Surjit Singh and ors. vs Harbant Kaur and ors.

S.D. Bajaj, J.

Respondent complainant Harbant Kaur as also petitioners 1 to 10 and proforma respondents 2 and 3 are all members of "Guru Arjan Dev Co operative House Building Society Ltd." which was formed and registered at Ludhiana on 25th April, 1969. The respondent was enrolled as such on 23rd October, 1969 and duly reflected in the list of such members prepared on 9th April, 1979 at serial No. 33. She paid to the Society Rs. 4000/ initially and a further sum of Rs. 250/ as exemption fee on 3rd April, 1973. State Government of Punjab granted exemption to the Society in terms of section 56 of the Punjab Improvement Act, 1922 on 27th September, 1977 entitling it to divide its 30966 square yards of area into plots of 400 square yards each for allotment to its members. Allotment of plots to members was, however, made by the Ludhiana improvement Trust on the recommendation of the Society based on draw of lots.

Accused No. 1 to 5 are allegedly selfimposed office bearers of the Society who are stated to have illegally admitted accused 6 to 12, the kith and kin of accused 1, 2 and 4 as members of the Society subsequently after 23rd October, 1969 but before 9th April, 1979, conspired together inter se to allot to members aforesaid residential plots of 400 square yards each only to defeat the legal tights of the complainant and other legal members who were enrolled as members before May, 1970 when the land, now decided to be allotted, was purchased. While doing so accused 1, 2 and 4 are alleged to have sworn in false affidavits, accused No. 3 is alleged to have fabricated the list of members on 9th April, 1979 by inclusion therein of the names of accused 6 to 12 and accused Nos. 2 and 5 are alleged to have cheated respondentcomplainant of Rs. 4250/ detailed in para No. 1 above.

Respondentcomplainant Smt. Harbans Kaur, therefore, filed against accused 1 to 12 criminal complaint Annexure P. I under sections 406, 420, 421, 465, 468, 471, 193, 477 A, 120B and 109 of the Indian Penal Code for, their illegal activities aforesaid in the court of learned Judicial Magistrate, Ludhiana. Summoning order Annexure P. 5 was passed therein by the learned trial court on, 12th November, 1987 ; summoning the accused petitioners and proforma respondents 2 and 3 before it for trial under sections 406, 421, 465 and 120B of the Indian Penal Code.

Ten out of twelve persons, arrayed as accused in the complaint Annexure P. I have filed in this Court Criminal Misc. No. 8237M of 1987 for quashing the complaint and the summoning order. Remaining two persons arrayed as accused in the complaint have been impleaded as proforma respondents in the Crl. Misc. aforesaid. The grounds set out in para 6 thereof for claiming the desired relief are (i) that the criminal action initiated more than 3 years after the alleged allotment of plots to its members by the Society in the year 1984 does not lie (ii) that the deposit of Rs. 4250/ was made by the complainant with the Society contradistinguished from accused 2 and 5 who did not incur any personal responsibility on its receipt from the complainant or by crediting it into the funds of the Society ; (iii) that the allegations of criminal breach of trust, cheating, criminal conspiracy, transfer of plots to ineligible members levelled against the accused are all unfounded ones because respondent complainant as member of the Cooperative Society never challenged the allotment of plots to alleged ineligible members and the election of officebearers in accused petitioners I to 5 in terms of Cooperative Societies Act and that the complaint has been filed by the respondent in a revengeful spirit only to harass the petitioners and respondents 2 and 3 because she did not get the desired allotment of plot through draw of lots while respondents I to 5 and the kith and Kin of respondents 1, 2 and 4 got them.

I have heard Shri Satinder Khanna, Advocate, for the petitioners; Shri K. S. Keer, Advocate, for respondent No. 1 and have carefully gone through the documents annexed to the Crl. Misc. aforesaid moved for quashing the complaint as also the summoning order.

Receipt of Rs. 4000/ from the complainantrespondent by petitioner No. 2 Anup Singh vide Annexure P. 3 and the exemption fee of Rs. 250/ over again by petitioner No. 4 Shri K. S. Dua vide receipt Annexure P. 4 is duly admitted. Both these amounts are recorded to have been received by the two persons aforesaid for and on behalf of the Ludhiana Guru Arjan Dev Cooperative House Building Society Ltd. as its duly elected office bearers and not in their individual capacity or for any personal advantage.

Section 30 of the Punjab Cooperative Societies Act, 1961 reads, "Section 30 of the Act gives a corporate status to a Cooperative society. The result is that a society becomes a statutory person. It has the power to hold the property and to enter into contracts. Cooperative Society is a juristic person and has independent entity which it distinct from its members.

A cooperative society registered under the Act is a body corporate and is independent of its members. The loans due from the society cannot be recovered from the members.

Unless otherwise provided in these bylaws the ultimate authority in all matters relating to the administration of the society shall vest in the general body. In this view of the matter respondentcomplaint having become a member of the Cooperative Society of her own saying on 23rd October, 1969 could assail the action of the general body or even for that matter of the officebearers of the Society only in the cooperative forum with the Registrar of the Cooperative Societies as envisaged in the Punjab Cooperative Societies Act, 1961 and could not in law wash the dirty linen in criminal court. The complaint Annexure P.I and the summoning order Annexure P. 5 are. thus required to be quashed on this score alone.

The matter came to be discussed in Smt. Nagawwa v. Veerana Shivlingappa Konjalgi, AIR 1976 SC 1947 wherein their lordships of the Supreme Court observed that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :

(1) Where the allegations made in the complaint on the statements of the witnesses recorded in support of the same taken at their facevalue make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ;

(2) Where the allegations made in the complaint are patently assured and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned above are purely illustrative and provide sufficient guide lines to indicate contingencies where the High Court can quash proceedings.

The proceedings against an accused in the initial stage can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. The test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence made out, the High Court will be justified in quashing the order passed by the Magistrate taking cognizance of the offence. Under section 482 the questions of facts are not to be considered by the High Court. Where a prima facie case is made out from the allegations made in the complaint without going into the merits of the case, the High Court cannot quash the proceedings under Section 482. The facts subsequently found cannot be taken into consideration for quashing the proceedings under section 482. Where the allegations set out in the complaint or charge sheet do not constitute any offence, but the Magistrate has assumed the existence of some offence, it is open to the High Court exercising its inherent power to quash the proceedings.

Three out of four essential ingredients set out at (1) to (3) above having been found to exist in the present case, I feel convinced that the court process obtaining in the summoning order Annexure P. 5 has been wholly abused by the respondentcomplaint against the petitioners and proforma respondents 2 and 3. Complaint Annexure P. I and the summoning order Annexure P 5 are, therefore, quashed. In result Criminal Misc. succeeds and is allowed.