Misconduct in disciplinary proceedings does not necessarily imply mens rea for criminal proceedings, and the absence of evidence of conspiracy and mens rea can support a petitioner's entitlement to discharge.

1. The criminal revision is filed under Sections 397 and 401 of Cr.P.C, 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.

2. It is seen that the case was registered against the petitioner, who was arrayed as A8 and other accused under Sections 408, 467, 468, 471, 477(A) r/w 120(b) IPC and the petitioner herein filed the petition under Section 239 of Cr.P.C. 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.

3. 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, A2 was the Supervisor of the Central Co-operative Bank and A3 was an attender working in the Bank. The allegation is that the said accused 1 to 3 had created forged document and thereby committed misappropriation. The petitioner 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.

4. 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 Naduvakurichi 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 officer was sent to the Director of Prosecution and the Director of Prosecution, opined to take criminal action against the accused A1 to A3.

5. It is an admitted fact that so far as the petitioner and four others 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 petitioner 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.

6. 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 registered 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 a registered society and on this ground itself, the petitioner is entitled to be discharged from the criminal proceedings.

7. 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.

8. Learned counsel appearing for the petitioner further contended that A4 is a similarly placed official, who preferred 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)Nos. 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 Julian, who was arrayed as A4 and further submitted that in the departm