BHAGABAN MOHANTY Vs. SUDARSAN NAIK

JUDGEMENT

(1.) THE Petitioner has been convicted under Section 409, Indian Penal Code and sentenced to R.I. for two years and to pay a fine of Rs. 1,000/ -, in default whereof to undergo R.I. for two months more. The Petitioner was the paid Secretary of Gobindapur Service Co -operative Society. Complainant. (p.w. 1) was the President thereof. Between the period 23 -8 -1967 and 9 -1 -1968 the Petitioner is alleged to have sold fertilizers on behalf of the society and realised money which he did not deposit in the Cash register. The accounts of the society were audited from 9 -1 -1968 to 16 -1 -1968 for the period from 1 -7 -1965 to 30 -6 -1967. The Petitioner is alleged to have misappropriated a sum of Rs. 6, 736. 87 P. The Petitioner 's plea is that he has not misappropriated any amount. Before the lower appellate Court two contentions were advanced : That the charge was irregular. The same was rejected and has not been pressed here. The main contention was on the merit and the learned Addl. Sessions Judge in a careful judgment has rejected this contention.

(2.) BEFORE me Mr. Murty contended that the Secretary of a co -operative society is not a public servant within the meaning of Section 21 of the Indian Penal Code and consequently a conviction under Section 409, Indian Penal Code is unsustainable. This contention was never urged in any of the Courts below and on that, simple ground is liable to be rejected. Even assuming that there is any merit in this contention, the Petitioner can be convicted under Section 406 of the Penal Code where the sentence may extend to three years imprisonment of either description, or with fine, or with both. If the Petitioner 's contention is rejected on merit, no ground is made out for reduction of sentence. It is, therefore, unnecessary to examine whether the Petitioner is liable to be convicted under Section 409 or Section 406. In either case, the sentence imposed is to be retained unless the Petitioner is acquitted.

(3.) SECTION 405 runs thus: