Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 485 (AP)

Vanam Anjaiah v. State Of A. P.

2005-06-10

V.V.S.RAO

body2005
( 1 ) THE facts of the matter in brief may be noticed. Third respondent filed a private complaint on the file of the Court of the First additional Judicial Magistrate of First Class, bhongir, Nalgonda District, showing the petitioner herein as accused. He alleged that by certain acts of malfeasance and misfeasance, the petitioner herein has committed offences punishable under sections 167, 406, 409, 418, 465, 471 of the indian Penal Code (hereinafter referred to as "ipc"), read with Section 79 (f) and (h) of A. P. Co-operative Societies Act, 1964 (hereinafter referred to as "cs Act" ). The learned magistrate referred the complaint under section 156 (3) of the Criminal Procedure code, 1973 (hereinafter referred to as "cr. P. C. ")- whereupon, Rural P. S. , Bhongir, registered Crime No. 113 of 2002 under the said provisions. Aggrieved by the same, the petitioner filed the present application under section 482 Cr. P. C. , for quashing the crime. ( 2 ) THE petitioner is, at the relevant time, the president of Primary Fisheries Co-operative society, Bollepaly of Bhongir mandal. It is alleged that, with a dishonest and malafide intention, the petitioner created false documents of resolution of the Managing committee of the said society dated 27-4-1998, and got admitted six persons as members of the society. It is alleged that the petitioner forged the signatures of the members of the Managing Committee, so as to admit six persons, who are not qualified to be members of a cooperative society. The petitioner created false documents for showing them to the admitted members for personal and unlawful gain. Subsequently, all the members who are admitted by resolution dated 27-4-1998, were removed from the membership by the Cooperative department. It is also alleged that the petitioner has committed criminal breach of trust and forged various documents, and thereby he committed various offences mentioned hereinabove. ( 3 ) THE learned counsel for the petitioner submits that the petitioner is not a public servant and, therefore, the offences punishable under Section 167 of IPC and section 79 (F) and (h) of CS Act are not applicable to him. ( 3 ) THE learned counsel for the petitioner submits that the petitioner is not a public servant and, therefore, the offences punishable under Section 167 of IPC and section 79 (F) and (h) of CS Act are not applicable to him. She places reliance on a decision of this Court in Somsetti Lakshmi narasimayya v. State of A. P. Nextly, she would urge that the allegations made in the complaint with regard to the offences punishable under Sections 406, 409, 418, 465 and 471 IPC are vague. Lastly, she would urge that the de facto complainant, second respondent herein, is a member of the society who was removed from the society and, therefore, he bore grudge and filed the present criminal case against the petitioner with a mala fide intention, after invoking the remedies under the CS Act for adjudication before the Arbitration. She also places reliance on the decision of the Supreme court in Sunil Kumar v. M. S. Escorts Yamaha motors Ltd. ( 4 ) THE learned counsel for the respondent submits that the petitioner is a "officer" within the meaning of the said term, as defined in section 2 (k) of the CS Act and, therefore, the provisions of Section 79 (f) and (h) of the said act would apply to him. Nextly, he would urge that the criminal complaint contains allegations that the petitioner by forging the signatures of Managing Committee got admitted six unqualified persons as members and by forging the signatures of the members of the Managing Committee, misappropriated the amounts of the society, and failed to protect the interest of the society. He would also urge that the private complaint lodged by the second respondent discloses the commission of offence by the petitioner and, therefore, this case to quash the complaint is not maintainable. ( 5 ) THE first question, which needs to be addressed, is whether the petitioner is a public servant punishable under Section 167 of IPC. Section 167 makes a public servant who prepares or translates any document knowing that such document or translated document is likely to cause injury to any person, is punishable with imprisonment for a term which may extend to three years. Section 21 of IPC defines a public servant. The elected president of the Cooperation society is conspicuously absent in any of the descriptions of public servant under section 21 of IPC. Section 21 of IPC defines a public servant. The elected president of the Cooperation society is conspicuously absent in any of the descriptions of public servant under section 21 of IPC. In Somsetti Lakshmi narsimayya s case (supra), this Court considered the question whether the secretary of A. P. Co-operative Act is a public servant. After referring to earlier case laws in sombari Behara v. Emperor and Shridhar v. Emperor, wherein it was Court held that a president of a co-operative society is not a public servant, this Court laid down as under:"the accused does not satisfy any of the two tests laid down by the Supreme court. He is an employee of the Society appointed by its members and not an employee of the Government. He has no public duty to perform. He only discharges the functions assigned to him under the bye-laws of the society and as may be entrusted in accordance with the bye-laws framed by the Society which is a body-corporate and which has been incorporated by the volition of its members in accordance with their application for membership under the act. The society does not exercise any authority over any person other than its members and does not discharge any public function. In dealing with the case of a President of a Co-operative society, King, J. , in Sombari Behara s case (supra), held that he is not a public servant. Speaking for a Bench of the Bombay High Court in shridhar s case (supra), Murphy, J. , before whom it was contended that the Chariman of a Co-operative societies a public servant within the meaning of Clause (10) of Sec. 21, indian Penal Code, held that the clause for any secular common purpose of any village, town or district governs the whole section. It must be received or expended. This being so, the Chairman of a Co-operative credit Society is not a public servant. That apart, in clause (10) of Section 21, the secular common purpose should be of a village, town or district in which the officer concerned would have authority in respect of all persons in the village, town or district whereas in the case of a Chairman, of a Co-operative society, he will have authority over its members and by his actions cannot bind third parties or exercise rights over any third parties. In Siddappa v. State of mysore, S. R. Das Gupta, C. J. , referring to the decisions of Madras and Bombay High Courts, noticed above, held that those decisions make it clear that the President of a co-operative Society is not a public servant within the meaning of the expression in the Penal Code. " (emphasis supplied) ( 6 ) IN view of the above precedent, it must be held that the petitioner is not a public servant, and a charge under Section 167 of ipc cannot be framed against him. ( 7 ) WHATEVER is stated above, may not be true with regard to the offences punishable under Section 79 (f) and (h) of the CS Act. Section 79 describes the contraventions and offences by a committee, an officer or employee of any society. The term officer is defined in Section 2 (k) of CS Act as under: "officer" includes a person elected or appointed by a society to any office of such society according to its bye-laws and a president, vice-president, chairman, vice-chairman, secretary, assistant secretary, treasurer, manager, member of committee, liquidator or any other person elected or appointed under this Act, rules or the bye-laws to give direction in regard to the business of the society. " going by the above definition, the petitioner is certainly an officer of Primary Fisheries co-operative Society and, therefore, the charge against him under Section 79 (f) and (h) of CS Act cannot be held as misconceived. ( 8 ) THE submission of the learned counsel for the petitioner that the second respondent filed a criminal complaint with a malafide intention as he was removed from the membership and, therefore, thecriminal case should be quashed cannot be accepted. She would emphasize that the second respondent has already approached the departmental authorities against the petitioner and, therefore, if prosecution is allowed against the petitioner, it would be the abuse of process of Court. This submission cannot be accepted. The contravention of law may either give a cause of action for civil action or criminal action. In certain situations, a contravention of law may give raise to both criminal action as well as civil action. Merely because the sufferer of such contravention has availed civil action for redressal, the same does not mean that criminal action is barred. The contravention of law may either give a cause of action for civil action or criminal action. In certain situations, a contravention of law may give raise to both criminal action as well as civil action. Merely because the sufferer of such contravention has availed civil action for redressal, the same does not mean that criminal action is barred. Therefore, this Court does not find any unjust invocation of criminal law by the second respondent. The point of alleged mala fide intention on the part of the second respondent is also without substance. In State of Karnataka v. Devendrappa and State of M. P. v. Avad kishore Guptha, the Supreme Court held that when a crime is registered, the mala fides of the informant/complainant would be of secondary importance, and if the material collected during the investigation and evidence let in, the Court would decide the fate of the accused. Allegations of mala fides against the complainant cannot be itself be basis for quashing the proceedings. Therefore, the submission cannot be sustained. ( 9 ) INSOFAR as other offences are concerned, by the very nature of the offences, these are the matters which are to be proved or disproved based on the evidence let in by the parties. The second respondent alleged very clearly in the complaint that the petitioner, as a president of the society, forged the signatures of other members of the Managing committee and admitted six unqualified members. He also urges that by practicing forgery, the petitioner created false documents and misappropriated funds of the society and failed to protect the interest of the society. These are the allegations, which clearly attract the offences as mentioned in the complaint. The case is under investigation, and as and when the police file a report and when the Magistrate takes up the enquiry under Section 244, 245 and 246 of Cr. P. C. , it is always open to the petitioner to plead innocence and seek discharge. At the stage of investigation, these charges cannot be quashed. However, as noticed above, the petitioner cannot be charged for an offence punishable under Section 167 of IPC, as he is not a public servant. ( 10 ) IN the result, subject to above observations, the petition is dismissed.