Sukhdev Singh Ex.-Field Assistant Markfed vs State of Punjab

B.S. Nehra, J.

Petitioner Sukhdev Singh, ExField Assistant Markfed, Branch Guru Har Sahai, District Ferozepur, has filed this petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, for quashing FIR No. 19 of 1985, registered with Police Station, Gurhar Sahai, District Ferozepur under Section 409 of the Indian Penal Code, being wholly illegal.

The petitioner was appointed as Food Sub Inspector in the year 1970 and was posted in District Hoshiarpur. In the year 1980, he was transferred and posted as Field Assistant in the Branch Office Gurhar Sahai and remained there upto February, 1983. A case was registered under Section 409 IPC in January, 1985 at the instance of the District Manager, Markfed, Ferozepur against the petitioner alongwith four others for the alleged shortages committed in the year 1982. In nutshell, it is alleged in the First Information Report Annexure P1 that the petitioner along with four other officials named in the FIR had embezzed the stock worth Rs. 5,33,121.17 and a request was made to the police authorities to get a case registered against the five officials including the petitioner.

The petitioner has now sought quashing of the First Information Report and the proceedings flowing therefrom as being illegal on the grounds (i) that he has been subjected to protracted prosecution and, therefore, proceedings against him are liable to be quashed, and (ii) that the proceedings under Section 54 of the Cooperative Societies Act, have been initiated against him and since, according to the petitioner, these proceedings are in the nature of civil proceedings, as such, lodging of FIR on the same facts is mala fide and, therefore, liable to be quashed.

In the reply filed by the respondent, it has been denied that the petitioner has been subjected to prolonged prosecution and it has further been pleaded that the prosecution against the petitioner was launched in the year 1985 while the arbitration proceedings against him were initiated by the Markfed in the year 1988 i.e. after launching of the prosecution and, therefore, there is no ground to quash the First Information Report and the resultant proceedings against him. The offence under Section 409 IPC is stated to have been committed by the petitioner in the year 1982 and the FIR was registered against him and four others in the year 1985, while the challan was presented in the trial Court in the year 1988.

It is apparent from the record that the offence was committed by the petitioner and four others in this case in the year 1982 and FIR Annexure P1 was registered in 1985 while the challan was filed in the Court in the year 1988. It may also be observed that proceedings before the trial Court were stayed by this Court in the year 1990. The contention of learned Counsel for the petitioner is that having regard to the fact that the offence was allegedly committed in the year 1982 and no evidence has been produced by the prosecution against the petitioner since the filing of challan in the trial Court in the yeear 1988 upto the date of passing of the the order by this Court staying further proceedings before the trial Court in the year 1990, the petitioner should have been deemed to have been subjected to protracted prosecution and, therefore, the impugned FIR and the resultant proceedings in this case are liable to be quashed. In support of his contention, he relied on a Full Bench decision in Surya Narain Singh and others v. State of Bihar, 1988(1) Recent Criminal Reports 79 . In this case, the Patna High Court while considering the provisions of Article 21 of the Constitution of India and Section 4 and 156 of the Code of Criminal Procedure ruled that the right of speedy trial is available to the accused under Article 21 of the Constitution of India and further held that a period of five years would be reasonable for investigation and trial. The Court further held that delay of 14 years in concluding the trial violated the constitutional right of speedy trial.

The learned Counsel further relied on Shriniwas Gopal v. Union Territory of Arunachal Pradesh, 1988(2) Recent Criminal Reports 401 . In this case, the Supreme Court noticed a delay of 9 years 6 months in Criminal prosecution of a case under Sections 279/304 and 338 IPC and held this to be too long a time for such an offence and hence the prosecution was directed not to proceed further. In M/s. Munshi Ram Niwas v. Collector, Food and Supplies Department and others, 1992(1) Recent Criminal Reports 73 the Supreme Court was dealing with an offence under the Essential Commodities Act, and ordered dropping of the proceedings in the case as the Criminal proceedings were prolonged for 10 years without any progress being made except filing of the challan.

Learned Counsel appearing on behalf of the State on the other hand, relied on a judgment of the Supreme Court in Mangilal Vyas v. State of Rajasthan, 1990(1) Recent Criminal Reports 381 . In this case, the accused was found to have embezzled found of Cooperative Societies. The prosecution case was prolonged for 25 years. The Apex Court observed that delay in trial is regrettable feature but held that having regard to the nature of the allegations and availability of evidence in support of the prosecution, it is not expedient to terminate the proceedings on account of lapse of time alone and directed the trial Court to dispose of the proceedings within one year. While handing down this judgment, their Lordships of the Supreme Court took into account the conclusion reached by the High Court which was to the following effect :

"It is highly desirable and expedient in the interest of cooperative movement and the larger public interest that an offender against whom charges of embezzlement of amounts entrusted to him by various Sahkari Samities, prosecution should come to its legitimate end and the accused should not be allowed to abuse the process of Court by delaying himself the criminal proceedings which he is now facing by his own conduct."

On the strength of this judgment, learned Counsel for respondent vehemently urged that in the interest of the cooperative movement and the larger public interest, the prosecution against the petitioner should not be allowed to come to an end having regard to the allegation that stocks of the Cooperative Societies valuing more than Rs. five lakhs have been embezzled by the petitioner and four others.

After careful consideration to the rival contention of learned Counsel for the petitioner and the learned Counsel for the State, I am inclined to subscribe to the view point advanced by the latter that the proceedings against the petitioner should not be allowed to come to an end having regard to the fact that there is a serious allegation of embezzlement of the stocks of the Cooperative Societies and am, therefore, inclined to place reliance on the judgment of their Lordships of the Supreme Court in Mangilal Vyas''s case (supra). I, therefore, hold that the contention of the learned Counsel for the petitioner that the latter has been subjected to prolonged prosecution and, therefore, the proceedings in this case should be quashed, is unmerited.

This take me to the second contention of learned Counsel for the petitioner that since the proceedings under Sections 54, 55 and 56 of the Cooperative Societies Act, 1961, which are in the nature of civil proceedings, are pending against the petitioner, his criminal prosecution should be quashed. For facility of reference Section 54 of the Cooperative Societies Act, 1961, is reproduced hereunder :

"54. Surcharge.

(1) If in the course of an audit, inquiry, inspection or the winding up of a cooperative society, it is found that any person, who is or was entrusted with the organisation or management of such society or who is or has at any time been an officer or any employee of the Society, has made a payment contrary to this Act, the rules or the byelaws or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money or other property belonging to such society, the Registrar may, of his own motion or on the application of the committee, liquidator, of any creditor, inquire himself, or direct any person authorised by him, by an order in writing in this behalf, to inquire into the conduct of such person.

Provided that no such inquiry shall be held after the expiry of six years from the date of any act or commission referred to in this subsection.

(2) Where an inquiry is made under subsection (1), the Registrar may after giving the person concerned an opportunity of being heard make an order requiring him to repay or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent; as the Registrar may consider just and equitable."

The learned Counsel drew attention of this Court to Parkash Singh v. State of Himachal Pradesh and others, 1987 Punjab Law Journal 660 in which, it was ruled inter alia by the Himachal Pradesh High Court that reference of a dispute to an Arbitration (under the Cooperative Societies Act), is in substitution of ordinary remedy by way of a suit and the Arbitrator substitutes a Civil Court while deciding a dispute.

The learned Counsel next relied on Barjinder Pal v. State of Punjab, 1990(2) Recent Criminal Reports 690 in which it was held that where matter was referred to an Arbitrator in terms of Section 54 of the Cooperative Societies Act, it rendered the dispute to be of Civil nature and criminal proceedings under Section 409 of the Indian Penal Code for misappropriation/embezzlement of the stocks of Markfed are, therefore, liable to be quashed. It was further held that after finalisation of surcharge proceedings taken against the petitioner, the Markfed may initiate criminal action against the petitioner for criminal breach of trust alleged against them. On the ratio of this judgment, learned Counsel for the petitioner urged that criminal proceedings under Section 409 of the Indian Penal Code launched against the petitioner in the instant case, are liable to be quashed as the subjectmatter of the allegation against him is already under adjudication before an Arbitrator under Section 54 of the Cooperative Societies Act, 1961.

Learned Counsel for the State, on the other hand, urged that the judgment rendered in Barjinder Pal''s case (supra) is inapplicable for the criminal prosecution against the petitioner were launched earlier than the initiation of arbitration proceedings. The First Information Report against the petitioner was registered in the year 1985 while the arbitration proceedings under Section 54 of the Cooperative Societies Act, 1961, were initiated against him in the year 1988 and, therefore, the petitioner cannot derive any benefit from the judgment in Barjinder Pal''s case (supra) in which arbitration proceedings were initiated earlier than the launching of the criminal prosecution.

Learned Counsel for the respondent has also placed reliance on a Division Bench judgment of this court in Vijay Kumar v. State of Punjab, 1991(3) Recent Criminal Reports 420 . It was held in this case that Section 55 of the Punjab Cooperative Societies Act, 1961, is no bar to initiate criminal proceedings where the facts of the case give rise both to Civil and Criminal liability. Again it was held in this case that where a reference was made to an Arbitrator, under Section 55 of the Cooperative Societies Act, 1961, it does not create a bar to initiate criminal proceedings. The learned Counsel, therefore, contended that even if arbitration proceedings have been commenced against the petitioner before filing of the First Information Report against him, the prosecution against the petitioner could still be launched in view of ratio of Division Bench judgment of the court in Vijay Kumar''s case (supra). The contention of the learned Counsel for the State appears to be well founded having regard to the verdict in Vijay Kumar''s case (supra).

After careful consideration of the contention of learned Counsel for the State, I am inclined to hold that initiation of arbitration proceedings against the petitioner under Sections 54 and 55 of the Cooperative Societies Act, 1961, in the year, 1988 as stated by the respondent in para 3 of the reply filed in this case, cannot result in the quashing of the FIR against him which was registered much earlier in the year 1985. The learned Counsel for the State appears to be justified in urging that the judgment of Punjab and Haryana High Court in Barjinder Pal''s case (supra) is distinguishable on facts. In fact, in view of recent D.B. Judgment of this Court in Vijay Kumar''s case (supra), there is no bar to initiate criminal proceedings where the facts of the case given rise both to Civil and Criminal liability, and as such, FIR cannot be quashed on this score either.

For the reasons recorded above, this petition is found to be devoid of any merit and hence the same is dismissed.