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1994 DIGILAW 931 (RAJ)

Mohan Lal v. State of Rajasthan

1994-11-23

B.R.ARORA

body1994
Honble ARORA, J. — These two miscellaneous petition arise out of the order dated 2-11-92, passed by the Special Judge, Essential Commodities Cases (Additional Sessions Judge), Jodhpur, by which the learned Additional Sessions Judge dismissed the two revision petitions (Criminal Revision Petition No. 153 of 92 Mohan Lal vs. The State and Criminal Revision Petition No. 154 of 1992 (Mohan Lal vs. State) filed by the petitioner. As the controversy involved in both the miscellaneous petitions is the same, therefore, both these miscellaneous petitions are disposed of by this common Order. (2). Petitioner Mohan Lal was working with "tie Jodhpur Central Cooperative Bank" (in brief, the bank) as the Branch Manager. While he was posted at the Osian Branch of the bank during the period of June 1980 to May 31, 1982, an F.I.R. was registered against the petitioner for committing criminal breach of trust and cheating the bank by altering the valuable securities under Section 409 and 420 I.P.C. While working as the Branch Manager at the Paota Branch (Jodhpur) of the bank during the period 4-6-82 to 31.7.82, an F.I.R. was registered, against the petitioner at Police Station, Mahamandir, Jodhpur, for committing criminal breach of trust by him with an intention to defraud the bank and he mutilated and falsified the accounts of the bank. After necessary investigations in both the aforesaid cases, the police present challans against the petitioner in the Court of the learned Chief Judicial Magistrate, Jodhpur. The learned Chief Judicial Magistrate took cognizance against the accused-petitioner and thereafter framed the charges in both the cases. Aggrieved with the order framing the charges, the petitioner approached this Court and the criminal revisions, filed by the petitioner, challenging the orders framing the charges, were dismissed by this Court. The learned Magistrate thereafter proceeded with recording of the statements of the witnesses. The petitioner thereafter moved applications in both these cases for dropping the criminal proceedings on the ground that the proceedings were taken by the Department under Section 74 of the Rajasthan Cooperative Societies Act for the repayment of the amounts regarding which the petitioner is alleged to have committed criminal breach of trust and, therefore, the criminal proceedings with respect to these very items cannot continue and the continuation thereof will amount to abuse of the process of the Court and, therefore, the criminal proceedings against him should be dropped. The learned Chief Judicial Magistrate, by his order dated 1-11-1991, rejected both these applications filed in the aforesaid two criminal cases. The petitioner, aggrieved with the order dated 1-11-91, passed by the learned Chief Judicial Magistrate, Jodhpur, rejecting his applications in both the cases, preferred revision petitions and both the revision petitions were decided by the learned Special Judge, E.C. Act Cases (Additional Sessions Judge), Jodhpur, by his order dated 2-11-92, who dismissed the revision petitions filed by the petitioner. It is against this order that the petitioner has preferred these two miscellaneous petitions challenging the order passed by the Court below. Criminal Miscellaneous Petition No. 37 of 1993 relates to the F.I.R. lodged against the petitioner at Police Station, Mahamandir, Jodhpur, while Criminal Miscellaneous Petition No. 38 of 1993 relates to the F.I.R. lodged against the petitioner at Police Station, Osian. (3). It is contended by the learned counsel for the petitioner that where an accused is charged-with the offence of criminal breach of trust with regard to certain items then the question of civil liability with respect to those items has been determined by the competent court, the criminal proceedings must have been dropped and its continuation will be an abuse of the process of the Court. In support of its contention, learned counsel for the petitioner has placed reliance over Rajendra Kumar vs. The State of West Bengal (1), Kaviraj Basudevananda vs. State (2), Shyam Sunder Ranka and others vs. the State of Madhya Pradesh (3), Mohan Lal vs. The Jodhpur Central Cooperative Bank (4), Thakur Jugal Kishore Sinha vs. Sitamarhi Central Cooperative Bank Ltd., and Others (5) and Sohan Lal vs. the State of Rajasthan (6). The learned Public Prosecutor and the learned counsel for the Bank, on the other hand, have supported the order passed by the Court below and submitted that the enquiry envisaged under Section 74 of the Rajasthan Cooperative Societies Act (in short, the Act) is in the nature of a departmental enquiry by the Registrar, Cooperative Societies, to order the defaulter to contribute by way of compensation for the losses caused to the bank and does not determine and civil right of the parties. Even otherwise, their further contention is that the enquiry under Section 74 of the Act is an administrative enquiry and not in the nature of criminal proceedings before a competent Court and the departmental enquiry, under the the Rules, does not amount to prosecution and punishment for an offence and, therefore, both the criminal proceedings as well as the administrative proceedings and, also, the civil proceedings for the recovery of the amount, can go simultaneously and the order passed by the learned court below does not require any interference. In support of his contention, learned counsel for the Bank has placed reliance over S.A. Ven-kataraman vs. Union of India and Another (7). The learned counsel for the Bank has, also, raised a preliminary objection that the present miscellaneous petitions are nothing but second revision petitions, which are not maintainable in view of the statutory bar put by Sub-Section (3) of Section 397 Cr.P.C. and merely by changing the nomenclature, the statutory bar cannot be over-come and the miscellaneous petitions, filed by the petitioner, therefore, deserve to be dismissed on this very ground. In support of its contention, learned counsel for the bank has placed reliance over Bishambar Lal vs. The State and Another (8) and Moosa Hussain Sanghar vs. The State of Gujarat and Others (9). (4). I have considered the submissions made by the learned counsel for the parties. (5). Before dealing with the merit of the case, I would first like to consider the preliminary objection raised by the learned counsel for the Bank regarding the maintainability of these miscellaneous petitions. Sub-section (3) of Section 397 Cr.P.C. puts a statutory bar on entertaining the further revision by the same person if his or her earlier revision petition made to the High Court or the Sessions Judge has been rejected. In view of the provisions of Section 397 (3) Cr.P.C, the second revision petition by the same person is, therefore, not maintainable. In order to over-come this difficulty, the petitioner has filed these miscellaneous petitions, though the relief prayed-for in both these miscellaneous petitions is with respect to setting- aside the order dated 1-11-91 by which the learned Chief Judicial Magistrate dismissed the applications filed by the petitioner. In order to over-come this difficulty, the petitioner has filed these miscellaneous petitions, though the relief prayed-for in both these miscellaneous petitions is with respect to setting- aside the order dated 1-11-91 by which the learned Chief Judicial Magistrate dismissed the applications filed by the petitioner. This miscellaneous petitions, filed by the petitioner, are nothing but the second revision petitions and merely by changing the nomenclature the statutory bar of Section 397 (3) Cr.P.C. cannot be over-come and the powers under Section 482 Cr.P.C. cannot be utilised for exercising the powers which are expressly barred by the provisions of Sub-section (3) of Section 397 Cr.P.C. The powers under Section 482 Cr.P.C. can be exercised only when it is necessary to make such order to give effect to any order passed under the Code or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. None of the conditions, envisaged for the exercise of the powers under Section 482 Cr.P.C. are present in the case and, therefore, the inherent powers under Section 482 Cr.P.C. cannot be used in these miscellaneous petitions. It has been held by the Apex Court in Rajan Kumar Machananda vs. The State of Karnataka (10) that "merely by saying that the jurisdiction of the High Court for exercise of its inherent powers was being invoked, the statutory bar could not have been over-come. If that would have been permitted, every revision facing the bar of Section 397 (3) Cr.P.C. could be labelled as a petition under Section 482 Cr.P.C." The same view has been reiterated by the Apex Court in the case of Dharmpal and Others vs. Ramshri and Others (11) and it has been observed by the Apex Court that "it is, now, well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising the powers which are expressly barred by the Code." The petitions, filed by the petitioner, are nothing but revision petitions though the nomenclature given to them is the "miscellaneous petitions" and as such they are not maintainable in view of sub-section (3) of Section 397 Cr.P.C. The preliminary objection, raised by the learned counsel for the Bank is, therefore, sustainable. (6). (6). The next question, which requires determination in the present case is, whether after completion of the enquiry by the Registrar under Section 74 of the Rajasthan Cooperative Societies Act, the petitioner can be prosecuted and punished for the offences under Section 409 and 420 I.P.C. in the case registered at Police Station, Mahamandir, Jodhpur, and/or for the offences under Sections 409, 466, 467 and 471 I.P.C. for the case registered against him at Police Station, Osian? The contention of the learned counsel for the petitioner is that in the proceedings under Section 74 of the Act with respect to these very items, the question of civil liability of the petitioner has been determined by the Registrar and as such the continuation of the criminal proceedings with respect to the same items/amount will be abuse of the process of the Court. In Thakur Jugal Kishore Sinha vs. The Sitamarhi Central Cooperative Bank Limited and Another (supra), the question for determination for the Apex Court was whether the Assistant Registrar, Cooperative Societies, was a Court within the meaning of Contempt of Courts Act? It was in respect to the contempt proceedings initiated against the contem nor that the matter was considered by the Apex Court with respect to Bihar Cooperative Societies Act. According to Section 57 of the Bihar Cooperative Societies Act, with respect to the disputes which fall under Section 48 of the Act, the jurisdiction of the ordinary Civil and Revenue Court is ousted and the civil or revenue disputes, which fall under Section 48 of the Bihar Act are wholly triable by the Registrar and, therefore, the Apex Court, in those circumstances, held that "for the purpose of Contempt of Courts Act, the Registrar or the Assistant Registrar, to whom the power has been delegated, is a Court discharging the same functions and duties in the same manner as a Court of Law is expected to perform". It was in these circumstances that for the purpose of Contempt of Court Act, the Registrar was treated as the Court. In the present case, there is no such provision, rather sub-section (3) of Section 74 of the Rajasthan Cooperative Societies Act clearly provided that Section 74 of the Act will apply notwithstanding that such person or the officer may, have a criminal liability by his act or omission. In the present case, there is no such provision, rather sub-section (3) of Section 74 of the Rajasthan Cooperative Societies Act clearly provided that Section 74 of the Act will apply notwithstanding that such person or the officer may, have a criminal liability by his act or omission. This judgement, therefore, does not apply to the facts and circumstances of the present cases. (7). In Rajendra Kumar Ruia vs. The State of West Bengal (12), accused Rajendra Kumar Ruia, in pursuant to a hire-purchase agreement with the complainant, re-possessed the vehicle hired because of the default of the complainant to pay the instalment amounts. The complainant lodged a complaint under Section 411 I.P.C. against the accused on the ground that he was the owner of the vehicle concerned. In the meantime, the accused filed a civil suit against the complainant for the declaration of title and possession over the vehicle. A compromise-decree was passed, by which the accused was declared as the owner of the vehicle. Accused Rajendra Kumar, therefore, raised an objection that in view of this compromise-decree, the criminal proceedings against him should be dropped. It was held by a Single Bench of Calcutta High Court that "in view of the compromise decree over the same subject-matter, a criminal proceeding should be dropped and its continuation will amount to abuse of the process of the Court". It was, in view of the compromise arrived at between the parties in which the rights of the parties were accepted by themselves that the proceedings were dropped. This judgement of the Calcutta High Court, also, does not appy to the facts and circumstances of the present cases. In Kaviraj Basudevananda vs. The State (supra), a suit was filed by the plaintiff in the Civil Court which was decreed. Later on, a criminal proceeding under Section 406 I.P.C. was instituted. This judgement of the Calcutta High Court, also, does not appy to the facts and circumstances of the present cases. In Kaviraj Basudevananda vs. The State (supra), a suit was filed by the plaintiff in the Civil Court which was decreed. Later on, a criminal proceeding under Section 406 I.P.C. was instituted. After considering the facts and circumstances of the case, a Single Bench of Calcutta High Court came to the conclusion that "it is abundantly clear that the relief prayed- for in the instant proceeding in a criminal case is a civil one and proper determination of the suit, that has been raised, the Criminal Court is, perhaps, not the proper forum." It was in these circumstances that the dispute lodged was of civil nature and that can be decided by the competent Civil Court and, therefore, the learned Single Judge of the Calcutta High Court held that "having regard to the fact that over the same subject matter a suit was, also, filed in the Civil Court and the same was decreed, continuation of the present proceeding in the criminal court would be unwarranted and untenable". This case is, also, distinguishable from the present cases and does not apply in the facts and circumstances of the cases in hand. In Shyam Sunder Ranka & Others vs. The State of M.P. (supra) there was a long and intimate relations between the accused and the complainant. The accused being the Commission Agent is Grains and the complainant being a marchant in the grains, and there were numerous transactions on commission basis between them and it was found difficult to determine the extent to which the ........................... part-away with the money or goods alleged to be the subject-matter of breach of trust and cheating. The Single Bench of Madhya Pradesh High Court, therefore, held that "it would be a dispute essentially of a civil nature and not of criminal nature". As the Court held that the dispute in the matter is essentially of a civil nature, therefore, criminal proceedings were dropped. This judgement is, also, not helpful to the petitioner because the controversy in the present matters is purely of criminal nature as held by this Court that the charges were rightly framed against the petitioner and the revision petitions against the orders framing the charges, were dismissed by this Court. This judgement is, also, not helpful to the petitioner because the controversy in the present matters is purely of criminal nature as held by this Court that the charges were rightly framed against the petitioner and the revision petitions against the orders framing the charges, were dismissed by this Court. This case of M.P. High Court is, therefore, not applicable in the present cases. In a D.B. judgment of this Court in Mohan Lals case, the controversy involved in the present cases was not for consideration before the Division Bench. The Division Bench, while considering the provisions of Section 74 of the Act vis a vis the disciplinary proceedings and the procedure to be adopted in the cases wherein departmental proceedings are contemplated against an employee or they are initiated against him, that the Division Bench held that Sections 70 to 74 of the Act operate in different field. This judgement is, also, of no help to the petitioner as the controversy involed in the present case is a different one. In Sohan Lal vs. State (supra), Sohan Lal was working as the Chairman, Cashier-cum-Accountant and Manager of the Samiti. During the Financial Years 1972-73 and 1973-74, certain amounts were debited as having been advanced to different firms for the purpose of purchasing Peddy but the firms were bogus and the entries were falsely made in the Cash Book. According to Bye-law 41, he was prosecuted for the offences under Sections 408, 467/34 and 468 I.P.C. Sohan Lal preferred a miscellaneous petition for quashing the proceedings. A Single Bench of this Court held that there is nothing on record to show that any voucher regarding disbursement of this amount bears the signatures of the petitioner and not even a single entry was signed by Sohan Lal but the same were signed by one Shanti Lal Porwal. The Assistant Registrar, therefore, discharged the petitioner from the liability as the entries were made by Shanti Lal Porwal and not by petitioner Sohan Lal and, therefore, in those circumstances the proceedings against Sohan Lal were dropped. This case is, also, of no assistance to the petitioner because in the present cases the charges have been framed against the petitioner and the revision petitions filed by the petitioner against the orders framing the charges, were dismissed. Thus, a prima facie case against the petitioner to proceed-with against him, is made out. This case is, also, of no assistance to the petitioner because in the present cases the charges have been framed against the petitioner and the revision petitions filed by the petitioner against the orders framing the charges, were dismissed. Thus, a prima facie case against the petitioner to proceed-with against him, is made out. The cases, on which reliance has been placed by the learned counsel for the petitioner, are, therefore, of no assistance to the petitioner. (8). In S.A. Venketaraman vs. Union of India and Another (supra), an enquiry against petitioner S.A. Venketaraman under the Public Servants Enquiry Act, 1850, was initiated and for the same act the petitioner was, also, prosecuted. An objection was raised by the accused-petitioner that in view of Article 20(2) of the Constitution of India, the two proceedings with respect to the same item cannot be allowed to continue and the prayer for quashing the criminal proceeding was made. The Apex Court, after considering the law on the point, held that "the language of Article 20 and the words actually used in Article 20 (2) afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding before a Court of law or a Judicial Tribunal and not before a Tribunal which entertains a departmental or an administrative enquiry even if set-up by a statute but which is not required by a law to try a matter judiciously on a legal evidence". While laying down this proposition of law, the Apex Court followed the law enunciated in Makbool Hussains case (13). This case, thus, fully applies to the present controversy. The object of the enquiry under Section 74 of the Act is to check the conduct of such person who has taken any part in the organisation or management or who is or has, at any time, being an officer or employee of a society, has made any payment contrary to the Act, the Rules or the Bye laws or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money or property belonging to such society. This Section empowers the Registrar to hold an enquiry to examine the conduct of the guilty person (s) and if after enquiry such person is found guilty then the Registrar may order him to repay or restore the money or property or any part thereof with interest at such rate or to pay contribution or cost or compensation to such extent as it considers just and equitable. Sub-section (3) of Section 74 of the Act makes it clear that this Section shall apply notwithstanding that such person or officer may have incurred criminal liability by his act or omission. The application of this Section, thus, excludes the prosecution of a person under the Criminal Law. The enquiry envisaged under Section 74 of the Act is an enquiry regarding the liability of the petitioner for the payment of the amount which have been paid/parted-with by him contrary to the provisions of the Act, the Rules or the Bye-laws or the person has caused any deficiency in the assets of the society and in this enquiry the decision regarding the embezzlement of the amount has not to be gone-into as the scope of the enquiry is very much limited. The enquiry is purely of an administrative nature though set-up under the Rules and not in the nature of a criminal proceeding before a Court of Law and, thus, the administrative enquiry under Section 74 of the Act does not amount to prosecution and punishment for an offence. This Section does not create any offence nor provides any punishment for it, but makes provision only for the defaulter to contribute for the payment of the amount which was paid by him contrary to the provisions of the Rules. The enquiry is not related to any offence under any Penal Statute and relates only to the conduct and the liability of the petitioner. Thus, the liability of the petitioner, determined under Section 74 of the Act, does not bar the jurisdiction of the Criminal Court for taking action against him under the Indian Penal Code or any other Penal Statute. (9). The conduct of an employee regarding payment contrary to the provisions of the Act, the Rules or the Bye-laws, makes him liable under the Civil Law as well as under the Rajasthan Cooperative Societies Act and his misconduct may, also, constitute an offence under the Indian Penal Code. (9). The conduct of an employee regarding payment contrary to the provisions of the Act, the Rules or the Bye-laws, makes him liable under the Civil Law as well as under the Rajasthan Cooperative Societies Act and his misconduct may, also, constitute an offence under the Indian Penal Code. Thus, the administrative enquiry under the Cooperative Societies Act regarding the liability of the petitioner for the payment of the amount and his prosecution in a criminal case before a Criminal Court, both can go together as the Administrative Enquiry under Section 74 of the Act does not deal with the criminal offences. Both the enquiries are distinct in character. (10). In this view of the matter, I do not find any merit in these two miscellaneous petitions and the same are hereby dismissed.