1 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 1ST DAY OF APRIL 2025/11TH CHAITHRA, 1947 CRL.REV.PET NO.753 OF 2020 CRIME NO.3/2012 OF VACB, WAYANAD AGAINST THE ORDER DATED 20.03.2020 CMP No.589 OF 2018 IN CC NO.163 OF 2016 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, THALASSERY REVISION PETITIONER/2ND ACCUSED: P.A.DEEPTHESH AGED 39 YEARS S/O. ANTONY, ALATHUMTHALAKKAL HOUSE, DWARAKA, NALLOORNAD P.O, MANANTHAVADY, WAYANAD (GREEN TEA LEAF AGENT) BY ADVS. K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN SRI.GOKUL D. SUDHAKARAN RESPONDENTS/STATE & COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031 2 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, WAYANAD 673 591 2 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 ADV.SMT REKHA S – SENIOR PUBLIC PROSECUTOR ADV.SRI A RAJESH - SPECIAL PUBLIC PROSECUTOR (VIG) THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 P.G. AJITHKUMAR, J ------------------------------------------------- Crl.Rev.Pet. No.753 of 2020 ------------------------------------------------- Dated this the 01st day of April, 2025 O R D E R In this revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 the 2nd accused in C.C. No.163 of 2016 assails the order dated 20.03.2023 of the Court of Enquiry Commissioner and Special Judge, Thalassery. Accused Nos.1 and 2 together filed CMP No.589 of 2018 seeking discharge. The Special Court as per the impugned order, dismissed that petition and directed framing of charge against them. 2. Crime No.57 of 2011 was registered by the Station House Officer, Mananthavady Police Station. The 2nd respondent took over the investigation on finding that an offence punishable under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) also was involved. After 4 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 investigation, the 2nd respondent filed two final reports resulting in the institution of C.C. Nos.162 of 2016 and 163 of 2016. The allegations that form part of the accusation in C.C. No.163 of 2016 are the following: 3. The 1st accused was the Secretary and the 3rd accused was the Managing Director of Mananthavady Tribal Plantation Co- operative Society Ltd. W-26, during the relevant period. The 2nd accused-petitioner was the contractor for the supply of green tea leaves to the Society. An agreement in that regard was entered into between accused Nos.2 and 3 on 21.04.2004. The price agreed as per the said agreement for green tea leaves was more than the price offered by the forest department. Rs.1/- per kilogram was paid as transportation charges for the supply of green tea leaves. Further, the agreement incorporating such unconscionable rates was entered into without obtaining administrative sanction. By doing so, the Society sustained a loss of Rs.28,02,411/- from 2004-2005 to 2005 - 2006. 4. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. 5 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 5. The contention of the petitioner is that during the period 2002-2004, one Sri.T.C. Varghese was supplying green tea leaves to the Society and as he stopped the supply, the petitioner was engaged in terms of the agreement dated 21.04.2004 on the same rate, and therefore the petitioner cannot be prosecuted for a criminal offence. The case was initiated following an audit in the Society. The finding that the Society sustained loss on account of purchase of green tea leaves from the petitioner was based only on the market fluctuations and as such, no dishonest intention could be attributed against the petitioner. It is his further contention that as per the agreement dated 21.04.2004 price for the green tea leaves should be the price fixed periodically by Tamilnadu Small Tea Growers' Industrial Cooperative Tea Factories' Federation Limited (INDCOSERVE), and the transportation charge should be Rs.1/- per kilogram. When the same were the terms of the contract entered into by the previous contract, the only lapse is to obtain administrative sanction, which is only a procedural lapse; no criminal prosecution is possible. It is particularly so since the petitioner was only a contractor. 6 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 6. The learned counsel for the petitioner invited my attention to the agreements executed by Sri.T.C.Varghese and the petitioner, which forms part of the prosecution records. It fortifies the contention that the same contract conditions were carried to the agreement executed by the petitioner. It is submitted that there was no offer from Kerala Forest Development Corporation (KFDC) to supply green tea leaves to the Society as they stopped the supply following nonpayment of the prices. So the price the KFDC offered should not have been a criteria for assessing the profit or loss. The audit in that regard therefore is wrong and the prosecution based only on such an audit report is unsustainable in law. In the view of the learned counsel, prosecution is misconceived. 7. INDCOSERVE is a more authoritative institution and when the price fixed by it was adopted, there was no scope for attributing any foul play. It is also pointed out after referring to Annexure 3, which is a copy of the file maintained by the Society concerning payment of the cost of green tea leaves in the year 1993 transportation charge then was Rs.1.25/- per kilogram and 7 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 as such payment of transportation charge of Rs.1/- to the petitioner can at any rate be an illegal act. 8. The learned Senior Public Prosecutor, on the other hand, would submit that the same were the terms in the earlier agreement cannot be a reason for the petitioner to claim discharge insofar as a prosecution was initiated in relation to the previous contract as well. When no administrative sanction was obtained, the clandestine way of executing the agreement is clear and, that will establish the dishonest intention. The evidence proposed by the prosecution is sufficient to prove that the loss to the Society was only due to the illegal acts on the part of the petitioner and his co-accused. Therefore, in the view of the learned Public Prosecutor, the order rendered by the Special Court does not suffer from any infirmity. 9. The materials produced by the prosecution would show that the agreement for the supply of green tea leaves between the petitioner and the 3rd accused was entered into without obtaining sanction from the Administrative Committee of the Society. To that extent there occurred a lapse on the part of not only the 3rd accused but also the 1st accused, who was the Secretary of the Society. That 8 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 by itself may not amount to an offence under Section 13(1)(c) of the PC Act. If that to be an offence, public servant should have acted dishonestly or fraudulently and as a consequence of the act, there occurred misappropriation or obtaining of pecuniary advantage by himself or any other person. If accused Nos.1 and 3 entered into the agreement with the petitioner without ensuring purchase at the lowest price and that act was tainted with dishonest or fraudulent intention, it might amount to an offence inasmuch as the materials produced by the prosecution prima facie would show that the Society sustained a loss. Of course, the loss has been calculated based on the fluctuations in the market price of green tea leaves. But, dishonest intention could be attributed on the part of the petitioner, who was said to be the beneficiary, only if the society could purchase green tea leaves from other sources at a lower price. 10. Witness No.17 was the Divisional Manager in charge of the KFDC during the period 07.05.2013. He gave a statement to the investigating officer based on the records available in his offence. Going by his statement, green tea leaves were supplied by KFDC to the Society till 2001 and as an amount of Rs.6,39,603/- 9 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 fell overdue, supply was stopped. It is seen that the KFDC could obtain that amount at the intervention of the District Collector only and KFDC did not supply green tea leaves after 2001. When the allegations in the final report is to the effect that green tea leaves could be purchased from the KFDC for a lesser amount than the cost agreed as per the agreement in question which was the price being notified by INDCOSERVE from time to time, the statement of witness No.17 goes against the case of the prosecution. In the light of the said statement, it cannot be said that the Society was in a position to purchase green tea leaves from the KFDC. 11. Of course, there are references to the effect that the market value of green tea leaves was less during the period. However, that cannot be a reason for a criminal prosecution when terms of agreement have already been put in writing, and subsequently only there occurred a fall in price. No criminal intention at the time of execution of the agreement can therefore be attributed. Be noticed that the INDCOSERVE is a co-operative federation under which so many co-operative societies in South India have functioned. When such an authoritative body fixes the price of green tea leaves, it cannot be said that agreeing to 10 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 purchase green tea leaves at the price fixed by INDCOSERVE is a decision taken by the authorities in a mischievous manner. 12. In regard to the transportation charges, the stipulation in the agreement entered into with Sri.T.C.Varghese was carried in the agreement with the petitioner as well. It is pertinent to note that the Managing Director at the time of executing the agreement with Sri.T.C.Varghese was not accused No.3 here. When accused No.3 only followed the terms of the earlier agreement which was executed by his predecessor in office, attributing dishonest intention only on the basis of accepting such a term is without any basis. At any rate, the allegation that there occurred dishonest or fraudulent misappropriation of the fund of the Society on account of agreeing to the terms in the agreement dated 21.04.2004 is beyond reason. Prosecution of the petitioner on the basis of the aforementioned materials would not be a successful one. 13. The contention that the transportation charge ten years before was Rs.1.25/- per Kilogram cannot be countenanced since that plea is based on Annexure 3 which does not form part of the prosecution records. Therefore, that contention cannot be considered. Dehors that, the materials produced by the prosecution 11 Crl.Rev.Pet. No.753 of 2020 2025:KER:27646 are insufficient to have a presumption that the petitioner had committed the alleged offences. Framing of charge against the petitioner and asking him to stand trial will only be an abuse of the process of law. Therefore, the impugned order in relation to the petitioner is liable to be set aside. Accordingly, this revision petition is allowed. The impugned order, insofar as the petitioner is concerned, is set aside. The petitioner is discharged under Section 239 of the Code. Sd/- P.G. AJITHKUMAR, JUDGE SMF