State by Public Prosecutor vs Subramanian (A-1)

Padmini Jesudurai, J.—The above appeal by the State is directed against the judgment of the Judicial First Class Magistrate, Myladuthurai in

C.C.180 of 1981 convicting the respondent herein for an offence under S.406, I.P.C., instead of under S.409, I.P.C, holding that the respondent,

who is the President of the Co-operative Agricultural Credit Society, is not a Public Servant under the Indian Penal Code.

The respondent and another were tried by the above court for an offence under S.409, I.P.C, in that the respondent, being the President and his

co-accused since acquitted, being the Secretary to the Anathandavapuram Co-operative Agricultural Credit Society and being public servants and

being entrusted in that capacity with the sum of Rs. 8,826-40 criminally misappropriated the same.

During trial, on behalf of the prosecution, P.Ws.1 to 6 were examined and Exs.P1 to P20 were marked. The respondent and his co-accused

denied the occurrence. They had no evidence to offer.

The trial court, finding that the entrustment of the amount was only with the respondent, acquitted the second accused. The trial court also found

that the respondent could not be described as a public servant within the definition of S.21, I.P.C., and hence there could be no conviction for an

offence under S.409, I.P.C., and convicted the respondent for an offence under S.406, I.P.C., and sentenced him to pay a fine of Rs. 200., in

default to undergo rigorous imprisonment for a period of one month. The State, aggrieved with the finding that the respondent would not come

under S.409, I.P.C., has preferred the present appeal.

In the grounds of appeal, it is stated that the respondent is an agent within the meaning of S.409, I.P.C., and that, there-fort, the respondent

ought to have been convicted for an offence under S.409, I.P.C., Learned Public Prosecutor appearing for the appellant, reiterated the same point.

Per contra, Thiru Jayaseelan, Learned Counsel for the respondent, contended that the charge as framed by the trial Court, was to the effect that

the respondent was a public servant and in that capacity had been entrusted with the funds of the Society and since the trial Court had found that

the respondent was not a public servant it would not be open to the prosecution to shift the stand and contend that the respondent is an agent and

hence would come under S. 409, I.P.C., Learned Counsel submitted that to do so would cause substantial prejudice to the respondent, who had

not been given any opportunity to meet this new case put forth by the prosecution.

The question that arises for consideration is whether it would be open to the appellant to put forth this new stand and contend that the

respondent is an agent coming under S.409, I.P.C.

As rightly contended by the Learned Counsel for the respondent, the charge reads that the respondent, as President and the co-accused

(second accused) as Secretary, were entrusted with cash as a public servant and had misappropriated the same. The prosecution, therefore, ought

to have substantiated the ground that the respondent was a public servant within the meaning of S.21, I.P.C. That stand has now been given up by

the appellant. Instead, if it is stated that the respondent is an agent. The question as to whether there is a relationship of agent and principal

between the two persons is a question of fact. That has to be established by evidence and an inference drawn and a finding given on the basis of

the legal principles connected therewith. In the instant case, it is stated by P.W. 5, who was the Cooperative Sub-Registrar, Mayuram during the

relevant period, that the respondent was responsible for the cash and the property of the Society and that it was the duty of the, Secretary-second

accused to collect the amounts paid to the Society, after issuing receipts, and to deposit the same in the Bank. He has also stated that for cash on

hand, the respondent and the second accused ate jointly responsible. It is these questions that have been put to the respondent when questioned

under S.313, Crl.P.C The respondent has answered that he is not so responsible. Apart from this evidence, I am unable to see anything in the

evidence of any witnesses to indicate that the respondent was an agent of the Society. Whatever that be, as already stated, by me earlier, the

question whether one is an agent or not is a question of fact. The accused has to be put on notice and an opportunity must be given to him to rebut

the evidence or any inference to be drawn from any such evidence. The respondent had been merely made to face the case that he is a public

servant. It would not be open to the prosecution now in the stage of appeal to shift the stand and contend that the respondent is an agent within the

meaning of S.409, I.P.C. prejudice is bound to be caused to the respondent. In the absence of a charge describing the respondent as an agent and

in the absence of any evidence to indicate that the respondent is an agent of the Society. I am unable to accept the contention of the appellant that

the respondent ought to be brought within the definition of an agent under S.409, I.P.C. On the evidence available, the conviction of the

respondent for an offence under S.406, I.P.C., alone could be sustained.

In the result, the State appeal fails and is dismissed.