Devendra Prasad Meena vs State Of Rajasthan And Ors

The petitioner challenges the FIR registered against him under Section 420, 406, 408 IPC by the Regional Officer, RAJFED Bharatpur alleging that

the petitioner has committed various crimes under the IPC relating to cheating and causing loss and having misused the property which was entrusted

to him.

Learned counsel for the petitioner submits that the petitioner was a member of the society and the Rajasthan Co-operative Society Act, 2001

(hereinafter referred as ""the Act of 2001"") applies on him and as such provisions of Section 109 of the Act of 2001 relates to offence and punishment

therein, would have to be taken into consideration and a complaint at best could have been filed under the said provisions of the Act of 2001 and no

case under Section 420, 406 & 408 IPC relating to cheating and breach of trust can be said to be made out.

Learned counsel has taken this court to the provisions of Section 109 of the Act of 2001 and more particularly to Section 109 (1)(n)(p) to submit that

such offence as alleged in the FIR are similar to the said offence as mentioned in the clause (n) and (p) of Section 109.

In view of above, the petitioner would be liable for punishment as provided under Section 109(2) of the Act of 2001 and for the said purpose a

complaint should have been filed. The filing of complaint and registering of FIR under the provisions of IPC, therefore, was not warranted and the

present FIR deserves to be quashed.

Section 109(1)(n) and (p) of the Act of 2001, reads as under:-

Offences and punishment.- (1) It shall be an offence under this Act, if -

(n) a member of a co-operative society fraudulently disposes of property over which the society has a prior claim, or a member or officer or employee

or any person disposes of his property by sale, transfer, mortgage, gift or otherwise, with the fraudulent intention of evading the dues of the society; or

(p) If it is an offence under clause (p) of sub-section (1), with imprisonment for a term which may extend to three years, or with fine which may

extend to [ten thousand rupees], or with both;

Section 110 of the Act of 2001 reads as under:-

Cognizance of offences. - (1) No court inferior to that of a Magistrate or the first Class shall try any offence under this Act.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), it shall be lawful for a Magistrate of the First

Class to pass a sentence of fine on any person. convicted of an offence under clause (b) of sub-section (1) of section 109 as provided under sub-

section (2) thereof in excess of his powers under section 29 of that Code. (3) No prosecution under this Act shall be initiated, except with the previous

sanction of the Government in the case of an offence under clause (c) of sub- section (1) of Section 109 and of the Registrar, Co- operative Societies,

Rajasthan in the case of any other offence under this Act. Such sanction shall not be given, except after hearing the party concerned, by an officer

authorised in this behalf by the Government by a general or special order, or by the Registrar, Co- operative Societies, Rajasthan as the case may be.

I have considered the submissions as above and this court finds that the offences as laid down in the Act of 2001 are those which a person may

commit while being a member of the co- operative society and in relation to the society registered under the Act of 2001. However, the same cannot

be said to exclude and obviate the penal offences as enumerated in IPC. A person may commit penal offences and also commit offences as

enumerated under Section 109 of the Act of 2001. Both are independent of each other as the investigating agency in both the cases are different.

While in relation to offences under the Act of 2001, a departmental inquiry may be conducted and a complaint be filed to the concerned Magistrate in

terms of Section 110 of the Act of 2001 after due sanction from the Government as provided therein.

However, for the purpose of the provisions relating to cheating and breach of trust, which are independent offences as enumerated under the IPC

under Section 420 & 408 IPC, FIR can also be lodged and the Police would be entitled to conduct investigation thereof. The submission of the counsel

for the petitioner that once the offences have been enumerated in the Act of 2001, the investigation under Cr.P.C. for offences under IPC are barred,

is misconceived and cannot be accepted for the simple reason that so far as the offence of cheating and breach of trust are concerned, it may be in

relation to the work done under the Act of 2001 and also for other acts for which the concerned person may have been entrusted by the society.

Taking into consideration the contents of the FIR, this court is satisfied that the allegations against the petitioner are not only in relation to the acts

done by him under the Act of 2001 and also apart from them.

In view thereof, the petitioner seeking quashing of FIR on such count is found to be wholly misconceived and the criminal misc. petition is accordingly

dismissed.