Order.- 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 hat this conviction under section 409, Indian Penal Code, 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 tunc of Rs. 1,000 by fraudulently striking the balance at Rs. 127-88 on 8th September, 1962 and showing the expenditure to be Rs. 2,237-07 instead of the actual expenditure of Rs. 1,237-07. 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 preisdent was proceeded aginst and was ultimately acquitted. Apart from the sum of Rs. 1,000 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 sections 439 and 477-A, Indian Penal Code. The trial Court convicted him under both the charges and sentenced him to undergo rigorous imprisonment for 2 years under section 409, Indian Penal Code, and six months under section 477-A. The appellate Court while confirming the conviction under both the charges, reduced the sentence under section 40c, to rigorous imprisonment for one year and six months, without altering the sentence under section 477-A. The correctness of the decisions of the Courts below is challenged in this revision petition. 3. The prosecution has through the evidence of P.W. 1 who was the auditor of the society and P.W. 4 who was the Junior Supervisor of the Co-operative circle in which the society situates, established that there had been misappro priation. P.W. 6, the Deputy Registrar of Co-operative Societies also has given evidence that during the material time the revision petitioner was working as the secretary of the society in question. Exhibit P-8, shows that he was a paid secretary of the society. Exhibit P-1, audit report gives the relevant facts with respect to the, misappropriation. Exhibit P-2, is the day book of the society. Exhibit P-8, shows that he was a paid secretary of the society. Exhibit P-1, audit report gives the relevant facts with respect to the, misappropriation. Exhibit P-2, is the day book of the society. On page 17 of Exhibit P-2, which has been marked as Exhibit P-2 (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. 1,237-07 it was shown as Rs. 2,237-07, and a misappropriation of Rs. 1,000 was thus committed. Exhibit P-2 (b) relates to the cash balance on 6th June, 1963. That shows that there was a balance of Rs. 385-63 that day. This amount has not been handed over by the accused to his successor in office. Exhibit P-3 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 be 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 ‘publicservant’ as defined in section 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 section 21, Indian Penal Code, 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 cooperative society would fall under any of the categories of officers mentioned in clauses (1) to (9) and (11) and (12) of section 21, Indian Penal Code. 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 section 21, Indian Penal Code, is a public servant, whether appointed by the Government or not. So, the question is whether the accused, who is the secretary of a cooperative 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 section 21, Indian Penal Code, I 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 section 21, Indian Penal Code. It has been held by the various High Courts that the president or the secretary of a co-operative society cannot be considered to be a ‘public servant’ within the meaning of section 21, Indian Penal Code. It has been held by the various High Courts that the president or the secretary of a co-operative society cannot be considered to be a ‘public servant’ within the meaning of section 21, Indian Penal Code. The decisions in Karnam Siddappa v. State of Mysore1, Shridhar v. Emperor2 Sombari Behra v. Emperor1 and S.R. Bhattacharya v. State2 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 Ratan3, where in paragraphs 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 section 409, Indian Peanl Code. 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 provisions of section 409, Indian Penal Code, 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, he would squarely fall within the scope of section 409, Indian Penal Code. 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 an agent of a bank or in any other capacity to attract section 409, Indian Penal Code, 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 section 21 of the Code. It has, therefore, to be held that the accused, as the secretary of the cooperative society, on the evidence in this case shows, is to be held not a ‘public servant’ within the meaning of section 21 of the Indian Penal Code, or any other category of persons to whom section 409, is made applicable. Therefore, the conviction under section 409, Indian Penal Code, has to be set aside. 5. That does not however mean that no offence against the accused has been made out. The evidence or record would go to show that the accused has committed an offence which would rightly fall under section 408, Indian Penal Code. All the necessary evidence is here, and there is no case that any material prejudice would result if the charge is altered from section 409 to 408, Indian Penal Code. Therefore, in exercise of the power under section 423 of Criminal Procedure Code, I convict the accused under section 408, Indian Penal Code. As for the conviction and sentence under section 477-A is concerned, it shall stand confirmted 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 section 408., Indian Penal Code, not section 409 Indian Penal Code, 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 section 408, Indian Penal Code, to undergo rigorous imprisonment for a period of nine months. The sentences under section 408 and 477-A, Indian Penal Code, shall run concurrently. The revision is allowed to the extent indicated above.