ORDER : The challenge in this Criminal Revision Petition is to the order dated 07.07.2022 in Crl.M.P.No. 442/2022 in C.C.No.49/2016 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The petitioner and the other accused face charges under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act (for short 'the P.C.Act'), 1988 and Sections 406, 408,409, 420, 468, 471 and 477A read with Section 34 of the Indian Penal Code. 2. The prosecution allegations, as extracted from the impugned order, are as follows: “That the A1 being the Secretary, A2 being the President, A3 to A8 being the Director Board members and A9 being the Chief promoter and member of Thiruvananthapuram Taluk Integrated Silk Handloom Weavers Co-operative Society Ltd. No. S.IND (T) 847, Balaramapuram, Thiruvananthapuram, in their capacity as public servants abused their position and colluded each other and hatched a criminal conspiracy with an intention to misappropriate the Government funds and in furtherance of the said criminal conspiracy had made false entries in the Membership Register to show that the Society has sufficient number of members and with other false supporting documents, prepared a Project Report containing misrepresented facts and submitted an application for availing loan from the National Co-operative Development Corporation (NCDC) and thereby availed a loan of Rs 2,00,00,000/-(Rupees Two Crores only) as Margin Money Assistance, for the development of Silk handloom industry, during the period from 6-10-2009 to 11-03-2010 and to achieve the ends of the said criminal conspiracy, A10 being the then Additional Secretary, Industries (C) Department, Govt. Secretariat, Tvpm joined A1 to A9 in the criminal conspiracy and A10 abused his official position by issuing a favourable order come out of public interest for the encashment of 3 instalment of margin money assistance of Rs.1,75,20,000/-to the society by corrupt and illegal means ignoring the feasible recommendation of the Handloom Director and that of the General Manager, District Industries Centre, Typm that the society was only eligible for Rs.11,22,754/-. After receiving the entire amount, A1 to A9 with the knowledge of A10 made falsification of accounts in the registers of the society by entering false entries in the Membership Register, Invoice Register, Minutes Books, Yarn Advance Register, Day Book etc and made some forged documents purporting to show that purchase of raw materials and payments in the names of various firms were effected utilizing the funds thus provided and thereby misappropriated an amounts of Rs.1,15,45,612/-out of Rs. 2 Crores availed from NCDC as margin money assistance and thereby obtained undue pecuniary advantage for themselves and caused corresponding loss to the Government and thereby committed the above said offences.” 3. The petitioner and the other accused appeared in response to the summons. 4. The petitioner, who is accused No.9 and accused No.10, filed applications seeking discharge under Section 239 of the Code of Criminal Procedure, contending that the prosecution materials do not reveal the offences alleged. The learned Special Judge after adjudicating the applications, discharged accused No.10, and dismissed the application seeking discharge filed by the petitioner as per the impugned order. 5. The relevant portion of the order impugned is extracted below : “9. The contentions of the petitioner is that he had no role in day to day functions of the society, that he had acted as a promoter of the society prior to its incorporation, that there is no documentary evidence or statement of the witnesses to substantiate the allegations leveled against the petitioner. 10. Even going by the charge sheet, the petitioner was not holding any official position in the society. But it is alleged that he was the Chief Promoter and member of the society. This fact is not denied. The petitioner is right in his contention that a society after incorporation does not have the post of Chief 1 Promoter. But that alone will not be sufficient to seek for a discharge. The question to be answered is whether there is sufficient materials to prima facie hold that the petitioner was a participant of the criminal conspiracy hatched by the accused persons to misappropriate Rs.1,15,45,612/-. 11. Ongoing through the records of the case, this court finds from the statement of CW40 to CW80 and other witnesses about the involvement of the petitioner in the day to day affairs of the society. 11. Ongoing through the records of the case, this court finds from the statement of CW40 to CW80 and other witnesses about the involvement of the petitioner in the day to day affairs of the society. Witnesses have stated that it was either the petitioner or his wife, the first accused, or the 8th accused, who have paid them wages. All the witnesses have stated that they have not received the actual amount shown as wages in the books of the societies, Witness No.48 has stated that it was the petitioner who made her a member in the society even though she has not woven any cloth for the past 15 years. According to her, petitioner had told her that on becoming a member of society she would get numerous pecuniary benefits and grants from the Government. As per the records, she had received 59,015/-as wages from the society. But according to her she has not woven a single cloth, after getting membership in the society. She also says that she had not received any wages from the society. 12. Almost all the above witnesses have stated that though they have signed in various registers, they did not notice the amount written as wages in the registers. The role of the petitioner in getting signature from these witnesses in the registers have come out from their respective statements. The witnesses have also stated that it was the petitioner who was managing the affairs of the society along with accused No.1 and accused No.8. In fact as per the statement of witnesses, locally, the society was known as the society run by the petitioner. 13. In the light of the above statements, the contention of the petitioner that there is no material to frame charge against the accused cannot be accepted. There are enough materia hold that he had a role in the conspiracy hatched by the s accused, especially accused Nos. 1 to 8. Hence I hold that there are sufficient materials to frame charges against the petitioner/accused No.9 u/s.13 (2) r/w13 (1) (c) of P.C.Act 1988 and sections 406, 408,409, 420, 468, 471, 477A ?/w 34 [PC IMP.442/22 is accordingly dismissed.” 6. Heard Sri.V.Ramakumar, the learned Senior Counsel appearing for the petitioner, the learned Special Government Pleader (Vigilance) Sri.A.Rajesh and the learned Senior Public Prosecutor Smt. Rekha. 7. The learned Senior Counsel made the following submissions: 1. Heard Sri.V.Ramakumar, the learned Senior Counsel appearing for the petitioner, the learned Special Government Pleader (Vigilance) Sri.A.Rajesh and the learned Senior Public Prosecutor Smt. Rekha. 7. The learned Senior Counsel made the following submissions: 1. The petitioner is not a public servant, and therefore, the charge levelled against him by the prosecution would not stand. 2. Since he is not a public servant, the offence under Section 13(1)(c) read with Section 13(2) of the P.C.Act is not attracted. 3. The petitioner, not being a public servant, cannot be tried by the Special Judge as the Court has no competence to try. 8. The learned Special Government Pleader and the learned Senior Public Prosecutor submitted the following: 1. The fact that the petitioner is a public servant or not is a matter to be considered at the time of trial. 2. There are materials to show that he participated in the criminal conspiracy in which Government funds were misappropriated. 3. As per Section 4(3) of the P.C.Act, a Special Judge may try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. 9. The learned Senior Counsel submitted that the petitioner is made an accused in the capacity as the Chief Promoter of a Cooperative Society. It is submitted that the Chief Promoter of a Cooperative Society, after the registration of the same, has no role in its functions. It is the specific contention of the learned Senior Counsel that the Chief Promoter of a Society cannot be termed as a Public Servant as defined in Section 2(c)(9) of the P.C Act. 10. Admittedly, the petitioner is the Chief Promoter of the Society involved in the case. The trial court has not considered the question of whether the petitioner, being the Chief Promoter of the Society, was a Public Servant or not, as defined in Section 2(c)(9) of the P.C Act . The trial court has recorded a finding that there are sufficient materials to prima facie hold that the petitioner was a participant in the criminal conspiracy hatched by the accused in which a sum of Rs.1,15,45,612/- was misappropriated. 11. The prosecution has relied on statements of CWs14 to CW18 to establish the involvement of the petitioner in the alleged misappropriation. The trial court has recorded a finding that there are sufficient materials to prima facie hold that the petitioner was a participant in the criminal conspiracy hatched by the accused in which a sum of Rs.1,15,45,612/- was misappropriated. 11. The prosecution has relied on statements of CWs14 to CW18 to establish the involvement of the petitioner in the alleged misappropriation. The statements of CW14 to CW18 reveal the involvement of the petitioner in the day-to-day affairs of the Society. Those witnesses stated that the petitioner or his wife, who is accused No.1, paid wages to the beneficiaries. Witness No.48 stated that the petitioner had represented to her that on becoming a member of the Society, she would get pecuniary benefits and grants from the Government. The prosecution collected materials to show that she had received Rs.59,015/-as wages from the Society. CW48 further deposed that though she received wages as stated above, she had not done any work in the Society. She further stated that she received no wages from the Society directly. The prosecution also produced statements of the witnesses, which would show that the petitioner obtained signatures from many witnesses in the registers. Relying on those materials, the trial court held that there were prima facie materials to hold that the petitioner had participated in the criminal conspiracy alleged by the prosecution. 12. At the time of consideration of an application under Sections 239 and 240 of Cr.P.C, the primary consideration is the test of the existence of a prima facie case. The probative value of the materials on record is not to be gone into at this stage. 13. The Apex Court in Onkar Nath Mishra and others v. State (NCT of Delhi) and another [ (2008) 2 SCC 561 ] while considering the nature of evaluation to be made by the Court at the stage of framing of charge held thus:- “11. It is trite that at the stage of framing of charge 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the Accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the Accused in respect of the commission of that offence.” 14. In State of Maharashtra v. Som Nath Thapa [ (1996) 4 SCC 659 ], while dealing with the question of framing charge or discharge, the Apex Court held thus:- “32...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 a 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.” 15. In State of M.P. v. Mohanlal Soni [ (2000) 6 SCC 338 ] the Apex Court held thus:- “7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the Accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the Accused.” 16. In Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another [ (2013) 11 SCC 476 ], the Apex Court observed that while framing charges, the Court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose the existence of ingredients constituting the alleged offence. It was further held that the Court cannot speculate on the truthfulness or falsity of the allegations, contradictions and inconsistencies in the statement of witnesses at the stage of discharge. 17. Section 239 envisages a careful and objective consideration of the question of whether the charge against the accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the accused is not entitled to discharge under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea or face the trial. (See: V.C. Shukla v. State through CBI ( AIR 1980 SC 962 ). 18. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja [( AIR 1980 SC 52 )], the Apex Court stated thus:- “At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.” 19. In State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R.Hiremath (2019) 7 SCC 515 , the Apex Court held thus:- “25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan (2014) 11 SCC 709 ), adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) 29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the Accused has been made out. To put it differently, if the court thinks that the Accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the Accused has committed the law does not permit a mini trial at this stage.” 20. In State through Deputy Superintendent of Police v. R. Soundirarasu and Ors. ( AIR 2022 SC 4218 ) the Apex Court, while dealing with the scope of Section 239 Cr.P.C., held thus:- “61. Section 239 of the Code of Criminal Procedure lays down that if the Magistrate considers the charge against the Accused to be groundless, he shall discharge the Accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the Accused has committed the offence. Section 239 of the Code of Criminal Procedure lays down that if the Magistrate considers the charge against the Accused to be groundless, he shall discharge the Accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the Accused has committed the offence. The word 'groundless' used in Section 239 of the Code of Criminal Procedure means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the Accused. …...... 73. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution-the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the Accused can be said to be "groundless". 74. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the Accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.” Therefore, the obligation to discharge the accused under Section 239 Cr.P.C. arises when the Magistrate/Special Judge considers the charge against the accused to be groundless that is, there is no legal evidence or when the facts are such that no offence is made out at all and no detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken.” 21. Considering the materials placed by the prosecution on the touchstone of the principles discussed above, I am of the view that prima facie, there are materials to show that the petitioner was involved in the alleged criminal conspiracy. 22. The learned Senior Counsel for the petitioner submitted that if the petitioner is found to be not a public servant, he cannot be tried by the Special Court, as the Court has no competence to try him. 23. 22. The learned Senior Counsel for the petitioner submitted that if the petitioner is found to be not a public servant, he cannot be tried by the Special Court, as the Court has no competence to try him. 23. It is profitable to extract Section 4 of the PC Act, which reads thus: “4. Cases triable by special Judges.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of section 3 shall be tried by special Judges only. (2) Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. (3) When trying any case, a special Judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. [(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the trial of an offence shall be held, as far as practicable, on day-to-day basis and an endeavour shall be made to ensure that the said trial is concluded within a period of two years: Provided that where the trial is not concluded within the said period, the special Judge shall record the reasons for not having done so: Provided further that the said period may be extended by such further period, for reasons to be recorded in writing but not exceeding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate.]” 24. Even if it is found that the petitioner is not a public servant, as per Section 4(3), the Special Judge may try the offences specified under Section 3 of the P.C Act and the conspiracy related to them and in view of Sub Section (3) of Section 4, the offences specified in Section 3 and the conspiracy related to them are triable only by a Special Judge and that Court alone can take cognizance of the offence. 25. Even if it is found that the petitioner is not a public servant if there are prima facie materials to show that he has participated in the conspiracy along with other accused, who are public servants, the Special Court has the competence to frame charge and proceed with the trial of the petitioner and the other accused jointly. 26. The learned Senior Counsel, relying on the Police charge, submitted that the petitioner had been charged in the capacity as a public servant alone. On a reading of the Police charge sheet, it is not clear whether the petitioner has been included as an accused in the capacity as a public servant or not. The learned Senior Counsel reiterated that the promoter of a Co-operative Society cannot be treated as a person coming under Section 2(c)(9) of the P.C Act, and he cannot be treated as a public servant. I find force in that argument. Therefore, the trial court at the time of framing charges shall specify whether the petitioner is charged in the capacity as a public servant or not. It is made clear that I have not made any observation on the contention that the petitioner is a public servant or not. That question is left to be decided by the trial court at the time of framing charge. I find no other reason to interfere with the order impugned. The Crl.R.P is disposed of as above. I make it clear that I have not made any observation on the merit of the case.