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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA**
**THURSDAY, THE 27[TH] DAY OF MARCH 2025 / 6TH CHAITHRA, 1947**
**CRL.REV.PET NO. 857 OF 2018**
**AGAINST THE ORDER IN C.M.P.NO.3476/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NEDUMKANDOM**
## **REVISION PETITIONER/ACCUSED:**
**JACOB P.PAUL @ THAMPI PULIYATHU HOUSE, PULIYANMALA KARA, UDUMBANCHOLA TALUK, IDUKKI DISTRICT,**
**BY ADVS. SRI.V.JOHN SEBASTIAN RALPH SRI.K.J.JOSEPH ERNAKULAM SRI.V.JOHN THOMAS**
## **RESPONDENT/RESPONDENT:**
**STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.**
BY SMT.MAYA M.N.-PUBLIC PROSECUTOR
**THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING 13.3.2025, THE COURT ON 27.03.2025 DELIVERED THE FOLLOWING:**
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## **CR**
## **M.B.SNEHALATHA, J.**
**------------------------------------------Crl.R.P.No.857 of 2018 ------------------------------------------Dated this the 27[th] March 2025**
## **O R D E R**
This revision petition has been filed by the accused in C.C.No.275/2016 on the file of the Judicial First Class Magistrate Court, Nedumkandam challenging the order of dismissal of C.M.P.No.3476/2017, which was a petition filed by the accused under Section 239 of Cr.P.C seeking discharge.
2. In short, Prosecution case is as follows:
The accused was the contractor of the construction works of Balagram-Anyartholu-Puliyanmala road. After the completion of the work, he produced bills and encashed ₹7,88,557.95/- from the office of the Block Panchayath. Subsequently, it was revealed that the invoices produced by him purported to be that of Indian Oil Corporation Ltd. and Bharat Petroleum Corporation Ltd. for purchase of 55706.27 Kg. of bitumen were fake invoices and not issued from Indian Oil Corporation and Bharat Petroleum Corporation Ltd. Accused thereby committed the offences punishable under Sections 465, 468, 471, and 511 of 420 IPC.
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3. Accused filed C.M.P.No.3476/2017 before the trial court contending that the allegations levelled against him are false; that he presented the bills after completing the work and if there was any foul play as alleged by the prosecution, it is for the officials of the Indian Oil Corporation and BPCL to answer to it; that without the knowledge and aid of the officials of the Indian Oil Corporation, the bitumen cannot be delivered to a conveyance contractor out of way and could not obtain an exit pass to deliver such huge quantity of bitumen outside the undertaking. Therefore, according to the accused, he is in any way responsible for the veracity of the bills supplied to him by the conveyance contractor which in turn was issued by the officials of Indian Oil Corporation or BPCL. Accused has used the bitumen for the work and the work was completed in the prescribed standards and there was no complaint regarding the quality of the work or deviations from the conditions. It is the conveyance contractor who remitted the amount of bitumen towards Indian Oil Corporation or BPCL, which is revealed through the bills attached to the charges and it was the conveyance contractor who supplied the consignment and the concerned bills, which was presented before the Block Panchayath for accounting purposes.
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The allegations against the accused are baseless. The learned Magistrate dismissed C.M.P.No.3476/2017 which is impugned herein.
4. The learned counsel for the accused contended that the prosecution has no case that the government sustained any loss nor they have got a case that the quality of the work done by the petitioner was poor. The learned counsel vehemently pointed out that the accused claimed the amount only for the work carried out by him. It was further pointed out that the bitumen (tar) is a product which is available only in refineries and the investigating officers purposefully omitted the officials to arraign as accused and the petitioner was made as a scapegoat. There is no case for the prosecution that 55706.27 Kg of tar was not utilized for the work nor they have got a case that the accused claimed the value of the bitumen without utilising the said quantity for the work done by him. They have also no case that the work was substandard or of inferior quality. The learned counsel further contended that since the prosecution has no case that the accused is a maker of the alleged false bills, the offence of forgery cannot lie against the accused and the charge under Sections 465, 468, 471 and 511 of 420 IPC will not lie against
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the accused.
5. Per contra, the learned Public Prosecutor contended that while disposing a petition under Section 239 Cr.P.C, the court has to consider only the materials placed by the prosecution; that the ample materials have been collected by the prosecution to substantiate the prosecution case and therefore, the learned Magistrate was right in dismissing the petition seeking discharge.
6. It is trite that what can be looked into by the court at the time of exercising the power under Section 239 Cr.P.C, are the contents of the final report and the documents sent along with it under Section 173 Cr.P.C. It should not make a roving enquiry into the pros and cons of the matters and weigh the evidence if he is conducting the trial and therefore there are no grounds to interfere with the order impugned.
7. A perusal of the prosecution records would reveal that
in the 161 Cr.P.C statement of CW11 who was the Terminal Manager of Indian Oil Corporation, he has stated that the four invoices dated 10.12.2005, 22.12.2005, 26.12.2005, 3.1.2006 produced by the accused for purchase of bitumen, purported to be issued by the Indian Oil Corporation were not issued by the
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Indian Oil Corporation and the same are forged invoices. Likewise, CW12 namely the Marketing Coordination Manager of Bharat Petroleum Corporation Ltd, (BPCL) has also stated in his 161 Cr.P.C statement that the two invoices dated 12.12.2005 and 12.12.2005 produced by the accused before the authorities for the purchase of bitumen purported to be issued by BPCL are bogus and not issued by BPCL.
8. In a catena of the decisions, the Hon'ble Apex Court held that at the stage of considering an application for discharge, the court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, discloses the existence of the ingredients necessary to constitute the offence and at this stage the probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction.
9. Thus it is crystallised judicial view that at the stage of considering an application under Section 239 Cr.P.C, the court has to consider whether prima facie there are sufficient grounds
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for proceeding against the accused. At that stage the court is not expected to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
10. What Section 227 and 239 Cr.P.C contemplates is that if upon consideration of the record of the case and the documents submitted therein and after hearing submission of the accused and prosecution in his behalf, the judge considers that there is no sufficient ground for proceeding against the accused, the accused shall be discharged. At the stage of consideration of discharge under Section 227 Cr.P.C or 239 Cr.P.C as the case may be, the court is not prepared to undertake a threadbare analysis of the materials gathered by the prosecution. The court has only to see whether there are sufficient grounds to proceed against the accused and to see whether the materials are sufficient to enable the court to initiate a criminal trial against the accused.
11. In _Yuvraj Laxmilal Kanther v. State of Maharashtra 2025 KHC OnLine 6231_ , the Hon’ble Apex Court held as follows:
> “16. S.227 CrPC deals with discharge. What S.227 CrPC contemplates is that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient grounds for proceeding against the accused, he shall discharge the
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accused and record his reasons for doing so. At the stage of consideration of discharge, the court is not required to undertake a threadbare analysis of the materials gathered by the prosecution. All that is required to be seen at this stage is that there are sufficient grounds to proceed against the accused. In other words, the materials should be sufficient to enable the court to initiate a criminal trial against the accused. It may be so that at the end of the trial, the accused may still be acquitted. At the stage of discharge, court is only required to consider as to whether there are sufficient materials which can justify launch of a criminal trial against the accused. By its very nature, a discharge is at a higher pedestal than an acquittal. Acquittal is at the end of the trial process, may be for a technicality or on benefit of doubt or the prosecution could not prove the charge against the accused; but when an accused is discharged, it means that there are no materials to justify launch of a criminal trial against the accused. Once he is discharged, he is no longer an accused.”
12. In the case at hand, the prosecution has produced ample materials before the court which would make out a prima facie case against the accused and this is not a case where the accused is entitled to get an order of discharge under Section 239 Cr.P.C as rightly found by the learned Magistrate. Therefore, this Court finds no reason to interfere with the order impugned. Accordingly, the revision petition stands dismissed.
Sd/-
**M.B.SNEHALATHA JUDGE**
ab
