Judgment : ( 1 ) PETITIONER Chidambaram, arrayed as A-3, has filed this revision challenging the order dated 20-12-1996 passed by the learned First Additional District judge, Coimbatore, in Crl. M. P. No. 366 of 1996 in Spl. C. C. No. 25 of 1995 on his file, dismissing the petition filed by the petitioner for discharge under Sec. 239 of the Code of Criminal Procedure. ( 2 ) THE respondent filed the charge-sheet against the petitioner and two others, alleging that A-1 Meyappan,a-2 Chandragiri and A-3 Chidambaram the petitioner herein, during the period between 19-11-1990 and 20-12-1990 entered into a criminal conspiracy and in pursuance of the said conspiracy, they misapporpirated a sum of Rs. 1,24,800/- from the Fort Branch of Indian Bank, salem, and thereby they committed the offences punishable under Sec. l20-B read with Sec. 409 of the Indian Penal Code and Sec. l3 (2) r/w Sec. 13 (1) (c)and (d) of the Prevention of Corruption Act. ( 3 ) MR. N. T. Vanamamalai, Senior Counsel appearing for the petitioner, while pointing out the illegality committed by the trial Court in the impugned order dismissing the petition filed for discharge, would contend that there is no iota of evidence against the petitioner either with regard to the conspiracy or with regard to his participation in any manner in the commission of the other offences as the statements of the witnesses and the documents accompanied along with the charge-sheet do not disclose even a semblance of material with reference to the above referred to accusation. He would further contend that even during the course of investigation since there was no material against him, no departmental action was taken and he was allowed to retire on 31-7-1993 on attaining superannuation and that though it was alleged that the offences committed by the petitioner as a public servant while he was in service, there is no sanction obtained and that the cognizance taken by the trial Court with reference to the offences alleged against him would not be valid in law. ( 4 ) MR. P. Rajamanickam, Special Public Prosecutor appearing for the respondent, arguing contra, would strenuously contend, that there are materials sufficient to frame charges against the petitioner and that no sanction is necessary for prosecution as against the petitioner since on the date of taking cognizance, the petitioner ceased to be public servant. ( 4 ) MR. P. Rajamanickam, Special Public Prosecutor appearing for the respondent, arguing contra, would strenuously contend, that there are materials sufficient to frame charges against the petitioner and that no sanction is necessary for prosecution as against the petitioner since on the date of taking cognizance, the petitioner ceased to be public servant. In support of the said contention, learned Special Public Prosecutor, filed a counter. Thereafter, the counsel for the petitioner filed a rejoinder refuting the allegations contained in the counter. ( 5 ) AT the outset, I may mention that the contention urged by Mr. N. T. Vanamamalai, learned Senior Counsel, appearing for the petitioner as regards sanction, may not be right, in view of the fact, that admittedly, as pointed out by the Special Public Prosecutor, the petitioner was not a public servant on the date on which the trial Court took cognizance of the offences since the petitioner was allowed to retire as early as on 31-7-1993 on attaining superannuation, that is, long prior to the filing of the charge-sheet. There is no necessity to obtain the sanction when the accused ceases to be a public servant on the date of the filing of the charge-sheet. ( 6 ) FUTHERMORE, it is significant to note that as far as the offences under the Indian Penal Code are concerned, it is the settled law, that misappropriation and other allied offences could not be said to be the acts committed in the discharge of the official duties, as laid down by the Supreme Court. Therefore, i fully accept the contention of the Special Public Prosecutor appearing for the respondent with reference to the point of sanction. ( 7 ) AT this stage, I shall mention another curious thing. In the order passed by the trial Court while dismissing the application under S. 239 of the Code, it has been observed that sanction had been obtained for the petitioner also and the same has been filed along with the charge-sheet. This is factually incorrect. I need not go in deep with reference to the above observation since I am of the view that no sanction is necessary in this case as against the petitioner. This is factually incorrect. I need not go in deep with reference to the above observation since I am of the view that no sanction is necessary in this case as against the petitioner. ( 8 ) AS regards the first contention urged by the learned Senior Counsel that there is no material whatsoever against the petitioner to frame the charges by the Court, as pointed out earlier, the Special Public Prosecutor, would submit that there are materials. ( 9 ) BOTH the Counsel would cite various authorities by this Court as well as by the Apex Court, in order to establish their point of view with reference to the powers of the Court in the matter of discharge. Therefore, before delving deep into the materials available in this case in order to find out whether those materials are sufficient to frame charges, let me refer to the authorities cited by the Counsel for both, in order to understand the scope of discharge as contemplated under S. 239 of the Code of Criminal Procedure. ( 10 ) (A) While dealing with the powers of discharge of a Sessions Judge, with reference to Sec. 227 and 228 of the Code of Criminal Procedure, the Supreme court, in State of Bihar vs. Ramesh Singh, has observed as follows: "reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial, the truth, veracity and effect of the evidence which the Prosecutor proposes to aduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Sec. 227 or Sec. 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think mat there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. " (b) In Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijja, it has been held as follows:"that in exercising his jurisdiction under Sec. 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. " (c) In State of Maharashtra vs. Som Nath Thapa, the Apex Court had the occasion to observe as follows:"the aforesaid shows that 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 accused has committed the offence. It is apparent that at the stage of framing of 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. It is apparent that at the stage of framing of 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. " (d) In State of Maharashtra vs. Priya Sharan Maharaj and others, Supreme Court had the occasion to observe as follows:"the law on the subject is now well settled, as pointed out in Niranjan Singh punjabi vs. Jetendra Bijjaya (JT 1990 (3) SC 408= (1990) 4 SCC 76 , that at secs. 227 and 228 stage 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 disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. " (e) In Satish Mehra vs. Delhi Administration and another, the Supreme Court, while interpreting Sec. 239 of the Code has observed as follows:"similar situation arises under Sec. 239 of the Code (which deals with trial of warrant cases on police report ). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages, the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. At these two stages, the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge. So, in the light of the above decisions, if there are materials, though not sufficient, that would create a strong suspicion against the petitioner with reference to his involvement in the charges levelled, then the trial Court would certainly have jurisdiction to frame the charges. " ( 11 ) SEC. 239 of the Code of Criminal Procedure falls under Chapter XIX, which deals with the trial of Warrant Cases. Under Sec. 238, when in any warrant case instituted upon a police report, the accused appears before a magistrate at the commencement of a trial, the Magistrate shall satisfy himself that he has complied with the provisions of Sec. 207. Sec. 207 deals with the supply of copies of police report and other documents accompanied with the police report relied upon by the prosecution to the accused. Therefore, after verification of this, the Magistrate under Sec. 239, if after considering the police report and the documents sent with it and making such examination of the accused and after giving the prosecution and the accused an opportunity of being heard, considers that the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. ( 12 ) IN the event of the Magistrate coming to the conclusion that there is a ground for presuming that the accused has committed and offence triable under this Chapter, then the Magistrate shall frame in writing a charge against the accused So, the phraseology in Secs. 239 and 240 would make it clear that if the Magistrate finds a ground raising presumption against the accused with reference to the offence alleged, it is mandatory on his part to frame the charge. 239 and 240 would make it clear that if the Magistrate finds a ground raising presumption against the accused with reference to the offence alleged, it is mandatory on his part to frame the charge. Hence, it is obvious that if some materials are there as stated by the Special public Prosecutor, then the trial Court, under Sec. 240 of the Code has to necessarily frame a charge. Under Sec. 239 fo the Code, if the Magistrate considers that the charge is groundless, he shall record his reasons and then discharge the accused. Therefore, if the trial Court finds after considering the police report and the documents sent with it that the charge is groundless, then alone, it can invoke Sec. 239 of the Code. ( 13 ) IN the light of the principles laid down by the apex Court while interpreting Secs. 239 and 240 of the Code and the analogous provisions of secs. 227 and 228 of the Code, let us now, consider, whether there are reasons to hold that the charge as against the accused is groundless. ( 14 ) BEFORE dealing with the same, I shall point out the reasons for the dismissal of the application filed under Sec. 239 of the Code given in the impugned order by the Trial Court. According to the lower Court, the charge levelled against the petitioner, the third accused is fortified by filing of as many as 21 documents, particularly, the sanction order. It is also mentioned in the order that the documents produced by the prosecution would prove that sanction was accorded. As indicated earlier, no sanction was obtained as against the petitioner even according to the prosecution as admitted by the special Public Prosecutor before this Court. The finding in the impugned order is that there are documents, as many as 21 in number, to show the involvement of the petitioner in the commission of the offence; but the trial Court has not referred to any of the documents and does point out as to what is the reference made in those documents as against the petitioner. ( 15 ) NOW, let me come to the materials collected by the prosecution duringing the course of investigation as against the petitioner. ( 15 ) NOW, let me come to the materials collected by the prosecution duringing the course of investigation as against the petitioner. The facts as culled out from the charge-sheet, statements of witnesses and the documents sent along with the charge-sheet, can be stated as follows: All the three accused A-l to A-3 were working as Officers in Indian Bank, Fort Branch, Salem, during the period 1989-1990. The said bank is having a currency chest. The currency chest has double lock system. Mr. Chandragiri (A-2) is the Officer incharge of the currency chest. He is the custodian of the currency chest. Another set of the keys of the currency chest is rotated to the other Officers of the bank. Mr. Meyyapan (A-1) was having one of the keys of the currency chest upto 18-12-1990. On that date, the said key was handed over the petitioner A-3 and he was in possession of the said key from 18-12-1990 onwards A-2 Mr. Chandragiri was the custodian of another set of keys from 16-11-1990 to 20-12-1990. The period of the conspiracy by A-l to A-3 is between 19-11-1990 and 20-12-1990. The petitioner (A3) joined the Fort Branch of Indian Bank, Salem, only on 18-12-1990. He was officer in-charge (incoming) of that branch and from that date onwards, he was in custody of one set of keys of the currency chest which was handed over by a-1 Meyappan. On 20-12-1990 Mr. Balraj, the Inspector of Branches attached to indian Bank made an inspection of the currency chest at Fort Branch, Salem. He found a shortage of Rs. 4,800/-in Bin No. 23. On 21-12-1990 on further inspection, he found out that there was a shortage of Rs. 1,00,000/- in Bin No. 87. On 22-12-1990 in the continued inspection, he found out a shortage of rs. 20,000/ -. The mahazars prepared by the said Balraj on those days were signed by the Officers including the petitioner and others. On 22-12-1990 A-l meyappan made a statement to Mr. Viswanathan, the Regional Manager of the indian Bank stating that he was solely-responsible for the amount of rs. 1,24,000/-and odd and he has stated that the money was taken by him on 21-11-1990 and thereafter on two or three occasions for the purpose of his daughters marriage prior to 18-12-1990. On 22-12-1990 A-l meyappan made a statement to Mr. Viswanathan, the Regional Manager of the indian Bank stating that he was solely-responsible for the amount of rs. 1,24,000/-and odd and he has stated that the money was taken by him on 21-11-1990 and thereafter on two or three occasions for the purpose of his daughters marriage prior to 18-12-1990. He had also given a written confession dated 26-12-1990 addressed to the Regional Manager, Salem, admitting his guilt and pleading for time to pay back the said amount. He has stated in those statements that he took those amounts when he was in possession of one set of key and he got the other set of key from A-2 Chandragiri. He undertook to repay the same within a short period and accordingly, he remitted various amounts on different dates towards the misappropriated money, thereby, making good the entire loss caused by him. ( 16 ) DURING me course of investigation, the petitioner (A-3) was examined by the respondent. He was not treated as an accused then. Though departmental action was taken against A-1 and A-2 even during the course of investigation, no such action was taken against the petitioner and he was allowed to retire on his attaining superannuation. Only at the time of filing the charge-sheet, the petitioner has been added as A-3. ( 17 ) THERE are totally 17witnesses cited in the charge-sheet and 21 documents mentioned in the said charge-sheet to be relied upon by the prosecution. Out of the 17 witnesses, three of them are the Police Personnel of C. B. I, and one is the deputy General Manager, Indian Bank, who accorded sanction for prosecuting a-2. The statement of these witnesses are not available. The statements of remaining 13 witnesses are available. Therefore, it has to be found out whether there is any material as against the petitioner in the statements of 13 witnesses and 21 documents. ( 18 ) ACCORDING to the learned Senior Counsel appearing for the petitioner there is no iota of material as the statements and the documents do not refer anything against the petitioner. Even according to the prosecution, the petitioner joined only on 18-12-1990. ( 18 ) ACCORDING to the learned Senior Counsel appearing for the petitioner there is no iota of material as the statements and the documents do not refer anything against the petitioner. Even according to the prosecution, the petitioner joined only on 18-12-1990. It is also admitted that the shortage was found out on 20-12-1990 to 22-12-1990 and that as per the statements of A-1, it came to be known that the said amounts were taken by A-1 on various dates prior to 18-12-1990 after obtaining the other key from A2. ( 19 ) MR. P. Rajamanickam, learned Special Public Prosecutor would however contend that the statement of Mr. Chinnannan, L. W. 2 would give some materials as against the petitioner. According to the said Chinnannan, petitioner made an entry on 41-1991 that there was no shortage though there was a shortage found out by witness Balraj on 20-12-1990, 21-12-1990 and 22-12-1990 in the presence of the petitioner. So, on the strength of the statement of the witness stating that these entries are false, now the Counsel for the respondent would vehemently contend that it must be presumed that petitioner also participated in the conspiracy. I am not able to agree with the contention of the learned Public Prosecutor for this reason: The entry made by the petitioner on 4-1-1991 stating that there was no shortage cannot be linked to the act of misappropriation by A-l with the assistance of A-2, committed prior to 18-12-1990. ( 20 ) NO doubt, it is true, the entries may be factually incorrect. Similarly, the said witness Chinnannan has stated in his very same statement as follows:"i admit mat I should have been careful to see that the shortages were mentioned in the respective Bin Books. "so, the act of making wrong entries and the failure to mention the shortages in the respective Bin Books could be attributable not only to A-3 but also to chinnannan, who is the prosecution witness. "so, the act of making wrong entries and the failure to mention the shortages in the respective Bin Books could be attributable not only to A-3 but also to chinnannan, who is the prosecution witness. ( 21 ) IT is also relevant to note in this context, as pointed out in the rejoinder filed on behalf of the petitioner by the learned Senior Counsel, according to the statement of Balraj, Inspector of Branches, one of the prosecution witnesses herein, who inspected the currency chest of me Indian Bank, Fort Branch, salem, and unearthed the fraud committed by A-l with the assistance of A-2, would say, that the entire amount of Rs. 1,24,800/- was made good by A-1 on 2-1-1991 itself. So, in view of the above statement, in my view, no significance could be attached to any entry made by any person thereafter. Except this statement of Chinnannan, with reference to the alleged wrong entries made by the petitioner on 4-1-1991, in which, he himself admits his own fault of not mentioning the shortages in the Bin Books, there is nothing to show that the petitioner is involved in the crime committed by the other accused. ( 22 ) AS pointed out earlier, if there is strong suspicion, it could be said that the magistrate is well within his powers to frame charges against the accused. But in this case, on perusal of the statements of the witnesses and, the documents, i am of the considered opinion that mere is not even a suspicion as against the petitioner. Merely because he joined on 18-12-1990 and he was having the key for two days, it cannot be contended that he was a party to the criminal conspiracy, in pursuance of which, the offences have been committed, even according to the prosecution, prior to 18-12-1990. ( 23 ) THEREFORE, the impugned order by which the application filed by the petitioner under Sec. 239 of the Code of Criminal Procedure, was dismissed has become liable to be set aside. ( 24 ) ACCORDINGLY, the revision is allowed. The impugned order passed by the first Additional District Judge, Coimbatore, in Crl. M. P. No. 366 of 1996 in spl. C. C. No. 25 of 1995 dated 20-12-1996 is set aside and the petitioner (A-3) is discharged. Consequently, Crl. M. P. 1270/1997 is dismissed.