Sewa Singh vs State of Haryana

B.S. Yadav, J.

Sewa Singh petitioner was convicted under section 409 and 468 of the Indian Penal Code by the Sub Divisional Judicial Magistrate, Narwana. Under the former section he was sentenced to undergo 11/2 years rigorous imprisonment and to pay a fine of Rs. 500/ and under the latter, to 1 year''s rigorous imprisonment and to pay a fine of Rs. 500/. Imprisonment in default of payment of fine under each count was also awarded. Substantive sentences of imprisonment were ordered to run concurrently. Feeling aggrieved against his convictions and sentences Sewa Singh petitioner filed an appeal which was heard by learned Additional Sessions Judge, Jind. He did not find any merit in the appeal and dismissed the same but he reduced the sentence of imprisonment under each count to 6 months. The sentences of fine were maintained. Still not feeling satisfied the petitioner has filed this revision.

The prosecution case in brief is that Sewa Singh petitioner was Secretary of the Kalwan Cooperative Agricultural Service Society Ltd (for short the Society) during the year 1972. On coming to know that there was some misappropriation of funds of the society, the Assistant Registrar, Cooperative Societies, Jind, got the accounts of the said Society audited. It was revealed that the petitioner had embezzled Rs. 17,858.63. This amount had been realised by the petitioner from the various loanees of the Society and was not accounted for. The petitioner had also made false entries in the cash book. Notices were issued to the petitioner to deposit the above amount. However, when he did not deposit the amount, the Assistant Registrar, Cooperative Societies, wrote letter Exhibit PC to the Superintendent of police, Jind'' for registration of a case against the petitioner and on its basis formal. First Information Report Exhibit P.W. 21/B was recorded in police station, Narwana. After necessary investigation the accused was chargesheeted. To connect the accused, with the offences, the prosecution examined as many as 23 witnesses.

At the close of the prosecution evidence, the petitioner was examined under section 313 of the Code of Criminal Procedure. He denied all the prosecution allegations and pleaded false implication. In his defence he examined D.W. 1 Ram Sarup. He stated about some audit report dated 30th June, 1979, according to which report Jai Narain, Cashier, was accused of embezzling Rs. 16,666,92. It would not be out of the place to mention here that a separate case was got registered against said Jai Narain about the alleged embezzlement.

Out of loanees of the Society from whom the petitioner said to have realised the amount, only P.W. 17 Ram Dia, P.W. 18 Surja and P.W. 19 Lakshmi supported the prosecution version. Some of the other loanees were also examined but they turned hostile to the prosecution and stated that they had not paid any amount to the petitioner. Ram Dia (P.W.17) stated that he had made payment of Rs. 280/ to the petitioner but the latter issued receipt Exhibit P.1 for Rs. 242.00 only. P.W. 18 Surja stated that he had paid Rs. 553/ to the petitioner, who issued receipt Exhibit P.11/A for the same. P.W. 19 Lakshmi stated that he had paid Rs. 458/ to the petitioner. All these witnesses have stated that the petitioner was Secretary of the Society. Thus trial Court held that the prosecution was able to prove that the petitioner had embezzled only the amount which he had realised from the above three 3 witnesses. For that offence he was convicted under section 409 of the Indian Penal Code. For making false entries in the account book, the petitioner was convicted under section 468 of the Indian Penal Code.

The learned counsel for the petitioner argued that for the amount said to have been embezzled by the petitioner, he could not have been convicted under section 409 of the Indian Penal Code, as he was not a public servant. I am of the opinion that the said argument has force. Only clauses 10 or 12 of section 21 of the Indian Penal Code are relevant to the present case. In Shanti Ranjan Bhattacharya v. The State, A.I.R. 1970 Calcutta 557, it was held that the Secretary of a Cooperative Society can not be said to be a public servant under either of those Clauses. For holding that the Secretary of the Cooperative Society does not fall under clauses (10) of section 21 of the Indian Penal Code, reliance was placed upon Shridhar Madhadoe Pathak v. Emperior, A.I.R. 1935 Bombay 36. In that case a Chairman of a Cooperative Society had been convicted by the trial Court and the Sessions Judge dismissed his appeal. The accused approached the High Court. In the Bombay Cooperative Societies Act, 1925 the word `officer'' was defined as follows :

"a chairman, secretary, treasurer, member of committee or other person empowered under the rules of under the byelaws of a society to give direction in regard to the business of such society."

In the Punjab Cooperative Societies Act, 1961, "offer" has been defined in section 2(H) as follows :

"(h) `officer'' means the president, vicepresident, chairman, vicechairman, managing director, secretary, manager, member of committee, treasurer, liquidator, administrator and includes any other person empowered under the rules or the byelaws to give directions in regard to the business of a cooperative society."

Thus there is not much difference between the definitions of the word `officer'' as given in the Bombay Act and in the Punjab Act. In Shridhar Mahadoe Pathak''s case (supra) it was remarked :

"The definition in S. 21 C1. (10). I.P.C. relied on is :

`Every officer whose duty it is'' as such officer to take, receive keep or expend any property, to make any survey or assessment, or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for as curtaining of the rights of the people of any village, town or district.''

Both the Magistrate and the Sessions Judge have, as it seems to us, read this definition stopping in the middle of it and so including a chairman of a Society in the category of `Government servant''. But it includes the words "whose duty it is, as such officer, to take, receive keep, or expend" and the sentence goes on to qualify the clause.

"for any secular common purpose of any village, town on district". And it seems to us that this clause governs the section and that it must be for a public purpose that the money was received or expended. This being so, the accused would not appear to have been a public servant''."

The above observations will also apply if the accused is a Secretary, like the petitioner, of a Cooperative Society. Thus the conviction of the petitioner for the amount said to have been embezzled by him will have to be altered to one under section 406 of the Indian Penal Code.

The learned counsel for the petitioner also tried to argue that the statements of PW.17 Ram Dia, PW 18 Surja and PW 19 Lakhmi should not be relied upon. Now it is well settled that normally the jurisdiction of the High Court under Section 439 of the Code of Criminal Procedure is to be exercised only in exceptional cases where there is a glaring defect in the Procedure or there is manifest error on a point of law which has resulted in flagrant miscarriage of justice and the High Court is not expected to act as if it is hearing an appeal. In this respect reference can be made to State of Orissa v. Nakula Sahu and others, AIR 1979 Supreme Court 663. It cannot be said that in the present case the concurrent finding of the learned courts below is not based on any evidence. No defect in the procedure has been pointed out by the learned counsel for the petitioner. Hence the finding of fact arrived at by the learned Courts below cannot be interfered with.

I am of the opinion that the conviction of the petitioner under section 468 of the Indian Penal Code also cannot be upheld. The charge that was framed against the accused in respect of that offence reads as follows :

"You in the said year and place forged the Temasak of P.W. Lakmi, Hawa Singh, Surja, Ram Dia, Dewa, Inder, Rajiya, Chandi, and Bhalla with the intention to cheat the said Cooperative Society and thereby committed an offence punishable under section 468 I.P.C."

The petitioner was not charged for making false entries in the cash book. Therefore, if any wrong entries had been made in the cash book by the petitioner, he cannot be convicted for the same.

The learned counsel for the petitioner next argued that arbitration proceedings against the petitioner were commenced in respect of the amount of Rs. 21936.34 and for that amount an award was passed against him by the Assistant Registrar, Cooperative Societies and that amount included Rs. 17,858.63 which amount was the Subject matter of the charge in the presence criminal case and the arbitrator had made an award against the petitioner but in appeal that award was set aside by the Deputy Secretary to Government, Haryana, Cooperation Department exercising the powers of the Government under Punjab Cooperative Societies Act, 1961. The petitioner has produced copy of the appellate order and the same is Exhibit D.1. The Deputy Secretary in appeal held that the case had not been proved against the present petitioner. He accordingly set aside the award. The learned counsel for the petitioner argued that the order amounts to a finding by a Civil Court and that finding is binding on a criminal Court. I am doubtful if the order Exhibit D. 1 can be taken to be a finding of Civil Court. Moreover, that order is dated 29th March, 1978 and long prior to that date the present prosecution, had been launched against the petitioner for embezzlement. Therefore, that order will have to be ignored.

Lastly the learned counsel for the petitioner argued that the petitioner is a graduate and is a first offender and is suffering investigation and prosecution since 1974. He, therefore, prayed that the petitioner be released on probation. Considering the amount for which the petitioner has been held guilty for committing breach of trust and also taking into consideration that a short sentence of six months imprisonment has been awarded to him and he is on bail and no useful purpose will be served by sending him back to jail, I think that it is a fit case in which probation should be granted to him.

For the foregoing reasons I set aside the conviction and sentence of the petitioner under section 468. His conviction under section 409 is altered to one under section 406, Indian Penal Code. His sentence for that offence are set aside and it is ordered that he be released on probation of good conduct for one year on his entering into a bond in the sum of Rs. 5000/ with one surety in the like amount to appear and receive sentence when called upon during that period and in the meantime to keep peace and be of good behaviour. The period of one year will commenced from the date the bonds are filed. The bonds be filed within 3 months from today to the satisfaction of the Chief Judicial Magistrate, Jind. In case the bonds are not filed within that period, the revision shall stand dismissed and in that case the petitioner will have to undergo the unexpired period of sentence of 6 month''s rigorous imprisonment and will also pay the fine of Rs. 500/. In default of payment of fine he would undergo further rigorous imprisonment for 3 months.