineer can delegate powers in respect of the execution of the work only to his subordinate officers. The power to release the retention amount or the power to certify the completion of work cannot be delegated. Relying on Annexure A6 (produced in Crl.R.P.No.796/2019), the learned counsel submitted that the power to release the retention amount has also been delegated to the Deputy Chief Engineers. Annexure A6 is an order dated 7/10/2008 by the KSEB regarding the delegation of powers. Clause (2) of the said order reads as follows:

“Clause (2) Passing of bills and drawal of cheques in respect of purchases, works and matters other than Establishment bills and claims will be done by Deputy Chief Engineers and Executive Engineers of the respective Circle/Division offices only as is being followed at present.”

The said clause makes it clear that the passing of bills in respect of establishments and claims has not been delegated. Thus, the power to release the retention amount based on the claim put forward by the contractor/accused No.4 cannot be exercised by the accused No.1. At any rate, the crucial question whether the power to release the retention amount and certify the completion of work has been delegated by the Chief Engineer to the Deputy Chief Engineer is a disputed question of fact which can only be decided during trial.

10. As stated already, according to the prosecution, the retention amount was released by the accused No.1 in collusion with accused Nos.2 and 3 to the accused No.4 while the claim by the KSEB against the accused No.4 was pending. The records would show that the accused Nos.1 to 4 were well aware that the dispute regarding K-Value rate enhancement, escalation etc., had not been settled by the KSEB at the time of releasing the retention amount. On 4/6/1997, the Chief Engineer communicated a letter to the accused No.1. The said letter is attached by a copy of the note submitted to the Secretary, KSEB, regarding excess payment given to the contractor on rate revision and K-value. In that letter, the Chief Engineer called for specific remarks on the above note. So, it is very clear that there existed a dispute between accused No.4 and KSEB regarding rate enhancement and K-value, and payments were given to the contractor excessively. In these circumstances, accused No.1 ought to have sought permission from the Chief Engineer for the release of the retention amount. Instead, he hastily released the amount.

11. The offences alleged are under section 13(1)d r/w 13(2) of the PC Act and 120B of IPC. To attract the provisions of S.13(1)(d) of the PC Act, the public servant should obtain for himself or for another person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. To attract the offence under section 120B of IPC, there should be a meeting of mind of two or more persons or doing or causing to be done an illegal act or an act by illegal means.

12. It is evident from the records that the final bill of the work was prepared by accused No.4 only in 2002. So, it is clear that the liability of the contractor was not calculated at the time of releasing the retention amount. As stated already, at the time of releasing the retention amount, the dispute regarding the liability of accused No.4 to repay the excess amount collected was pending and accused Nos. 1 to 3 were aware of the same. Before releasing the retention amount, neither the Chief Engineer issued the completion certificate nor his sanction was obtained. The accused No.2 calculated his liabilities before the preparation of the final bill and recommended to accused No.1 to release the retention amount after withholding nearly `20 lakhs before preparing the final bill. The accused No.3, who is bound to protect the financial interest of the KSEB, also recommended for release of the retention amount before calculating the final liability. The accused No.4, who was well aware that the Chief Engineer was the competent authority to release the retention amount, instead of approaching him, approached accused Nos. 1 and 2 for the release of the amount. These circumstances are sufficient to prima facie hold that there was a criminal conspiracy between the accused persons. It is settled that the existence of the conspiracy and its objective can be inferred from surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself [see Rajiv Kumar v. State of U.P and Another (2017 KHC 6522)]. If accused No.1 had not released the retention amount, the excess payment given to accused No.4 could have been recovered by the KSEB from the said retention amount. By the act of accused Nos.1 to 3, accused No.4 could get the retention amount released before preparing the final bill and before obtaining a completion certificate from the competent authority. Thus, accused No.4 obtained a pecuniary advantage. These materials are thus prima facie sufficient to attract the offence under sections 13(1)(d) of the PC Act and 120B of the IPC. It is settled that at the time of framing a charge, the court is not concerned with the proof of the allegation or the probative value of the material on record. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is broadly satisfied, the court should be more inclined to permit the continuation of prosecution rather than its quashing at the initial stage. However, the court has undoubted power to sift the evidence for the limited purpose of finding out whether there are sufficient grounds to try the suspect. The court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records. If the materials placed before the court disclose grave suspicion against the accused, the court will be fully justified in framing the charge and proceeding with the trial [See: Sajjan Kumar (supra) Amit Kapoor (supra), Mansukhbhai (supra), Sanjay Kumar Rai (supra), Asim Shariff (supra) and Fatehkaran Mehdu (supra)].

13. So far as the contention regarding the bar under section 197 of Cr.P.C. is concerned, it is settled that it is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of Cr.P.C., nor even every act done by him while he is engaged in the performance of his official duties. If the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. In order to find out whether the offence is committed ‘while acting or purporting to act in the discharge of his official duty’, the yardstick to be followed is to form a prima facie view whether the act or omission for which the accused was charged had a reasonable connection with the discharge of his duties. The real question, therefore, is whether acts complained of were directly concerned with the official duties of the public servant. [see Ganguly N. K. (supra) and Indra Devi (supra). In Rajib Ranjan and Others v. R.Vijaykumar (2014 KHC 4671), the Apex Court held that if a public servant enters into a criminal conspiracy or indulges in criminal misconduct even while discharging his official duties, such misdemeanor on his part is not to be treated as an act of discharge of his official duties and therefore provisions of section 197 of Cr. P.C. will not be attracted. In Padmanabhan Nair (supra), the Apex Court held that it is not part of a duty of a public servant to enter into conspiracy while discharging his official duties and hence he cannot claim immunity on the ground of want of sanction. As stated already, in this case, the existence of a criminal conspiracy can very well be inferred from the surrounding circumstances and the conduct of the accused.

14. For the reasons stated above, I hold that the court below did not commit any illegality or impropriety in framing the charge against the petitioners. The revision petitions fail, and they are accordingly dismissed. The court below shall dispose of the case untrammeled by any of the observations made in this order.H