STATE OF HARYANA Vs. HANS RAJ

JUDGEMENT

(1.) CRIMINAL Appeal No. 465-DBA of 1984 and Criminal Appeal No. 466-DBA of 1984 are being disposed of by this common judgment because in both these matters the accused is the same and the nature of offence allegedly committed by him is the same. The accused-respondent was employed as Cashier in the Pastana Co-operative Agricultural Service Society at village Pastana. While working in his capacity as Cashier, he committed the criminal breach of trust of certain amount as specified in the charge framed against him in both these cases. It is not necessary to go into the details of the amount mis- appropriated by him, because the appeals are now confined to quite limited aspect. Suffice to mention that in the trial Court the charge framed against the accused was under section 409 I.P.C. The Trial Court convicted the accused of the said charge. Against that judgment, the accused preferred appeals in the Sessions Court. These appeals were Criminal Appeal No. 39 of 1983 and Criminal Appeal No. 40 of 1983 in the Court of Sessions Judge, Karnal. The Additional Sessions Judge, Karnal, disposed of this matter by holding the accused guilty under section 408 I.P.C. Thus, in both these matters the accused was convicted and sentenced by the Additional Sessions Judge, Karnal, under Section 408 I.P.C. The State has now preferred these appeals on the ground that the conviction should have been based under Section 409 I.P.C. instead of under Section 408 I.P.C. The contention raised was that the accused, while working as Cashier of a Co-operative Society, was liable to be convicted under Section 409 I.P.C.

(2.) THE question regarding applicability of Section 409 I.P.C. in a case where an employee of a Co-operative Society is involved on the charge of criminal breach of trust, is settled at rest by the Full Bench judgment of this Court reported in (State of Punjab v. Kesri Chand and another, 1987(2) Recent Criminal Reports 297). In that case, their Lordships considered the position of office-bearers of a Co-operative Society. Their Lordships observed that a Co-operative Society, is a group of individuals who seek a status as a body corporate under the Co-operative Society Act and do not owe their existence to a corporation established by or under the Act. Their Lordships further observed that the President and the Secretary of the Co-operative Society are not public servants within the meaning of clause 12(b) of Section 21 of the Indian Penal Code, and the provisions of Section 409 I.P.C. will not be attracted in a case of offence of criminal breach of trust. In this case, we find that the ratio of the above-mentioned case (State of Punjab v. Kesri Chand and another) applies. We, therefore, find that there was no error committed by the Additional Sessions Judge while convicting the accused under section 408 I.P.C.