Judgment :- This revision has been preferred by the petitioner/1st accused against the Judgment dated 2-9-1992 made in C.A. No. 15 of 1990 on the file of Sessions Judge, Thanjavur, confirming the conviction and sentence imposed against the petitioner concerned by the Judicial Magistrate No. 1, Pattukottai in C.C. No. 398 of 1985, dated 29-12-1989 2. Originally the Calendar Case No. 398 of 1985 was taken on file against two accused. The revision petitioner was the 1st accused. The case of the prosecution is that the petitioner/1st accused was the President of Co-operative Milk Society, Uloor village, Pudukottai from 1-6-1978, in which Society, 2nd accused was serving as Cashier. During the period from 1-1-1981 to 30-10-1984, the amount, as per the accounts, available in the Society, was Rs. 34, 207-13, but the available amount shown by the accused was only Rs. 191-50 and since there was no proper explanation as to the account for the said amount charge sheet was filed alleging that the revision petitioner/1st accused has misappropriated Rs. 34, 015/63 and 2nd accused has abetted the offence, thereby punishable under Sections 409 and 409, r/w 109, I.P.C. The trial Court in C.C. No. 398 of 1985, after appraisal of the entire evidence and documents found the petitioner/1st accused guilty under S. 409 I.P.C., and 2nd accused under Section 408, I.P.C. The petitioner/1st accused was sentenced to undergo one year R.I. and to pay a fine of Rs. 1, 000/- in default to undergo R.I. for 2 months. Against the Judgment of the trial court, the petitioner preferred an appeal in C.A. No. 15 of 1990 on the file of the Sessions Judge, Thanjavur, in which learned Sessions Judge confirmed the conviction and sentence imposed by the trial Court and dismissed the appeal, but however, observed that the petitioner need not be sent to prison, as he is entitled to the benefits of G.O. Nos. 781 of 1990 and 279 of 1992, by which one year period of sentence has been remitted. Without satisfying with that Judgment made in the criminal appeal, the petitioner/1st accused has come before this court by way of revision 3. I have heard learned counsel for the petitioner as well as learned Government Advocate 4. There is no dispute about the shortage of amount and non-account ability for the same. P.Ws. Without satisfying with that Judgment made in the criminal appeal, the petitioner/1st accused has come before this court by way of revision 3. I have heard learned counsel for the petitioner as well as learned Government Advocate 4. There is no dispute about the shortage of amount and non-account ability for the same. P.Ws. 1 and 2 have categorically deposed about the procedures and duties to be followed by the petitioner, who was mainly responsible for the conduct of the society. Ex. P7 is the letter sent by the revision petitioner to the Registrar of Co-operative Societies, in which he had admitted the shortage and for which he alone was responsible. He also undertook through that letter to reply the same soon. Besides Ex. P7 letter, there is another letter Ex. P8 written by the revision petitioner/1st accused, admitting his responsibility for the deficit. In the enquiry conducted on the direction of P.W. 1 Special Officer, the revision petitioner/1st accused gave a statement Ex. P9, in which also he undertook to repay the shortage amount within a short period. All these documentary evidence and oral evidence adduced on the side of prosecution clearly prove that the petitioner/1st accused was entrusted with the amount which has been subsequently misappropriated. These factual aspects have been elaborately discussed by both the Courts below 5. Learned counsel for the revision petitioner after elaborately making his submissions, confined himself with two points :- (i) The petitioner being the President of Co-operative Society cannot be charged for the offence under S. 409, I.P.C., in view of the fact that Section 409, I.P.C. will be applicable only to the Public Servant. But in the instant case, the President of the Co-operative Society cannot be considered to be a public servant and as such the conviction for the charge under Section 409, I.P.C. is not valid in law (ii) Though in the F.I.R. it has been stated that the period of misappropriation is in between 8-10-1983 and 27-11-1983, the charge sheet has been filed stating that the misappropriation was found out on 8-12-1983 and consequently, the trial Court has framed the charge stating that during the period between 1-11-1981 and 30-10-1984, the petitioner Shanmugham and the 2nd accused Muthkumarasamy while working as President and Cashier in the Society have misappropriated a sum of Rs. 34, 015.63 6. 34, 015.63 6. The narration of the few facts would give answer to these questions. The petitioner/1st accused was the President of Co-operative Milk Supply Society, Uloor, Pudukottai, from 1-6-1978. A-2 Muthukumarasamy who was acquitted by the lower appellate Court, was working as Cashier in the said society from 1-11-1981. The main duty assigned to him (A-2) was to receive cash from the vendors, to prepare cash bills, to maintain day-to-day accounts and cash book and to remit the cash to the 1st accused/petitioner. On 3-12-1983, when the enquiry officer made a surprise visit to the society and verified the cash book handed over by the petitioner/1st accused a balance of Rs. 34, 207-13 was found in the book, but when the available cash was checked, only a sum of Rs. 191-50 was found and as such there was a cash deficit of Rs. 34, 015-63, for which the petitioner could not give any explanation 7. As per the bye-law of the said society, the President is entrusted with cash and has got overall general administration of the society, since he is the custodian of the funds of the society. On 3-12-1983, P.W. 6, Rajagopalan made a surprise inspection of the Society in which A-1 and A-2 were working as President and Cashier respectively. For the cash deficit to the tune of the sum referred above, as found by the enquiry officer on inspection, the petitioner neither furnished any bills nor gave proper explanation. As per the materials produced through the witnesses in this case. A-2, the Cashier was to receive the cash from the milk vendors, to issue cash bills after preparation to the vendors and after making corresponding entries regarding the receipt of the cash in the account books, he was to hand over the amount to A-1/the petitioner, without any delay, who in turn should remit the amount into bank7A. As regards the evidence relating to the entrustment is concerned, P.W. 2 Marimuthu, P.W. 3 Muthusamy, P.W. 5 Natarajan and P.W. 6 Rajagopalan have deposed that A-1, the President of the Society was entrusted with the cash and A-2 was entrusted with maintenance of accounts, including the vouchers. Ex. P5 bye-law of the Society is a corroborative piece of documentary evidence to prove the entrustment of accounts to A-2, the cashier. Ex. Ex. P5 bye-law of the Society is a corroborative piece of documentary evidence to prove the entrustment of accounts to A-2, the cashier. Ex. P3 cash book also would clearly show that on the date of inspection made by P.W. 6, viz. 3-12-1983, there was a cash deficit to the tune of Rs. 34, 015-63 8. It is apparently clear from the evidence of P.W. 6, that A-1 and A-2 have given voluntary statements on various dates and they have been marked as Exs. A7 to P11. On the basis of enquiry conducted by P.W. 6, he prepared Ex. P12 enquiry report, which would clearly show that A-2, the Cashier, after collection of the amount, handed over the same to A-1, the President, for which there are documentary evidence also and then, when A-1, the petitioner gave voluntary statements in writing, Exs. P7 to P9 on 19-9-1983, 29-10-1983 and 3-12-1983, he admitted that the amount was entrusted to him by A-2 and he has given an undertaking to repay the same within a particular time. It is also relevant to note, that Ex. P10, the statement given by A-2 would also show that A-2, the Cashier has handed over the amount collected from the vendors to A-1, the petitioner. There was no challenge made by the petitioner with regard to the entrustment of the amount in dispute made to him, by A-2 9. The period of the charge, though in the F.I.R., is mentioned as in between 3-10-1983 and 27-11-1983, the deficit was detected only on 3-12-1983 and after the enquiry conducted in pursuance of the inspection on 3-12-1983, it was found out that the amount handed over by A-2 Cashier to A-1 President has been misappropriated, which is clear from the evidence of P.W. 6, the enquiry officer. On 19-9-1983 A-1 gave the statement Ex. P7, stating that he was responsible for the said deficit amount. On 26-10-1983, A-2 gave the statement Ex. P10 to P.W. 6, stating that he handed over the entire amount to A-1. On 29-10-1983, A-1 gave another statement Ex-P8 reiterating the same details as stated by him earlier. Then on 3-12-1983, agreeing with the contention in Ex. P7, stating that he was responsible for the said deficit amount. On 26-10-1983, A-2 gave the statement Ex. P10 to P.W. 6, stating that he handed over the entire amount to A-1. On 29-10-1983, A-1 gave another statement Ex-P8 reiterating the same details as stated by him earlier. Then on 3-12-1983, agreeing with the contention in Ex. P10, the statement given by A-2, the petitioner/A-1 also gave a statement in his own hand-writing accepting the entrustment and the responsibility for the deficit amount and he gave an undertaking that he would repay the said amount within a specified time. Therefore, the contention that the period of charge has not been properly framed would not make a dent in the prosecution case 10. Section 464, Cr.P.C., also would specify the fact that an error or irregularity in the charge shall not be taken as a ground to nullify the finding given by a Court of competent jurisdiction, unless a failure of justice has in fact been occasioned thereby. In this regard, learned counsel for the revision petitioner referred to the decision of the Madhya Pradesh High Court (Indore Bench) in the case of State of Madhya Pradesh v. Indrajeetsingh, 1987 Crl. LJ 348. The referred decision would not be of any help to the present case, since no prejudice has been shown by the petitioner and as such I do not see any illegality in the finding given by the Court below, as to misappropriation 11. The case in Mohammad Sulaiman v. Md. Ayub, 1965 AIR(SC) 1319, 1965 (71) CRLJ 421, 1965 (2) SCR 398 as referred to by learned counsel for the revision petitioner, has no relevance at all to the case on hand, especially when Ex. P9, the statement given by A-1/petitioner to the enquiry officer. P.W. 6 during his surprise inspection was in the own handwriting of the petitioner, admitting the handing over of the amount by A-2 to him and his responsibility for the repayment of the said amount 12. One more important point to be taken note of is that either in the statement under Section 313, Cr.P.C., before the trial Court or in the enquiry conducted by P.W. 6, the 1st accused/petitioner never said, that he did not receive any amount from A-2. There was no suggestion put to the witnesses, to disprove the genuineness of the documents Exs. There was no suggestion put to the witnesses, to disprove the genuineness of the documents Exs. P7 to P9 and in fact, Ex. P9, the statement is in the own handwriting of the petitioner 13. Coming to the next contention that the petitioner being the President of Co-operative Society, could not be convicted for the offence under Section 409, I.P.C., I feel that there is some force in such contention, because that point has been clearly decided by this Court in K. Somasundaram v. State by Inspector of Police, C.C.I. Wing C.I.D., Coimbatore, 1990 Mad LW (Crl) 172. In the referred decision His Lordship Justice Arunachalam has referred the observation of Supreme Court which is as follows :- "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. Therefore, 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 Section 409, I.P.C." * It has also been held by Justice Arunachalam, that to find the petitioner in that case quality of the offence under Section 409, I.P.C., he must be a public servant, banker, merchant or agent and that there is a plethora of authorities that the President of a Co-operative Society will not be a public servant as defined in Section 21, I.P.C 14. In that view, while it is not possible to affirm his conviction for an offence under Section 409, I.P.C., on facts, the entrustment having been established and the retention, which was deemed to be dishonest in view, the guilt of the petitioner has to be taken to have been established for an offence under Section 406, I.P.C. Therefore, the conviction of the revision petitioner under Section 409, I.P.C. is set aside and instead he is convicted under Section 406, I.P.C. The sentence as already imposed upon the revision petitioner of one year R.I. and to pay a fine of Rs. 1, 000/- in default to undergo R.I. for two months is modified into one of R.I. for six months alone, under Section 406, I.P.C. The fine amount of Rs. 1, 000/- as already paid by the revision petitioner is directed to be refunded immediately. As observed by the lower appellate Court, as the petitioner is entitled to the benefit of remission, he need not surrender before the prison authorities as 6 months period has already been remitted. With the above modification of conviction and sentence, this revision is partly allowed.