SUDHAKANTA TRIPATHY Vs. STATE

JUDGEMENT

(1.) In all these cases the petitioners assail the framing of charges Under Section 5(1) (c) and (d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the P. C Act') and Sections 120 -B, 420, 467, 468, 471 and 477 -A of the Indian Penal Code (hereinafter referred to as 'IPC'). Criminal Revision Nos. 446 to 452 of 1992 have been filed by the same petitioner in respect of the prosecutions he is facing in T. R. Case Nos. 20, 33, 25, 22 24, 23 and 21 of 1989 respectively. Criminal Revision Nos, 456 to 458 of 1992 have been filed by different petitioners. Notice of admission and final disposal had been given. Since the facts relating to the cases are all identical, they are disposed of by this common judgment. After stating the details of facts, it is found : 3. The prosecution case is that R. K. Modi, the transport contractor who is also an accused in the cases had been entrusted with the work to transport the paper sludge from Choudwar to different sale centres at different rates. The case against the petitioner Sudhakanta Tripathy is that he was at the relevant time functioning as the Sales Manager of the Federation posted at Choudwar and connived with R. K. Modi in issuing false challans in respect of transport of paper sludge though the vehicles shown to have carried the sludge were not actually engaged for the work. For the purpose the necessary documents were forged and manufactured. The other petitioners have also been arrayed as accused being party to the conspiracy as also to the other offences. Besides the petitioners, there are also other accused to the cases like the District Agriculture Officer and others who have not approached this Court. 4. Mr. Misra, the learned counsel appearing for the petitioner Sudhakanta Tripathy, has urged that the framing of the charge Under Section 5(1 )(c) and (d) read with Section 5(2) of the P.C. Act is misconceived since the petitioner is not a public servant and hence not liable to be proceeded against under the provisions of that 'Act. Besides, he also contends that there is absolutely no material against the petitioner to frame charge Under Section 120 -B, IPC against him or the other charges. So far as the petitioners in Cri. Rev. Nos. 456, 457 and 458 of 1992 are concerned, who are the VAWs and the AEO, they also raise the contention of there being no material to frame charges against them. 5. So far as the petitioner Sudhakanta Tripathy is concerned. the objection taken regarding framing of the charge under the P.C. Act is well -founded. Mr. Rao, the learned Additional Government Advocate, does not dispute that the P.C. Act applies only to public servants, but it is his contention that since Section 2 of the P. C. Act does not itself define 'public servant' but adopts the definition in the IPC Under Section 21, thereof for the purpose, the meaning of 'public servant' has to be looked only under the IPC. According to him, the twelfth clause of Section 21 IPC provides inter alia that every person in the service or pay of a corporation established by or under a State Act is also a public servant. It is his submission that since the Orissa State Co -operative Marketing Federation Ltd., is a Co -operative Society and is established under the Orissa Co -operative Societies Act, 1962 the petitioner Sudhakanta Tripathy as an employee of the Federation is a public servant and hence is liable to be proceeded against under the relevant provisions of the P.C. Act. In support of such submission, he has placed reliance on AIR 1985 SC 973 (Daman Singh and Ors. v. State of Punjab and Ors.) where a Co -operative Society was held to be a 'corporation' as is commonly understood, and on AIR 1975 SC 1835 (The State of Madhya Pradesh v. M.V. Narasimhan) where an employee of the Government company was held to be a 'public servant'. 6. Though Co -operative Society is a corporation as is commonly understood, yet the submission is hardly acceptable that it is a corporation established either by or under a statute and that an employee of a Co -operative Society registered under the State Act would become a public servant. A Co -operative Society cannot be taken either as established by or under any statute. At best a Co -operative Society can be said to be established in accordance with the Co -ooerative Societies Act, 196 2 where a group of persons combine to form themselves to a Co -operative Society. The element of volition is largely existent in establishment of the Society with the option available to the members thereof either to opt out or to enrol themselves as members of the Society. The Co -operative Society is hence merely registered under the provisions of the State statute. The question was conclusively clinched in AIR 1981 SC 1395 (S.S. Dhanoa v. Municipal Corporation, Delhi and Ors.) wherein dealing with the very question it was observed : '...Indubitably, the Co -operative Store Limited is not a corporation established by a Central or State Act. The crux of the matter is whether the word 'under' occurring in Cl. Twelfth of Section 21 of the Indian Penal Code makes a difference. Does the mere act of incorporation of a body or society under a Central or a State Act make it a corporation within the meaning of Cl. Twelfth of Section 21 ? In our opinion, the expression 'corporation' must, in the context, mean a corporation created by the Legislature and not a body or society Drought into existence by an act of a group of individuals. A co -operative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature.' Their Lordships again obsetved : '...But, in the context of Cl. Twelfth of Section 21 of the Indian Penal Code, an expression 'corporation' must be given a narrow legal connotation' AIR 1975 SC 1835 (supra) on which reliance has been placed by the learned Additional Government Advocate is also of no help since their Lordships were dealing in that case with a Government company, the employees of which have been expressly treated as public servants under Sub -clause (b) of Clause Twelfth of Section 21, IPC. The question whether employees of Co -operative Societies can be treated as public servants for prosecution Under Section 5(1)(c)& (d) read with Section 5(2) of the P.C. Act was also decided in the negative by earlier decision of this Court reported in XXXIX(1973) CLT 440 (Lambodar Panigrahi v. State of Orissa).Because of such confirmed position of law, charge against against the petitioner Sudhakanta Tripathy framed Under Section 5 (1) (c) & (d) read with Section 5(2) of the P.C. Act must be held to be illegal and hence the same is quashed. So far as the charge framed against the petitioners for conspiracy is concerned, it is the submission of their counsels that for a charge to be framed for conspiracy, a mere suspicion is not enough and that there must be prima facie materials to show as to who conspired with whom, and that when the conspiracy took place. There being absolutely no materials available with the prosecution to show such conspiracy to have taken place, there is no material to frame charge as the essential element of the unity of the will is lacking. 8. Conspiracy as a charge can be established, as any other offence, either by direct or by circumstantial evidence. It cannot be held as an infallible rule that conspiracy must always be proved by direct evidence. If the circumstances are such that they form a relentless chain as to conclusively point the finger towards the person charged with the offence, the commission of the offence can be taken to have been established. It cannot be said and indeed it is not the case of the learned counsels that there are no materials at all for the prosecution to press the charge. Whether or not such materials are sufficient to establish the charge, I am not to express any opinion now. But it cannot be certainly said that the charge must fail at the outset because no circumstances exist for the prosecution to pursue the charge. Because of such fact, I am not inclined to quash the charge Under Section 120 -B, lPC against the petitioners. For similar reasons, the charges under the other provisions also cannot be said to fail at the very first instance. It is not a case where there is absolute lack of materials against the petitioners. Since some materials are there, the revisional powers of this Court cannot be invoked to pre -empt the charges against the petitioners and scuttle the prosecutions against them. 9. In the result, the Criminal Revision Nos. 446 to 452 of 1992 are partly allowed in quashing the charge Under Section 5 (1) (c) and (d) read with Section 5(2) of the P.C. Act against the petitioner Sudhakanta Tripathy, and Criminal Revision Nos. 456 to 458 of 1992 are dismissed.