STATE Vs. PUNDALIK ANNAPPA GARAGE

JUDGEMENT

(1.) WE have heard the learned Additional State Public Prosecutor both on merits as also on I. A. I which is for condonation of delay of 222 days. The delay in this case is relatively gross and normally, we would not have condoned the delay except for the fact that this is a very old proceeding, that there were some procedural problems in the way of the state in the matter of filing this appeal. Having regard to what has been pointed out, the delay is condoned. I. A. I is allowed, (affidavit indicating the grounds for the delay has been tendered by the learned Counsel and the same has been taken on record ).

(2.) AS far as the merits of the case are concerned, we find that the principal reason why the Trial Court has acquitted the accused is because the requisite sanction under Section 111 of the Karnataka Co-operative Societies Act was not obtained. The allegations against the accused was that he had not accounted for a sum of Rs. 3,905-80 paise which according to the complainant was the aggregate amount realised from the sale of empty sugar bags. The discrepancy is supposed to have been noticed at the time of the audit and Section 111 very clearly postulates that no prosecution shall be instituted under the Act without the previous sanction of the Director of Co-operative Audit in respect of matters arising out of audit. The defence pleading was that the Assistant Registrar, Co-operatrive Society has directed the complainant soci-ety to file the complaint against the accused as per Ex. P. 2 and the submission is that the requirement of sanction has been complied with. The learned Trial Judge has rejected this submission and in our considered view very rightly so. The defence had relied on a decision of the andhra Pradesh High Court in the case of Somsetti Lakshmi Narasi-mayya v State of Andhra Pradesh, wherein, the view taken was that the secretary of a Co-operative Credit Society registered under the Andhra pradesh Co-operative Act is not a public servant within the meaning of section 21 of the IPC. Consequently, it was held that Section 409 of the ipc would not be applicable. What we need to clarify is that the offence of criminal breach of trust gets aggravated in certain circumstances if it is committed by an individual holding a particular office, the question as to whether the accused was a public servant or not is really academic insofar as to a very large extent in most of the criminal cases it will require an examination of facts. If the evidence adduced by the prosecution makes out an offence and the prosecution has established that the accused has committed criminal breach of trust, in the event of his not being a public servant the Court would still be entitled to convict him for the offence punishable under Section 406 of the IPC or any of the other applicable sections.

(3.) THE real issue is as to whether for want of sanction the prosecution itself is bad. The case-law on the point is elaborate and the legal position is well-settled. There is a very valid reason why in a certain class of cases the Legislature has provided for prior sanction because it is neces-sary to avoid prosecutions against employees on mere allegations that something has gone wrong. The law postulates that a responsible officer of a sufficiently high designation has to examine the facts and accord sanction and even in those of the cases where sanction is mechanically granted without application of mind, the Courts have struck down the sanction order as not being valid and have held that for want of valid sanction the prosecution itself is non est. In the absence of a sanction order there can ba no two opinions about the fact that the prosecution itself is not maintainable. This was a serious lapse in the present case and in our considered view the Trial Court was fully justified in acquit-ting the accused.