MOHAN LAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) MOHAN Lal petitioner, at the material time, was working as a Manager of the Sutlej Co-operative Marketing Society Ltd., Nangal. He along with Satish Kumar and Jagteshwar Singh was brought to trial on the charge under Section 409, Indian Penal Code before the Sub-Divisional Judicial Magistrate, Anandpur Sahib. Satish Kumar and Jagteshwar Singh were acquitted. Mohan Lal was, however, held guilty of the said charge. He was convicted and sentenced to 3 years rigorous imprisonment and a fine of Rs. 5000/-. On appeal, the learned Additional Sessions Judge, Rup Nagar, upheld the conviction and sentence of the petitioner. He has now come up in revision.

(2.) IN order to appreciate the contention of the learned counsel for the petitioner, it is necessary to set out the relevant facts. Sutlej Co-operative Marketing Society, Nangal (for short, the Society), is dealing in fertilizer. Accused Satish Kumar was working as a Field Sub-Inspector of the Markfed. Jagat Singh, Administrator of the Society, lodged the report with the Superintendent of Police, Rup Nagar, through the Assistant Registrar, Co-Societies, Anandpur Sahib, that there was double lock system and the fertilizer godowns were under the control of the Manager and Field Sub-Inspector and one key was to be kept by Satish Kumar and the other kay by Mohan Lal. Both were responsible for keeping the correct stock position of fertilizer in the godowns of the Society and also to keep upto date record of the Society. A number of complaints were received by the Deputy Commissioner, Rup Nagar, about the working of the Society for not issuing fertilizer for the Rabi campaign to the other Societies and the farmers. The Deputy Commissioner, Rup Nagar, along with the Sub Divisional Magistrate, Anandpur Sahib and the Assistant Registrar, Co-operative Societies conducted raid on the godowns of the Society on 12-10-1976 and sealed the office and the godowns of the Society. On 13.10.1976, physical verification of the stock of the Society was done, in the presence of Sub-Divisional Magistrate by the District Manager, Markfed, Rup Nagar and he found the following shortages :

(3.) AT the outset, the learned counsel for the petitioner has challenged the legality of the conviction of the petitioner under Section 409, Indian Penal Code and the consequential punishment. He relied on a decision in Karnam Siddapa v. State of Mysore, AIR 1958 Mysore 82 and Shridhar Mahadeo Pathak v. Emperor, AIR 1935 Bombay 36. In my opinion, the contention of the learned counsel for the petitioner should be upheld. The authorities to which he has referred make that position quite clear. The petitioner admittedly stood appointed as a salaried Manager of the Society registered under the Punjab Co-operative Societies Act, 1961 and would not be a public servant as defined under Section 21 of the Indian Penal Code and as such the Co-operative Society cannot be equated with a Local Authority or a Corporation which can be said to be established by the Punjab State. An effort is made in the terms that the offence will come within the purview of Section 408 of the Indian Penal Code and not under Section 409, Indian Penal Code. No body has appeared on behalf of the State to assist the Court. In any case, after hearing the learned counsel for the petitioner at considerable length, I am inclined to agree with him that the offence would fall clearly within the ingredients of Section 408, Indian Penal Code. As a servant of the Society, the petitioner had to act for and on behalf of the Society and for his criminal acts and omissions Section 408 of the Indian Penal Code could alone be attracted. In view of what has been said above, the offence is converted from one under Section 409, Indian Penal Code to one under Section 408 of the Indian Penal Code.