Judgment :- 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 departmental proceedings, the petitioner was given punishment of stoppage of increment for about 6 months. A copy of the order passed by the Deputy Registrar, Co-operative Societies, as Special Officer, dated 27.07.2007, available in the typed set was also brought to the notice of this Court. As per the order, after the enquiry, stoppage of increment for 6 months with cumulative effect was imposed on the petitioner by the Deputy Registrar, as Special Officer of the Tuticorin District Co-operative Bank Limited. 9. As per the order, after the enquiry, stoppage of increment for 6 months with cumulative effect was imposed on the petitioner by the Deputy Registrar, as Special Officer of the Tuticorin District Co-operative Bank Limited. 9. According to the learned counsel appearing for the petitioner, even as per the findings in the departmental proceedings, it could be construed only dereliction of duty and not an offence so far as the petitioner is concerned and the allegation against the petitioner would not be sufficient to initiate any criminal proceeding against the petitioner. According to the learned counsel appearing for the petitioner, there is no prima facie case made out against the petitioner to maintain the criminal complaint against the petitioner herein. The learned counsel appearing for the petitioner, in support of her contention, relied on the decision in Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal reported in 2003(4) SCC 139 . The petitioner has been arrayed as A8, on the ground that he had not discharged his duty in his supervising capacity as a Field Manager and he has not committed any offence, as alleged and further, as per the original FIR his name, does not find a place, he was admittedly stated only a prosecution witness. However, without sufficient grounds, subsequently, he was implicated as A8, which is not legally sustainable. 10. Learned counsel appearing for the petitioner further drew the attention of this Court to the counter filed by the respondent herein and also the earlier counter filed in the case in Crl.O.P. filed by the co-accused / A4. As contented by the learned counsel for the petitioner, in both the counters only identically similar averments were made against the petitioner and the co-accused / A4. Learned counsel appearing for the petitioner submitted that it is clear that the petitioner has been a similarly placed person as that of the co-accused A4, who was discharged by order dated 28.04.2010 passed in Crl.O.P.Nos.981 and 982 of 2010. 11. Learned Government Advocate (criminal side) appearing for the respondent has not disputed the fact that as per the departmental proceeding, only stoppage of six month increment with cumulative effect was ordered, which is not even a major punishment, as the petitioner was working only in the supervising capacity. 11. Learned Government Advocate (criminal side) appearing for the respondent has not disputed the fact that as per the departmental proceeding, only stoppage of six month increment with cumulative effect was ordered, which is not even a major punishment, as the petitioner was working only in the supervising capacity. Learned counsel appearing for the petitioner also drew the attention of this Court on available records and submitted that there was no direct control of the petitioner over the officials, who made the entries in the registers. 12. On the aforesaid facts and circumstances, the learned counsel appearing for the petitioner submitted that criminal offence could not be made out against the petitioner / A8 to proceed against him. In Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal reported in 2003(4) SCC 139 the Hon'ble Supreme Court has held as follows: "13. In view of the findings recorded by us, the learned Magistrate has to proceed with the trial of the accused-respondents. Shri Ashok Desai, learned Senior Counsel has, however, submitted that the Imports and Exports (Control) Act, 1947 has since been repealed and in the departmental proceedings taken under the aforesaid Act, the Central Government has passed orders in favour of the respondents and, therefore, their trial before the criminal court at this stage would be an exercise in futility. He has placed before us copies of the orders passed by the Additional Director General of Foreign Trade on 16.08.1993 and also by the Appellate Committee Cell, Ministry of Commerce, Government of India on 13.03.1997 by which the appeals preferred by the respondents were allowed by the Appellate Committee and the accused-respondents were exonerated. Having regard to the material existing against the respondents and the reasons and finds given in the aforesaid orders, we are of the opinion that no useful purpose would be served by the trial of the accused-respondents in the criminal court at this stage." 13. It cannot be disputed that at the stage of deciding a petition seeking discharge, the Court cannot go into the merits of the case or appreciating the evidence available on record. Unless there is no case made out, as per the available materials on record or the court has no jurisdiction to try the case, this Court cannot interfere with the same in the Revision. 14. Unless there is no case made out, as per the available materials on record or the court has no jurisdiction to try the case, this Court cannot interfere with the same in the Revision. 14. In the instant case, admittedly as per the original FIR, the petitioner was not arrayed as one of the accused and he was stated only a prosecution witness. However, for reasons best known to the respondent, subsequently, the petitioner was also arrayed as one of the accused, though in the departmental proceedings, no major punishment was imposed on the petitioner, since he was working only in a supervising capacity. 15. As contented by the learned counsel appearing for the revision petitioner, co-accused / A4, who was also a similarly placed person was discharged by this Court, as per order, dated 28.04.2010 made in Crl.O.P.Nos.981 and 982 of 2010. The counter filed by the respondent in the aforesaid case in Crl.O.P.Nos.981 and 982 of 2010 show that the allegation against the petitioner herein is identically similar. This criminal revision would clearly show that the petitioner herein and the co-accused/A4 were similarly placed persons and it is seen from the copy of the FIR that there was no allegation against the petitioner herein. Further, according to the learned counsel appearing for the petitioner, the original charges were made only against A1 to A3 and there is no materials to show any conspiracy against the petitioner/A8. Further the aforesaid other accused have subsequently paid the amount on various dates and the same is not disputed by the learned counsel appearing for the respondent. 16. In Union of India and others vs. J.Ahmed reported in AIR 1979 SC 1022 , the Hon'ble Supreme Court has held as follow: "12.The High Court was of the opinion that misconduct in the context of disciplinary proceedings means misbehaviour involving some form of guilty mind mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings." 17. It is a settled proportion of law that to constitute an offence, two basic elements are required, 1. 'actus reus' and 2. 'mens rea'. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings." 17. It is a settled proportion of law that to constitute an offence, two basic elements are required, 1. 'actus reus' and 2. 'mens rea'. In the aforesaid decision of the Hon'ble Supreme Court, it is made clear that misbehaviour or misconduct leads to disciplinary proceedings, which would not be sufficient to be construed as guilty mind or 'mens rea' to initiate a criminal proceeding. It is an admitted fact that the petitioner herein was working in a supervising capacity as Field Manager of Central Co-operative Bank, hence, in the absence of conspiracy or any factor relating to conspiracy between the petitioner and the accused A1 to A3, who subsequently paid the amount, it cannot be decided that there was mens rea to initiate criminal proceeding against the petitioner / A8, apart from the findings of the departmental proceeding. 18. In the light of the decisions of the Hon'ble Apex Court, referred to by both the learned counsel, I am of the view that there is no prima facie case made out against the petitioner / A8, who was subsequently arrayed as one of the accused in the criminal case and accordingly he is entitled to get discharge and accordingly, the impugned order passed by the Court below is liable to be set aside. In the result, the revision petition is allowed and the impugned order passed by the court below is set aside and the petitioner / A8 is discharged from the criminal proceeding, as prayed for. Consequently, connected miscellaneous petitions are closed.