INTRODUCTION

The criminal revision is filed under Sections 397 and 401 of crpc , challenging the order , dated 25.09.2009 passed by the learned Judicial Magistrate No.II, Tirunelveli, in Crl.M.P.No.441 of 2009 in C.C. no. 4 of 2009. It is seen that the case was registered against the petitioner, who was arrayed as A8 and other accused under Section 408,467,468,477,471(A) r/w 120 (b) IPC and the petitioner herein filed the petition under Section 239 of Crpc seeking discharge. By the impugned order dated 25.09.2009, it is seen that the same was dismissed by the court below. Aggrieved by which, this revision has been preferred.

The revision petitioner has stated that during the relevant period between 03.06.2003 and 17.07.2003, A1 was the secretary of the Naduvakurichi Primary Agricultural Bank. The allegation is that the accused 1 to 3 had created forged document and thereby created misappropriation. The petition herein was an employee of the Central Co-operative Bank, holding the post of field manager and he has stated that he was nothing to do with the alleged offence. Learned counsel appearing for the petitioner drew the attention of this court to the charges framed against the petitioner / A8 and submitted that the petitioner herein was a field manager in the central co-operative bank and that no primary work was done by him. He was attending only supervising of the work done by the other officials. A hundred percent audit was conducted in the year 2004 in the Nduvakurichi Primary Agricultural Co-operative Bank, where discrepancies were noted and enquiry was ordered under Section 81 of the Co-operative Societies Act. The report of the enquiry officers was sent to the Director of prosecution , opined to take criminal action against the accused A1 to A3.

It is an admitted fact that so far as the petitioner and four other are concerned, the director of prosecution has given his opinion in writing. On perusal of the enquiry report that there was no intention on the part of the petitioners and others to fix any criminal liability on them and if any rules or orders were found violated by them, they might be departmentally dealt with. It is seen that the FIR was also registered originally against A1 to A3. Though the name of the revision petitioner did not find a place in the FIR and he was stated initially a prosecution witness, subsequently, he was arrayed as an accused.

Learned counsel appearing for the petitioner further submitted that under Section 84 of the Tamil Nadu Co-operative Societies Act 1983, the chief executive i.e the principal paid officer of every resistered society or the president of that society shall be bound to keep and maintain such account and other books and registers. According to the learned counsel appearing for the petitioner, as per section 84 of the Tamil nadu Co-operative Societies Act,1983, the petitioner is not responsible for the maintenance of the accounts and other books of the registered society and on this ground itself, the petitioner is entitled to be discharged from the criminal proceedings.

Per contra, learned Government Advocate appearing for the respondent/complainant submitted that the petitioner is not entitled to the relief of discharge, as sought for by him in the Revision. Learned counsel appearing for the petitioner further contended that A4 is a similarly placed officials, who preffered revision against the dismissal of his discharge petition. However this court allowed the revision and a copy of the order passed by this court in Crl.O.P(MD) No.s 981 and 982 of 2010, dated 28.04.2010 was also produced. In support of the contention. Learned counsel for the petitioner relied on the order passed by this court in favour of one Manoharan Jebaraj Julin, who was arrayed as A4 and further submitted that in the departmental proceedings, the petitioner was given punishment of stoppage of increment for about 6 months. A copy of the order passed by the Deputy Register , Co-operative  Societies , as special officer, dated 27.07.2007 available in the typed set was also brought to the notice of this court. After the enquiry, stoppage of increment for 6 months with cumulative effect was imposed on the petitioner by the Deputy registrar as Special Officer of the Tuticorin District Co-operative Bank Limited.

According to the learned counsel appearing for the petitioner, even as per the finding in the departmental proceedings, it could be construed only dereliction of duty and not an offence so far as the petitioner is concerned and the allegation against the petitioner would not be sufficient to initiate any criminal proceedings against the petitioner. According to the learned counsel appearing for the petitioner, there is no prima facie case made out against the petitioner to maintain the criminal complaint against the petitioner herein. The learned counsel appearing for the petitioner, in support of her contention, relied on the decision in Dy. Chief Controller of imports and Exports vs. Roshanlal Agarwal reported in 2003 (4) SCC 139. The petitioner has been arrayed as A8, on the ground that he had not discharged his duty in his supervising capacity as a field manager and he has not committed any offence, as alleged and further, as per the original FIR his name, does not find a place, he was admittedly stated only a prosecution witness. However, without sufficient grounds, subsequently, he was implicated as A8, which is not legally sustainable.

Learned counsel appearing for the petitioner further drew the attention of this court to the counter filed by the respondent herein and also the arlier counter filed in the case in Crl.O.P filed by the co-accused/ A4. As contented by the learned counsel for the petitioner. In both the counters only identically similar averments were made against the petitioner and the co-accused/ A4. Learned counsel appearing for the petitioner submitted that it is clear that the petitioner has been a similarly placed person as that of the co-accused A4, who was discharged by order dated 28.04.2010 passed in Crl.O.P.Nos 981 and 982 of 2010.

In the light of the decisions of the Hon’ble Apex Court, referred to by both the learned counsel, I am of the view that there is no prima facie case made out against the petitioner/ A8 who was subsequently arrayed as one of the accused in the criminal case and accordingly he is entitled to get discharge and accoprdingly, yhe impugned order passed by the court below is liable to be set aside.

In the result, the revision petition is allowed and the impugned order passed by the court below is set aside and the petitioner/ A8 is discharged from the criminal proceeding, as prayed for. Consequently, connected miscellaneous petitions are closed.

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