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2016 DIGILAW 498 (CAL)

Haridas Mondal v. State of West Bengal

2016-06-22

JOYMALYA BAGCHI

body2016
JUDGMENT : JOYMALYA BAGCHI, J. Order dated 08.04.2016 passed by the learned District Judge at Birbhum in Special Case No. 3 of 2012 rejecting the prayer of the petitioner to discharge from the impugned prosecution has been assailed. 2. The contention of the petitioner is to the effect that he being a manager of Khayrasol Anchalic Farmer Service Cooperative Society Limited (hereinafter referred to as ‘cooperative society’) is not a public servant under section 21 of the Indian Penal Code and, accordingly, prosecution instituted against him under section 409 of the Indian Penal Code is not maintainable. The learned lawyer for the petitioner relies on (2013) 1 C.Cr.LR (CAL) 479 [Dilip Kr. Sarkar v. State of West Bengal], in support of such contention. He also submits that the alleged misappropriated sum had been accounted for to the cooperative society even before registration of the First Information Report showing that the impugned prosecution is a mala fide one. 3. Mr. Singh, learned Public Prosecutor appears for the State opposes such prayer. 4. I have considered the submissions made on behalf of the petitioner. In Dilip Kr. Sarkar (supra) a learned Single Judge of this Court (as His Lordship then was) relying on State of Maharashtra v. Laljit Rajshi Shah, reported in AIR 2000 SC 937 , held that an officer of cooperative society cannot be said to be a public servant within the meaning of section 21 of the Indian Penal Code for the purpose of prosecution under section 409 of the Indian Penal Code. The deeming clause under section 8 of the West Bengal Cooperative Societies Act, 1988 (hereinafter referred to as the Act of 1983) cannot extend to offences under other statutes including the Indian Penal Code and, accordingly, quashed the proceeding. However, the ratio in Laljit Rajshi Shah (supra) was clarified by the Apex Court in State of Madhya Pradesh v. Rameshwar, (2009) 11 SCC 424 and State of Maharashtra v. Brijlal Sadasukh Modani, (2016) 4 SCC 417 wherein the Apex Court held that the officers of a cooperative society receiving aid from the Government shall fall within the expression ‘public servant’ for prosecution under the general law as well as under the Prevention of Corruption Act, 1988. 5. In State of Madhya Pradesh v. Rameshwar, reported in (2009) 11 SCC 424 , the Apex Court held as follows:- “46. 5. In State of Madhya Pradesh v. Rameshwar, reported in (2009) 11 SCC 424 , the Apex Court held as follows:- “46. The High Court also did not, while considering the definition of the expression “public servant”, take into account the fact that the decision in Laljit Rajshi Shah case was no longer applicable in view of the amended provisions of Section 2(c) of the Prevention of Corruption Act, 1988, defining the said expression.” 6. It further held as follows:- “48. Mr. Tankha's submissions, which were echoed by Mr. Jain, that the M.P. Cooperative Societies Act, 1960 was a complete code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted in view of the fact that there is no bar under the M.P. Cooperative Societies Act, 1960, to take resort to the provisions of the general criminal law, particularly when charges under the Prevention of Corruption Act, 1988, are involved.” 7. It is pertinent to note in the aforesaid report that the Apex Court was dealing with a case not only under the Prevention of Corruption Act, 1988 but also under section 409 IPC and, inter alia, held the provisions of M.P. Cooperative Societies Act did not restrict its applicability to the general criminal law in a case of corruption. Similar view had been expressed by a Division Bench of this Court in Soumyendra Krishna Deb Biswas v. The State, 1992 C Cr LR (Cal) 148, wherein the Bench held that in a case of corruption prosecution against an officer of the co-operative society may lie under general law, that is, section 409 IPC apart from section 142 of the Act of 1983. This view is reinforced by the operation of section 138(4) of the Act of 1983 which, inter alia, provides notwithstanding anything in the provisions of the Code, the offence under section 403 IPC in respect of the movables of a co-operative society shall be cognisable. The aforesaid provision of law leaves no doubt in one's mind as to applicability of the general penal law, that is, Indian Penal Code to the affairs of the co-operative society. The aforesaid provision of law leaves no doubt in one's mind as to applicability of the general penal law, that is, Indian Penal Code to the affairs of the co-operative society. Judged from that angle, it would be incorrect to give a narrow interpretation to the deeming clause in Section 8 of the Act of 1983 and to apply in prosecutions under the special law alone and not to prosecutions under the Indian Penal Code. Similar view is also expressed in Sri. Prasanta Agarwal v. Sri. S.K. Roy, Regional Manager, Electronics Trade and Technology Development Corporation Ltd., 1997 C Cr LR (Cal) 104. 8. Subsequently in State of Maharashtra v. Brijlal Sadasukh Modani,(2016) 4 SCC 417 again, the Apex Court held as follows:- “22. In Prabhakarrao, the Court was dealing with the issue whether the High Court was justified in holding that the accused was not a public servant. In the said case, the High Court had placed heavy reliance on the authority of State of Maharashtra v.Laljit Rajshi Shah. 23. In Prabhakarrao, the Court has distinguished the said decision and referred to Section 2 of the 1988 Act and in that context observed thus: (SCC p. 638, paras 3-4) “3. Under clause (iii) of Section 2(c), any person in the service or pay of a corporation established by or under a Central, Provincial or State Act or an authority or a body owned or controlled or aided by the Government and under clause (ix) the President, Secretary and other office-bearers of a registered cooperative society engaged in agriculture, industry, have been included in the definition of ‘public servant’. 4. The question for consideration is whether the accused in the present case comes within the purview of the aforementioned clauses or any other clause of Section 2(c) of the Prevention of Corruption Act, 1988. For determination of the question, enquiry into facts, relating to the management, control and funding of the society, is necessary to be ascertained.” 24. As we notice, the High Court has really been swayed by the concept of Article 12 of the Constitution, the provisions contained in the 1949 Act and in a mercurial manner taking note of the fact that the multi-State society is not controlled or aided by the Government has arrived at the conclusion. As we notice, the High Court has really been swayed by the concept of Article 12 of the Constitution, the provisions contained in the 1949 Act and in a mercurial manner taking note of the fact that the multi-State society is not controlled or aided by the Government has arrived at the conclusion. In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term “aid” has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of “public servant”. The concept in entirety has to be understood in the backdrop of corruption.” 9. In view of the aforesaid subsequent ratios of the Apex Court, it is clear that an officer of a co-operative society is a public servant registered under the Act of 1983 is a public servant. Section 2(31) of the Act of 1983 which reads as follows:- “(31) “officer” includes a Chairman, Vice-chairman, secretary, joint secretary, assistant secretary, managing director, manager, deputy manager, assistant manager, treasurer, director of a board, auditor elected, if any from the amongst members and any other person empowered under the rules or the by-laws to give direction relating to the affairs of a co-operative society, and also includes a Government officer deputed by the State Government or the Registrar under section 28 or an administrator appointed by the State Government or the Registrar under section 30 [or a special officer appointed under clause (c) of section 31] to manage the affairs of a co-operative society;” 10. Section 8 of the said Act also provides as follows:- “8. Officers of co-operative societies to be public servants. -Every officer of a co-operative society shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.” 11. As the petitioner is a manager of the aforesaid cooperative society registered under the Act of 1983 there cannot be any doubt that he is deemed to be a public servant under section 21 of the Indian Penal Code in terms of section 8 of the Act. As the petitioner is a manager of the aforesaid cooperative society registered under the Act of 1983 there cannot be any doubt that he is deemed to be a public servant under section 21 of the Indian Penal Code in terms of section 8 of the Act. As discussed earlier, in view of the ratios in Rameshwar (supra) and Brijlal (supra) and in the light of section 138(4) of the Act of 1983 as interpreted by a Division Bench in Soumyendra Krishna Deb Biswas (supra) and Sri. Prasanta Agarwal (supra), the deeming clause shall be applicable in a case of corruption to a prosecution to other statutes like the Indian Penal Code. No doubt Laljit (supra) had subscribed to a narrow interpretation of a similar deeming clause in Maharashtra Cooperative Societies Act and held it shall not apply to the Indian Penal Code. However, the ratio in Laljit (supra) was clarified in subsequent decisions of the Apex Court in Rameshwar (supra) and Brijlala (supra). Particularly, in Rameshswar (supra) the prosecution involved offence under section 409 IPC and it was held that applicability of general law is not barred to cases under the M.P. Co-operative Societies Act. Section 138(4) of Act of 1983 also gives a similar indication that the provisions of the Indian Penal Code may be invoked with respect to the affairs of a co-operative society and such view has, in fact, been consistently followed by this Court in Soumyendra Krishna Deb Biswas (supra) and Sri. Prasanta Agarwal (supra). The impact of a provision akin to section 138(4) of Act of 1983 to the deeming clause in the said Act did not fall for decision in Laljit (supra) and the said report cannot be said to be an authority for such proposition. 12. Hence, I am inclined to follow the ratios laid down in subsequent authorities in Rameshwar (supra) and Brijlala (supra) to hold that the petitioner who is a manager of the co-operative society is liable to be prosecuted as a public servant under section 409 of the Indian Penal Code. 12. Hence, I am inclined to follow the ratios laid down in subsequent authorities in Rameshwar (supra) and Brijlala (supra) to hold that the petitioner who is a manager of the co-operative society is liable to be prosecuted as a public servant under section 409 of the Indian Penal Code. I have not referred the matter to a larger Bench for decision notwithstanding the divergent view in Dilip (supra), as I have followed the law declared in the subsequent decisions of the Apex Court in Rameshwar(supra) and Brijlala (supra) on the self-same issue which were not considered in Dilip (supra) and are binding precedents under Article 141 of the Code which all Courts are lawfully bound to follow. With regard to the issue of refund of the alleged misappropriated sum before registration of First Information Report, I am of the opinion that the aforesaid factual defence may be probabilised by the petitioner in the course of trial and the same shall be taken into consideration in accordance with law by the trial Court. I further direct of trial Court to take all necessary steps for concluding the trial at an early date, preferably within a year from the date of communication of this order without granting unnecessary adjournment to either of the parties. 13. With the aforesaid direction the petition is disposed of. 14. Urgent photostat certified copy of this order, if applied for, be supplied to the learned Advocate for the parties, upon compliance with all requisite formalities.