Barjinder Pal vs State of Punjab

S.D. Bajaj, J.

District Magistrate, Markfed, Ferozepur, wrote to the S.S.P. Ferozepur Cantt. vide his letter No. PEP21908 dated 21.5.1988, Subject: Lodging of FIR against Surjit Singh, Field Officer, Shri Balwan Singh, Field Assistant and Rajinder, Paul Salesman, Branch Office Markfed, Talwandi Bhai. Sir, It is submitted that the above officials were holding the charge of wheat stock at Markfed storage points at Talwandi Bhai under double lock with one or other. The stock purchased on behalf of Government of India further to be delivered to it through private parties during the period of delivery of the same the above said officials failed to hand over the complete stock and account of stock of Markfed and have caused a loss to the Markfed as detailed below :

Name of Official From Shortage Value of Stock

Sh. Surjit Singh 8586 12561400 Rs. 45232.28

F.O.

Balwinder Singh, F.A.

do 8485 2294500 Rs. 6257.80

Sh. Balwinder Singh 8586 199336018 Rs. 538282.42

F.A.

Baljinder Paul S/M

Sh. Surjit singh

F.O. 8586 73025480 Rs. 197146.88

Bajinder Paul S/M

do 8687 6 Bags

8038400 Rs. 287061.44

Rs. 972980.82

As the above stocks have been misappropriated by the above said officials, it is, therefore, requested that a criminal case may be registered against the said officials and may be dealt with according to law". On its basis FIR No. 134 was registered against the petitioner in Police Station Ghall Khurd on 18.8.1988 under section 409 of Indian Penal Code for misappropriation/embezzlement of wheat stocks valued at Rs. 9,72,980.82 during the years 1984 to 1987; while posted as Field Assistant in the Branch Office of Markfed at Talwandi Bhai, District Ferozepur.

Criminal Misc. No. 9312M of 1988 and Criminal Misc. No. 323M of 1989 have been filed by. Barjinder Pal and Balwinder Singh both petitioners, in their respective independent petitions aforesaid for quashing FIR No. 134 dated 1881988 on the grounds that the matter having been referred to the Deputy Registrar, Cooperative Societies in terms of Section 54 of the Punjab Cooperative Societies Act, 1961, is rendered to be "a dispute of civil nature and the filing of FIR on same facts is not permitted by law till the surcharge proceedings aforesaid are completed. Registration of the FIR has, therefore, been described in the quashing petitions aforesaid as an abuse of the process of the Court and, therefore, a claim for its quashing on this score has been made therein.

I have beard Shri G.S. Bhatia, Advocate, for the two petitioners in their individual petitions, Shri D.S. Bath Advocate., for the State and perused the relevant record very carefully.

Relevant section of the Punjab Cooperative Societies Act, 1961, reads "54: Surcharge : (1) If in the course of an audit, inquiry, inspection or the winding up of a cooperative society it is found that any person, who is or was entrusted with organisation or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to this Act, the rules of the byelaws or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently has retained any money. or other property belonging to, such society, the Registrar may of his own motion or on the application of the committee, liquidator or any creditor, enquire himself or direct any person authorised by him, by an order in writing in this behalf, to enquire into the conduct of such person.

Provided that no such inquiry shall be held after the expiry of six years from the date of Any act or omission referred to in this subsection.

(2) Where an inquiry is made under subsection (1) the Registrar may, after giving the person concerned an opportunity of being heard, make an order requiring him to repay or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and cost or compensation to such extent, as the Registrar may consider just and equitable. It was observed by this Court in Om Parkash Chopra v. The State of Haryana and ors., 1988(2) RRR 78 (P&H) : 1988 Punjab Law Journal 263, that the detection of shortage like the present one empowered the department to initiate action under Section 54 aforesaid against the delinquent. The relevant observations read, "A comparative study of both the provisions would show that if some shortage was detected during audit which amounted to misappropriation or embezzlement on the part of a Salesman of the Society, proceedings could be initiated only under section 54 of the Act and the matter could not be referred as a dispute for arbitration under section 55 of the Act. The matter stands squarely covered by the Supreme Court judgment reported as Pentakota Sriramulu v. CoOp. Marketing Society Ltd., AIR 1965 Supreme Court 621 followed in a Single Bench judgment of this Court in Jai Pal v. The State of Haryana and ors., 1984 PLJ 8. From the facts and circumstances of the case, it is evident that the case of the present petitioner was fully covered and fell within the purview of section. 54 of the Punjab Cooperative Societies Act, 1961. Hence, the reference for arbitration under section 55 of the said Act was invalid."

In Kashmira Singh v. The State of Punjab, 1989(1) Recent Criminal Reports, 175 , this Court observed "The only question for determination in the proceedings is whether. a prosecution could be launched against the petitioner on the same set, of facts which were the subject matter of the awards and in respect of which the Arbitrator had already., given an award of Rs. 36, 879/ against the petitioner. The question was answered in the affirmative by D.S. Tewatia, J.(as his Lordship then was) in Harbans Singh v. State of Punjab and anr, Volume LXXIV1972 Punjab Law Reporter 26. This judgment, as emerges from a reading of para 5 was based on concession of the Deputy Advocate General and not on a legal interpretation. The view of this court in this regard has undergone a change in its later decisions. It has consistently been held in Harbhagwan Das v. State of Punjab, 1983(2) Recent Criminal Reports 156 ; Hakam Singh v. State of Punjab, Cr. Misc. No. 420M of 1987 and Bant Singh v. The Dulley Cooperative Agricultural Services Society Ltd., 1987(2) Recent Criminal Reports 435 that in the light of the above noted facts it looks apparent that to proceed against the petitioner in a Criminal Court on the same set of facts which were the subject matter of the award against him before the Arbitrator is the misuse of the process of Court."

In result, Criminal Misc. No. 9312M of 1988 and No. 323M of 1989 both succeed and are allowed. FIR No 134 dated 18.8.1988 registered against the petitioners and the action based thereon are both quashed. It is further made clear that after the finalisation of surcharge proceedings, taken against the petitioner, the Markfed may initiate criminal action against the petitioners for criminal breach of trust alleged against the two petitioners as their employees.