State of Haryana vs Brij Singh

A.S. Nehra, J.

This appeal is directed against the judgment dated 8.11.1986 passed by the Additional Chief Judicial Magistrate, Hissar, by which Brij Singh respondent has been acquitted of the charge under Section 409, Indian Penal Code.

Briefly stated, the facts of the case are as under :

The Assistant Registrar, Cooperative Societies, Hissar, sent a written complaint addressed to the Superintendent of Police, Hissar, alleging therein that one Mohinder Singh, Inspector of the Cooperative Societies, had inspected the accounts being maintained by one Dalip Singh and Brij Singh accused, and reported against both the persons that they had embezzled certain amounts. The allegation against Brij Singh accused was that he had collected an amount of Rs. 36,423/ from different loanees as payments towards loans but had not accounted for the same. In addition thereto, it was reported by Inspector Mohinder Singh that an amount of Rs. 12,193.33 paise, cash in hand, had also been embezzled by Brij Singh accused. It was further mentioned in the report by Inspector Mohinder Singh that Brij Singh accused had thus embezzled an amount of Rs. 48,616.33 paise which he had collected from different loanees. The details of the loanees from whom the amounts were received by Brij Singh accused on a particular date, are mentioned in the report. The names of the loanees are Harphul son of Jeewan, Sant Lal son of Tansukh, Hari Singh son of Sheo Narain, Ashok son of Jethu Ram, Mange Ram son of Tokha Ram, Birbal son of Sheoji, Gulzari son of Khamana, Pala Ram son of Mam Chand, Sheo Chand son of Jeewan, Ram Narain son of Pat Ram, Mani Ram son of Sholu, Nihala son of Sheo Nath, Ram Kumar son of Sheo Nath, Rugha son of Nand Singh Thakur and Om Parkash son of Parbhu Dayal. On the basis of the complaint received from the Assistant Registrar Cooperative Societies, a case was registered against the accused, vide FIR No. 509 dated 12.11.1976 in Police Station, Hissar, under section 409, Indian Penal Code. Three separate challans were presented against the accused. The present case is one of the three cases, based on that complaint.

In the case in hand, the allegations are that the accused collected Rs. 2500/ from Gulzari Lal, Rs. 100/ from Phulla, Rs. 1650/ from Sheo Chand, Rs. 3502/ from Nihala, Rs. 3895/ from Ram Kumar, Rs. 5250/ from Rugha and Rs. 2000/ from Om Parkash and issued receipts to them for these recoveries but did not deposit the said amounts in the accounts of these persons in the Cooperative Bank as per the directions. It is alleged that the accused diverted this money for his personal use and thus embezzled this money in the year 1976. After investigation, the police concluded that the accused was guity of the offence under section 409, Indian Penal Code and put up a challan against the accused. He was charged for an offence punishable under section 409, Indian Penal Code. The charge framed against the accused by the Judicial Magistrate Ist Class, Hissar, on 6.2.1980, reads as under :

"That you on or about in the year 1976 in the area of Sundawas were working as cashier of Agricultural Cooperative Society, Sundawas, a public servant and, in such capacity, you were entrusted Rs. 18,897/ by PWs, namely, Gulzari Rs. 2500/, Phulla Rs. 100/, Sheo Chand Rs. 1550/, Nihal Rs. 3500/, Ram Kumar Rs. 3895/, Raghu Rs. 5250/ and Om Parkash Rs. 2000/, and you committed criminal breach of trust in respect of Rs. 18,897/ and thereby committed an offence punishable under Section 409, Indian Penal Code."

The accused pleaded not guilty to the charge and the prosecution was asked to lead its evidence. In evidence, the prosecution examined PW1 ASI Dalip Singh, PW2 Mohinder Singh, Inspector Cooperative Societies, PW3 Shish Ram, Managing Director, Central Cooperative Bank, PW4 Balwant Singh Secretary, Cooperative Credit Service Society Limited, PW5 Constable Om Parkash, PW6 Gulzari, PW7 Phulla, PW8 Rugha, PW9 Om Parkash, PW10 Ram Kumar, PW11 Nihala, and PW12 Sheo Chand.

PW1 ASI Dalip Singh has stated that he was posted at Police Post, Bal Samand, in November 1976; that on 12.11.1976, the Station House Officer of Police Station Sadar, Hissar, handed over the investigation of this case to him; that he partly investigated this case; and that thereafter the investigation of the case was entrusted to the special staff of the Co operative Societies. PW2 Mohinder Singh, Inspector Cooperative Societies, stated that he was posted as Inspector Cooperative Societies, Hissar, in the year 1976; that that year during the days of recovery, he had inspected the Society at Sundawas; that Brij Singh accused was working as a Cashier of that Society at that time; that he checked the accounts of the Society; that the loanees were called for making payments; that the accused recovered Rs. 36,423/ from 16 members of the Society but did not deposit the amount in the Bank; that, in addition to it, Brij Singh accused admitted that a cash balance of Rs. 12,193.33 p was due from him according to the cash book; that the accused made an entry in respect thereof in the cash book at page 48 at point ''A'' in his presence and at point ''B'' Brij Singh accused put his signatures in his presence and he attested the same as Inspector on 1.6.1976 and it bears his signatures. In crossexamination, PW2 dated that on 1.6.1976 he went to the village; that, at the time of making recovery, he came to know that the accused has made an embezzlement; and that, after recovering the loans from the members, he had issued receipts in the pass book, issued other receipts and thus had embezzled the recovered amount. PW2 further stated that he cannot say verbally on which day he recorded the statement of the witnesses; that he had seen the original office file; and that, according to that file, he submitted his report to the assistant registrar, Cooperative Societies, on 13.8.1976; PW2 also stated that he did not bring the accused along with him on that day since the accused had given him in writing that he would deposit the said amount in the Bank. PW3 Shish Ram, Managing Director, Central Cooperative Bank, Gurgaon, has stated that he was posted as Assistant Registrar, Cooperative Societies, Hissar in 1976; that on 4.10.1976, on the report of Mohinder Singh, Inspector, Cooperative Societies, Hissar, he wrote letter Exhibit PW3/A to the Senior Superintendent of Police, Hissar, for getting a case of embezzlement registered against Dalip Singh and Brij Singh accused; that, according to that letter, Brij Singh accused made an embezzlement of Rs.48,616.23 paise that he recovered Rs. 36,423/ from sixteen members but did not deposit the amount in the Bank and Rs. 12,193.33 paise were due from the accused earlier also as cash balance of the Cooperative Bank. During crossexamination, PW3 stated that the did not make any enquiry personally and he got this case registered only on the complaint of Inspector Mohinder Singh. PW4 Balwant Singh, Secretary, Cooperative Credit Service Society Limited, Rawalwas, stated that on 17.1.1977 he was posted as Secretary, Cooperative Society, Sundawas and that he had produced the following record before the police :

Proceedings Register Exhibit PW4/1, which is written from pages Nos. 11 to 193.

Pronote Register Exhibit PW4/2, which is written from pages Nos. 1 to 191.

Pronote Register Exhibit PW4/3 which is written from pages Nos. 1 to 88.

Pronote Register Exhibit PW4/4 which is written from pages Nos. 1 to 85.

Pronote Register Exhibit PW4/5 which is written from pages Nos.1 to 100.

Cash Book Exhibit PW4/6 which is written from pages Nos. 1 to 58.

Verification Register Exhibit PW4/7 which is written from pages Nos. 1 to 39.

He further stated that :

Exhibit PW4/1 to Exhibit PW4/7 in case No. 1, were taken into police possession, vide memo Exhibit PW4/8 and that Om Parkash Constable and he had attested the same."

PW5 Constable Om Parkash stated that on 11.1.1977, he was posted at Hissar; that, on that day, he along with Inspector Ganga Ram had gone to the office of Assistant Registrar; that Inspector took affidavit Exhibits P2 to P43 of 42 persons and the statement (Exhibit P1) of Brij Singh accused into police possession, vide memo Exhibit PW2/A; that the memo and the affidavits are attached in Challan No.1; that he had put his signatures in token of attestation on that memo; that on 17.1.1977, the Inspector took Proceeding Register Exhibit PW4/1, Pronote Register Exhibit PW4/2, Pronote Register Exhibits PW4/3, PW4/4 and PW4/5, Cash Book Exhibit PW4/6 and Verification Register of Accounts Exhibit PW4/7 into possession from Balwant Singh, Secretary, Cooperative Society, Sundawas, vide memo copy of which is Exhibit PW5/A1, and that he attested the original. In crossexamination, he stated that affidavits, 42 in number, were taken into possession from Surender Kumar Gupta in the office of the Assistant Registrar PW6 Gulzari son of Khamana stated that he was a member of the Society; that he took a loan from the Society; that he paid the loan to Brij Singh accused; that he took back his pass book Exhibit PW6/A after getting the signatures of the accused on mark Q22; and that his wife Bhaga had also a pass book which they gave to the police. During crossexamination, PW6 stated that he did not remember after how many days of taking the loan, he had made the payment thereof; that he had paid Rs.1500/ to the accused in the office; that Dalip Singh and Brij Singh accused put his signatures in his passbook. PW6 denied the suggestion that he did not give any money to the accused for depositing. He also denied the suggestion that, by fraud, the police got the signatures from the accused in his pass book. PW7 Phulla stated that he is the member of the society; that he took a loan of Rs.750/ from the Society; that, out of that amount, he paid Rs.100/ to Brij Singh accused; and that Brij Singh accused had issued to him receipt Exhibit PW7/A in lieu thereof and put his signatures on that receipt. During crossexamination, PW7 stated that he paid Rs.100/ after one year of taking the loan; that time, Umed Singh, an officer of the Bank was sitting there; that his brother was also with him, that officer made an entry in the pass book; that he gave the receipt after 15 days; that he had brought the receipt from that place where the quarters of the school were being constructed; that Umed Singh had taken the amount from the hands of Brij Singh accused and that Umed Singh had made the entry. PW7 has further stated that it is incorrect to suggest that he did not pay any money to the accused or that the police got the signatures of Brij Singh accused forcibly. PW8 Rugha son of Nand Singh Thakur has stated that he had not taken any loan from the Society and that the pass book Exhibit PW8/1 did not belong to him. Three or four questions were put to PW8 and thereafter the Assistant Public Prosecutor stated that he was not the same person who had been called as a witness in this case and that he (Assistant Public Prosecutor) did not want to examine Rugha son of Nand Singh Thakur. Consequently, this witness was discharged. PW9 Om Parkash stated that his father was the member of the society; that his father Parbhu Dayal had taken loan from the society; that he knew Brij Singh accused; that Brij Singh accused was a Cashier in the Society; that he repaid the loan of his father to the accused; that he paid Rs. 1800/ for the first time and Rs. 2000/ for the second time; that the accused gave receipt for Rs. 2000/ after putting his signatures thereon in his presence; that the accused made an entry in the pass book after getting Rs. 1800/ from him and put his signatures against that entry in his presence; that the police took into possession the pass book and the receipt, vide memo that he had seen the pass book Exhibit PW13/A in Challan No. 1; that this is the same pass book in which the accused had made the entry and put his signatures in his presence; that he had seen the memo Exhibit PW13/C in Challan No. 1, which bears his signatures as a witness and that, vide this memo, the pass book and the receipt were taken into possession. During crossexamination PW9 Om Parkash stated that he gave money to the accused personally both the time; that the accused issued to him a receipt once and entered the amount in the passbook at the other time; that the accused issued to him a receipt for Rs. 2000/; that, when the Department asked him to deposit the amount again, only then he came to know that the accused had not deposited the said amount; that the police met him in the Panchayat Ghar and took a copy Exhibit PW13/A from him; that when he paid that money to the accused, an officer was present there but added that he did not know as to who he was. PW9 further stated that it is incorrect to suggest that he did not pay any money to the accused and that it is also incorrect to suggested that the police had obtained the signatures of the accused in the copy (pass book) forcibly. PW10 Ram Kumar stated that he was a member of the Society; that he took a loan of Rs. 2000/ from the Society; that he repaid the said amount to Brij Singh accused; and that later on, he came to know that the said amount had not been deposited. During crossexamination, PW 10 stated that he had paid the money 89 years back. He further stated that it is incorrect to suggest that he did not give any money to the accused. PW11 Nihala stated that he was a member of the Agricultural Society, Sundawas; that Brij Singh accused was the Cashier of the society; that he took the loan of Rs. 3500/; that he returned Rs. 3521/ to Brij Singh accused who issued him a receipt of account thereof and made an entry in the pass book Exhibit PW11/1; that the police came to the village and made an enquiry; and that the police also took his pass book and that of Ram Kumar into possession, vide memo Exhibit PA. During the crossexamination, PW11 stated that he had deposited the amount in the Bank of the society and a receipt was issued to him after depositing the money; and that after 1/12 months of the depositing of the money, he came to know that the police had visited the village and they had called him. PW11 further stated that it is incorrect to suggest that he did not pay the money to the accused and that it is also incorrect to suggest that the entries were got made in the pass book and the receipt was got prepared by the accused at the police station. PW12 Sheo Chand stated that he is not a member of the Society; that he had taken loan from the Society; that he paid Rs. 1650/ to Brij Singh accused who was the Cashier; that the accused made an entry of money in the copy and his pass book is Exhibit PW12/A, that he handed over the copy to the Assistant Registrar when he visited the village; and that he was also examined on oath by the Assistant Registrar. During the crossexamination, PW12 stated that he had given the money at his own house in the village; and that when he paid the money, an entry in respect thereof was made in the copy at that time. He further stated that it is incorrect to suggest that he had not paid the money to the accused or that the signatures of the accused were obtained on the receipt and the copies at the police station.

The prosecution tendered in evidence that report (Exhibits PX/1 to PX/6) of Shri K.N. Parshad, Junior Scientific Officer, Central Forensic Science Laboratory, Chandigarh. The evidence of the prosecution was closed by the order of the Court on 26.11.1985. After the close of the prosecution evidence, the statement of the accused under section 313 of the Code of Criminal Procedure was recorded. The accused denied everything appearing against him and pleaded that, due to enmity, this case had been planted on him. However, no defence evidence was led by him.

On 12.3.1986 this case was fixed before the Additional Chief Judicial Magistrate for orders. The Additional Chief Judicial Magistrate found that certain documents, which were receipts and passbooks of different persons, were missing from the file. The Ahlmad of the Court was called upon to trace out the documents. On 14.3.1986, the Ahlmad could not trace out the documents and he prayed for time to comply with the orders. On 20.3.1986, five documents were traced out and some more remained to be traced out. The Ahlmad was again directed to trace them out till 29.3.1986. Since the missing documents were not traceable, therefore, the matter was reported to this Court as per Rules. The Assistant Public Prosecutor and the counsel for the accused were directed on 29.3.1986 to help the Court for reconstruction of the documents and the case was adjourned to 23.4.1986. On 19.5.1986 the Ahlmad reported that the documents had been traced out and placed on the file. On 28.1.1986, when the respondent was examined under section 313 of the Code of Criminal Procedure, report Exhibit PX/1 to 6 of Shri K.N. Parshad, Junior Scientific Officer, Central Forensic Science Laboratory, Chandigarh, was specifically put to the respondent, which reads as under :

"It is further in evidence that on 3.10.1977 your specimen signatures were taken in the presence of Shri N.K. Sharma, tehsildar, Hissar, which were marked as Exhibit PA/1 to 6. The disputed documents were sent to the Director, Finger Sample Laboratory, Chandigarh, for comparison. It is found in the report Exhibit PX/1 to 6 that it bears your signatures. What have you to say?

The respondent stated that this is a false case and he has been involved due to party faction.

Mr.J.C. Sethi, Additional Advocate General, Haryana, learned counsel for the appellantState, has contended that the trial Court has erred in disbelieving PW6 Gulzari, PW7 Phulla, PW9 Om Parkash, PW11 Nihala and PW 12 Sheo Chand, who categorically stated that they paid different amounts to the accusedrespondent as part payments of their loan amounts and that there are entries made by the respondent in his own hand in pass books, Exhibits PW6/A, PW7/A, PW9/A, PW11/A and PW12/A. He has further contended that the oral evidence of the abovementioned witnesses as well the documentary evidence proves that the respondent collected the amounts from the abovesaid persons for depositing the same in the Bank but he failed to deposit the said amounts in the accounts of these persons in the Cooperative Bank. He further submitted that this evidence is sufficient to show that the respondent had converted the amounts, collected by him from the PWs, for his personal use and thus embezzled the said amounts in the year 1977; and that the evidence led by the prosecution is sufficient to prove that the respondent committed an offence under section 408 of the Indian Penal Code. It has been further contended by the State counsel that the trial Court has erred in disbelieving the witnesses and discarding their evidence regarding payments of money to the respondent on the bare suggestion given by the respondent to the witnesses that his signatures on the receipts and pass books were taken by force at the police station; that this suggestion made by the respondent to the witnesses does not find support from any oral or documentary evidence on the file; that in his statement under section 313 of the Code of Criminal Procedure, the respondent had not stated that his signatures on the pass books and the receipts were obtained by force by the police; that, in case the signatures of the respondent on the pass books and the receipts were obtained by force or pressure by the police at the police station, then he would have complained to the higher authorities and that, in the absence of any such complaint, the mere suggestion of the respondent made to the witnesses does not carry any weight as the suggestion has been denied by the prosecution witnesses. It has been further contended by the learned counsel for the appellantState that the Trial Court has erred in ignoring the fact that the respondent himself admitted his signatures on the pass books and the receipts as the suggestion was given on his behalf that the signatures were obtained at the police station. The learned counsel for the appellantState further contended that the witnesses examined by the prosecution are reliable; that they had no motive to depose falsely against the respondent and that the respondent has not shown any animus on the part of the witnesses to depose falsely against him. The learned counsel for the appellantState has further contended that the Trial Court has erred in relying upon the presumption that the signatures of the respondent were obtained forcibly at the police station from the circumstances that the Investigating Officer of the case has not been examined. The Investigation Officer in the present case was a witness of formal nature as he only registered the case, took some record from the office and recorded the statements of the PWs. No recovery was effected from the respondent. As such, the evidence of the Investigating Officer was not of much importance in this case and the nonexamination of the Investigating Officer did not cause any prejudice against the respondent. It has been further contended by the learned counsel for the appellantState that the trial Court has erred in discarding the whole prosecution version regarding the entrustment of the money on the bare suggestion of the respondent.

The specimen signatures of the respondent were taken on 3.10.1977 in the presence of Shri N.K. Sharma, Tehsildar, Hissar, which are marked as Exhibits PA/1 to PA/6. Specimen signatures S7 to S12, signatures on receipts Exhibits Q45 to Q51, and the signatures Exhibits Q36 to Q44 on the passbooks were sent to the Director, Central Forensic Science Laboratory, Chandigarh, for comparison and, according to the report of Shri N.K. Parshad, Junior Scientific Officer, Central Forensic Science Laboratory, Chandigarh, it was found, vide Exhibits PX/1 to PX/6 that the passbooks and the receipts bear the signatures of the respondent. The report of Shri N.K. Parshad, Junior Scientific Officer, Central Forensic Science Laboratory, Chandigarh, is admissible in evidence under section 293 of the Code of Criminal Procedure and the same can be used as evidence in enquiry, trial or other proceedings under this Code.

Mr. D.S. Bali, Senior Advocate, learned counsel for the accused respondent, has contended that the Investigating Officer, against whom the allegations have been levelled by the accused, has not been examined by the prosecution; that the signatures of the accused were obtained on the pass books and the receipts, in the police station; and that, therefore, the prosecution has failed to prove its case against the accused. Mr. Bali further contended that nonexamination of the Investigating Officer in ordinary cases may not be material but, in the present case where there are direct allegations of serious nature, levelled by the accused against the Investigating Officer himself, the failure of the prosecution to produce the Investigating Officer for explaining his position visavis the allegations, is fatal and it has caused a dent in the truthfulness of the prosecution case. In support of his argument, Mr. D.S. Bali, Senior Advocate, learned counsel for the respondent, has relied on J.K. Devaiya v. State of Coorg., 1956 Crl. L.J. 904 wherein it was held as under :

"An accused is entitled to know from an Investigating Officer what witnesses have been examined in the course of investigation, whether the witnesses examined in Court were examined by him or not, what story the witnesses told before him and whether the same is consistent with the evidence given before Court. The nonexamination of the Investigating Officer is also a serious omission on the part of the prosecution."

The learned counsel for the respondent, Mr. D.S. Bali, Senior Advocate, has further contended that the prosecution has failed to prove its case. In support of his argument, he has relied upon para 16 of the judgment of the trial Court, which reads as under :

"As discussed above, only the statements of PW6 Gulzari, PW9 Om Parkash, PW11 Nihala and PW12 Sheo Chand are against the accused. From the statements of other witnesses, no incriminating inference can be drawn against the accused. So far as the statements of these four witnesses are concerned, as stated above, they were all given suggestions by the crossexaminer that the signatures of the accused had been taken on the passbook entries of these witnesses forcibly and under threat by the police in the police station. Of course, the suggestion was denied. But this fact appears to be correct. The reason is that the Investigating Officer against whom this allegation has been levelled by the accused did not turn up into the witnessbox to say that this allegation is incorrect and that the signatures of the accused were not taken by the police forcibly in the police station. Nonexamination of the Investigating Officer, in the ordinary cases, may not be material but in the case of the present nature, were there is direct allegation of the accused against the Investigating Officer himself of a serious nature, the failure of the prosecution to produce the Investigating Officer for explaining his position visavis the allegations is fatal. It causes dent in the truthfulness in the prosecution case which becomes highly doubtful for want of this explanation to be rendered by the Investigation Officer."

After hearing the learned counsel for the parties, we find no force in the argument advanced on behalf of the accused. The trial Court, while discussing the evidence of the PWs in para 16 has totally ignored the evidence of PW7 Phoola and PW10 Ram Kumar. PW7 Phoola has stated that he was a member of the Society; that he had taken a loan of Rs. 750/ from the Society; that, out of that amount, he had paid Rs.100/ to Brij Singh accused; and that Brij Singh accused had issued him a receipt Exhibit PW7/A in lieu thereof and had put his signatures. During the crossexamination, PW7 Phoola has denied the suggestion that he had not paid any amount to the accused and the police got the signatures of Brij Singh forcibly. PW7 further denied the suggestion that he was deposing falsely in this case. PW10 Ram Kumar has stated that he was a member of the Sundawas Society; that he had taken Rs.2000/ as loan from the Society; that he had paid this amount to Brij Singh; that, later on, he came to know that the said amount had not been deposited by Brij Singh accused; and that the members of his family had given the passbook to the police. During the crossexamination, PW10 denied the suggestion that he had not given any amount to the accused. PW6 Gulzari, PW9 Om Parkash, PW11 Nihala and PW12 Sheo Chand have stated on oath that the accused, after recovering the loan from them, had issued receipts in the passbooks. All the witnesses have also denied the suggestion put to them that the police forcibly got the signatures from the accused in their passbooks in the police station. It is indisputable as a general proposition that in a case where there are vital contradictions and omissions, the accused shall be seriously prejudiced in his defence, if the Investigating Officer is not examined, but there is no contradiction or omission sought to be proved through the Investigating Officer in this case. The prosecution or omission sought to be proved through the Investigating Officer in this case. The prosecution case relating to the offence committed by the accused is clinching and established by cogent and trustworthy evidence and the Court is convinced that the accused is not prejudiced in his defence in any manner, in such a case, even if the Investigating Officer is not examined. The evidence of PW6 Gulzari, PW7 Phoola, PW9 Om Parkash, PW10 Ram Kumar, PW11 Nihala and PW12 Sheo Chand is trustworthy. Therefore, non examination of the Investigating Officer is not fatal to the prosecution case and it has not caused any dent in the truthfulness of the prosecution case J.K. Devaiya''s case (supra) is distinguishable and not applicable to the facts of the present case. All the abovementioned witnesses have stated on oath that they had paid moneys to the accused who was a Cashier in the Society; that the accused gave receipts after putting his signatures in their presence; and that the accused also made entries to this effect in their passbooks. The prosecution evidence has been reproduced in detail in the earlier part of the judgment. Therefore, the finding of the trial Court recorded in para 16 of its judgment is wrong and the same is liable to be set aside.

In view of the above discussion, we hold that the prosecution has proved its case against the accused beyond doubt.

Now, the question to be considered is as to what offence is made out against the accused. The Cashier of the Society is not a "public servant" within the meaning of clause twelfth (b) of section 21 and to him the provisions of section 409, Indian Penal Code, are not attracted, because the Cooperative Society is not a "Corporation" established by a State Act, in whose service or pay he supposedly is, or is assumed to be. The members who compose the Corporation are quite different from the Corporation itself; for, a Corporation is a legal person just as much as an individual. Thus, it is a group of individuals who first associate on their own volition to become a Cooperative Society and then seek a status as a body corporate under the Co operative Societies Act. This would be evident from the language of section 30 of the Punjab Cooperative Societies Act. So, the body of individuals, which from a Cooperative Society, do not owe their existence to a Corporation established by or under a State Act but only owe their corporate status of their seeking to the Act. Section 7 of the Indian Penal Code which falls in the Chapter titled "General Explanations" is restrictive in language. The explanation of the expression "public servant" can thus by no means be extensive. It has to confine to that language and nothing extensively can be added to it. This has been held by a Full Bench of this Court in State of Punjab v. Kesari Chand and another, 1987(1) Recent Criminal Reports 297 : 1987 Crl. L.J. 549 .

In view of the ample prosecution evidence that the accused person was the Cashier of the Cooperative Society and was thus serving the Society in that capacity and he had been entrusted with the moneys and the affairs of the Society and had otherwise dominion over the moneys and properties of the Society. Therefore, section 408, Indian Penal Code, would be attracted to the facts of the present case and not section 409, Indian Penal Code.

Resultantly, this appeal is allowed, the judgment dated 8.11.1986 passed by the Additional Chief Judicial Magistrate, Hissar, is set aside and the accusedrespondent is convicted under section 408, Indian Penal Code, and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 12517/ and, in default of payment of fine, to undergo further rigorous imprisonment for two years. In case the fine is realized, then the same be paid to the following persons as under :

Gulzari (PW6) Rs. 1500/

Phoola (PW7) 100/

Om Parkash (PW9) 3800/

Ram Kumar (PW10) 2000/

Nihala (PW11) 3521/

Sheo Chand (PW12) 1650/