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2023 DIGILAW 403 (UTT)

Deepak Ram v. State of Uttarakhand

2023-07-13

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The present applicant is facing the proceedings of Sessions Trial No. 18 of 2021, State of Uttarakhand vs. Jai Pal Singh Palni and Another whereby he has been summoned to face trial, by an order dated 24.11.2021 for being tried for the offences under Sections 406, 409, 420 of the IPC and Section 3 of the Uttarakhand Protection of Interests of Depositors (In Financial Establishment) Act, 2005. While putting a challenge to the proceedings of the aforesaid Sessions Trial, as well as, the consequential summoning order dated 24.11.2021, which has been resultantly rendered by the Court of District and Sessions Judge on submission of the charge-sheet is on the following grounds: (1) That since it is not an “authority” it will not fall to be bringing the present applicant within the ambit being a “public servant” to attract Section 409 of the IPC. (2) He submits that he is not a beneficiary of this scheme of the society and since the society itself, which is a Multi-State Co-operative Society, is a creation of the Statute, has expressed its willingness to remit the amount, which is due to be paid to the investors, the present applicant may not be required to be prosecuted on a criminal side. (3) He further submits that his nature of appointment and the status, which he enjoys in the society, being that of a very lower cadre employee, he may not be held to be at all involved for commission of offence, as it has been complained of in the FIR No. 33 of 2020 dated 17.10.2020 in relation to the offences, as disclosed above. (4) He further submits that since the applicant and the complainant both have been the depositors in the multi-state co-operative society i.e. Kamuna Credit Co-operative Society Limited. (5) He submits that since the Kamuna Credit Co-operative Society Limited, which has been created under the Act of 2002, is still willing to remit the amount payable to the depositors, no offence as against the present applicant would be made out. (6) He submits that there is no direct nexus or involvement of the present applicant in commission of the offence, for the reason being that, no amount has been deposited in his account, as such. (6) He submits that there is no direct nexus or involvement of the present applicant in commission of the offence, for the reason being that, no amount has been deposited in his account, as such. (7) Lastly, that to bring an offence, as committed under the provisions of the Multi-State Co-operative Societies Act, 2002, the appropriate recourse available to the complainant, would have been to resort to the proceedings of an arbitration, as contemplated under Section 84 of the Multi-State Co-operative Societies Act, 2002. 2. To deal with the questions argued by the learned counsel for the applicant as to whether the Multi-State Co-operative Society created under the Act will be an authority at all to give it the status to the present applicant as to be a public servant to attract the provisions contained under Section 409 of the IPC. 3. In order to answer the aforesaid aspect, it is always the question, as to whether a body, which is created under an Act, which is discharging a public duty or not and if it is performing a public duty and has an obligation towards the public at large, it will be treated as to be performing a public act and, the authorities responsible to function so, would be a “public authority” and that too, in view of the Constitution Amendment, as made by 97th Amendment of the Constitution. It has been laid down under Article 43(B) of the Constitution that it is rather the State’s responsibility to ensure a voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. Meaning thereby the implication of Article 43(B) of the Constitution, which means that a State would have a control over the functioning of the Multi-State Co-operative Societies, created under the Act of 2002 and since being engaged in a function contemplated under Article 43(B) of the Constitution of India, they will be deemed to be a “public servant” as they are performing a public duty to meet a constitutional objective. Hence, the argument that Section 409 of the IPC would not be attracted, merely because he was an employee of a Multi-State Co-operative Society, is not acceptable. 4. Hence, the argument that Section 409 of the IPC would not be attracted, merely because he was an employee of a Multi-State Co-operative Society, is not acceptable. 4. The second limb of argument, that the present applicant and the complainant both are the investors and they both have been rather duped by the co-operative society, would still be a fact, which is to be decided only after appreciation of evidence, as to what was the quantification and nature of investment made by the applicant and the complainant and whether they, at all, had any corelation with one another, merely, because of the fact that the applicant was an investor in the Multi- State Co-Operative Society, that does not itself exonerate him of providing him an immunity that in the status of being an employee of the Mult-State Co-Operative Society, there would be a presumption that he would not be engaged in commission of offences, which has been registered against him under Sections 406, 409, 420 of the IPC. 5. The third aspect, as argued that, since in the bank account which was standing in the name of the present applicant, in fact, since there is no transaction, as such to show that the applicant is the beneficiary of any of the transactions, with the Multi-State Co-Operative Society, would only be a case, which could be determined by the trial Court after appreciation of the evidence, as to whether there was a siphoning of money or not and if he has, then what consequence it would followed? This aspect since being factual in nature, cannot be decided by this Court while exercising its powers under Section 482 of the Cr.P.C. as it will not be within its scope. 6. Lastly, learned counsel for the applicant has argued that since the Multi-State Co-Operative Societies Act, being a self-contained act, in its Section 84, it contemplates that, in an event of there being any dispute, the aggrieved person has got a remedy under Section 84 of the Act, by invoking the arbitration clause. 7. 6. Lastly, learned counsel for the applicant has argued that since the Multi-State Co-Operative Societies Act, being a self-contained act, in its Section 84, it contemplates that, in an event of there being any dispute, the aggrieved person has got a remedy under Section 84 of the Act, by invoking the arbitration clause. 7. The right provided to an investor or an aggrieved person to invoke the arbitration clause for settlement of a dispute will yet again not exonerate the applicant or any such other person involved in commission of a criminal offence for being tried under the provisions of the Code of Criminal Procedure for the offences provided under the Indian Penal Code. 8. Even otherwise also, the provision contained under Section 84 of the Act, was a forum which is available to the complainant. It is upto his wisdom that he, if he so desires, can file a proceedings by seeking a reference under the Arbitration Act, but may be because a right is reserved to an investor under Section 84 of the Act of 2002, the language of Section 84 of the Act, is not in exclusion to the provisions contained under the Code of Criminal Procedure, to be read with the provisions of the Indian Penal Code. That means both the provisions of law have got their independent co-existence and they are not clouded by taking of an action under one provision in order to infer that it automatically excludes the other. 9. Since all these aspects are required to be considered by the trial Court on its own merits only after appreciation of evidence, that cannot be a subject matter, which could not be ventured into by this Court in the exercise of its inherent jurisdiction because appreciation of evidence of conducting a mini trial, is an aspect, which is ousted from the jurisdiction under Section 482 of the Cr.P.C. by the dictum of Hon’ble Apex Court. Thus, since the entire argument is on the foundation of an appreciation of intricate facts and evidence, which could not be discharged by this Court under Section 482 of the Cr.P.C. the present C482 Application lacks merits and the same is, accordingly, dismissed.