Kerala High Court
State Of Kerala vs Thomas Mathew G on 9 July, 2025
2025:KER:50430
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
CRL.REV.PET NO. 163 OF 2023
AGAINST THE ORDER DATED 26.09.2018 IN C.M.P. NO. 15/2016 IN C.C.NO.158 OF
2016 ON THE FILES OF THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, THALASSERY
REVISION PETITIONER/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE ADDITIONAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY ADV PUBLIC PROSECUTOR
SPL PP FOR VACB - RAJESH.A
SRPP FOR VACB - REKHA.S
RESPONDENT/ACCUSED NO.2:
THOMAS MATHEW G.
S/O. N. J. MATHAI, GRACE COTTAGE, KUNNIKKODE P. O.,
VILAKKUDI VILLAGE, PATHANAPURAM, KOLLAM DISTRICT
(SC DEVELOPMENT OFFICER, KALPETTA BLOCK)
BY ADV SRI.SUMAN CHAKRAVARTHY
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
02.07.2025, THE COURT ON 09.07.2025 DELIVERED THE FOLLOWING:
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2
"C.R"
ORDER
Dated this the 9th day of July, 2025
This revision petition has been filed under Sections
397 and 401 of the Code of Criminal Procedure, 1973, at
the instance of the State of Kerala, aggrieved by discharge
of the respondent, who is arrayed as the 2 nd accused in
C.C. No.158 of 2016 on the files of the Court of the
Enquiry Commissioner and Special Judge, Thalassery, as
per the order dated 26.09.2018 in C.M.P. No.15 of 2016 in
the above case.
2. Heard the learned Public Prosecutor
representing the State of Kerala and the learned counsel
appearing for the respondent, in detail. Perused the order
impugned and the decisions placed by both sides.
3. Parties in this criminal revision petition shall
be referred as ‘prosecution’ and ‘1st, 2nd and 3rd
accused’, hereafter.
4. In this matter, the prosecution case is that, the
1st accused conspired and colluded with the 2 nd accused,
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3
who has been working as Scheduled Caste Development
Officer, Kalpetta Block, and the 3rd accused, a document
writer, with dishonest intention to misappropriate
government fund meant for the scheme ‘Rehabilitation of
Landless and Homeless Scheduled Caste People’ of the
Scheduled Caste Development Department, implemented
through the Block Development Office for Scheduled
Castes, Kalpetta, forged two sale deeds on 09.02.2011
and eight sale deeds on 31.03.2011 with the connivance
and assistance of the other accused and the 1st accused
created false documents showing his own land of three
cents each at Pakkalippallam, comprised in RS No.295/9 of
Kottappadi Village in Vythiri Taluk to 10 Scheduled Caste
beneficiaries without the consent or knowledge of the
prospective beneficiaries, at the rate of Rs.75,000/- per
beneficiary. Thereby, the accused misappropriated
Rs.7,50,000/- and obtained undue pecuniary advantage.
On this premise, the prosecution alleges commission of
offences punishable under Sections 13(1)(c) and 13(1)(d)
read with 13(2) of the Prevention of Corruption Act, 1988
[hereinafter referred as ‘P.C. Act‘ for short] and under
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4
Sections 409, 420 and 468 read with 34 of the Indian
Penal Code, by all the accused.
5. In this matter, the 1st accused filed C.M.P.
No.177/2016 and the 2nd accused filed C.M.P. No.6/2016
before the Special Court seeking discharge. The Special
Court dismissed the discharge petition filed by the 1 st
accused and discharged the 2nd accused as well as the 3rd
accused as per the impugned order.
6. While assailing the impugned order, it is pointed
out by the learned Public Prosecutor that, the Special
Court discharged the 2nd accused finding two reasons. The
first reason found by the Special Court to discharge the 2nd
accused is the non obtaining of sanction under Section
197 of Cr.P.C. to prosecute him. Secondly, the Special
Court found that there was no allegation in the charge or
any materials on record to the effect that the 2 nd accused
dishonestly or fraudulently misappropriated or otherwise
converted for his own use any property entrusted to him
or under his control as a public servant.
7. Insofar as the sanction under Section 197 of
Cr.P.C. in relation to the 2nd accused is concerned, the
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5
learned Public Prosecutor argued that, since the 2 nd
accused is not a person, who holds a civil post under the
Union or State, he could not be removed by an authority
subordinate to the Government by which he was
appointed and therefore, no sanction under Section 197 of
Cr.P.C. is necessary to prosecute the 2 nd accused. In this
connection, the learned Public Prosecutor placed decision
of the Apex Court reported in [2023 KHC 6761 : 2023
(5) KHC SN 21 : 2023 KHC OnLine 6761] Sreenivasa
Reddy A. v. Rakesh Sharma, with reference to
paragraph Nos.40 and 41. The same read as under:
40. S.197 of the Cr PC provides that when
any person who is or was a public servant, not
removable from his office save by or with the
sanction of the Central Government or State
Government is accused of any offence alleged
to have been committed by him while acting or
purporting to act in the discharge of his official
duties, no Court shall take cognizance of such
offence, except with the previous sanction of
the appropriate Government.
41. Sub-section (1) of S. 197 of the CrPC
shows that sanction for prosecution is required
where any person who is or was a Judge or
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6Magistrate or a public servant not removable
from his office save by or with the sanction of
the Government is accused of any offence
alleged to have been committed by him while
acting or purporting to act in discharge of his
official duty. Art.311 of the Constitution lays
down that no person, who is a member of a civil
service of the Union or State or holds a civil
post under the Union or State, shall be removed
by an authority subordinate to that by which he
was appointed. It, therefore, follows that
protection of sub-section (1) of S.197 of CrPC is
available only to such public servants whose
appointing authority is the Central Government
or the State Government and not to every
public servant.
8. It is pointed out by the learned Public Prosecutor
further that, even otherwise, it is the well settled law that,
in order to prosecute an accused, who is a public servant,
alleged to have committed offences punishable under
Sections 467, 468, 471, 420 as well as 120B of IPC, no
sanction is necessary. In this connection, the learned
Public Prosecutor placed decision of the Apex Court
reported in [2012 KHC 4159 : 2012 (1) KLD 643 :
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72012 (2) KLT 106 : 2012 (2) KLJ 453] Om Kr.
Dhankar v. State of Haryana and Another , with
reference to paragraph No.13. The same reads as under:
13. In our view, the controversy with regard
to the second question is concluded by the
decision of this Court in Prakash Singh Badal
and Another v. State of Punjab and Others,
2006 KHC 1810: 2007 (1) SCC 1: JT 2007 (1)
SC 89: AIR 2007 SC 1274. Rakesh Kumar
Mishra case (supra) was considered in Prakash
Singh Badal case (supra) in para 49 of the report.
This Court thus held that the offence of cheating
under S.420 or for that matter offences relatable
to S.467, S.468, S.471 and S.120B can by no
stretch of imagination by their very nature be
regarded as having been committed by any
public servant while acting or purporting to act in
discharge of official duty. This Court stated in
paragraphs 49 and 50 of the report thus:
“49. Great emphasis has been laid on
certain decisions of this Court to show that even
in relation to the offences punishable under
S.467 and S.468 sanction is necessary. The
foundation of the position has reference to some
offences in Rakesh Kumar Mishra case. That
decision has no relevance because ultimately
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8this Court has held that the absence of search
warrant was intricately (sic linked) with the
making of search and the allegations about
alleged offences had their matrix on the absence
of search warrant and other circumstances had a
determinative role in the issue. A decision is an
authority for what it actually decides. Reference
to a particular sentence in the context of the
factual scenario cannot be read out of context.
50. The offence of cheating under S.420 or
for that matter offences relatable to S.467,
S.468, S.471 and S.120B can by no stretch of
imagination by their very nature be regarded as
having been committed by any public servant
while acting or purporting to act in discharge of
official duty. In such cases, official status only
provides an opportunity for commission of the
offence.”
9. By highlighting statements given by CWs 2, 3,
4, 10, 40 and 41 along with the statements of CWs 8, 12,
17, 18 and 27, who are cited as the beneficiaries of the
scheme, the learned Public Prosecutor contended that
there was conspiracy in between the 1st and 2nd accused in
creating forged documents regarding the property owned
by the 1st accused in the names of CWs 8 to 12, 17, 18
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and 27, without their knowledge. Thereby, the accused
persons misappropriated Government fund to the tune of
Rs.7,50,000/-. Another decision of the Apex Court reported
in [2009 KHC 726 : 2009 (2) KLD 192 : 2009 (6) SCC
372 : 2009 CriLJ 3069] State of U.P. v. Paras Nath
Singh, also has been placed by the learned Public
Prosecutor in support of his contentions. On the above
facts, the learned Public Prosecutor pressed for
interference of the impugned order discharging the 2 nd
accused and to set aside the same.
10. While supporting the order of discharge as
against the 2nd accused, the learned counsel for the 2 nd
accused argued that, the Special Court rightly found that,
there is no allegation in the charge or any materials on
record to the effect that the 2nd accused dishonestly or
fraudulently misappropriated or otherwise converted for
his own use any property entrusted to him or under his
control as a public servant. He has placed decision of the
Apex Court reported in [2023 SCC OnLine SC 900]
A.Srinivasalu v. State Rep. By the Inspector of
Police, wherein, while considering as to whether 197
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10
sanction for the offences under Sections 420, 468, 471
and 120B of IPC is necessary to prosecute a public
servant, the Apex Court in paragraph No.51 held as under:
51. No public servant is appointed with a
mandate or authority to commit an offence.
Therefore, if the observations contained in
paragraph 50 of the decision in Parkash Singh
Badal are applied, any act which constitutes an
offence under any statute will go out of the
purview of an act in the discharge of official duty.
The requirement of a previous sanction will thus
be rendered redundant by such an
interpretation.
11. The learned counsel for the 2 nd accused argued
further that, in this case, in order to have trial of the 2 nd
accused, there must be some primary materials to show
the conspiracy i.e. meeting of mind between accused
Nos.1 to 3. Since, the said ingredient is not at all
established by the prosecution by any materials, prima
facie, the Special Court rightly discharged the 2 nd accused.
It is also pointed out that, if the charge against the 2 nd
accused would lie, then the charge against the 3 rd accused
also would lie. But, the prosecution did not challenge the
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order of discharge as against the 3rd accused. It is pointed
out that, the 2nd accused is a person, who verified the
documents produced before him and sanctioned the
amount by issuing cheque. According to the learned
counsel, it is the well settled legal principle that a
document is presumed to be genuine if the same was
registered and therefore, prima facie, a registered
document would be valid in law. Thus, the onus of proof
would be on the person, who leads evidence to rebut the
presumption. In this connection, the learned counsel for
the 2nd accused placed decision of the Apex Court reported
in [(2021) 15 SCC 300] Rattan Singh and Others v.
Nirmal Gill and Others. The learned counsel for the 2 nd
accused mainly asserted the point that, none of the P.C.
Act offences would attract as against the 2nd accused.
12. In view of the rival submissions, it is necessary
to analyze the reasoning, whereby the learned Special
Judge discharged the 2nd accused along with the 3rd
accused. The learned Special Judge is of the view that, no
sanction under Section 197 of Cr.P.C. was obtained to
prosecute the 2nd accused and therefore, the entire
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prosecution is non-est as against him. That apart, the
reasons for discharge could be gathered from paragraph
No.29 of the impugned order. The same reads as under:
29. On going through the materials on
record including the charge, it can be seen that
prosecution has sought to cover the case of A2
under sub clause (ii) and not under sub clause
(i) and (iii). In so far as sub clause (ii) is
concerned, it stipulates that a public servant is
said to commit the offence of criminal
misconduct if he, by abusing his position as a
public servant obtains for himself or for any
other person any valuable thing or pecuniary
advantage. Thus the ingredients which will be
required to attract the offence under sub clause
(ii) of Section 13 (1) (d) of Prevention of
Corruption Act.
1. The public servant has abused his
position.
2. By abusing that position, he has
obtained for himself or for any other person any
valuable thing or pecuniary advantage.
13. First of all, it is necessary to address the
question, as to whether the 2 nd accused has any role in
forging the documents as part of conspiracy hatched
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between accused Nos.1 to 3 and by using the same as
genuine, thereby the 1st accused obtained pecuniary
advantage?
14. The learned Public Prosecutor stressed the
statement given by CW2, who joined as Scheduled Caste
Development Officer Gr-II in Block Scheduled Caste
Development Office, Kalpetta as on 27.08.2011, stating
that, Sri.G. Thomas Mathew (2 nd accused) was suspended
from service pending enquiry, on finding that there was
violation of rules in the matter of selection of the
beneficiaries of the scheme ‘Rehabilitation of Landless and
Homeless Scheduled Caste People’ as per the order dated
02.08.2011 of the Director of Scheduled Caste Community.
Further, as on 18.02.2011, Rs.6,00,000/- was remitted to
one Ravi (the 1st accused) is shown in the cheque issue
register. The statement given by CW3, who has been
working as a Peon in the Block Scheduled Caste
Development Office, Kalpetta, also would show that, the
1st accused remitted back Rs.6 Lakh out of Rs.7,50,000/-
and out of the same, Rs.50,000/- was deposited from the
account of the sister of the 2nd accused. According to the
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learned Public Prosecutor, the same would show that the
2nd accused has involvement in this crime.
15. CW4, the District Scheduled Caste Development
Officer, who joined the office as on 28.05.2010, given
statement to the Police that, applications, documents and
other records produced by eight beneficiaries submitted
before the Block Scheduled Caste Development Officer
were handed over to the Sub Inspector of Police, as
instructed by him.
16. As per the statement of CW4, the verification of
the beneficiaries and their documents is the duty of the
Block Scheduled Caste Development Officer. But,
according to the learned counsel for the 2 nd respondent,
that is the duty of the Scheduled Caste Promoter. The
statements given by CWs 10 and 41 are also pointed out
by the learned Public Prosecutor to show the role of the 2 nd
accused in this crime.
17. In this matter, CW4, who is the District
Scheduled Caste Development Officer, joined the office
after suspension of the 2nd accused, given statement
before the Police that, it is the duty of the Block Scheduled
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Cast Development Officer to verify the beneficiaries and
their documents and in any Panchayat, if the beneficiaries
could not be found, the Officer shall rearrange the grant to
the beneficiaries of other Panchayat. In consonance with
the statement of CW4, the statement of CW10 is relevant.
CW10 is none other than the Scheduled Caste Promoter,
worked in the office in between 18.08.2009 to 03.08.2011.
The statement given by CW10 would show that, during his
tenure, there were 13 other promoters in Scheduled
Caste/Scheduled Tribe Development Office, Kalpetta and
Sri.Thomas Mathew (the 2nd accused) was the block
Scheduled Caste Development Officer. The promoters
used to attend meeting, which would be held on every
Wednesday and two promoters each would be posted for
office duty. Ravi (the 1st accused) was introduced by one
Vasu and he used to come to the office in connection with
the demands of the Scheduled Caste community in his
place, Meppadi. When all the promoters were at the office,
Sri.Thomas Mathew demanded to find out eight
beneficiaries for the scheme of the year 2010-2011 and he
also advised that eight beneficiaries were there in
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Meppadi. On 28.03.2011, Ravi reached the office, while
CW10 and Vasu were there as directed by the Officer and
Vasu and CW10 accompanied Ravi to inspect the property.
When they reached the place, Ravi informed them that the
broker was not available and the property could not be
seen. Then, he agreed to sell property having an extent of
24 cents out of 25 cents belonged to him to eight
beneficiaries. The property belonged to Ravi was 500
metres away from the road having transport facility. But,
he did not either show or state who are the beneficiaries.
On 29.03.2011, while CW10 and Vasu were at the Office,
Ravi handed over the applications of 8 beneficiaries by
name Madhavi, Karukan, Kavitha, Gururaj, Suresh, Pinkan,
Prasad Murthi and Chandran, out of which the application
of one Kavitha was filled up by CW10 and others were
prepared by other promoters. It was directed by
Sri.Thomas Mathew that the applications only to be filled
and the signatures in the applications and the certificates
etc. would be obtained by Ravi and accordingly those
applications were entrusted to Ravi. After departure of the
Ravi, Sri.Thomas Mathew said, if the documents
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accompanying the applications would be ready, the same
should be given to Ravi. The registration of the property
was allowed to be done by the District Scheduled Caste
Development Officer. Soon, Vasu replied that he did not
see the beneficiaries and what to be done without seeing
them. Sri.Thomas Mathew informed CW10 that the
property would be registered by Ravi and the documents
pertaining to registration to be obtained and kept at the
office. Soon, Ravi told him to be witness to the documents.
Accordingly, he signed as the first witness to the
documents and he did not know who was the second
witness. Even though, documents were handed over later,
no certificates produced. But, he did not know when Ravi
obtained the cheque.
18. Going by the evidence given by CW10, it could
be gathered that, promoters were appointed temporarily
and in the matter of selection of the beneficiaries their
roles were curtailed by the 2 nd accused, for reasons known
to him and the same culminated in registration of the
documents in favour of the beneficiaries and the
beneficiaries given statements to the Police that they
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were not aware about any such registration or receipt of
money. Most importantly, the 2nd accused released the
amount in favour of the 1 st accused even without insisting
for production of certificates.
19. Finding the overt acts of the 1st accused,
inclusive of one discussed herein above, the Special Court
dismissed the plea of discharge at the instance of the 1 st
accused, while allowing the same insofar as accused
Nos.2 and 3 are concerned.
20. In this matter, the records would show that the
2nd accused is the person responsible for finding out
beneficiaries through the promoters and to supervise
purchase of property in the names of the beneficiaries. It
is his duty to scrutinize the documents and also after
ensuring that beneficiaries ultimately would get the
property registered under the scheme, the 2 nd accused
could encash the money. Verification of the certificates
also is an important duty of the 2 nd accused. It is
discernible from the prosecution materials that, money
was encashed to the 1 st accused and later repaid by him
and the same includes Rs.50,000/- paid by the 2 nd accused
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through his sister.
21. In such a case, the observation of the Special
Judge in paragraph No.34 of the impugned order is
relevant. In pragraph No.34, the learned Special Judge
observed as under:
I find that there is sufficient prima facie
material to proceed against A1. It is pertinent
to note that during investigation, majority of
the beneficiaries have disowned their
signatures in the applications submitted in
their names in the office of A2 for getting
benefit under the pertinent scheme. Moreover
it has come out from the materials that A1 has
remitted back 6,00,000/- being the refund of
the amount received from the office of A2, by
using the said sale deeds. This is a material
circumstance which would justify the stand of
the prosecution that there is ground for
presumption that A1 has committed the
offences alleged. So on examination of the
important materials relied on by the
prosecution to substantiate the allegation in
the final report, I find that there is ground for
presumption that A1 had committed the
offences alleged against him by the
prosecution u/s. 409, 420 and 468 IPC.
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20Therefore I have no other go except to hold
that he is not entitled for a discharge and the
petition filed by him therefore is liable to be
dismissed.
22. After holding so, as observed in paragraph
No.29, the 2nd accused was discharged. Even though, it is
submitted by the learned counsel for the 2 nd accused that,
the 2nd accused has no role in this crime and it is the duty
of the promoters to find the beneficiaries and to verify the
applications, the materials produced by the prosecution
including the statements of the promoters would show
otherwise and it could be discernible from the documents
that, the 2nd accused should have verified and identified
the beneficiaries before encashing the amount, apart from
verifying the documents, production of certificates of the
beneficiaries also should be ensured by the 2 nd accused.
So the involvement of the 2nd accused in this crime cannot
be decided at the pre-trial stage, as the prosecution
materials disclose that he has involvement in this crime,
as the outcome of conspiracy hatched between accused
Nos.1 to 3 and in such view of the matter, the Special
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Court went wrong in discharging the 2nd accused.
23. Coming back, the contention raised by the
learned counsel for the 2nd accused that, there was no
prosecution sanction obtained to prosecute the 2 nd
accused under Section 197 of Cr.P.C. is concerned, going
by the decision in Prakash Singh Badal‘s case (supra)
rendered in earlier point of time, no prosecution sanction
is required to prosecute a public servant, who alleged to
have committed offences punishable under Sections 420,
467, 468 and 471 read with 120B of IPC, since the same
are not overt acts intrinsically connected with their official
duties, while acting or purporting to act in discharge of
their official duty. Following the said ratio, the finding of
the Special Judge holding the view that, in order to
prosecute the 2nd accused for the IPC offences, sanction
under Section 197 of Cr.P.C. is required, is found to be
unsustainable. Even otherwise, for the P.C. Act offences,
sanction under Section 19 of the P.C. Act was obtained by
the prosecution. Therefore, the order of the Special Court
discharging the 2nd accused is found to be unsustainable
and the same is liable to be interfered. Accordingly, this
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revision petition is liable to succeed.
24. In the result, this criminal revision petition
stands allowed and the order of the Special Court
discharging the 2nd accused stands set aside, with
direction to the Special Judge to frame charge against the
2nd accused also and complete the trial.
25. It is specifically made clear that, the
observations in this order are to decide the question as to
whether the order of discharge is right or wrong and not
on the merits of the matter. That apart, the 2 nd accused is
at liberty to raise all his contentions during trial based on
evidence and the observations in this order have no
binding effect, while deciding the case on the basis of
evidence recorded by the Special Court, after trial.
Registry is directed to forward a copy of this order to
the Special Court, within three days, for information and
further steps.
Sd/-
A. BADHARUDEEN
JUDGE
SK
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APPENDIX OF CRL.REV.PET 163/2023
PETITIONER ANNEXURES :
Annexure A TRUE COPY OF CRL. M. P. NO.15/2016 IN CC
NO.158/2016 ON THE FILES OF THE COURT OF
THE ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, THALASSERY.
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