JUDGMENT : K.B. Panda, J. - The Appellant has been convicted u/s 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947), hereinafter referred to as the Act, and sentenced to rigorous imprisonment for one year by the Special Judge, Vigilance, Bhubaneswar, on 18-12-1971. 2. The Appellant was an Assistant Sub-Registrar under the Government of Orissa, Co-operative Societies. From March, 1964 to June, 1967 he was posted as Secretary,. Regional Cooperative Marketing Society (R.C.M.S.), Jagat singh pur. As such, his duty was to receive cash and goods, disburse money and maintain accounts. He was also in charge of the stock and stores of the said R.C.M.S. at Jagatsinghpur. It is alleged by the prosecution that on 31-8-1964 he received Rs. 201/- from Sridhar Das, the Secretary of Nuagan Society, sent through the cart-man (p.w. 7) and sold 12 bags of fertilisers to p.w. 8 from the R.C.M.S., Jagatsinghpur. In token of that he granted a receipt Ex. 8 dated 31-8-1964. This amount was not shown in the Cash book Ex. 9 nor the cash taken into the account. Hence the allegation that he misappropriated the said amount. There was another charge in respect of supply of groundnuts; but the learned Special Judge held the Appellant not guilty of that charge and so need not be referred to here. 3. The plea of the Appellant was that since 1954 he was a public servant but not during the period of his deputation to the R.C.M.S., Jagatsinghpur. He was in over-all charge of the stocks, stores and cash for the R.C.M.S. but was not in the detail charge of every item of property for which the Board had appointed a staff. He admitted to have granted receipt Ex. 8 but denied to have received the amount of Rs. 201/- mentioned in it and that he did not supply 12 bags of fertilisers himself. His specific case was that he refused to supply any more fertilisers to Nuagaon Society as it has in heavy arrears. At that time p.w. 2, the Secretary of Mandasahe Grama Panchayat, who was present there, sold 12 bags of fertilisers from the stock of the said Grama Panchayat kept at the R.C.M.S., Jagatsinghpur, to Nuagaon Grama Panchayat, on receipt of Rs. 201/- from the cartman (p.w. 7). At that time p.w. 2, the Secretary of Mandasahe Grama Panchayat, who was present there, sold 12 bags of fertilisers from the stock of the said Grama Panchayat kept at the R.C.M.S., Jagatsinghpur, to Nuagaon Grama Panchayat, on receipt of Rs. 201/- from the cartman (p.w. 7). As he had not sold the fertilisers from the R.C.M.S. stock nor had received the amount, this was not shown in the cash book, nor was there any corresponding entry in the stock register. 4. The prosecution examined 12 witnesses and the defence three. The learned Special Judge negatived the legal plea that the Appellant was not a public servant while working as the Secretary to the R.C.M.S., Jagatsinghpur, and therefore, not amenable to the provisions of the Act. The learned Judge also negatived the plea that the Appellant had not sold the fertilisers from the R.C.M.S. stock and had not received the amount. Hence the conviction. 5. It was contended by Mr. Rath on behalf of the Appellant that the learned Judge was obviously wrong in holding that the Appellant was a 'public servant' while working as the Secretary, R.C.M.S., Jagat singh pur and so too in finding that he had received the money after selling the fertilisers from the stock of the R.C.M.S. for which he granted receipt Ex. 8. 6. I would first address myself to the point of law urged on behalf of the Appellant. This point was also canvassed before the learned Special Judge whose finding in his connexion is as follows: So during the period in question, the accused was in the service of the R.C.M.S and not relating to the affairs of the State of Orissa. There is no evidence on record as to who was paying the salary to the accused, whether the R.C.M.S or the State. But it is definite that he was in the services of the R.C.M.S Therefore, Sub-Clause (a) of Clause 12 of Section 21, Indian Penal Code does not come to play, but Sub-clause (b) thereof squarely applied to the case of the accused Now it has to be seen whether the R.C.M.S., Jagat singh pur was a corporation within the meaning of Sub-clause (b) of Clause 12 of this section. Section 9 of the Orissa Co-operative Societies Act, 1962 reads as follows: A co-operative society registered under this Act shall be a body corporate by the name under which it is registered having perpetual succession and a common seal, and with power to hold property; enter into contracts, instructs and defend suits and other legal proceedings and to do all things necessary for the purpose for which it was constituted. Therefore, the R.C.M.S., Jagat singh pur is a body corporate. 'A body Corporate' means a body which is incorporated under some statute and which a perpetual succession and a common seal, and a legal entity apart from the members constituting it. The R.C.M.S., Jagat singh pur is incorporated under the Orissa Co-operative Societies Act, 1962. It is a creature of the Act. 'Corporation' has not been defined in the Indian Companies Act. No other definition has been placed before me. The meaning of 'Corporation' has been given in the Chamber's 20th Century Dictionary as 'A body or society authorised by law to act as one individual.' Therefore, a body corporate means the same thing as corporation in concept and constitution. So the accused was in the service of the Corporation, viz., the R.C.M.S., Jagat singh pur during the period when it is alleged that he committed the offence. So he was a public servant at the time of committing the alleged offence. 7. I do not think the interpretation given by the learned Special Judge is correct. From the trend of decisions to be dealt with hereafter it would be clear that the Secretary of the R.C.M.S., Jagat singh pur, does not perform any work connected with the public but manages some work of that society and, therefore, cannot come under the definition of 'public servant' as given in the Indian Penal Code. Mr. Rath cited a number of decisions on the point. It was asserted by Mr. Rath that the Registrar of the Co-operative Societies is the only person who is a 'public servant' and not even the Board or the President of the Board who is the appointing authority of the Secretary. Under Rule 33 of the Bye-laws of the Jagatsinghpur Regional Co-operative Marketing Society Ltd., it is stated thus: 33. It was asserted by Mr. Rath that the Registrar of the Co-operative Societies is the only person who is a 'public servant' and not even the Board or the President of the Board who is the appointing authority of the Secretary. Under Rule 33 of the Bye-laws of the Jagatsinghpur Regional Co-operative Marketing Society Ltd., it is stated thus: 33. The appointment of the Secretary shall be made by the Board subject to the approval of the Registrar, Co-operative Societies, President shall control the Secretary whose duties shall be: (a) to (h) x x x x x x x" 'Public servant' has not been defined in the Act and for that one has to rely on the definition as given u/s 21 of the Indian Penal Code. It has been held in the case of G.A. Monterio Vs. The State of Ajmer, that. The true test in order to determine whether a person is an officer of the Government, is: (1) Whether he is in the service or pay of the Government; and (2) Whether he is entrusted with the performance of any public duty. If both the requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character of very humble indeed. If therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the Government but is also performing a public duty, he has delegated to him the functions of the Government or is in any event performing duties immediately auxillary to those of someone who is an officer of the Government and is, therefore, 'an officer' of the Government within the meaning of Section 21(9). The direct case on the point is reported in S.R. Bhattacharya v. State (Calcutta case) 1970 CriL.J. 635. In that case it-has been held the Secretary of a Co-operative Society is not a public servant under the tenth clause of Section 21, Indian Penal Code. Section 19, Bengal Co-operative Societies Act, 1940 (21 of 1940) makes a registered co-operative society a body corporate only for purposes enumerated in that section. Such Society, however, cannot be classed as a corporation established by or under any Central, Provincial or State Act. Section 19, Bengal Co-operative Societies Act, 1940 (21 of 1940) makes a registered co-operative society a body corporate only for purposes enumerated in that section. Such Society, however, cannot be classed as a corporation established by or under any Central, Provincial or State Act. A registered co-operative society is also not a corporation established under the Co-operative Societies Act. So a Secretary of such society cannot be a "public servant" within Section 21, Clause (12). A Secretary of a co-operative society discharges his functions with regard to that particular co-operative society and has no connection with the general or common purpose of any village, town or district and as such he is not a "public servant" within Section 21, Clause (11). A co-operative society is specifically excluded from definition u/s 2(7), Companies Act, 1956. Section 6 of the Companies Act not being applicable to co-operative societies, Co-operative society cannot be tried u/s 409, Penal Code by Special Court. In this Calcutta case the Secretary of the function of the Government or is in any event performing duties immediately auxiliary to those of some one who is an officer of the Government and is, therefore, an officer of the Government within the meaning of Section 21(9). The direct case on the point is reported in Shanti Ranjan Bhattacharya Vs. The State. In that case it has been held the Secretary of a Co-operative Society is not a public servant under the tenth clause of Section 21, Indian Penal Code. Section 19, Bengal Co-operative Societies Act, 1940 (21 of 1940) makes a registered co-operative society a body corporate only for purposes enumerated in that section. Such society, however, cannot be classed as a corporation established by or under any Central. Provincial or State Act. A registered co-operative society is also not a corporation established under the Co-operative Societies Act. So a Secretary of such society cannot be a "public servant" within Section 21 Clause (12). A Secretary of a co-operative society discharges his functions with regard to that particular co-operative society and has no connection with the general or common purpose of any village, town or district and as such he is not a "public servant" within Section 21. Clause (11). A co-operative society is specifically excluded from definition u/s 2(7), Companies Act, 1956. A Secretary of a co-operative society discharges his functions with regard to that particular co-operative society and has no connection with the general or common purpose of any village, town or district and as such he is not a "public servant" within Section 21. Clause (11). A co-operative society is specifically excluded from definition u/s 2(7), Companies Act, 1956. Section 6 of the Companies Act not being applicable to co-operative societies, co-operative society cannot be classed as a corporation. The Secretary of a co-operative society, therefore, not being a public servant, cannot be tried u/s 409, Penal Code by Special Court. In this Calcutta case the Secretary of Mashakti Samabay Samiti, a registered co-operative society, was being prosecuted for criminal breach of trust in a Special Court which could come under the definition of a 'public servant' as given in Section 21, Indian Penal Code. The question If the Secretary of a co-operative society would be a "public servant" under the tenth clause of Section 21 has often arisen and the Bombay. Madras and Mysore High Courts have held that a secretary of a co-operative society is not a public servant under the tenth clause of Section 21 see Emperor v. Janka Gopal Koli AIR 1935 Bom. 35; 1935 Mmd. W.N. 1337 (1) and The State of Gujarat Vs. Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar. The Calcutta High Court agreed with the decisions of the aforesaid High Court and further held that the secretary of a co-operative society is not a public servant under the tenth clause of Section 21. The following passage from Shanti Ranjan Bhattacharya Vs. The State, may be quoted which would show how the view taken by the learned Special Judge in the instant Case is not correct: The learned Judge by reference to Section 19 of the Co-operative Societies Act has held that every Co-operative Societies Act as a corporate body for certain purposes and because it acts as a corporate body it is a corporation established under the State Act and as such the Sub-clause (b) of twelfth clause after amendment is attracted. This argument is based on the assumption that whenever there is a corporate body there is a corporation. This assumption is not correct. A corporation is an entity by itself and can be established only by a statute passed by the Central or the State Government in India. This argument is based on the assumption that whenever there is a corporate body there is a corporation. This assumption is not correct. A corporation is an entity by itself and can be established only by a statute passed by the Central or the State Government in India. The word 'corporation' has been defined this in Stroud's Judicial Dictionary, Third Edition, at page 643: Corporation is that which the civilians call univesitatem, or collegium and is a body politic authorised to take and grant having a common seal & c. These are constituted either by Prescription, by Letters Patent, or by Act of Parliament. It is thus clear that a corporation so far as India is concerned has to be set up or established by an Act passed by the Central or the State Government in order that any person serving in such a corporation may be a Public Servant. It is clear that a Cooperative Society was established under the Co-operative Societies Act and not as a corporation. There are corporate bodies in a corporation strictly so called and there maybe corporate bodies in other associations which are not corporations. From that it does not follow that wherever there is a corporate body there is a corporation. So far as the Co-operative Society is concerned the purpose for which the Society is constituted is to discharge certain functions under the Co-operative Societies Act. It does not by itself establish any corporation strictly so called though after the Society is set up and it is registered under the Co-operative Societies Act the fact of such registration may grant certain right of corporate bodies to the Co-operative Society itself, But from that it does not necessarily follow that a corporation and a Cooperative Society registered under the Co-operative Societies Act are synonymous terms. In this view of the matter it appears to me that a Co-operative Society does not became a corporation because for some specific purpose it functions as a corporate body. It will appear from Section 19 of the Co-operative Societies Act that this power of a corporate body is given to the Co-operative Society for certain specific and limited purposes as provided under the Act. In this connection, we may refer to several Acts by which Corporations were established by the Central or the State Government. It will appear from Section 19 of the Co-operative Societies Act that this power of a corporate body is given to the Co-operative Society for certain specific and limited purposes as provided under the Act. In this connection, we may refer to several Acts by which Corporations were established by the Central or the State Government. The Life Insurance Corporation, for example, is a Corporation established by a Central Act directly by a particular statute but there may be corporations which are not directly established by any specific statute but they may be established under a general law passed by the Central or the State Government and these corporations are covered by Sub-clause (b) of clause twelfth u/s 21 of the Indian Penal Code. u/s 3 of the Road Transport Corporations Act, 1950 passed by the Central Government, State Government may by Notification in the Official Gazette establish a Road Transport Corporation for the whole or any part of the State. Only such corporations are meant and referred to in Section 21 Clause 12 Sub-clause (b). 8. Secondly, we may also refer to the various clauses of Section 21 to show the distinction that is sought to be made between a private servant and a public servant. All the clauses except the tenth and the eleventh give indication that the public servant is connected directly or indirectly with some functions of the Government. In the tenth clause there is no direct mention of the Government but even in that clause the particular officer must perform certain functions 'for any secular common purpose of any village town or district'. But in the instant case the Secretary is to discharge his functions with regard to that particular Co-operative Society only and has no connection with the general or common purpose of any village, town or district. On analysing Section 21 also it will appear that both from the language of the twelfth clause and from the scheme of Section 21 of the Indian Penal Code that the Legislature did not intend to cover those cases where a person holds office for any particular private company or society for the benefit of that company or society only. It is significant that in Section 21 Clause 12(b), the Government Company u/s 617 has been included thereby excluding by necessary implications other private companies though they function as body corporate. It is significant that in Section 21 Clause 12(b), the Government Company u/s 617 has been included thereby excluding by necessary implications other private companies though they function as body corporate. In this view of the matter twelfth clause cannot be attracted to the instant case. In a recent case of The State of Gujarat Vs. Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar it has been held that a person appointed as an examiner by the University, even if he is a lecturer of a Government College, is not an officer and, therefore, not a 'public servant' with in Section 21. 9th Clause, Indian Penal Code. From the above citations it would follow that the question whether a Secretary of a Society is a public servant or not is no more ambulatory. Faced with this situation, the learned Government Advocate took time to produce some Circular; but subsequently conceded to the proposition that the Secretary is not a public servant as contended by the defence. In that view of the matter it is unnecessary to go into the facts of the case. 9. Accordingly I would hold that the trial of the Appellant under the Prevention of Corruption Act is unwarranted. He was not a public servant to be tried with the aid of this Special Act meant for the public servants. The prosecution, therefore, of the Appellant under the Act is misconceived and, therefore, his trial is without jurisdiction for which the conviction cannot be maintained. The appeal allowed and the Appellant is released from his bail bond.