ORDER : A. BADHARUDEEN, J. Crl.Rev.Pet. No.1237/2023 has been filed under Sections 397 and 401 of the Code of CRIMINAL PROCEDURE CODE , 1973, by accused Nos.1 and 5 in C.C. No.40 of 2014 on the files of the Court of the Enquiry Commissioner and Special Judge, Kottayam, challenging the common order dated 13.10.2023 in Crl.M.P. No.145/2021 along with Crl.M.P. No.2414/2017, whereby the discharge plea at the instance of accused Nos.1 and 5 (earlier they were referred as accused Nos.1 and 4 and in the impugned order also their status is as that of accused Nos.1 and 4) was negatived by the Special Court. 2. Crl.Rev.Pet. No.1329/2023 is at the instance of accused Nos.4, 6, 7 and 8 in the above case (earlier they were arrayed as accused Nos.3, 5, 6 and 7 and and in the impugned order also their status is as that of accused Nos.3, 5, 6 and 7), being aggrieved by the dismissal of their discharge petition viz. Crl.M.P. Nos.2414/2017 along with Crl.M.P. No.145/2021, as per the common order dated 13.10.2023 in the above case. 3. Heard the respective counsel for the revision petitioners as well as the learned Public Prosecutor, in detail. Perused the order impugned, relevant records as well as the decisions placed by both sides. 4. Parties in these criminal revision petitions shall be referred as ‘accused/revision petitioners’ and ‘prosecution’, hereafter. 5. In this matter, the prosecution alleges commission of offences punishable under Sections 13 (1) (d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act’ for short] and under Sections 468 , 477A and 120B of the INDIAN PENAL CODE . 5. In this matter, the prosecution alleges commission of offences punishable under Sections 13 (1) (d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act’ for short] and under Sections 468 , 477A and 120B of the INDIAN PENAL CODE . The prosecution case as per the Final Report reads as under: That A1, A2, A3, and A5 while holding the charge as Municipal Secretary, Assistant Engineer, Municipal Chair Person and Superintendent of Planning section of Alappuzha Municipality and as such being public servants abused their official position with dishonest intention to obtain pecuniary advantage to Lajanathul Mohammediya Association, Lajanath Ward, Alappuzha during the period 2004-05 and 2005-06, conspired with A4, the General Secretary of Lajanathul Mohammediya Asociation, A6 -the Manager of Lajanathul Mohammediya Higher Secondary School, A7-Treasurer of Lajanathul Mohammediya Association and A8- former Head Master of Lajanathul Mohammediya Higher Secondary School and in furtherence of the said criminal conspiracy, the above Municipal officials forged the DPC Sanction Order, willfully and with intend to defraud, falsified the accounts by fabricating a false and fake bill without completing the work and the accused A4, A6, A7 and A8 obtained undeserving funds from the Municipality, fraudulently manipulated the two projects - Project No. S-026/2004-05 for constructing a basketball court for LMHSS with an estimated cost of Rs. 1,50,000/-, spending Rs. One lakh from plan fund and Rs. 50,000/- from other sources during 2004-05, and project No. S-32/05 for constructing play ground in LMHSS during 2005-06, spending Rs. 2 lakhs from the Own Fund by interpreting these two projects are one and same. Thereby the accused fraudulently and dishonestly misappropriated an amount of Rs. 1,96,911.90 between 28.03.05 to 10.08.2005 from plan fund of Alappuzha Municipality. Hence the accused committed the offences of criminal misconduct, forgery for the purpose of cheating, falsification of accounts and criminal conspiracy which are punishable u/s 13 (1) (d) r/w 13 (2) of PC Act 1988 and sec. 468, 477 (A) & 120 (B) IPC. 6. While canvasing interference of the impugned common order, it is pointed out by the learned counsel for the accused Nos.1 and 5 that, the entire prosecution is ill motivated and without any substance. 468, 477 (A) & 120 (B) IPC. 6. While canvasing interference of the impugned common order, it is pointed out by the learned counsel for the accused Nos.1 and 5 that, the entire prosecution is ill motivated and without any substance. According to the learned counsel for accused Nos.1 and 5, though it is alleged by the prosecution that accused Nos.1 and 5 forged DPC sanction order willfully, with intent to defraud and fabricate false and fake bills, without completing the works and thereby accused Nos.4, 6, 7 and 8 obtained undeserved funds from the Municipality and thereby fraudulently manipulated the two projects for constructing a basketball court for LMHSS with an estimated cost of Rs. 1,50,000/-, spending Rs. One lakh from plan fund and Rs. 50,000/- from other sources during 2004-05 and for constructing play ground in LMHSS during 2005-06, spending Rs. 2 lakhs from the Own Fund by interpreting these two projects are one and same, no specific allegation raised against accused No.1 and 5, stating that they have committed offence of forgery. Therefore, fundamental allegation raised by prosecution alleging commission of offence under Section 468 of IPC is not made out. 7. The learned counsel for accused Nos.1 and 5 placed decision of the Apex Court reported in [2018 KHC 6412 : 2018 (2) KLD 79 : 2018 (7) SCC 581 ] Sheila Sebastian v. R.Jawaharaj and Another , with reference to paragraph No.25, whereby the Apex Court held that, keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to S.464 further clarifies that, for constituting an offence under S.464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. 8. According to the learned counsel for accused Nos.1 and 5, it is true that, earlier the work for constructing a basketball court for LMHSS for an estimate cost of Rs.1,50,000/- was sanctioned, spending Rs.1 Lakh from the plan fund and Rs.50,000/- from other sources during the years 2004-2005 as project No.S-026/2004- 2005. 8. According to the learned counsel for accused Nos.1 and 5, it is true that, earlier the work for constructing a basketball court for LMHSS for an estimate cost of Rs.1,50,000/- was sanctioned, spending Rs.1 Lakh from the plan fund and Rs.50,000/- from other sources during the years 2004-2005 as project No.S-026/2004- 2005. Thereafter, another project viz. Project No.S-32/05 for constructing a play ground for LMHSS, during the period 2005-2006 also was sanctioned, by spending Rs.2 Lakh from own fund. According to the learned counsel for accused Nos.1 and 5, the work was carried out by the PTA of the school and the same was completed. Thereafter, cheque was issued in the names of the President and Secretary of the PTA, though in turn the same was transferred in the account of the Lajnathul Mohammediya Association on the next day. Accordingly, the learned counsel for accused Nos.1 and 5, submitted that, the allegation regarding non obtaining of DPC sanction is concerned, in fact, the works were carried out after applying for DPC sanction and the same was completed before obtaining sanction. However, the works were carried out by spending the entire money and there was no misappropriation as alleged by the prosecution. According to the learned counsel for accused Nos.1 and 5, the amount of Rs.1,96,911.90 was alleged to be misappropriated by the office bearers of the association, mainly relying on the rough estimate prepared by the Assistant Execute Engineer, PWD, after completion of work, produced as Annexure-P7 in Crl.Rev.Pet. No.1237/2023. But, the calculation as per Annexure-P7 is not accurate or based on any methodology to find the actual work carried out. The learned counsel argued further that, CW26 given statement that, he had noticed an M-book showing the work, but the finding of the Investigating Officer is that, though M-Book No.5/65 was quoted in the bill, the same was not available raising suspicion that the M.Book had not been prepared at all and in this regard, page No.40 of Ext.B1 and page No.31 of Ext.D8 are given emphasis. 9. 9. Supporting contentions raised by the learned counsel for accused Nos.1 and 5, the learned counsel appearing for accused Nos.4, 6, 7 and 8 argued that, in this case, going through various documents produced by the petitioners with that of the statement given by CW7, and Ext.Q1, Ext.L1, Ext.F1 and Ext.B1, it is discernible that the work was carried out by the PTA and the President of the PTA was CW27 and the Secretary was one Mohammed Kunji. If at all, there occurred any laxity in the work as alleged by the prosecution, it is the primary responsibility of the President and the Secretary of the PTA and the prosecution willfully avoided them from the array of accused and accused Nos.4, 6, 7 and 8, who are the office bearers of the Association, under which the aided school has been functioning got arrayed as accused, merely based on the fact that, the amount sanctioned to do the work was granted by the Municipality by issuing of cheque in favour of CW27 on 03.08.2005, but the same was transferred to the account of the Association on the next day. According to the learned counsel, as far as accused Nos.4, 6, 7 and 8 are concerned, since LMHSS is an aided school, whatever be the property obtained to the school, would vest to the general public and the association/management has no right to sell, mortgage, lease, pledge, charge, or transfer of possession of any property belonging to an aided school, in view of the specific prohibition under Section 6 of the KERALA EDUCATION ACT . 10. It is also pointed out by the learned counsel for accused Nos.4, 6, 7 and 8 that, in this matter, as could be seen from Annexure-P1 itself, the PTA Secretary during the relevant period produced Ext.B4 bills and vouchers, showing expense of Rs.4,02,747/-, before the Investigating Officer, but the same were not considered by the Investigating Officer on the premise that, the same were doubtful and could not be taken into account as the measurement of the work was taken after verifying the supporting documents of the work. In the same paragraph, it is stated by the Investigating Officer that, normally the cost of the work when measured is lower than that of the amount of supporting vouchers, then the former would be taken into consideration for payment. 11. In the same paragraph, it is stated by the Investigating Officer that, normally the cost of the work when measured is lower than that of the amount of supporting vouchers, then the former would be taken into consideration for payment. 11. The crux of the argument at the instance of the respective counsel for the revision petitioners is that, in this matter, even though some procedural irregularity could be found in the matter of allotment of the funds, the fund allotted for construction of basketball court and play ground during 2004-2005 and 2005-2006 has been spent by the PTA, as evident from Ext.B4 bills and vouchers and ignoring the same, on the basis of Annexure-P7 in Crl.Rev.Pet. No.1237/2023, the rough estimate prepared by the Assistant Execute Engineer, PWD, it is alleged that there was misappropriation to the tune of Rs.1,96,911.90 by the accused. In fact, the prosecution records would not justify the same and as such the petitioners are entitled to discharge. Therefore, the impugned order is liable to be set aside. 12. Dispelling this contentions, the learned Public Prosecutor pointed out paragraph Nos. 6 to 8 of the objection filed by the 2nd respondent on 06.02.2024 in Crl.Rev.Pet. No.1237/2023, wherein the contention raised by accused Nos.1 and 5 is addressed. That apart, as per the statements of CW3 and CW11 and as per the decision of the planning committee as on 06.05.2005, the decision was to grant Rs.2 Lakh from ‘own fund’ and thereafter the same was struck off and instead of ‘own fund’, ‘plan fund’ was substituted. The same would substantiate the forgery allegation raised by the prosecution. Apart from that, even though Rs.1,50,000/- was spent for the work of the year 2004-2005, Rs.2 Lakh for the work during the period 2005- 2006 was sanctioned from own fund of the Municipality. Later as per the office notes of the Municipality produced as Annexure-P5, it was written as ‘plan fund’ instead of ‘own fund’. This was written by the 5 th accused and counter signed by the 1 st accused. 13. Later as per the office notes of the Municipality produced as Annexure-P5, it was written as ‘plan fund’ instead of ‘own fund’. This was written by the 5 th accused and counter signed by the 1 st accused. 13. It is pointed out by the learned Public Prosecutor further that, as per Section 30 (10) of the KERALA MUNICIPALITIES ACT , the works of the Government schools alone would be undertaken by the Municipality by using the funds allotted and the learned Public Prosecutor given emphasis to item No.X to the first schedule under Section 30 (A) to substantiate the same. 14. But, this argument is countered by the learned counsel for accused Nos.4, 6, 7 and 8, with reference to item No.XVI in the same schedule, which provides that, financial assistance, could be provided to sports and cultural affairs especially for construction of play grounds and studios. Thereby, the amount sanctioned by the Municipality, as could be gathered from the minutes, was in consideration of the fact that students studying in the school are below poverty line, hailing from families involved in fishing and related harbour activities. Therefore, there is no illegality in granting the amount. 15. As far as the allegation against accused Nos.4, 6, 7 and 8 is concerned, paragraph Nos. 6 to 8 of the objection filed by the Vigilance is having significance and the same are extracted as under: 6. It is most respectfully submitted that the instances lead to the allegation is that, a project for "Constructing a Basketball Court for LMHSS" with an estimated cost of Rs. 1,50,000/- was formulated in the 2004-05 Annual Development Plan of Alappuzha Municipality as Plan No. S-026/2004-05. The plan allotment for the said project was only Rs. 1,00,000/-. The balance Rs. 50,000/- has to be collected from other various sources. The project got Administrative Sanction of the council on 22.07.2004. According to the first schedule of Kerala Municipality Act and in section 30, it is mentioned that the municipality was committed to the management of the institutions transferred to it. Lajnathul Muhammadiya Higher Secondary School, Alappuzha is an aided school run by the organization, Lajnathul Muhammadiya, Lajnath Ward, Alappuzha. The concerned Municipal Authorities should not have accorded this sanction for constructing the basketball court as the LMHSS being an un- transferred aided school, was not eligible to receive such assistance from the municipality. Lajnathul Muhammadiya Higher Secondary School, Alappuzha is an aided school run by the organization, Lajnathul Muhammadiya, Lajnath Ward, Alappuzha. The concerned Municipal Authorities should not have accorded this sanction for constructing the basketball court as the LMHSS being an un- transferred aided school, was not eligible to receive such assistance from the municipality. As the management of LMHSS, is still with a private governing body, the said institution is not eligible for getting aid for any construction from the Municipality. 7. It is humbly submitted that the offence committed primarily is the diversion of plan fund of the municipality having been utilized for the maintenance of assets which are not transferred to the municipality. It is obvious that a conspiracy had hatched between the accused persons, to get an undeserving benefit from the Municipality. 8. It is humbly submitted that the main averment raised by 4th, 6 th and 7 th accused (1 st , 2 nd and 3 rd petitioners herein respectively) was that, they are office bearers of the said organization and they have no role in carrying out the alleged projects. The said averment is baseless and hence denied. The alleged work has been done by the PTA of the Lajanathul Mohammediya HSS and the final bill amount of Rs.3,75,797/- has been credited to the UCO Bank Account, Alappuzha Branch on 08.08.2005 which was owned by the PTA of LMHSS. Thereafter, the same amount of Rs. 3,75,797/- was credited to the A/c No. 10574313197 of SBI, Civil Station Branch, after two days that is on 10.08.2005, in the joint account of 4th, 6 th and 7 th accused (1 st , 2 nd and 3 rd petitioners herein respectively) who were the office bearers of Lajnathul Mohammediya Association. Hence it was revealed that being not eligible for accepting any kind of Government grant, the amount of Rs.3,75,797/- was illegally credited to the account of 4 th , 6 th and 7 th accused and the same was jointly withdrawn by them. 16. In this matter, it is discernible that, forgery in this matter is alleged by the prosecution, mainly on urging that the decision of the planning committee of the Municipality earlier was to provide Rs.2 Lakh form ‘own fund’ of the Municipality and later the same was manipulated as ‘plan fund’. 16. In this matter, it is discernible that, forgery in this matter is alleged by the prosecution, mainly on urging that the decision of the planning committee of the Municipality earlier was to provide Rs.2 Lakh form ‘own fund’ of the Municipality and later the same was manipulated as ‘plan fund’. But, as argued by the learned counsel for the accused Nos.1 and 5, who committed forgery is not specifically alleged and the allegation is that, the officials of the Municipality have done the forgery. Going by the ratio in Sheila Sebastian ’s case (supra) or by interpreting statutory provision under Section 464 of IPC, in order to constitute an offence under Section 464 of IPC, it is imperative that a false document is made and the accused persons should be the makers of the same. Otherwise, accused persons are not liable to be prosecuted for the offence of forgery. Thus, the allegation of forgery against the revision petitioners would not stand. 17. In these cases, as per Annexure-P7 in Crl.Rev.Pet.No.1237/2023, the rough estimate was prepared by the Assistant Executive Engineer, PWD, after completion of the work and found that work for the amount of Rs.1,96,911.90 was not carried out and the Investigating Officer was not ready to consider Ext.B4 produced by the PTA, showing expenditure of Rs.4,02,742/-. It is not in dispute that, accused Nos.4, 6, 7 and 8 were the office bearers of the Association during the relevant time and the fund sanctioned by the Municipality, even though received by the PTA was transferred in the name of the Association and they did not obtain any personal gain, since the amount transferred to the account of the association. 18. In this connection, as argued by the the learned counsel for accused Nos.4, 6, 7 and 8, the report of the Investigating Officer, whereby the Investigating Officer found that the minutes book and the cash book of PTA during the relevant period could not be traced and therefore, the amount advanced by Lajanathul Mohammediya Association for the work could not be verified. 19. 19. Even though it is argued by the learned Public Prosecutor that, grant of the fund for the works of LMHSS is prohibited under Section 30 of the Kerala Municipality Act, as per schedule XVII, construction of play grounds and studios under the sports and cultural affairs is permitted and the amount in dispute was granted by the Municipality on two occasions for the construction of play ground as well as basketball court. Nobody has a case that the amount was not utilized and the work was not carried out and the prosecution also admitted that the work was completed and after completion of the work, when the Assistant Executive Engineer, prepared Annexure-P7, the amount of work done would come to Rs.2,01,242/- only and no work done for an amount of Rs.1,96,911.90 and the said amount was lost to the Government. 20. According to the learned counsel for accused Nos.1 and 5, step No.7.5.2(3) of G.O.(MS) No.40/2004/Plg, provides for modification of annual plan for 2004-05, whereby the Governments can modify their already prepared annual plan for 2004-05 and therefore the modification also could not be found as an anomaly. But, this contention was resisted by the learned Public Prosecutor on the submission that the modification has no impact on the facts of the case, wherein forgery of DPC sanction and misappropriation of amount for two projects separately allotted for two specific financial year, by the accused is alleged. Therefore, step No.7.5.2(3) of G.O.(MS) No.40/2004/Plg has no application. 21. As pointed out by both sides, while considering framing of charge, the court is duty bound to consider as to whether the prosecution records would make a prima facie case or atleast a strong suspicion regarding involvement of accused in the crime, warranting trial and it is the settled law further that, a mere suspicion would not suffice in this regard. 22. It is relevant to note that, the PTA of LMHSS had done the work as per records and as specifically pointed out by the respective counsel for the revision petitioners and the learned Public Prosecutor, cheque for the work also was issued in the name of PTA and inturn the same was transferred in the account of the association. 22. It is relevant to note that, the PTA of LMHSS had done the work as per records and as specifically pointed out by the respective counsel for the revision petitioners and the learned Public Prosecutor, cheque for the work also was issued in the name of PTA and inturn the same was transferred in the account of the association. Thus, the crucial question arises for consideration is, whether the prosecution materials would prima facie show involvement of the petitioners in this crime or a strong suspicion regarding their involvement in this crime, to frame charge against them? 23. The records of the prosecution would reveal that, the Municipality allotted an amount of Rs.3,50,000/- for construction of basketball court and play ground during 2004-2005 and 2005-2006 to be undertaken in LMHSS and the amount was entrusted with PTA of LMHSS. But, the allegation of the prosecution is that, the works were not carried out by the office bearers of the management of the school, though on getting encashment of the money in favour of the President of the PTA, which inturn transferred to the account of the association. According to the prosecution, as per Annexure-P7, the rough estimate prepared by the Assistant Executive Engineer, PWD, the misappropriation would come to Rs.1,96,911.90 and the same is the drum card upon which the prosecution alleges misappropriation of the said sum. It could be seen from the prosecution records that the Secretary of the PTA submitted bills and vouchers showing the expenditure of the works to the tune of Rs.4,02,742/- as Ext.B4, but the Investigating Officer did not accept the same. 24. Insofar as the contention raised by the learned Public Prosecutor that the grant of amount in favour of Lajnathul Mohammediya Association is illegal is concerned, no such case could be gathered from the prosecution materials and even otherwise. Further, it could not be held that the amount granted is illegal, since Schedule XVII of Section 30 of the Kerala Municipality Act provides for construction of play grounds and studios under the sports and cultural affairs. 25. Further, it could not be held that the amount granted is illegal, since Schedule XVII of Section 30 of the Kerala Municipality Act provides for construction of play grounds and studios under the sports and cultural affairs. 25. Thus, on evaluation of the prosecution materials, the inference to be drawn is that, the prosecution allegation as to misappropriation of money to the tune of Rs.1,96,911.90 by the accused, is based on Annexure-P7 alone, which is a rough estimate prepared by the Assistant Executive Engineer, PWD, that too after sparing the President and the Secretary of the PTA, who had actually spent the fund, from the array of accused and making them as witnesses, without being arrayed as accused. In this matter, it could not be found that the office bearers of the Association did not carry out any works and according to them the works were carried out by the PTA from the fund advanced from the Association, which was repaid later on encashment of the cheque by the President of the PTA. In such a case, it could not be held that the prosecution materials prima facie show the involvement of the accused/revision petitioners in this crime or a strong suspicion regarding their involvement in this crime by committing misappropriation. 26. In such view of the matter, dismissal of discharge petitions at the instance of accused Nos.1 and 4 to 8/revision petitioners herein by the Special Judge could not sustain and the same would require interference. Accordingly, these revision petitions are liable to succeed. 27. In the result, these criminal revision petitions stand allowed and the impugned common order of the Special Court dismissing the discharge plea at the instance of accused Nos.1 and 4 to 8 stands set aside. As a sequel thereof, accused Nos.1 and 4 to 8 are discharged in this crime. Registry is directed to forward a copy of this order to the Special Court, forthwith, for information and further steps.