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1973 DIGILAW 258 (KER)

ARUNACHALAM v. STATE OF KERALA

1973-10-17

K.BASKARAN

body1973
Judgment :- 1. Sri. P. K. Venugopal, the learned Counsel for the Revision Petitioner, not only contends that there is no legal evidence to hold the accused (Revision Petitioner) guilty of any offence but also argues that his conviction under S.409 IPC., on the assumption that he is a'public servant' is manifestly illegal. 2. The prosecution case briefly stated is as follows: The revision petitioner while acting in his capacity as the secretary of a co-operative society committed misappropriation to the tune of Rs. 1000/- by fraudulently striking the balance at Rs. 127-88 on 8-9-1962 and showing the expenditure to be Rs.2237-07 instead of the actual expenditure of Rs. 1237-07. The accused falsified the accounts to suit the above amount. Both the President and the secretary were proceeded against. It appears that the revision petitioner was absconding for some time and in the meanwhile the President was proceeded against and was ultimately acquitted. Apart from the sum of Rs. 1000/- referred to above, there was a case of criminal breach of trust in respect of a sum of Rs. 385-63 also. The prosecution of the revision petitioner was for offences under S.409 and 477A IPC. The trial court convicted him under both the charges and sentenced him to undergo R.I. for 2 years under S.409 IPC., and six months under S.477A. The Appellate court while confirming the conviction under both the charges, reduced the sentence under S.409 to R. I. for one year and six months, without altering the sentence under S.477A. The correctness of the decisions of the courts below is challenged in this revision petition. 3. The prosecution has through the evidence of pw.1 who was the auditor of the society and pw. 4 who was the Junior Supervisor of the co-operative circle in which the society situates, established that there had been misappropriation. pw. 6, the Deputy Registrar of co-operative societies also has given evidence that daring the material time the revision petitioner was working as the secretary of the society in question. Ext. P8 shows that he was a paid secretary of the society. Ext. P1 audit report gives the relevant facts with respect to the misappropriation. Ext. P2 is the day book of the society. On page 17 of Ext. P2 which has been marked as Ext. P2(a) for the sake of identification, there is an entry to show the closing balance. P8 shows that he was a paid secretary of the society. Ext. P1 audit report gives the relevant facts with respect to the misappropriation. Ext. P2 is the day book of the society. On page 17 of Ext. P2 which has been marked as Ext. P2(a) for the sake of identification, there is an entry to show the closing balance. On that page instead of showing the expenditure at Rs. 1237-07 it was shown as Rs. 2237-07, and a misappropriation of Rs. 1000/- was thus committed. Ext. P2 (b) relates to the cash balance on 6-6-1963. That shows that there was a balance of Rs. 385-63 that day. This amount has not been banded over by the accused to his successor in office. Ext. P3 bye-laws of the society in Clause.23(a) defines the duties of the President and Secretary. As per the same, the Secretary should entrust the cash balance daily to the President and in token thereof he should get a signature in the day book. It was the duty of the Secretary to maintain correct and true accounts of receipts and expenditure. The said register does not show that any of the amounts in question has been entrusted by the secretary to the President. There is, therefore, clinching evidence to show that the money which the revision petitioner came into custody was not made over to the President as he was expected to do in terms of the bye-laws. I do not, therefore, find any merit in the contention advanced by the learned counsel for the revision petitioner that the commission of criminal breach of trust by the accused has not been proved. 4. However, I think, there is considerable force in the argument advanced by him that the courts below were wrong in taking it for granted that the secretary of a co-operative society is a'public servant' as defined in S.21 of the Indian Penal Code. It is rather strange that both the courts below did not bestow any serious thought on this aspect of the matter. It is rather strange that both the courts below did not bestow any serious thought on this aspect of the matter. 'Public servant' has been defined in S.21 I. P. C., and the portion relevant for our purpose reads as follows: "The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely: Tenth Every Officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district; By no stretch of imagination could it be said that the accused in relation to his employment as the secretary of the Co-operative society would fall under any of the categories of officers mentioned in Clause.1 to 9 and 11 and 12 of S.21 I. P. C. All that is necessary to find out is whether he would fall within clause (10) which is extracted above. Explanation I states that a person falling under any of the descriptions in S.21 I. P. C. is a public servant, whether appointed by the Government or not. So, the question is whether the accused, who is the secretary of a co-operative society, in view of the fact that he may have to deal with the money belonging to the members of the society or with the amounts advanced by the various banks to the society, could be construed to be a'public servant' within the meaning of S.21 I.P.C. T am afraid, there is no evidence in this case to hold that the secretary of the society would fall within any of the clauses defining the class of officers who are to be treated as 'public servant' In S.21 IPC. It bad been held by the various High Courts that the President or the Secretary of a Co-operative Society cannot he considered to be a'public servant' within the meaning of S.21 I. P. C. The decisions in Karnam Siddappa v. State of Mysore (AIR. 195S Mysore 82), Shridhar v. Emperor (AIR. 1935 Bombay 36), Sombari Behara v. Emperor (35 Madras Weekly Notes, 1337) and S. R. Bhattacharya v. State (AIR. 195S Mysore 82), Shridhar v. Emperor (AIR. 1935 Bombay 36), Sombari Behara v. Emperor (35 Madras Weekly Notes, 1337) and S. R. Bhattacharya v. State (AIR. 1970 Calcutta, 557) are some of the decisions to which reference could be made. The learned State Prosecutor has brought to my notice the decision of the Patna High Court reported in State v. Amulya Ratan (AIR. 1969 Patna 173), wherein Para.18 and 19 it has been held that inasmuch as the secretary of the society was acting as the agent of the bank, he should be held to be liable under S.409 I. P. C. The conviction in the said case, it may be noted, is not because the Secretary of the society as such satisfied the requirements of a "public servant", but because the provision of S.409 I. P. C., is so comprehensive enough as to bring within its fold not only public servant, but also banker, merchant, factor, broker, attorney or agent, who in the way of his business is entrusted with property or with dominion of property if he commits criminal breach of trust in respect of such property. If, as a matter of fact, the secretary of the society acts as an agent of the bank as in the Patna case referred to above, be would squarely fall within the scope of S.409 IPC. In this case there is no evidence to show that the revision petitioner in his capacity as the secretary of the society was acting either as as agent of a bank or in any other capacity to attract S.409 IPC., or that it was his duty as the secretary to take, receive, keep or expend any property, to make any survey or assessment or to levy and rate or tax for any secular common purpose of any village, town or district etc., to bring him within Clause.10 in S.21 of the Code. It has, therefore, to be held that the accused, as the secretary of the co-operative society, on the evidence in this case shows, is to be held not a'public servant' within the meaning of S.21 of the IPC., or any other category of persons to whom S.409 is made applicable. Therefore, the conviction under S.409 IPC., has to be set a side. 5. That does not however mean that no offence against the accused has been made out. Therefore, the conviction under S.409 IPC., has to be set a side. 5. That does not however mean that no offence against the accused has been made out. The evidence on record would go to show that the accused has committed an offence which would rightly fall under S.408 IPC. All the necessary evidence is here, and there is no case that any material prejudice would result if the charge is altered from S.409 to 408 IPC. Therefore, in exercise of the power under S.423 of Cr. P.C., I convict the accused under S.408 IPC. As for the conviction and sentence under S.477A is concerned, it shall stand confirmed as has already been held by the court below. 6. Now, on the question of sentence, considering the fact that the conviction has to be under S.408 IPC., not 409 IPC., the fairly young age of the revision petitioner and the representation that there had not been any prior instance of his having been found guilty of such offence, and with the hope that the consideration in the matter of awarding sentence by this Court would help him to reform himself to become a better citizen, I sentence the revision petitioner-accused under S.408 IPC., to undergo rigorous imprisonment for a period of nine months. The sentences under S.408 and 477A IPC. shall run concurrently. The revision is allowed to the extent indicated above.