Judgment : The petitioner who was acting as the President of Karamadai Co-operative Marketing Society, Dayanur, Kallampalayaam Village, Avinashi Taluk, was tried in C.C.No.375 of 1979, on the file of the Sub Divisional Judicial Magistrate, Tiruppur, for offences under Secs.409, 477-A and 467, Indian Indian Indian Penal Code, found guilty thereof and sentenced to undergo imprisonment till raising of Court and to pay a fine of Rs.1,000 in default to undergo rigorous imprisonment for six months for the offence under Sec.409, Indian Indian Indian Penal Code and imprisonment till raising of Court and to pay a fine of Rs.500 on each count, in default to undergo rigorous imprisonment for three months under Sec.467 and 47A, Indian Indian Indian Penal Code. The sentences were directed to run concurrently: 2. The aggrieved petitioner preferred Crl.A.No.680 of 1978 before the Court of Sessions, Coimbatore. The appellate Court agreed with the findings of the trial Magistrate and confirmed the convictions and sentences imposed on the petitioner and dismissed the appeal. 3. A few facts may be necessary for the disposal of this revision. The allegation against the petitioner was that between 7.1.1975 and 14.2.1976, he as the Vice President at the relevant time was entrusted with a sum of Rs.32,500 as advance to procure rice from the Karnataka State and he committed criminal breach of trust in respect of the said amount and in that process with intent to defraud and to cover up the misappropriation, falsified Exs.P18 to P22, the vouchers belonging to the Society and produced them before the Enquiry Officer purporting them to be receipts for procurement of paddy from the farmers in Karnataka State. 4. It is not disputed that on 7.1.1975 the petitioner received Rs.32,500 from the Society and that is vouchsafed the receipt Ex.P5. Therefore, the entrustment of the money has not only been established by the prosecution but has also been admitted by the petitioner himself. It is also the case, as evidenced, that on several dates, commencing from 7.2.1975, the petitioner had paid the entire sum to the co-operative society together with interest. The complaint itself was lodged only on 19.8.1976 after the entire money was paid by the petitioner. Mr.K.M.Santhanagopalan, learned counsel appearing for the petitioner, contended that there was no proof that the petitioner is the author or forgery. The complaint itself was lodged only on 19.8.1976 after the entire money was paid by the petitioner. Mr.K.M.Santhanagopalan, learned counsel appearing for the petitioner, contended that there was no proof that the petitioner is the author or forgery. He would further contend that the petitioner did not falsify any records belonging to the society to attract the ingredients of Sec.477-A, I.P.C. In respect of the offence under Sec.409, I.P.C., it is his contention that the President of the Co-operative Society is not a public servant within the meaning of Sec.21, I.P.C. and therefore, even if the case of the prosecution is to be accepted, the petitioner can be said to have committed only an offence under Sec.406, I.P.C. I have heard Mr.A.C.Chakravarthi, the learned Government Advocate appearing for the respondent. 5. The charge of forgery relates to Exs.P18 to P22. P.Ws.5 to 6 who have been examined as the authors of these receipts clearly admitted that the signatures found therein were not made by them and that the petitioner did not purchase any paddy from both of them. Exs.P21 and P22 were not even sent to the Handwriting Expert. The expert was not able to fix the petitioner as the author of Exs.P18 to P20. On this ground, it is apparent that the petitioner cannot be convicted for the offence under Sec.467, I.P.C. To find the petitioner guilty of the offence under Sec. 467, I.P.C. the prosecution must establish that he had forged the documents with necessary mens rea. That having not been done, the petitioner will be entitled to be acquitted of the charge of forgery. 6. In respect of the charge under Sec.477-A, I.P.C. it is fairly conceded by the learned Government Advocate that the ingredients of Sec.477-A, I.P.C., will not be attracted since the petitioner had not falsified the accounts belonging to the Society. Naturally, the petitioner will have to be acquitted of this charge as well. 7. The only charge that survives consideration, relates to the offence under Sec.409, I.P.C. To find the petitioner guilty for the offences under Sec.409, I.P.C. he must be a public servant, banker, merchant or agent. The prosecution has chosen to indict the petitioner on this charge as a public servant. ‘Public servant’ is defined in Sec.21, I.P.C. There is a plethora of authorities that the President of a Co-operative Society will not be a public servant. The prosecution has chosen to indict the petitioner on this charge as a public servant. ‘Public servant’ is defined in Sec.21, I.P.C. There is a plethora of authorities that the President of a Co-operative Society will not be a public servant. The earliest case is the decision of King, J. in Sombari Behara v. Emperor, 1975 M.W.N. 1337. It was clearly held that the President of a Cooperative Society is not a public servant. Adistinction was drawn between persons whose rights and duties are regulated by a Special Act in contradistinction with the Co-operative Societies Act. A Division Bench of the Bombay High Court in Shridhar v. Emperor, A.I.R. 1935 Bom. 36, took the view that the Chairman of a Co-operative Society was not a public servant. The Karnataka High Court has also taken the same view in K.Siddappa v. State of Mysore, A.I.R. 1958 Mys. 82, where dealing with an offence under Sec.409, I.P.C., it was held that the President of a Co-operative Society was not a public servant within the meaning of the expression in the Indian Indian Penal Code. The Karnataka High Court relied upon the decisions of this Court and the Bombay High Court referred to earlier. A Full Bench of the Punjab and Haryana High Court in State of Punjab v. Kesari Chand, 1987 Crl.L.J. 549 (P. & H.) [F.B.], has held that the President and the Secretary of a Co-operative Society are not public servants within the meaning of Cl.12(b) of Sec.21, I.P.C. and to them the provisions of Sec.409, I.P.C., are not attracted since the Co-operative Society is not a Corporation established by a State Act in whose service or pay they supposedly are, or are assumed to be. The members who compose the Corporation are quite different from the Corporation itself, for a Corporation is a legal person just as much as an individual. Thus, it is a group of individuals who first associate on their own violation to become a Co-operative Society and then seek a status as a body corporate under the Co-operative Societies Act. The Supreme Court had occasion to consider the definition of ‘public servant’ in Cl.(12) of Sec.21, I.P.C. in S.S.Khanna v. Delhi Municipality, A.I.R. 1981 S.C. 1395. Thus, it is a group of individuals who first associate on their own violation to become a Co-operative Society and then seek a status as a body corporate under the Co-operative Societies Act. The Supreme Court had occasion to consider the definition of ‘public servant’ in Cl.(12) of Sec.21, I.P.C. in S.S.Khanna v. Delhi Municipality, A.I.R. 1981 S.C. 1395. That was a case where the services of a member of the Indian Administrative Service were placed at the disposal of a Co-operative Society (Super Bazaar) registered under the Bombay Co-operative Societies Act, 1925. The Supreme Court field that the Officer of the Indian Administrative Service who was deputed for his services being utilised by the Co-operative Society during his period of deputation will not be covered under Sec.21, Clause (12) of the Indian Indian Indian Penal Code, for he was not an officer in the service or pay of the Government, nor was he in the service of a local authority, a corporation established by or under an Act or a Government company. In that connection, the Supreme Court has affirmed the earlier view taken by it Sabhajit Tewary v. Union of India, A.I.R. 1975 S.C. 1329. The Supreme Court further held that a Co-operative Society is not a statutory body because it is not created by a statute. It is a body created by an act of a group of individuals in accordance with the provisions of a statute. A Co-operative Society is, therefore, not a Corporation established by or under an Act of the Central or State Legislature. Therefor, on the enunciation of law detailed above, the petitioner cannot be deemed to be a public servant. If that be so, it is not possible to affirm his conviction for an offence under Sec.409, I.P.C. 8. Onfacts, the entrustment having been established and the retention, which was deemed to be dishonest in view of the production of Exs.P18 to P22, the guilt of the petitioner has to be taken to have been established, though only for an offence under Sec.406, I.P.C. Learned counsel for the petitioner fervently pleads that the provisions of the Probation of Offenders Act, Central Act XX of 1958, could be invoked in view of the petitioner having made good the amounts along with interest long before the lodging of the complaint. It appears that the petitioner as well as his father were associated with this Co-operative Society for several years and the record had been clean. Unfortunately, the petitioner had involved himself in the commission of this offence in 1975-76, 13 years have elapsed since the commission of the offence and the fact remains that the Society has not lost anything, for the entire amount plus interest has been paid by the petitioner to the Society. The offence under Sec.406, I.P.C., is punishable with imprisonment which may extend to three years or with fine, or with both. On the facts of this case, there will be no impediment in invoking the provisions of the Probation of Offenders Act. Sec.4 of the Probation of Offenders Act, Central Act XX of 1958, permits this Court to release a person on probation of good conduct if the offence for which he is convicted is not punishable with death or imprisonment for life and such a course is deemed expedient taking into consideration the nature of the offence and the character of the offender. I am satisfied that the petitioner could be dealt with under the provisions of the Probation of Offenders Act. 9. In that view, while modifying the conviction imposed on the petitioner under Sec.409, I.P.C., into one under Sec.406, I.P.C., I set aside the sentence imposed on him on the first charge and direct him to be released on his executing a bond, within eight weeks from today, in a sum of Rs.2,000 with one surety for a like sum to the satisfaction of the Sub Divisional Judicial Magistrate, Tiruppur, to keep the peace and be of good behaviour for a period of six months and to appear and receive sentence when called upon during such period. The convictions and sentences imposed on the petitioner for offences under Secs.467 and 477-A, I.P.C. are set aside and the petitioner is acquitted of those charges. The find amounts, if paid by the petitioner, shall be refunded to him. The Criminal Revision Case is partly allowed.