EMPEROR Vs. SHRIDHAR MAHADEO PATHAK

JUDGEMENT

(1.) This is an application in revision against an order of the learned Sessions Judge of West Khandesh, confirming the conviction of the applicant under Section 409 of the Indian Penal Code, but reducing the sentence of fine passed upon him to one of Rs. 385, while upholding the sentence of imprisonment.

(2.) The facts alleged against the accused were that, being chairman of the Nandane Co-operative Credit Society and having a sum of Rs. 385 paid to him by the complainant in the case in repayment of the loan which he had taken from the society, he criminally misappropriated this sum instead of crediting the amount in the society's books and remitting it to the society's bank. Both the Courts have found the accused guilty of the offence, having believed the complainant's evidence that he paid the amount at the village of Songir after having borrowed it on the strength of a promissory note from one Rupchand Hirachand Marwadi of that place. The conviction is, however, challenged on the ground of its illegality.

(3.) The first argument urged on the applicant's behalf is that he was not a public servant and that, therefore, his conviction under Section 409 is illegal, and that in any case if he was really a public servant, sanction under Section 197, Criminal Procedure Code, was necessary, and that it has not been obtained. As to this point we think that the applicant's contention is correct. Both the Courts below have relied on the definition of " officer" under the Bombay Co-operative Societies Act (Bom. VII of 1925 ). But this does not seem to carry us very much further. "Officer" is defined to include " a chairman, secretary, treasurer, member of committee or other person empowered under the rules or under the bye-laws of a Society to give direction in regard to the business of such Society." The definition in Section 21 Clause (10) of the Indian Penal Code relied on is: Every Officer, whose duty it is, as such officer, to take, receive, keep, or expend any property, to make any survey or assessment, or to levy any rate or tax for any secular common purposs of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district.