K SOMASUNDARAM Vs. STATE

JUDGEMENT

(1.) THE petitioner who was acting as the President of karamadai Co-operative Marketing Society, Dayanur, Kallampalayaam Village, avinashi Taluk, was tried in C. C. No. 375 of 1979, on the file of the Sub divisional Judicial Magistrate, Tiruppur, for offences under Secs. 409, 477-A and 467, Indian Penal Code, found guilty thereof and sentenced to undergo imprisonment till raising of Court and to pay a fine of Rs. 1,000 in default to undergo rigorous imprisonment for six months for the offence under Sec. 409, indian Penal Code and imprisonment till raising of Court and to pay a fine of rs. 500 on each count, in default to undergo rigorous imprisonment for three months under Sec. 467 and 47-A, Indian Penal Code. THE sentences were directed to run concurrently:

(2.) THE aggrieved petitioner preferred Crl. A. No. 680 of 1978 before the Court of Sessions, Coimbatore. THE appellate Court agreed with the findings of the trial Magistrate and confirmed the convictions and sentences imposed on the petitioner and dismissed the appeal.

(3.) THE only charge that survives consideration, relates to the offence under Sec. 409, I. P. C. To find the petitioner guilty for the offences under Sec. 409, I. P. C. he must be a public servant, banker, merchant or agent. THE prosecution has chosen to indict the petitioner on this charge as a public servant.'public servant'is defined in Sec. 21, I. P. C. THEre is a plethora of authorities that the President of a Co-operative Society will not be a public servant. THE earliest case is the decision of King, J. in sombari Behara v. Emperor, 1975 M. W. N. 1337. It was clearly held that the president of a Cooperative Society is not a public servant. Adistinction was drawn between persons whose rights and duties are regulated by a Special Act in contradistinction with the Co-operative Societies Act. A Division Bench of the Bombay High Court in shridhar v. Emperor, A. I. R. 1935 Bom. 36, took the view that the Chairman of a co-operative Society was not a public servant. THE Karnataka High Court has also taken the same view in K. Siddappa v. State of Mysore, A. I. R. 1958 Mys. 82, where dealing with an offence under Sec. 409, I. P. C. , it was held that the president of a Co-operative Society was not a public servant within the meaning of the expression in the Penal Code. THE Karnataka High Court relied upon the decisions of this Court and the Bombay High Court referred to earlier. A Full bench of the Punjab and Haryana High Court in State of Punjab v. Kesari Chand, 1987 Crl. L. J. 549 (P. & H.) [f. B. ], has held that the President and the secretary of a Co-operative Society are not public servants within the meaning of Cl. 12 (b) of Sec. 21, I. P. C. and to them the provisions of Sec. 409, I. P. C. , are not attracted since the Co-operative Society is not a Corporation established by a State Act in whose service or pay they supposedly are, or are assumed to be. THE members who compose the Corporation are quite different from the Corporation itself, for a Corporation is a legal person just as much as an individual. Thus, it is a group of individuals who first associate on their own violation to become a Co-operative Society and then seek a status as a body corporate under the Co-operative Societies Act. THE Supreme Court had occasion to consider the definition of'public servant'in Cl. (12) of sec. 21, I. P. C. in S. S. Khanna v. Delhi Municipality, A. I. R. 1981 S. C. 1395. That was a case where the services of a member of the Indian Administrative Service were placed at the disposal of a Co-operative Society (Super Bazaar) registered under the Bombay Co-operative Societies Act, 1925. THE Supreme Court field that the Officer of the Indian Administrative Service who was deputed for his services being utilised by the Co-operative Society during his period of deputation will not be covered under Sec. 21, Clause (12) of the Indian Penal code, for he was not an officer in the service or pay of the Government, nor was he in the service of a local authority, a corporation established by or under an Act or a Government company. In that connection, the Supreme Court has affirmed the earlier view taken by it Sabhajit Tewary v. Union of India, A. I. R. 1975 S. C. 1329. THE Supreme Court further held that a Co-operative Society is not a statutory body because it is not created by a statute. It is a body created by an act of a group of individuals in accordance with the provisions of a statute. A Co-operative Society is, therefore, not a Corporation established by or under an Act of the Central or State Legislature. THErefor, on the enunciation of law detailed above, the petitioner cannot be deemed to be a public servant. If that be so, it is not possible to affirm his conviction for an offence under Sec. 409, I. P. C.