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Himachal Pradesh High Court · body

2001 DIGILAW 78 (HP)

KARTAR SINGH v. STATE OF H. P.

2001-05-08

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—An FIR under Section 420 of the Indian Penal Code was registered against the petitioner accused (hereafter referred to as the accused) on the allegations that while acting as Director, H.P. Wool Federation, Kasumpti the accused filed false T.A. Claims and thereby committed an offence punishable under Section 420 of the Indian Penal Code. After investigation, a charge sheet was submitted against the accused and the learned Chief Judicial Magistrate, Shimla issued summons to the accused. An objection was taken by the accused that in view of the bar contained in Section 97 of the H.P. Co-operative Societies Act, 1968 he could not be prosecuted without the previous sanction of the Registrar and without a complaint in writing by such Registrar or any other person authorised by him in this behalf. The trial Court rejected the objection of the accused vide its order dated 25.10.2000. Feeling aggrieved, the accused preferred a petition under Section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India against the said order. On the application moved by the accused under Section 482 of the Code of Criminal Procedure, the said petition was ordered to be treated as a criminal revision. 2. I have heard the learned Counsel for the accused and the learned Assistant Advocate General for the State and have also gone through the material placed on record. 3. The only question which arises for determination in this revision petition is whether the accused cannot be prosecuted for the commission of an offence punishable under Section 420 IPC for claiming false T.A. in view of the provisions of sub-section (3) of Section 97 of the H.P. Co-operative Societies Act, 1968 (hereafter referred to as the Act). 4. Sub-section (3) of Section 97 of the Act reads as follows: "97. Cognizance of offences : (1).................................................................................................... (2)................................................................................................... (3) No prosecution under this Act shall be instituted without the previous sanction of the Registrar and without a complaint in writing made by him or by any person authorised by him in this behalf." 5. A bare reading of the aforesaid provision makes it unambiguously clear that a person shall not be prosecuted under the Act without the previous sanction of the Registrar and without a complaint in writing made by him or by any person authorised by the Registrar in this behalf. A bare reading of the aforesaid provision makes it unambiguously clear that a person shall not be prosecuted under the Act without the previous sanction of the Registrar and without a complaint in writing made by him or by any person authorised by the Registrar in this behalf. Thus, to require previous sanction of the Registrar, the prosecution must be for an offence which is punishable under the Act, 6. Section 96 of the Act which contains penal provisions reads as follows: "96. Offences.— (1) Any person other than a co-operative society carrying on a business under any name or title of which the word "co-operative", or its equivalent in any Indian language is part without the sanction of the Government, shall be punishable with fine which may extend to two hundred rupees and in the cases of a continuing breach with a further fine which may extend to five rupees for every day during which the breach is continuing after conviction for the first such breach. (2) Any member or past member or the nominee, heir or legal representative of a deceased member of a co-operative society who contravenes the provisions of Sections 47 and 52 by disposing of any property in respect of which the society is entitled to have a first charge under that section or does any other act to the prejudice of such claim, shall be punishable with fine which may extend to five hundred rupees. (3) A co-operative society or an officer or member thereof, wilfully making a false return or furnishing false information, or any person willfully or without any reasonable excuse isobeying any summons, requisition or lawful written order issued under the provisions of this Act or wilfully not furnishing any information required from him by a person authorised in this behalf under the provisions of this Act, shall be punishable with fine which may extend to two hundred rupees. (4) Any employer who, without sufficient cause, fails to pay to a society the amount deducted by him under Section 46 within a period of fourteen days from the date on which such deduction is made shall without prejudice to any action that may be taken against him under any law for the time being in force, be punishable with fine which may extend to five hundred rupees. (5) Any officer or custodian who lawfully fails to hand over custody of books, records, cash, security and other property belonging to a society, of which he is an officer or custodian, to person entitled under Sections 38, 70 and 79 shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five rupees for every day during which the breach is continued after conviction for the first such breach. (6) Any person who fraudulently acquires or abets in the acquisition of any such property which is subject to a charge under Sections 47 and 52 shall be punishable with fine which may extend to two hundred rupees." 7. The aforesaid offences, thus, having been provided for in the Act itself, Section 97 (3) shall apply only to such offences which are specified under Section 96 supra. 8. It was contended by the learned Counsel for the accused that filing of false T.A. claim by an officer of the Co-operative society will be covered under sub-section (3) of Section 96, inasmuch as it will amount to furnish false information, therefore, the accused could not have been prosecuted for the offence alleged to have been committed by him without the prior sanction of the Registrar and without a complaint in writing made by the Registrar or by a duly authorised person on his behalf. 9. Sub-section (3) of Section 96 provides punishment for willfully making false return or furnishing false information or willfully and without reasonable excuse disobeying any summons, requisition or lawful written order issued under the Act. It is, therefore, evident that to constitute an offence under the Act, any of the acts covered by sub-section (3) must be in violation of the provisions of the Act and not otherwise. Section 30 of the Act requires the members of the Co-operative Society to furnish information as to their financial position etc. and Section 41 requires every officer and member of the society to furnish such information in regard to the transactions working of the society as may be required of him by the Registrar and other competent persons. Section 71 empowers the Registrar etc. with the powers of a Civil Court in respect of summoning and enforcing attendance of any person, requiring discovery and production of any document etc. Section 71 empowers the Registrar etc. with the powers of a Civil Court in respect of summoning and enforcing attendance of any person, requiring discovery and production of any document etc. Therefore, if any information/return as required to be given under the aforesaid provisions is found to be false and willfully given, or if the summons etc. issued under the aforesaid provisions are disobeyed, the omission or commission shall be an offence punishable under sub-section (3) of Section 96. Section 96 does not make cheating an offence punishable there under. Therefore, in a case of cheating as in hand, provisions of sub-section (3) of Section 97 of the Act shall not apply and previous sanction of the Registrar is not required for prosecuting an officer or member of the society who has committed the offence of cheating. 10. The learned Counsel for the accused has contended that the Act and the Indian Penal Code are completely self contained statutes having different objects and have created specific offences, therefore/a person to whom the Act applies shall have to be prosecuted within the framework of the Act, meaning thereby that he cannot be prosecuted in the absence of a written complaint or without the previous sanction of the Registrar. To substantiate his contention, the learned Counsel has relied on State of Maharashtra v.Laljit Rajshi Shah and others, (2000) 2 Supreme Court Cases 699, wherein the Honble Supreme Court has held as follows: “The Indian Penal Code and the Maharashtra Co-operative Societies Act are not statutes in pari materia. The Co-operative Societies Act is a completely self contained statute with its own provisions and has created specific offences quite different from the offences in the Indian Penal Code. Both statutes have different objects and created offences with separate ingredients. They cannot thus be taken to be statutes in pari materia, so as to form one system. This being the position, even though the legislatures had incorporated the provisions of Section 21 of the Indian Penal Code into the Cooperative Societies Act, in order to define a "public servant” but those "public servants" cannot be prosecuted for having committed the offence under the Indian Penal Code." 11. This being the position, even though the legislatures had incorporated the provisions of Section 21 of the Indian Penal Code into the Cooperative Societies Act, in order to define a "public servant” but those "public servants" cannot be prosecuted for having committed the offence under the Indian Penal Code." 11. In the aforesaid case, the question for determination was whether a person defined as "officer” under sub-section (20) of Section 2 of the Maharashtra Co-operative Societies Act, 1960 was a public servant within the meaning of Section 2 of the Prevention of Corruption Act, 1947 by virtue of the provisions of Section 161 of the Maharashtra Co-operative Societies Act, 1960, read with Section 21 of the Indian Penal Code and as such could be proceeded against for offences under Section 5(1) read with Section 5(2) of the Prevention of Corruption Act, 1947. The High Court answered the question in the negative and the Honble Supreme Court, after considering the relevant provisions of law, held that there was no infirmity in the judgment of the High Court. Thus, the real controversy in the said case was whether the officers as defined under the Maharashtra Co-operative Societies Act could be said to be public servants within the meaning of Section 5 of the Prevention of Corruption Act. Such a question evidently is not involved in the present case. Therefore, the law as laid down in the aforesaid case has no application to the facts and circumstances of the present case. 12, In view of the above legal position, the impugned order rejecting the objection of the accused that he could not be prosecuted under Section 420 IPC for want of previous sanction of the Registrar and in the absence of a written complaint by or on his behalf and holding that a prima facie case under Section 420 IPC was made out against the accused cannot be said to be illegal or without jurisdiction and, therefore, does not call for any interference by this Court. 13, As a result, this revision petition merits dismissal and is accordingly dismissed. 14, The parties, through their learned Counsel, are directed to appear before the trial court on 19.5.2001. Cr. M.P. No. 131 of 2001 In view of the above decision, this petition has become infructuous and is accordingly dismissed. Petition dismissed.