Ujagar Singh vs State of Punjab

A.S. Bains, J.

The petitioner was working as a Cashier of the Kairpur Jattan Cooperative Agriculture Service Society in the year 1973. A case under Sections 406 and 408 of the Indian Penal Code was registered against him at Police Station Rajpura vide FIR No. 126 on 2nd of May, 1976. Challan was put in the Court after about four years of the registration of the case, i.e. on 14th March, 1980. The petitioner was charged under Section 408, Indian Penal Code, on 20th March, 1980. Perusal of the chargesheet shows that the embezzlement took place in the year 1973. It is against the charge under Section 408, Indian Penal Code, that the present petition has been filed.

Mr. Chaudhary, learned counsel for the petitioner canvassed that offence under Section 408, Indian Penal Code, is not made out. Section 408 reads as under :

"408. Criminal breach of trust by clerk or servant Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with any dominion over property, commits breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

From the reading of the aforesaid provision it is plain that a clerk or servant or any person employed as a clerk or servant, is entrusted in such capacity with property or with any dominion over property and commits breach of trust in respect of that property his is liable to be punished with imprisonment for a term which may extend to seven years'' imprisonment of either description and shall also reliable to fine. Precisely, the argument of Mr. Chaudhry is that the petitioner was working as a cashier and he was neither a clerk nor a servant of the Society and was not paid any salary. The petitioner has also filed an affidavit in which he has deposed that he was an elected member of the Managing Committee being a Cashier, that he was never a clerk or servant of the Society, nor he was ever paid any salary. The petitioner has also filed an affidavit in which he has deposed that he was an elected member of the Managing Committee being a Cashier, that he was never a clerk or servant of the Society, nor he was ever paid any salary or any other emoluments by the society. Although the petitioner was working as a Cashier and was an elected member of the Society, but he will be a servant of the Society during the period he worked as a Cashier. The word "servant" is not defined in the Indian Penal Code, but `Public Servant'' is defined. Cashier does not answer the definition of a `Public Servant'' as defined in the Indian Penal Code. The word `servant'' is defined in Webster''s New World Dictionary, 1962 Edition, wherein various meanings are given to the word `servant'' and for our purpose the meaning to "carry out the duties connected with (a position, office etc)" are relevant. Thus, even if the petitioner was an elected member of the Managing Committee of the Society and was working as an honorary cashier, he will be considered to be a servant for the time he worked as a cashier. Thus he has rightly been charged under Section 408 of Indian Penal Code.

It was next argued that the proceedings pending for so many years amount to abuse of the process. It is true that the case was registered against the petitioner in the year 1976 and the challan was put up after about 4 years and the charge was framed on 20th March, 1980 and since then the case has been adjourned for 22 times and no evidence is produced by the prosecution. In this view of the matter, I hold that the proceeding clearly amount to an abuse of the process and the same cannot be sustained.

For the foregoing reasons, this petition is allowed and the proceedings pending against the petitioner in the Court of the Judicial Magistrate Ist Class, Rajpura, are quashed.