M C GANGADHARAPPA Vs. STATE

JUDGEMENT

(1.) HEARD the learned counsel appearing for the respective parties.

(2.) SRI Ajit Gunjal the learned counsel for the petitioner has vehemently argued that the offence under S. 409, I. P. C. , is not attracted in this case on the ground that he is not a public servant as defined under S. 21 of the I. P. C. and also under S. 162 of the Co-op. Societies Act. He further submitted that the material evidence was not considered by the Courts below. He further submitted that the petitioner had already paid the entire amount said to have been misappropriated by him to the society and no loss is caused to the society. Therefore, he is entitled to be acquitted. In the alternative, as the offence does not come under S. 409 at the maximum the offence may come under S. 406, I. P. C. which is not punishable with life imprisonment. In any event, if the Court were to hold that the petitioner has committed the offence and as it comes under S. 406, I. P. C. taking into consideration, the fact that the offence is said to have taken place in the year 1987-88, he may be released on Probation of Offenders Act as at this belated stage, sending the only bread earner of the family to jail would cause greater hardship to the family.

(3.) REPELLING this arguments, the learned Addl. S. P. P. submitted that the word 'officer' as contemplated under the Maharashtra Co-op. Societies Act is not applicable to the Karnataka Co-op. Societies Act. Under the Maharashtra Co-op. Societies Act committee members and Chairman or President, etc. are the officers of the society, but under the Karnataka Co-op. Societies Act the word 'officer' is not defined. Under S. 2 (g) of the Act an employee is not an officer of the society. Therefore, the decision reported in (2000) 2 SCC 699 : (AIR 2000 SC 937) is not applicable to the facts of this case. Section 127-A of the Karnataka Co-op. Societies Act refers to S. 21 (a) of the I. P. C. The petitioner admittedly was the Secretary was entrusted with the custody of the property and he had dominion over the same. Therefore, the offence as alleged has been established in this case and the petitioner being employee of the co-op. society is punishable under S. 409, I. P. C. The P. O. Act is not applicable and no material is left out without being considered by the Courts below. This Petition is filed against concurrent findings of both the Courts and no ground is made out for this Court to interfere. Therefore, the petitioner is liable to be dismissed.