State Of Kerala Represented By Additional Public Prosecutor vs P M Mathew

Dr Kauser Edappagath, J

All these criminal revision petitions have been filed by the State challenging two common orders passed by the Enquiry Commissioner and Special Judge Kottayam (for short 'the court below') dated 30.11.2017 allowing the applications for discharge filed by the accused invoking Section 239 of the Cr.P.C.

Since all the revision petitions are connected, I am disposing of the same by the common order.

The offences alleged in all the cases are under Section 13(1) (c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act'), Sections 409, 465, 468, 477 and 120B of the IPC.

The prosecution case in all the cases are identical. It runs as follows: The accused Nos. 1 to 3 were the Managing Director, Secretary and Administrative Officer respectively of the Kerala State Development Corporation for Christian Converts from the Scheduled Castes and Recommended Communities Limited, Kottayam (for short 'the Corporation'). The Corporation has been constituted mainly for giving loans to the members of the said castes and communities under the self employment scheme. During the period 1995-1996, the accused Nos. 1 to 3 hatched criminal conspiracy with the remaining accused and loanees for misappropriating the funds of the Corporation. In pursuance of the said conspiracy, the accused No.1 granted loans illegally to the loanees accepting forged documents and thereafter, they misappropriated the loan amount.

The respondent/accused in all the above Crl.R.Ps appeared at the court below. They filed applications in the respective cases for discharge under Section 239 of Cr.P.C on the ground that there was no sufficient ground to proceed against them. The court below on consideration of records of the cases and after hearing the submissions of the respondents as well as the prosecution formed an opinion that the charge against the respondents is groundless, allowed the applications and discharged them by the two common orders referred above. These revisions petitions have been filed by the State challenging the said common orders.

I have heard Sri. A. Rajesh, the learned Special Public Prosecutor for VACB. I have also heard the counsel appearing for the respondents in all the cases.

The learned Special Public Prosecutor Sri. A. Rajesh submitted that there are materials to presume that the respondents have committed the alleged offences. The truthfulness or falsity of the allegations are question of fact and matters of evidence to be let at the time of trial and cannot be per-judged at this stage. When there are prima facie materials to show the involvement of the respondents in the crime, the court below should have framed charge against them, submitted the learned Special Public Prosecutor. On the other hand, the learned counsel appearing for the respondents submitted that a close reading of the FIR, statement of the witnesses and documents on record would reveal that none of the offences alleged against the respondents are made out. The counsel further submitted that since there are no sufficient grounds to proceed against the respondents, the court below rightly discharged them under Section 239 of Cr.P.C. There is no illegality or impropriety in the impugned orders warranting interference by this Court under the exercise of the jurisdiction under Section 397 of Cr.P.C, added the learned counsel.

It is settled that at the time of consideration of an application for discharge, the court is required to consider whether there are sufficient grounds to proceed against the accused. The court is not to examine and assess in detail the materials on record produced by the prosecution, nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. By and large, however, if two views are equally possible, and the court is satisfied that the evidence produced before it gives rise to suspicion only, as distinguished from great suspicion, the court will be fully within its right to discharge the accused. The evidence which the prosecution proposed to produce to prove the guilt of the accused, even if fully accepted, before it is challenged in cross examination or rebutted by defence evidence, if any, cannot show that the accused has committed offence, then there will be no sufficient ground for proceeding with the crime.

The dispute is with regard to the disbursement of loans by the Corporation which has been constituted for the welfare of Christian Converts from the Scheduled Castes and Recommended Communities. The prosecution case as already stated is that, the accused Nos. 1 to 3 along with the remaining accused as well as the loanees, hatched a criminal conspiracy, and in pursuance of the conspiracy, granted loan to the loanees accepting forged documents produced by them. The court below perused all the files in respect of the loan transactions involved in question. I have also perused the files, the copies of which are made available to me by the learned counsel for the respondents as well as the learned Public Prosecutor. The files revealed that the loans were sanctioned and disbursed to the loanees after obtaining sufficient securities. Along with the loan applications, the loanees have produced the caste-cum-income certificate as well as the age certificate to prove their eligibility for the loan. Sufficient sureties were also furnished. The Corporation has obtained salary certificates of the sureties as security to ensure the repayment of the loan amount. Besides, cheques were obtained from the loanees as security for the repayment of the loan instalments. All these materials clearly show that the Corporation sanctioned the loan and disbursed the loan amount to the loanees after complying with the formalities and also obtaining sufficient securities. There are nothing on record to show that the documents furnished by the loanees are forged one. When the entire loan amount were disbursed to the loanees after complying with the formalities and obtaining sufficient security, it cannot be said that there is any misappropriation as alleged. There is nothing to show conspiracy as well.

The court below has analysed the entire materials collected by the prosecution and filed along with the final report and found that there are no sufficient ground to proceed against the respondents and accordingly, discharged them. It is settled that the revisional power under Section 397 read with 401 of the Cr.P.C was to confer power upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted. I have carefully gone through the entire records as well as the impugned orders. I find no impropriety or illegality in the impugned orders warranting interference under the jurisdictional power vested with this Court. Hence, these Crl.R.Ps are only to be dismissed. Accordingly, they are dismissed.