Rajinder Singh vs State of Punjab and others

T.H.B. Chalapathi, J.

This revision petition is filed against the order of the Addl. Sessions Judge, Gurdaspur in Criminal Revision No. 6 of 1992, dated 10.12.1993.

A challan had been filed by the Police against the present petitioner and others in the year 1990 for the offence under sections 467/468/471 and 120B of the Indian Penal Code. According to the case of the prosecution, the 1st accused is the Inspector, Cooperative Agriculture Service Society, Dhupsari and the 2nd respondent is a salesman of the Cooperative Agriculture Service Society, Dhupsari and accused No. 3 is the Secretary of Cooperative Agriculture Service Society, Dhupsari while the 4th accused was the Sub Inspector of the said society and the 5th accused is the Bank Manager of Dhupsari Cooperative Agriculture Service Society and the 6th accused is the Loan Clerk of the said Society. According to the prosecution, all the accused connived and they issued fertilizer to 14 fictitious persons in the year 1984 and that the entries regarding the membership of these 14 persons were manipulated and, therefore, the accused committed offence under Sections 467/468/471 and 120B of the Indian Penal Code. The learned Judicial Magistrate 1st Class, Batala vide order dated 2.12.1991 discharged all the accused on the ground that arbitration proceedings were launched and award has been passed against the persons responsible and, therefore, the prosecution cannot be launched against the accused. Aggrieved by the said order of the Judicial Magistrate 1st Class, Batala, the State preferred an appeal to the Additional Sessions Judge, Gurdaspur who by his order dated 10.12.1993, allowed the appeal and directed the learned Magistrate to proceed with the case in accordance with law. Challenging the same, the petitioners filed the above revision petition.

According to the prosecution, the accused issued fertilizer to the persons who were not members of the Cooperative Agriculture Service Society, Dhupsari and their thumb impressions were forged on the application forms and no proceedings took place for sanctioning the loan to the said 14 persons and, therefore, all the accused connived to defraud the society. It is to be seen that at the hands of the petitioners proceedings were initiated. The matter was subjectmatter of a departmental enquiry. In the enquiry, it was found that the signatures of petitioner Rajinder Singh were also forged on the application forms and the photographs on the identity cards of the members. It is further found in the enquiry that when the petitioner who is the Inspector of the Society came to know about certain irregularities in the functioning of the society, he sought further advice and reported the matter to his higher authorities. Therefore, the petitioner cannot be proceeded against in a criminal prosecution when the departmental authorities themselves found that the petitioner is not guilty of any irregularity and when he himself brought irregularities of the society to the notice of the authorities.

Apart from that the dispute was referred to arbitration and the Arbitrator under Section 55 of the Punjab Cooperative Societies Act gave an award dated 11.5.1992. He directed the persons who had taken the fertilizer on loan to pay the amount due to the Society within prescribed period. Thus the Arbitrator under the provisions of the Punjab Cooperative Societies Act had decided the matter and passed an award against the members. In the above award, he has clearly found that Sewa Singh (Accused 5), Prithipal Singh (Accused 6), Nirmal Singh (Accused 3), are not at all responsible and accordingly acquitted them of the charges. He also acquitted the Cashier and some of the committee members of the society. Therefore, the learned counsel contended that after determination of the award, criminal prosecution cannot be continued. He relied upon a decision of this Court in Kashmira Singh v. State of Punjab, 1989(2) Crimes 199, wherein it was held as follows :

"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 subjectmatter 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 another. This judgment, as it 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, Hakam Singh v. State of Punjab and Bant Singh v. The Dulley Cooperative Agricultural Services Society Ltd. 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 subjectmatter, of the award against him before the arbitrator," is the misuse of the process of Court."

In view of the decision referred to above, I am of the opinion that criminal proceedings against the petitioner and other accused are liable to be quashed. I accordingly allow the revision petition, set aside the order of the learned Addl. Sessions Judge, Gurdaspur, and restore the order of the Judicial Magistrate 1st Class, Batala.