Employee & Officer Of Cooperative Society Aren’t Public Servants U/S 21 IPC, They Can’t Be Prosecuted U/S 409 IPC: Allahabad HC
|The Allahabad High Court held that the employee and officer of the cooperative society are not public servants under Section 21 of the Indian Penal Code (IPC) and hence, they cannot be prosecuted under Section 409 of IPC, but can be prosecuted for the breach of trust under Section 406 of IPC.
Section 406 IPC provides punishment for criminal breach of trust by any person for which the imprisonment may extend up to three years. Whereas, Section 409 IPC specifically provides punishment for criminal breach of trust by public servant, banker, merchant, or agent for which the imprisonment may extend up to ten years or imprisonment for life.
The Court was deciding an application that challenged the criminal proceeding pending before the Additional Chief Judicial Magistrate (ACJM) arising out of a case under Sections 409, 420, 467, 468, and 471 of IPC.
A Single Bench of Justice Arun Kumar Singh Deshwal observed, “The employee and officer of the cooperative society are not public servants as per Section 21 of I.P.C. for the purpose of offences mentioned in I.P.C. Therefore, they cannot be prosecuted under Section 409 I.P.C. but definitely can be prosecuted for the breach of trust under Section 406 I.P.C. However, appropriate Section can be added or removed at the time of framing of charges.”
Advocate Jagdev Singh appeared for the applicant/accused while AGA Rajeev Kumar Singh appeared for the opposite parties.
Facts of the Case -
The applicant/accused was working as a Secretary in a cooperative society and on receiving specific complaints against him, District Assistant Registrar of Co-operative Society directed to conduct an enquiry against him. In pursuance of the order, the enquiry was conducted by a committee consisting of the Additional District Cooperative Officer and Deputy General Manager, (DGM) District Cooperative Bank Ltd., and on receiving the enquiry report, District Assistant Registrar by his order, directed to lodge an F.I.R. against the accused based on the finding of the said enquiry report. Thereafter, DGM lodged an F.I.R. under Sections 467, 468, 471, 409, 419, and 420 of IPC against the accused for the allegation of misappropriation of stock of fertilizers, breach of trust as well as forgery in the document of society and causing loss of Rs. 59,97,497/- to society.
Police, after investigation, had submitted chargesheet against the accused applicant and two other co-accused, and ACJM-I, Agra took a cognizance over the chargesheet and registered the case. Subsequently, the case was transferred in the Court of ACJM-II, Agra and accused also obtained bail. Thereafter, case was also transferred from District-Agra to District-Etah in pursuance of a circular of the Lucknow Bench (High Court). Since the date of transfer of this case from District-Agra to District-Etah, this case was pending in the Court of ACJM.
The High Court in view of the above facts noted, “… it is clear that even if the offence of forgery is punishable under Section 103(ii) of the Act, 1965 as well as under Chapter 18 of I.P.C., there is no provision prohibiting the prosecution under Chapter 18 of I.P.C. instead of Section 103 of the Act, 1965.”
The Court further said that the State has exclusive power to enact law under entry-32, regarding incorporation, regulation and winding up of co-operative society, therefore, as per entry-64 of State list, State will have exclusive power to enact law regarding offence relating to incorporation, regulation and winding up of cooperative societies but not relating to other offences against cooperative societies and the same can be enacted by State as well as Union under entry-1 of concurrent List.
“Therefore, offence of forgery against cooperative society is punishable under Section 103(i) of the Act, 1965 as well as under chapter XVIII of I.P.C. but prosecution and punishment can be made under either of the two. Therefore, above argument of learned counsel for the applicant is misconceived”, it added.
The Court also observed that though forgery is punishable under Section 103 (ii) of the U.P. Cooperative Societies Act, 1965, as also in Chapter 18 of IPC but in the absence of any provision under Act, 1965 which overrides the offence and penalty of Section 103(ii) of the Act, 1965 over all other laws, prosecution for the forgery committed by an officer or employee of the cooperative society can be conducted either under the Act, 1965 or IPC.
“The Act, 1965, does not provide a punishment for breach of trust; therefore, the same can be prosecuted under Section 406 I.P.C., and the bar of Section 26 of the General Clauses Act as well as Section 300(1) Cr.P.C. will not be applicable”, it concluded.
Accordingly, the High Court dismissed the application and directed the ACJM to conclude the proceeding of the case expeditiously, preferably within one year.
Cause Title- Brijpal Singh v. State of U.P. and Another (Neutral Citation: 2024:AHC:61469)
Appearance:
Applicant: Advocates Jagdev Singh, Sheetla Prasad Singh, and Chandra Bhushan Kushwaha.
Opposite Parties: AGA Rajeev Kumar Singh and Advocate K.B. Srivastava.