JUDGMENT 1. These Criminal Appeals are filed against the judgement of conviction and sentence dated 21.06.2004 made in Special Case No. 1/2000 by the learned Chief Judicial Magistrate cum Special Judge, Nagercoil, thereby convicting and sentencing the Appellant/A3 for the offence under Section 120(B) read with 409 of IPC to undergo three years Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default to undergo two months Simple Imprisonment and for the offence under Section 471 of IPC to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default to undergo two months Simple Imprisonment and for the offence under Section 120(B) of IPC read with Section 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act,1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 35,000/-, in default to undergo three moths Simple Imprisonment, (b) convicting and sentencing the Appellant/A2 for the offence under Section 120(B) read with 409 of IPC to undergo three years Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default to undergo two moths Simple Imprisonment and for the offence under Section 167 of IPC to undergo one year Rigorous Imprisonment and for the offence under Section 471 of IPC to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default to undergo two months Simple Imprisonment and for the offence under Section 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 35,000/-, in default to undergo three months Simple Imprisonment and (c) convicting and sentencing the Appellant/A1 for the offence under Section 120(B) read with 409 of IPC to undergo three years Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default to undergo two months Simple Imprisonment and for the offence under Section 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act,1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 35,000/-, in default to undergo three months Simple Imprisonment and (d) ordering the sentences to run concurrently. 2. 1000/-, in default to undergo two months Simple Imprisonment and for the offence under Section 13(1)(c)(d) and 13(2) of the Prevention of Corruption Act,1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 35,000/-, in default to undergo three months Simple Imprisonment and (d) ordering the sentences to run concurrently. 2. The case of the prosecution is that the Nagercoil Cooperative Housing Society engaged in formation and development work at Christopher Colony from first layout at the beginning from Viyakappar Street to the end in west Arram in the 4th layout to construct protection wall on both sides of the road. During the period between 13.12.1988 to 1.7.1989, A1 Secretary of the Society, A2 the past time Engineer and A3 the Contractor, for the said work, by boosting the measures caused a loss of Rs. 1, 18, 240/-to the Society. A1, who has to call for tenders, did not do so and allotted the work to A3. A2, who has to check and measure the work, colluded with A1 and A3 and thereby they committed the offence of misappropriation of funds of the Society and caused monetary loss to the Society. At the instance of the Society, PW.17, Inspector of Police, Vigilance and Anti Corruption registered a case in Cr. No. 3/92 on 17.3.1992 and after completing investigation, filed a final report on18.07.1997 against the Appellants/A1 to A3 for offences under Sections 120B , 409 , 167 of IPC and Section 13(1)(c) , 13(1)(d) of the Prevention of Corruption Act, 1988. 3. The case was take on file in Special Case No. 1/2000 by the learned Chief Judicial Magistrate cum Special Judge, Nagercoil and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 17 witnesses PW.1 to PW.17 and also relied on Exs.P1 to P26. 4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side looking into the materials on record, found the appellants guilty and awarded punishments as referred to above, which is challenged in these Criminal Appeals. 6. Mr. 5. The court below, after hearing the arguments advanced on either side looking into the materials on record, found the appellants guilty and awarded punishments as referred to above, which is challenged in these Criminal Appeals. 6. Mr. G. R. Edmund, the learned counsel for the Appellant/A1 contended that there is inordinate delay in completing the investigation and filing the final report. The learned counsel submitted that the alleged commission of crime is said to have taken place in between the period 13.12.1988 and 1.7.1989 and the final report has been filed by the Respondent only on 26.11.1999 nearly after 10 years, which had caused serious prejudice to the accused and there is absolutely no explanation whatsoever for such an inordinate delay. The learned counsel, further, submitted that there is absolutely no evidence let in by the prosecution for proving the charge either under Section 120B or under Section 409 of IPC and the prosecution failed to adduce strict proof for the offence of misappropriation. The learned counsel pointed out to the evidence of the prosecution witnesses and contended that the whole prosecution rested only on surmises and presumption, which cannot take the place of proof. It is further submitted that the prosecution case is that the projects have been executed by the accused without following the bylaws of the Nagercoil Cooperative Housing Society, but the evidence placed on record would reveal that the projects had been executed as per the resolution passed by the Board of Directors and also after getting necessary approval from the concerned authorities as per bylaws of the Society. The learned counsel would further submit that in the absence of any evidence to show that A1 was acting in conspiracy with A2 and A3 and from the evidence, the interference that could be drawn is that the projects were executed as per the resolution and the offences laid against the Appellants are not proved and consequently, the offence under the provisions of the Prevention of Corruption Act, 1988 is also not made out. 7. Mr. N. Subash Babu, the learned counsel for the Appellant/A2 contended that there is unexplained inordinate delay in fling the charge sheet which caused serious prejudice to the accused. The learned counsel pointed out that the occurrence is said to have taken place during the period from 13.12.1988 to 1.7.1989 and the First Information Report was registered on 17.3.1992. 7. Mr. N. Subash Babu, the learned counsel for the Appellant/A2 contended that there is unexplained inordinate delay in fling the charge sheet which caused serious prejudice to the accused. The learned counsel pointed out that the occurrence is said to have taken place during the period from 13.12.1988 to 1.7.1989 and the First Information Report was registered on 17.3.1992. The final Report was filed only on 18.7.1997 and there is absolutely no explanation whatsoever for the said inordinate delay. The learned counsel also pointed out that there was no complaint from any one with regard to the alleged commission of the offence and it indicated that the Director of Vigilance and Anti Corruption directed PW.17 the investigating officer to register the complaint. However, in order to substantiate the case, neither the preliminary enquiry report nor the letter of the Director of Vigilance and Anti Corruption had been filed. The learned counsel submitted that PW.17 had grudge against the accused for not allotting a site by the society and he was under the impression that it was A1, who as Secretary of the Society had declined for such allotment. 8. Mr. K. Vamanan, the learned counsel for the Appellant/A3 contended inter alia that A3 is not a contractor and he was only a worker, who executed the work, as per the instructions of the Board. The learned counsel would submit that he is not a public servant and he cannot be charged for any offence under the provisions of the Prevention of Corruption Act, 1988. 9. Per contra, Ms. S. Prabha, the learned Government Advocate supported the impugned judgment of conviction and sentence passed by the court below and contended that the prosecution fully established its case by rendering evidence both oral and documentary. 10. In the course of arguments, the learned counsel for the Appellants/A1 and A2 contended that the essential ingredients to cover the Appellant/A1 and A2 within the definition of ‘public servant’ are absent and therefore, they cannot be prosecuted under the provisions of the Prevention of Corruption Act, 1988. 11. On the other hand, Ms. S. Prabha, the learned Government Advocate submitted that the Secretary of the Cooperative Society is public servant as defined under Section 2(c)(ix) of the Prevention of Corruption Act, 1988, as A1 was the Secretary and A2 was the Superintending Engineer of the Nagercoil Cooperative Housing Society. 12. 11. On the other hand, Ms. S. Prabha, the learned Government Advocate submitted that the Secretary of the Cooperative Society is public servant as defined under Section 2(c)(ix) of the Prevention of Corruption Act, 1988, as A1 was the Secretary and A2 was the Superintending Engineer of the Nagercoil Cooperative Housing Society. 12. Section 2(c)(ix) of the Prevention of Corruption Act, 1988 which defines ‘Public Servant, reads as follows: “Any person who is the President, Secretary of other office bearer of a registered Cooperative Society engaged in agriculture, industry, trade or banking receiving or having received any financial aid from the central or a State government or from any Corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government Company as defined in Section 617 of the Companies Act, 1956”. 13. from the above quoted sub clause (ix) of clause (c) of Section 2 of the 1988 Act, it is evident that in the expansive definition of ‘public servant’, elected Office Bearers with President & Secretary of a registered Cooperative Societies, which is engaged in trade among other in banking and receiving or having received any financial aid from the Central or State Government, are included, although such elected office Bearers are not servants in employment of the Cooperative Society. But, employer or servants of a Cooperative Society which is controlled or aided by the Government, are covered by sub clause (iii) of clause (c) of Section 2 of the 1988 Act. 14. The learned counsel for the Appellants placed reliance on the decision of the Honourable Supreme Court rendered in the cases of Ramesh Balakrishna Kulkarni v. State of Maharashtra AIR 1985 SC 1655 : (1985) 3 SCC 606 : LNIND 1985 SC 235 : (1985) 1 MLJ (Crl) 513 and State of Tamil Nadu v. T. Thulasiram and Others (1994) Supp 2 SCC 405 in support of his contention that the President and Secretary will not be public servants and cannot be prosecuted under the provisions of the Act. He also relied on the decisions reported in D. Venkata Rao and Another v. State by Sub Inspector of Police, Pentapadu PSWG District (2004) 4 Crimes 365 and unreported judgment of this court in P. Sivakumar v. Commissioner of Sugar, Chennai and Another W. P. No. 25143/2011. 15. He also relied on the decisions reported in D. Venkata Rao and Another v. State by Sub Inspector of Police, Pentapadu PSWG District (2004) 4 Crimes 365 and unreported judgment of this court in P. Sivakumar v. Commissioner of Sugar, Chennai and Another W. P. No. 25143/2011. 15. There is a vast change in definition of ‘public servant’ as given in the Prevention of Corruption Act, 1947 and as given in the Act of 1988. In the Act of 1947, the term ‘public servant’ meant as defined under Section 21 of IPC. However, in the Act of 1988, the said definition was enlarged to include any person who holds public office and discharges public duty. A bare perusal of the cases reported in Ramesh Balakrishna Kulkarni v. State of Maharashtra (supra) and State of Tamil Nadu v. T. Thulasiram (supra), clearly reveals that both the cases were decided under the Act of 1947. Since the definition of public servant has been expanded to include holders of public office, who discharge public duties, the said cases do not help the Appellants. 16. However, in this case, it has been contended specifically that the Nagercoil Cooperative Housing Society is not controlled by the State Government not aided by the State or Central Government. To this contention raised by the Appellants, the Government Advocate is unable to repel the above said contention by producing the materials to substantiate that the society is question is controlled or aided by State or Central Government. 17. The Cooperative Society contemplated in sub clause (ix) of 2C should be one which is receiving or which has received any financial aid from the Government (Central or State) any corporation, authority or Government Company. If there is no such financial aid, then the President, Secretary or other Office bearer of a registered Cooperative Society though engaged in agriculture, industry, trade or banking, will not be a public servant. 18. Therefore, the pre-requisite is the receipt of financial aid at present or in the past. In this case, in the absence of any material or evidence to show that the Society in question was receiving or had received any aid as contemplated in the definition of 2 (c) (x) of the Act, 1988, the Prosecution of the Appellant/A1 is not valid. 19. In this case, in the absence of any material or evidence to show that the Society in question was receiving or had received any aid as contemplated in the definition of 2 (c) (x) of the Act, 1988, the Prosecution of the Appellant/A1 is not valid. 19. It is contended by the learned counsel for the Appellants that there is inordinate delay in filing the charge sheet, which had caused serious prejudice to the accused. In the light of facts and circumstances of this case, it has to be seen whether the Appellants/accused were deprived of a fair trial on account of protracted investigation, which depends on various factors, including whether such a delay was reasonably long or caused deliberately or intentionally to hamper the defence of the accused. 20. In this case, admittedly, the First Information Report was registered on 17.3.1992 on the basis of a report sent by the Vigilance and Anti Corruption Police dated 18.11.1991. The said report or letter from the Director of Vigilance and Anti Corruption Police was not placed before the court. The occurrence relates to the period from 13.12.1988 and 01.07.1989. The final report was filed only on 26.11.1999 that is nearly after ten years. This, according to the Appellants, is itself sufficient as the delay is not attributable to the Appellants. There are certain circumstances in this case, which have been elicited during cross examination of certain witness, from which an interference could be drawn that the investigating officer PW.17 had some grudge against the 1st Appellant. The testimony of PW.3, Mathiyas, who succeeded the Appellant/A1 as Secretary of the present society reveals that he has allotted some plots from the Society to PW.17 investigating officer. His categoric statement is that the PW.17 requested A1, when he was the Secretary, to allot plots to his relatives, which was declined by A1. The relevant passage from the evidence of PW.3 is extracted below. 21. Although PW.17 denied the suggestion made to him by the learned counsel for the Appellants during his cross examination, however, he admitted that he had registered a case against the 1st Appellant in Cr. No. 10/1993,but the same was closed as a mistake of fact. The relevant passage from the evidence of PW.3 is extracted below. 21. Although PW.17 denied the suggestion made to him by the learned counsel for the Appellants during his cross examination, however, he admitted that he had registered a case against the 1st Appellant in Cr. No. 10/1993,but the same was closed as a mistake of fact. That apart, his evidence indicated that on an discreet enquiry made by the Vigilance and Anti Corruption for some irregularities committed by the office Bearers in the Society, he had registered First Information Report on a report received from the vigilance Department. That report is not filed before the court. Not even the letter written by the Director of Vigilance and Anti Corruption is filed before the court to substantiate his version that a report was sent regarding certain irregularities committed by the Society. 22. It is no doubt true that there is nothing in the Provisions of Criminal Procedure Code which precludes the Investigating officer PW.17, from taking up the investigation when the fact remains that the said police officer prepared the First Information Report on the basis of information received by him. Nevertheless, when there is material to show that the investigation by the said police officer is biased, inasmuch as the investigating officer cannot be expected to act fairly and objectively, then there is every force in the contention of the learned counsel for the Appellants that it has caused serious prejudice to the Appellants. 23. In the case of Bhagawan Singh v. State of Rajasthan (1976) 1 SCC 15 , the Head Constable, to whom the offer of bribe was allegedly made, seized the currency notes and gave the First Information Report. Thereafter, he himself took up the investigation, but later on when it came up to his notice that he was not authorized to do so, he forwarded the papers to the Deputy Superintendent of Police, who investigated the case and filed the charge sheet against the accused. In such circumstances, the charge sheet against the accused. In such circumstances, the Honourable Supreme Court, finding several infirmities casting doubt on the veracity of the version of the Head Constable, observed that it was a disturbing feature of the case and further, observed that the infirmity is bound to reflect on the credibility of the Prosecution case. 24. In such circumstances, the charge sheet against the accused. In such circumstances, the Honourable Supreme Court, finding several infirmities casting doubt on the veracity of the version of the Head Constable, observed that it was a disturbing feature of the case and further, observed that the infirmity is bound to reflect on the credibility of the Prosecution case. 24. In Megha Singh v. State of Haryana AIR 1995 SC 2339 : (1996) 11 SCC 709 the Honourable Supreme court observed thus: “PW. 3 Siri chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But, it appears to us that he was not only the complainant in the case, but he carried on with the investigation and examined witnesses under Section 161 Cr. PC. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and imparrial investigation.” 25. In this case, there is clear evidence to the effect that PW.17 was having grudge against A1 for not obliging him in allotting a site by the Cooperative society and further he had registered First Information Report against A1 and two others, which was later closed as mistake of fact. In fact, PW.17 himself admitted that resolutions were passed by the sub committees for the execution of the project works, for which the Appellants/accused are charged are charged and A1 had no role to play and he has not signed the said resolutions. Further, he admitted that the entire responsibility was on the President of the Society. It is his further admission that as per the bylaws, A1 secretary was authorized to spend a sum not more than Rs. 25. That apart, it so far as the A2 is concerned, PW.17 admitted that he was serving only for a shorter period and was relieved from duty from 9.8.1989. 26. On considering the evidence of PW.17, the investigating officer in entirety, I am of the considered view that there are valid reasons to suspect that there was no fair and impartial investigation. 27. 26. On considering the evidence of PW.17, the investigating officer in entirety, I am of the considered view that there are valid reasons to suspect that there was no fair and impartial investigation. 27. Apart from the aforesaid material discrepancies, even on merits, the prosecution has not let in clear and acceptable evidence regarding misappropriation. The case of the Prosecution is that the projects have been executed by the Appellants without following the bylaws of the Society. On the other hand, it appears from evidence led by the prosecution that the projects have been executed as per the resolution passed by the Board of Directors and also after getting necessary approval from the concerned Authority as per the bylaws. 28. Even assuming that the A1 and A2 departed from the normal procedure, it cannot be said that it was done with a corrupt or oblique motive. Further, no evidence had been produced to show that the Appellants were acting in conspiracy and they had fraudulently and dishonestly prepared vouchers. For conviction of an offence involving dishonestly or fraudulently misappropriating property by a public servant, dishonest or fraudulent intention is an essential ingredient of the offence and therefore, such an intention must be established beyond doubt. In the present case, it has not been proved that the accused acted dishonestly and fraudulently. The criminal liability has to be strictly proved and cannot be based upon conjectures or probabilities. Not only, there should be proof of entrustment, but there should be subsequent dishonest conversion. In the instant case, there is no sufficient and satisfactory proof of the above ingredients. Therefore, the prosecution had miserably failed to prove the offences against the accused under Section 467 , 471 , 409 of IPC and consequently, offence under Section 13(1)(C) also not made out. 29. In view of the aforementioned discussion, it is held that the Prosecution has not been able to prove beyond reasonable doubt its case and the benefit of such doubt will have to be given to the accused persons. 30. In the result, these criminal appeals are allowed. The impugned judgment of conviction and sentence are set aside. The Appellants are acquitted of the charges levelled against them. The bail bond if any executed by them shall stand cancelled and the fine amount if any paid by them shall be refunded to them. Appeals allowed.