Prevention of Corruption Act, 1988 [P.C. Act] – Sections 13(1)(d) read with 13(2) – Sections 468 (Forgery for purpose of cheating), 477A (Falsification of accounts), and 120B (Criminal conspiracy) of the Indian Penal Code.
(2025) 8 KCD 1 : 2025 KER 55575
IN THE HIGH COURT OF KERALA
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
Crl.Rev.Pet. Nos. 1237 of 2023 & 1329 of 2023; August 1, 2025
Filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973.
Challenging a common order dated October 13, 2023, issued by the Enquiry Commissioner & Special Judge, Kottayam, which negatived the discharge pleas of the accused.
ACCUSED/REVISION PETITIONERS:
Crl.Rev.Pet. No. 1329 of 2023 (Accused Nos. 4, 6, 7, 8): S.M. Shereef (Former General Secretary, Lajanathul Mohammediya Association), A.M. Nazeer (Manager, LMHSS), S.B. Basheer (Former Treasurer), and Aboobekkar Kunju Assan (Former Headmaster, LMHSS).
Crl.Rev.Pet. No. 1237 of 2023 (Accused Nos. 1, 5): Indrabalan Pillai and C.A. Thajudeen.
PROSECUTION ALLEGED OFFENCES:
Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [P.C. Act].
Sections 468 (Forgery for purpose of cheating), 477A (Falsification of accounts), and 120B (Criminal conspiracy) of the Indian Penal Code.
PROSECUTION CASE:
Accused Nos. 1, 2, 3, and 5, while holding charges as Municipal Secretary, Assistant Engineer, Municipal Chair Person, and Superintendent of Planning section of Alappuzha Municipality (public servants), allegedly abused their official position with dishonest intention to obtain pecuniary advantage for Lajanathul Mohammediya Association (LMHA) during 2004-05 and 2005-06.
They allegedly conspired with Accused Nos. 4, 6, 7, and 8 (office bearers of LMHA and LMHSS).
Municipal officials allegedly forged the DPC Sanction Order and falsified accounts by fabricating a false and fake bill without completing the work.
Accused Nos. 4, 6, 7, and 8 allegedly obtained undeserving funds from the Municipality.
The accused allegedly manipulated two projects for LMHSS: construction of a basketball court (Project No. S-026/2004-05, estimated Rs. 1,50,000/-) and construction of a playground (Project No. S-32/05, Rs. 2,00,000/-) by interpreting them as one and the same.
An amount of Rs. 1,96,911.90 was allegedly fraudulently and dishonestly misappropriated from the plan fund of Alappuzha Municipality between March 28, 2005, and August 10, 2005.
The prosecution highlighted manipulation of the planning committee’s decision from ‘own fund’ to ‘plan fund’ for a Rs. 2 lakh grant, written by A5 and counter-signed by A1, as substantiating forgery.
DEFENSE ARGUMENTS:
The prosecution was ill-motivated and without substance.
Regarding forgery (Section 468 IPC), no specific allegation was raised against Accused Nos. 1 and 5 stating that they committed the offence of forgery. Citing Sheila Sebastian v. R. Jawaharaj and Another, a charge of forgery cannot be imposed on a person who is not the maker of the false document.
Regarding misappropriation, the work for both projects was carried out and completed by the PTA of LMHSS.
The amount of Rs. 3,75,797/- was initially credited to the PTA’s bank account and then transferred to the joint account of Accused Nos. 4, 6, and 7, who were office bearers of the Association.
The alleged misappropriated amount of Rs. 1,96,911.90 was based on a rough estimate (Annexure-P7) prepared by the Assistant Executive Engineer, PWD, after completion of the work, which was argued to be inaccurate.
The Investigating Officer allegedly ignored bills and vouchers (Ext.B4) produced by the PTA Secretary, showing an expenditure of Rs. 4,02,747/-, on the premise that they were doubtful.
The primary responsibility for any laxity in the work would lie with the President and Secretary of the PTA, who were deliberately avoided from the array of accused and made witnesses instead.
Regarding the legality of the grant, it was argued that LMHSS is an aided school, and property obtained vests in the general public. Furthermore, financial assistance for sports and cultural affairs, especially for constructing playgrounds and studios, is permitted under Section 30, Schedule XVI of the Kerala Municipalities Act. The grant was made considering the students’ socio-economic background.
COURT’S FINDINGS & RATIONALE:
The Court’s duty when considering framing of charge is to assess whether prosecution records show a prima facie case or at least a strong suspicion warranting trial, emphasizing that mere suspicion is insufficient.
On Forgery: The prosecution’s allegation of forgery, based on manipulation from ‘own fund’ to ‘plan fund’, lacked specificity as to who among the officials committed the forgery. Applying the principle from Sheila Sebastian’s case, for an offence under Section 464 IPC, the accused must be the maker of the false document. Thus, the allegation of forgery against the revision petitioners would not stand.
On Misappropriation: The prosecution’s allegation of misappropriation to the tune of Rs. 1,96,911.90 was based solely on Annexure-P7, a rough estimate prepared after work completion. The Investigating Officer did not consider Ext.B4, the bills and vouchers submitted by the PTA showing higher expenditure.
The Court noted that the PTA had carried out the work and the fund was initially received by the PTA before being transferred to the Association’s account. It could not be found that the office bearers of the Association did not carry out any works.
The prosecution materials did not prima facie show the involvement of the accused/revision petitioners in the crime or a strong suspicion regarding their involvement in committing misappropriation.
On Legality of Grant: The prosecution’s contention that the grant to LMHSS was illegal under Section 30(10) of the Kerala Municipality Act was not supported by prosecution materials, and Schedule XVII of Section 30 explicitly provides for construction of playgrounds and studios under sports and cultural affairs. Therefore, the grant could not be held illegal.
DECISION:
The Court concluded that the impugned common order of the Special Judge dismissing the discharge petitions of the accused could not be sustained and required interference.
The criminal revision petitions were allowed, the impugned common order was set aside, and Accused Nos. 1 and 4 to 8 were discharged.
