Edison, Assistant Manager, SUPPLYCO Valiyarthura, Thiruvananthapuram v State of Kerala and Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Special Investigation Unit-I, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945** ## **CRL.REV.PET NO. 19 OF 2021** **AGAINST THE ORDER/JUDGMENT IN CC 12/2017 OF ENQUIRY COMMISSIONER &** ## **SPECIAL JUDGE, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/S:** EDISON, ASSISTANT MANAGER, SUPPLYCO VALIYARTHURA, THIRUVANANTHAPURAM. BY ADVS. S.JAYANT JEREES J.(K/002202/2019) PRASANTH N.L.(K/2063/2021) GOVIND V.P.(K/3308/2022) ABHIREMYA RAJ R B(K/2787/2022) ## **RESPONDENTS/COMPLAINANTS:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL INVESTIGATION UNIT-I, THIRUVANANTHAPURAM. BY ADV SRI.RAJESH A, SPL GP VIGILANCE SMT.REKHA,SR. PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P No.19 of 2021 2 ## K.BABU, J. -------------------------------------Criminal.R.P No.19 of 2021 --------------------------------------Dated this the 8[th] day of January, 2024 ## O R D E R The challenge in this Criminal Revision Petition is to the order dated 05.11.2020 in Crl.M.P No.253/2018 in C.C No.12/2017 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The petitioner faces charge under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. ## Facts 2. The accused was working as Depot Manager at SUPPLYCO, Thiruvananthapuram District Depot, Valiyathura, during the period from 13.08.2009 to 11.11.2009. He abused his official position as a public servant and fraudulently and deliberately fixed higher price to M/s.Manjilas Agro Foods Pvt. Ltd., for Andra Sortex Jaya rice at a higher rate overlooking the claims of M/s. Paul Raj & Company causing a loss of Rs.77557.50/- to the Kerala State Civil Supplies Corporation and caused pecuniary advantage to M/s.Manjilas Agro Crl.R.P No.19 of 2021 3 Foods Pvt. Ltd. 3. The petitioner appeared in response to the summons. He filed Crl.M.P No.253/2018 under Section 239 Cr.P.C seeking discharge contending that the prosecution materials do not reveal the offence alleged. 4. The learned Special Judge adjudicated the application filed under Section 239 Cr.P.C and rejected the same. The learned Special Judge in the order observed thus: “3. In C.C 12/2017, prosecution allegation is that accused while working as Depot Manager at SUPPLYCO, Thiruvananthapuram District Depot, Valiyathura, during the period from 13.08.2009 to 11.11.2009 on deputation, abused his official position as a public servant and he fraudulently and deliberately played an important role in fixing higher price to 'M/s.Manjilas Agro Foods Pvt. Ltd.' for 'Andra Sortex Jaya rice' at a higher rate overlooking the claims of M/s.Paul Raj & Company' during DMC and thus caused a loss of Rs.77557/.50/- to Kerala State Civil Supplies Corporation and caused pecuniary advantage to 'M/s.Manjilas Agro Foods Pvt. Ltd' and thereby committed offence under Section 13(1) (d) read with Section 13(2) of PC Act. 4. xxx xxx 8. Prosecution case is that accused while working as Assistant Manager, SUPPLYCO Depot, Valiyathura, Thiruvananthapuram during the period from 13.08.2009 to 11.11.2009, abused his official position arbitrarily and decided to purchase Andra Sortex Jaya rice at a higher rate of Rs.19.10/- per kilogram and caused loss of Rs.77557.50/-. It is alleged that accused deliberately and fraudulently played an important role in fixing higher price to 'M/s.Manjilas Agro Foods Pvt. Ltd.' overlooking the claims of 'M/s.Paulraj & Company' who submitted the order of supplying 'Andra Sortex Jaya Rice' during DMC on 15.09.2009 and 14.10.2009. 9. xxxxxx 10. The 161 Cr.P.C statement of CW1 Ramachandran Crl.R.P No.19 of 2021 4 Nambiyar, Proprietor of 'Rahul Trading Company', CW2 M.Anwar, Proprietor of 'Nihana Traders' and CW3 Santhosh Kumar, Manager, 'Paulraj & Company' would make out a prima facie case against the accused. Whether there are contradictions or whether the statement of the said witnesses are true or not, is essentially an issue relating to appreciation of evidence during trial.” 5. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. 6. The learned counsel for the Revision Petitioner submitted that the prosecution materials do not reveal the ingredients to attract the offence under Section 13(1)(d) read with Section 13(2) of the PC Act. 7. The learned Senior Public Prosecutor, per contra, contended that there are enough materials to show that the petitioner abused his official position and caused pecuniary advantage to M/s.Manjilas Agro Foods Pvt. Ltd,. 8. Sections 239 and 240 of the Code of Criminal Procedure deal with discharge and framing of charge. 9. The obligation to discharge the accused under Section 239 Cr.P.C. arises when “the Magistrate considers the charge against the accused to be groundless.” 10. The primary consideration at the stage of framing charge Crl.R.P No.19 of 2021 5 is the test of the existence of a prima facie case. The probative value of materials on record is not to be gone into at this stage. 11. The Apex Court in Onkar Nath Mishra and others v. State (NCT of Delhi) and another [(2008) 2 SCC 561] while considering the nature of evaluation to be made by the Court at the stage of framing of charge held thus:- “11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the Accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the Accused in respect of the commission of that offence.” ## 12. In State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC ## 659] , while dealing with the question of framing charge or discharge the Apex Court held thus: “32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the Accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the Crl.R.P No.19 of 2021 6 Accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” 13. In State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338] the Apex Court held thus:- “7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the Accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the Accused.” 14. In Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another [(2013) 11 SCC 476] , the Apex Court observed that while framing charges the Court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. It was further held that the Court cannot speculate into the truthfulness or falsity of the allegations, contradictions and inconsistencies in the statement of witnesses at the stage of discharge. 15. Section 239 envisages a careful and objective consideration of the question whether the charge against the Accused is groundless or whether there is ground for presuming Crl.R.P No.19 of 2021 7 that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the Accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the Accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the Accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the Accused is not entitled to discharge Under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial {See: V.C. Shukla v. State through CBI (AIR 1980 SC 962) }. 16. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja [(AIR 1980 SC 52)] the Apex Court stated thus: “At this stage, even a very strong suspicion founded Crl.R.P No.19 of 2021 8 upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.” ## 17. In State by Karnataka Lokayukta, Police Station, Bengaluru ## v. M.R.Hiremath [(2019) 7 SCC 515] the Apex Court held thus: “25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law 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 the 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, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan (2014) 11 SCC 709), adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) 29. ... At this stage, 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. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the Accused has been made out. To put it differently, if the court thinks that the Accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the Accused has committed the law does not permit a mini trial at this stage.” ## 18. In State through Deputy Superintendent of Police v. R. Crl.R.P No.19 of 2021 9 ## Soundirarasu and Ors. (AIR 2022 SC 4218) the Apex Court while dealing with the scope of Section 239 Cr.P.C. held thus: “61. Section 239 of the Code of Criminal Procedure lays down that if the Magistrate considers the charge against the Accused to be groundless, he shall discharge the Accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the Accused has committed the offence. The word 'groundless' used in Section 239 of the Code of Criminal Procedure means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the Accused. …...................... 73. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the Accused can be said to be "groundless". 74. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the Accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.” 19. Therefore, the obligation to discharge the accused under Section 239 Cr.P.C. arises when the Magistrate/Special Judge considers the charge against the accused to be groundless that is, there is no legal evidence or when the facts are such that no offence is made out at all and no detailed evaluation of the materials or meticulous consideration of the possible defences Crl.R.P No.19 of 2021 10 need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken. 20. I shall consider the submissions in the light of the principles discussed above. The specific case of the prosecution is that while working as Assistant Manager in SUPPLYCO Depot, Thirvananthapuram during the period from 13.08.2009 to 11.11.2009 the petitioner by abusing his official position arbitrarily decided to purchase Andra Sortex Jaya rice at a higher rate of Rs.19.10/- per kilogram and caused a loss of Rs.77557.50/-. The prosecution further alleges that the accused deliberately and fraudulently played a key role in fixing the higher price in favour of M/s. Manjilas Agro Foods Pvt. Ltd., though there was a claim at a lower rate by M/s. Paul Raj and Company. 21. The learned counsel for the petitioner would submit that the prosecution materials do not reveal that the petitioner demanded bribe from any of the persons involved in the alleged transactions. It is submitted that the ingredients of the offence under Section 13(1)(d) read with Section 13(2) of the PC Act are not attracted based on the materials placed by the prosecution. The learned Senior Public Prosecutor produced a statement given by Crl.R.P No.19 of 2021 11 CWs 1 to 3, the proprietors of various trading companies who participated in the tender and quoted lowest rates. The materials would show that even though three other proprietors quoted rates less than Rs.19.10/- per kilogram for Andra Sortex Jaya rice, the petitioner played a key role in fixing the higher price at Rs.19.10/- in favour of M/s.Manjilas Agro Foods Pvt. Ltd. The available materials prima facie established that the petitioner abused his position and caused pecuniary advantage to M/s.Manjilas Agro Foods Pvt. Ltd., thereby causing a loss of Rs.77557.50/-. 22. The learned counsel for the petitioner relied on Raju. N v. State of Kerala (2022 KHC 3426) and Jose P.T. v. State of Kerala [2023 (2) KHC 526] in support of his contentions. The facts considered in Raju N. (supra) and Jose P.T (supra) are different from the facts in the present case. 23. On analysis of the prosecution materials, I am of the view that there are prima facie factual ingredients constituting the offence alleged, and there is nothing to show that the charges levelled against the petitioner are groundless. 24. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is Crl.R.P No.19 of 2021 12 nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. {Vide: Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123], Munna Devi v. State of Rajasthan & Anr [(2001) 9 SCC 631)] and Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC 299)] }. 25. In Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Crl.R.P No.19 of 2021 13 Bureau of Investigation [(2018) 16 SCC 299)] the Apex Court held that interference in the order framing charges or refusing to discharge is called for in the rarest of rare cases only to correct a patent error of jurisdiction. 26. The finding of the Court below that it came to the conclusion that the commission of the offence alleged against the petitioner is a probable consequence, requires no interference in revisional jurisdiction. 27. This Court is of the view that the order impugned is not affected with any patent error of jurisdiction. 28. All the challenges in this revision petition therefore fail. This Court fails to find that the impugned order is untenable in law or grossly erroneous or unreasonable. The Criminal Revision Petition stands dismissed. Sd/K.BABU, JUDGE KAS Crl.R.P No.19 of 2021 14 ## **APPENDIX OF CRL.REV.PET 19/2021** PETITIONER ANNEXURES ANNEXURE-A1 TRUE COPY OF THE DISCHARGE PETITION IN CRL M P NO.253/2018 FILED BY THE PETITIONER BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM. ANNEXURE-A2 TRUE COPY OF GO (RT) NO.70/2014 F & CSD DATED 1/03/2014 ISSUED BY THE FINANCE DEPARTMENT.