Patna High Court
State Of Bihar vs Amulya Ratan Pathak on 7 May, 1968
Equivalent citations: 1969(17)BLJR77, 1969CRILJ780, AIR 1969 PATNA 173, 1968 PATLJR 474, (1969) 5 CO-OP LJ 186, 1969 BLJR 77
JUDGMENT K.B.N. Singh, J.
1. Both the Government appeals have been heard together with the consent of the parties as common questions of fact and law are involved. This judgment will, therefore, govern both the appeals. These appeals are for setting aside the orders of acquittal passed by Shri Rash Behari Prasad Sinha, Additional Sessions Judge, Dhanbad, in Criminal Appeals Nos. 207 and 208 of 1963, reversing the findings of Shri N.N. Chakravarty, Assistant Sessions Judge, Dhanbad, in Sessions Trials Nos. 24 and 24/A of 1963, who convicted the respondent of the offence under Section 409 of the Indian Penal Code in both the cases.
2. Respondent Amulya Ratan Pathak was the Secretary of Radha Nagar Multipurpose Co-operative Society (hereinafter referred to as the Co-operative Society), a Society registered under the Bihar and Orissa Co-operative Societies Act, 1935, during the years 1958-62 and co-accused Dhirendra Nath Chatterjee was its President. The allegation against respondent Amulya Ratan Pathak and co-accused Dhirendra Nath Chatterjee was of having committed criminal breach of trust in respect of a sum of Rs. 810.85 P. collected from loanees as agents of the Central Co-operative Bank between 13-3-59 to 26-3-60. Both were put on trial by a common commitment order dated the 1st May, 1963, under section 409 of the Indian Penal Code. The learned Assistant Sessions Judge at the trial by the order dated 19th September, 1963, split up the trial on the ground that one charge of embezzlement could not embrace a period exceeding one year. Accordingly, one trial (Sessions Trial No. 24 of 1963) for criminal breach of trust in respect of a sum of Rs. 729.96 paise, committed during the period 13th March, 1959 to the 28th December, 1959, and another trial (Sessions Trial No. 24A of 1963) with regard to the remaining period, i. e. from the 20th March, 1960. to the 31st March, 1960, in respect of a sum of Rs. 73.35 Paise, were started.
In both the sessions trials, the learned Assistant Sessions Judge, by separate judgments, convicted respondent Amulya Ratan Pathak under Section 409 of the Indian Penal Code and in sessions trial No. 24A of 1963, sentenced him to undergo rigorous imprisonment for six months and a fine of Rs. 50/-, in default to suffer rigorous imprisonment for a further period of one month; and in sessions trial No. 24 of 3963, sentenced him to undergo rigorous imprisonment for two years and a fine of Rs. 700/- and in default to rigorous imprisonment for a further period of six months. The learned Assistant Sessions Judge acquitted the co-accused Dhirendra Nath Chatterjee in both the sessions trials.
3. Respondent Amulya Ratan Pathak filed two criminal appeals before the Sessions Judge, Dhanbad against his conviction in both the sessions trials. The appeal arising out of sessions trial No. 24 of 63 was numbered as Criminal Appeal 207 of 63, while the appeal filed from Sessions Trial No. 24A of 63 was numbered as Criminal Appeal 208 of 63. Both the appeals were heard by the Additional Sessions Judge, Dhanbad, who allowed both the appeals by his judgments dated the 25th of September, 1965, acquitted respondent Amulya Ratan Pathak and set aside the convictions and sentences under Section 409 of the Indian Penal Code passed against him in both the sessions trials. It is against these two orders of acquittal that the State of Bihar has filed both the present Government appeals. Government Appeal No. 1 of 66 arises out of an order of acquittal in Criminal Appeal No. 208 of 63 which arose out of Sessions Trial No. 24A of 63 while Government Appeal No. 2 of 66 arises out of an order of acquittal in Criminal Appeal No. 207 of 66 which arose out of Sessions Trial No. 24 of 63.
4. The prosecution case, in short, is that Radha Nagar Multi-purpose Co-operative Society, which is a Society registered under the Bihar and Orissa Cooperative Societies Act, 1935, is affiliated to the Central Co-operative Bank, Dhanbad (hereinafter referred to as the Cooperative Bank). During the relevant period, i. e., from 13-3-59 to 31-3-60, respondent Amulya Ratan Pathak was the Secretary of the Society and Dhirendra Nath Chatterjee was the President of the Co-operative Society. The society is affiliated to the Central Co-operative Bank, Dhanbad, and the Bank advances loan to the members of the co-operative Society for agricultural purposes. In the year 1958, the bank advanced short-term loans amounting to Rs. 3190/- and medium term loans amounting to Rs. 2200/- to the members of the Society through the society. During the period between 13-3-59 to 26-3-60 a sum of Rs. 810.85 P. was realised from the members of the Society in respect of the loans advanced to them which was not deposited by respondent Amulya Ratan Pathak, the secretary of the Society.
In course of auditing of the accounts of the Society, Mangal Das TOPPO. Assistant Auditor, and Rameshwar Singh, Auditor, of Co-operative Societies, Dhan-bad, found that the aforesaid sum of Rs. 810-85 P. was not deposited in the Central Co-operative Bank. Thereafter time was granted to respondent Amulya Ratan Pathak for depositing the aforesaid amount which he failed to do and by a letter dated 8-12-61 (Ext. 7) prayed for more time for making the deposit. Thereafter, B.B. Ghosh, General Manager of the Co-operative Bank. (P. W. 2 in both the cases), after obtaining permission dated 15-2-62 of the Assistant Registrar, Co-operative Societies, filed a written report dated 21-3-62 before the Officer-in charge of Baghmara police station alleging that the respondent had committed criminal breach of trust in respect of a sum of Rs. 810-85 P. On the basis of the written report, Sheo Janam Singh, Sub Inspector of Baghmara police station, drew up a formal F. I. R. and after investigation submitted charge sheet against the respondent and co-accused Dhirendra Nath Chatterjee. After usual commitment enquiry under Chapter XVIII, Criminal Procedure Code, respondent Amulya Ratan Pathak and Dhirendra Nath Chat-terjee were committed to the court of session, as stated above.
5. The defence of the respondent Amulya Ratan Pathak in both the sessions trials was common. The respondent admitted having made collection of the loan amounts from the members, but he thereafter, handed over the sum collected to Dhirendra Nath Chatterjee, the President of the Co-operative Society, for depositing the aforesaid amount in the Co-operative Bank, Dhanbad, on 31-3-60 for which the latter granted him a receipt. The defence of the respondent further was that the said receipt was granted in the meeting of the Managing Committee of the Society held on 31-3-60. The respondent, accordingly, pleaded not guilty to the charge and submitted that he had not committed any criminal breach of trust.
The defence of the co-accused Dhirendra Nath Chatterjee, who was separately defended, was that the receipt purported to have been granted by him was a forged document. His case was that his signature was obtained on some printed prescribed form of the Society which he used to sign in the capacity of the President of the Co-operative Society, and one of them had been converted by respondent Amulya Ratan Pathak into a forged receipt which is the receipt in question. His further defence was that the records of the Society were kept in the custody of the Secretary and that he had fabricated false entries in the proceedings book with regard to the meeting dated the 31st March, 1960. Thus, he denied that the respondent Amulya Ratan Pathak handed over the disputed amount of Rs. 810.85 P. to him and the fact of his having granted receipt for the same. He thus pleaded not guilty to the charge.
6. The trial of both the sessions cases Nos. 24 and 24A of 1963 proceeded simultaneously for the facility and convenience in examining witnesses most of whom were common witnesses. In sessions trial No. 24 of 1963 (out of which Government Appeal No. 2 of 1960 arises), 28 winesses were examined on behalf of the prosecution. Out of them, P. W. 22, Shri N.K. Kachhap, is Sub-Deputy Magistrate in whose presence specimen writings of respondent Amulya Ratan Pathak were taken and P. W. 23, Shri S.B. Tripathi, is the B. D. O. in whose presence specimen signatures of co-accused Dhirendra Nath Chatterjee were taken for comparison with the writings on the receipt which, according to Amulya Ratan Pathak, was granted in token of payment of Rs. 810,85 P. by Dhirendra Nath Chatterjee on the 31st March, 1960. These writings were compared by P. W. 1, Santosh Kumar Chatterji, Examiner of questioned documents, working under the State of Bihar. According to the evidence of the expert, the body portion of the receipt was in the writing of Amulya Ratan Pathak and it bore the signature of Dhirendra Nath Chatterjee.
This receipt has been marked in both the sessions trials (Nos. 24 and 24A of 1963) as Exhibit 16 and the signature of Dhirendra Nath Chatterjee as Exhibit B/a. As a matter of fact, all the relevant documents, which we will have to deal with in these two appeals, have same exhibit numbers. P. W. 2 is Bibhuti Bhusan Ghosh, the General Manager of the Co-operative Bank, who has lodged the first information in this case. P. W. 5 is Bhairab Prasad Lala, Supervisor of the Co-operative Society. He has been examined to prove that respondent Amulya Ratan Pathak realised a sum of Rs. 810.85 P. from the loanees and did not deposit the same in the Central Co-operative Bank. P. W. 10 Mangal Das Toppo and P. W. 11 Rameshwar Singh are auditors of the Co-operative Society who had audited the account of Radha Nagar Cooperative Society and found that a sum of Rs. 810.85 paise was outstanding as cash balance which was not produced by Amulya Ratan Pathak for physical verification and they submitted their reports to the Bank and gave copies of the same to the respondent as well.
P. W. 25 is Kritibas in whose presence the respondent handed over the proceeding book of the Co-operative Society to the Investigating Officer who is P. W. 26 in this case. The said proceeding book has been marked as Ext. 11. P. W. 19, Ashwini Kumar Pathak, and P. W. 20, Gutu Napit, are members of the Managing Committee of the Co-operative Society. They were declared hostile and cross-examined on behalf of the prosecution as they went back on their previous statements. All these witnesses have also been examined as prosecution witness in Sessions Trial No. 24A of 1963. The expert (P. W. 1) and the informant (P. W. 2) in Sessions Trial No. 24 of 1963 are also P. Ws. 1 and 2 respectively in Sessions Trial No. 24A of 1963. P. W. 5, Bhairab Prasad Lala, the Supervisor, P. W. 10, Mangal Das Toppo and P. W. 11, Rameshwar Singh, auditors, P. W. 19, Ashwini Kumar Pathak, P. W. 20, Gutu Napit, P. W. 22, N. Kachhap, Sub-Deputy Magistrate, P. W. 23, Shri S.B. Tripathi, Block Development Officer, P. W. 25, Krittibas Singh P. W. 26, Sheojanam Singh, the Investigating Officer, are P. Ws. 3, 4, 5, 7, 8, 10, 11, 12 and 13 respectively in Sessions Trial No. 24A of 1963 and the evidence of these witnesses are same in both the sessions trials.
P. Ws. 3, 4, 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 21 and 24 are members of Radha Nagar Co-operative Society who had taken loans and have been examined on behalf of the prosecution to prove that Amulya Ratan Pathak realised the amounts in question from these persons. Some of these P. Ws. have also deposed that Amulya Ratan Pathak made over the sum of Rs. 810.85 P. to Dhirendra Nath Chatterjee which is the subject matter of the charge in both the sessions trials. Out of these 15 witnesses examined in sessions Trial No. 24 of 1963, only two, namely, Bodhi Singh (P. W. 18) and Ramlal Sahu (P. W. 21) have been examined as P. Ws. 6 and 9 respectively in Sessions Trial No. 24A of 1963. It may be relevant to point out that these two witnesses are the loanees in respect of the amount (Rs. 73.35 P.) covered in the charge in Sessions Trial No. 24A of 1963, while larger amount (Rs. 729.96 P.) was involved in Sessions Trial No. 24 of 1963, and hence large number of loanees have been examined in that case.
7. On behalf of the accused no witness was examined, but certain challans which have been marked as Ext. A series in Sessions Trial No. 24 of 1963 and signature of Dhirendra Nath Chatterjee on the receipt (Ext. B) and a receipt (Ext. C) dated the 31st of March, 1963, by the Block Development Officer, Baghmara to Amulya Ratan Pathak for a sum of Rs. 200/- have been exhibited. The learned Assistant Sessions Judge, on a consideration of the oral and documentary evidence in both the sessions trials, accepted the prosecution case and held that Amulya Ratan Pathak had committed the offence of Criminal breach of trust in respect of the aforesaid amounts for which he was charged in both the cases and convicted and sentenced him under Section 409 of the Indian Penal Code, as stated above. He, however, acquitted the co-accused Dhirendra Nath Chatterjee of the charge as he held that the receipt (Ext. 16) was not a genuine document.
8. It will be relevant at this stage to refer to certain findings and admitted facts before the learned Assistant Sessions Judge. He held, (i) that Amulya Ratan Pathak and Dhirendra Nath Chatterjee in their capacity as Secretary and President of the Co-operative Society were public servants; (ii) that the body portion of the receipt in question (Ext. 16) was in the handwriting of Amulya Ratan Pathak and it bore the signature of Dhirendra Nath Chatterjee. He, however, held that this receipt was not a genuine document and was not granted by Dhirendra Nath Chatterjee after receiving a sum of Rs. 810.85 P., (iii) In Ext. 11 page 1 against the name of Dhirendra Nath Chatterjee after the word 'Sabhapati', the word 'Koshadhayaksha' was an interpolation and had been added at the instance of respondent Amulya Ratan Pathak who had the custody of the documents including the proceeding book; (iv) that the minutes of the proceeding book of the meeting held on the 31st March, 1960 on which date the receipt in question is said to have been granted was not recorded in due course of business, nor were the signatures of the members obtained on it properly and as such no reliance could be placed on it; and (v) that it appeared from the evidence of the loanees as well as from documents that Amulya Ratan Pathak realised Rs. 729.96 P. and Rs. 73.35 P. total Rs. 803.31 P. from the loanees. This fact is also admitted by Amulya Ratan Pathak.
Amulya Ratan Pathak also admitted that he had not deposited this money in the Central Co-operative Bank, but that he had paid it to Dhirendra Nath Chatterjee as per receipt dated the 31st March, 1960. Dhirendra Nath Chatterjee, while admitting his signature on the receipt, characterised it as a forged document having been written out on blank space on a form of the Society bearing his signature. In the two appeals preferred by the respondent, as stated above, the learned Additional Sessions Judge, Dhanbad, set aside the convictions and sentences passed against the respondent and acquitted him, holding that the plea of payment as set up by Amulya Ratan Pathak was true and the receipt (Ext. 16) produced by him was a genuine document. It is against this finding that the Government has preferred these two appeals.
9. As already pointed out, the fact that Amulya Ratan Pathak realised Rs. 729,96 paise between the 13th March, 1959 & the 28th December, 1959, and a sum of Rs. 73.35 paise between the 20th March, 1960 and 31st March, 1960 (which are the subject matter of charge in the sessions trials) from the loanees of the Society in question is admitted by him. This has been also fully established by the evidence led on behalf of the prosecution which has been fully discussed in the two judgments of the Trial Court and it is unnecessary to refer to the evidence on the point as the same has not been challenged on behalf of the respondent before us. The main question for consideration in this appeal is whether Amulya Ratan Pathak handed over the aforesaid amount to Dhirendra Nath Chatterjee, the President of the Society, in token of which he obtained a receipt signed by him which has been marked Ext. 16. This receipt is said to have been obtained in a meeting of the Managing Committee of the Co-operative Society held on the 31st March, 1960. It is also not disputed that the body portion of the receipt is in the handwriting of Amulya Ratan Pathak and the signature is in the pen of Dhirendra Nath Chatterjee.
Dhirendra Nath Chatterjee has characterised this receipt as forged one having been manufactured on a portion torn from some printed form which he had to sign in his capacity as the President of the Society. It is also admitted that the sum in question was not deposited by Amulya Ratan Pathak in the Co-operative Bank which was required to be done after collecting the amount in question from the different loanees of the Society. It is also common ground that Dhirendra Nath Chatterjee also has not deposited the aforesaid amount in the Co-operative Bank. At the relevant period there was no treasurer of the Society is also admitted. Dwarka Nath Choubey who was elected as treasurer along with Amulya Ratan Pathak as Secretary and Dhirendra Nath Chatterjee as President on the 7th August, 1958, resigned from his post of treasurer and during the relevant period no treasurer was elected. P. W. 2, the Manager of the Central Co-operative Bank, has deposed that under the bye-laws, the Secretary realises the money from the members of the Society and deposits the same with the treasurer.
He had stated in the committing court that the President is the custodian of the cash of the Society which he clarified in the Sessions Court by saying that the President will be custodian only if there is resolution of the Managing Committee to that effect. On behalf of Amulya Ratan Pathak, reliance was placed on the proceedings book (Ext. 11) at page 1, wherein Dhirendra Nath Chatterjee was described as "Sabhapati" and "Koshadhyaksha". From this it was sought to be made out that as Dhirendra Nath Chatterjee was described as 'Koshadhyaksha', it should be assumed that there was a resolution to that effect of the Managing Committee. The word 'Koshadhyaksha" against 'Sabhapati' appears to be in different ink and pen. A copy of the proceeding of the Managing Committee dated the 7th August, 1963 (Ext. 19) was sent to the Bank as required by the rules. In that copy of the proceeding against the name of Dhirendra Nath Chatterjee, only Chairman is mentioned, meaning Sabhapati and 'Koshadhyaksha' is not mentioned at all. Thus, it is apparent that the word 'Koshadhyaksha' was subsequently added.
As Amulya Ratan Pathak was in possession of the proceedings book and he handed over the proceeding book to P. W. 26, the inference is irresistible that it was at his instance that the word 'Koshadhyaksha' was added to shift his liability. Be that as it may, Amulya Ratan Pathak admits to have realised the disputed amount from the loanees and his specific defence is that he handed over the same to Dhirendra Nath Chatterjee under the receipt (Ext, 16). The question that arises for consideration is as to whether this allegation is true.
10. Mr. Bajrang Sahay, Government Advocate, appearing for the State of Bihar, has submitted that the prosecution has placed on record overwhelming evidence to show that the receipt (Ext. 16) was not a genuine document and that the minutes of the proceeding of the Managing Committee of the Society dated the 31st March, 1960 in support of the receipt were not written in due course and had been manipulated by Amulya Ratan Pathak and his plea of payment of the amount in question to Dhirendra Nath Chatterjee was incorrect. Learned Government Advocate also urged that the court of appeal below, while holding the receipt and the proceedings book to be genuine documents, has not taken note of the facts placed on record by the prosecution and which were relied upon by the trial court and which the lower appellate court was bound to consider while acquitting the respondent and reversing the judgments of the trial court. I think there is substance in this submission of learned counsel.
[His Lordship, after dealing with the evidence in paras 11 and 12, observed:] From the evidence of these responsible officers (P. Ws. 2, 5, 10 and 11), who had no animus against the respondent, it is apparent that they asked him to deposit the money, but he never disclosed that he had paid the money to Dhirendra Nath Chatterjee and that he had obtained a receipt (Ext 16) in proof thereof. The evidence of these witnesses finds support from the cash book, auditor's reports, as well as from the petition dated the 8th December. 1961 (Ext 7). written by the respondent himself. On the basis of the aforesaid evidence read with Ext. 7, the inference is irresistible that the respondent had not paid till then the disputed amount to Dhirendra Nath Chatterjee, nor was the receipt (Ext. 16) dated the 31st March, 1960, in existence.
These matters have been fully considered in the judgment of the learned trial court in paragraphs 13 to 17. The learned Additional Sessions Judge (the lower appellate Court) has not given due weight to these facts and circumstances, which clearly go to prove that the plea of payment set up by the respondent at a very belated stage was nothing but a fabrication. In paragraph 18 of his judgment (in Criminal Appeal No. 208 of 1963) the learned Additional Sessions Judge has merely observed that D.N. Chatterjee had not challenged the genuineness of his signature appearing on the receipt, Ext. 16. But, at the same time, he has mentioned in the same paragraph that the defence of D.N. Chatterjee, however, was that his signature had been obtained on a prescribed form of the society and the same had been converted into the receipt in question. In face of this defence put forward by D.N. Chatterjee, there could be no manner of doubt that he did challenge the genuineness of the receipt and, as has been shown above, the various facts and circumstances detailed above go to prove this fact.
13. The learned Additional Sessions Judge in paragraph 32 of his judgment (in Criminal Appeal No. 208 of 1963) has laid stress on the fact that the testimony of P. W. 2, B.B. Ghosh the General Manager of the Central Co-operative Bank, was not consistent, inasmuch as according to his statement made before the committing Magistrate, the President of the Multipurpose Co-operative Society was to be the custodian of money belonging to the Society in absence of the Treasurer, but according to his statement in the Sessions Court, the Secretary was to deal with the cash and was in charge of the same. These statements of P. W. 2 do not at all affect the correctness of the prosecution version, namely that the respondent had realised the amounts in question and that he did not deposit the same in the Bank either personally or through the President of the Society.
There is unmistakable evidence, both oral and documentary, on the record to show that he did not at all make over the amount to the President and that the receipt (Ext. 16) which he produced at a very belated stage of the case was a fabricated document, inasmuch as it had not been prepared in the usual course of business and not produced when occasions arose. The court below has sought to support the genuineness of the receipt by taking into account the minutes of the proceeding of the Managing Committee dated the 31st March, 1960 (Ext. 11). According to the Court below, the minutes of the proceedings showed that the respondent had paid the amount to the President and in this connection, it has referred to the evidence of Ashwini Kumar Pathak (P. W. 19), Gutu Napit (P. W. 20), Ramlal Sahu (P. W. 21) and Shib Narain Singh (P. W, 12), who are said to have made endorsements on the proceeding book (vide Exts. 3/2. 3/3. 3/4 and B/b). It will, however appear that P. Ws. 19 and 20 were declared hostile and not relied upon by the lower court.
From the testimony of P. W. 19 it appears that he did not remember, whether he attended the meeting on the 31st March, 1960, and he stated further that the Secretary used to obtain his signatures even on subsequent dates. The testimony of P. W. 20 was to the effect that he signed the proceeding book after the meeting was over and he did not see the respondent paying any money to the President D.N. Chatterjee. The testimony of Ramlal Sahu (P. W. 21) is that his signature was obtained on Ext 11 on the road in front of the school and that he was not present in the meeting alleged to have been held on the 3lst March, 1960. His testimony, therefore, clearly goes to show that the contents of the minutes said to have been recorded on the 31st March, 1960, cannot be accepted on their face value.
The testimony of Shib Narain Singh (P. W. 12) is equally unreliable. According to him, Dhirendra Nath Chatterjee presided over the meeting held on the 31st of March, 1960, and that the respondent paid him certain amount But curiously enough, the minutes of the proceedings have not been signed by D.N. Chatterjee. Furthermore, this witness does not remember as to who else was present in the meeting Had D.N. Chatterjee been present in the meeting, there does not appear to be any reason for his having not signed the proceeding book, especially when it is mentioned therein that he received title amount in question from the Secretary. Then again, as has already been discussed above, this fact was not disclosed either to P. W. 2 or to the auditors on subsequent occasions when they pointedly questioned the Secretary about the amount deposited.
The learned Additional Sessions Judge has overlooked the obvious infirmities appearing in the testimony of P. Ws. 12, 19, 20 and 21 and has come to the finding that the minutes alleged to have been recorded on the 31st of March, 1960, in the proceedings book were genuine. This finding is due to the misappreciation of the evidence. If D.N. Chatterjee granted a receipt in token of having received Rs. 810.85 palse, in the natural course of events, it was expected that he would have also signed the proceedings of that date. It is preposterous to think that he would have signed the receipt but not the proceedings even though, according to the respondent, the meeting was held in his presence and he happened to be the permanent President.
14. The learned Additional Sessions Judge has also omitted to consider another aspect, namely, that the word "Koshadhyaksh" was inserted after describing D.N. Chatterjee as 'Sabhapati' in the proceedings book. This was obviously done at the instance of the respondent, 'Amulya Ratan Pathak on a subsequent occasion in different ink and pen. All these circumstances lend support to the inference that the minutes of the proceedings dated the 31st March, 1960, were written by the respondent on a much later date for the purpose of his defence and they were never written during the regular course of business. The lower appellate court considered the question of D.N. Chatterjee having not presided over the meeting and having not signed the proceedings as of minor importance. The learned lower appellate court is entirely wrong in thinking so.
The evidence of the other witnesses, i. e. P. Ws. 3, 6, 7, 13 and 14, on the point of payment had been fully discussed by the trial Court and for good reasons their testimony has not been relied upon. The learned lower appellate Court has not said anything about the finding of the trial Court on this point, but has summarily come to the conclusion that the receipt (Ext. 16) is a genuine one and the minutes of the proceedings dated the 31st March, 1960, in the proceedings book are also genuine. A careful appraisal of the testimony of the witnesses, referred to above, shows that they cannot be relied upon with regard to the alleged payment of the disputed amount to Dhiren-dra Nath Chatterjee.
15. Mr. Jugal Kishore Prasad, appearing for the respondent, also could not support the aforesaid finding of the learned Additional Sessions Judge, as it suffered from non-consideration of vital matters taken into account by the trial court. He tried to show the genuineness of the receipt by reference to an earlier resolution of the Managing Committee of the society dated the 24th June, 1959, in the proceedings book (Ext, 11). He pointed out that the sum of Rs. 810.85 paise is comprised of collections made between the 13th March, 1959, and 24th June, 1959 (up to receipt No. 23), amounting to Rs. 458.22 paise and the collections made between the 24th June, 1959 (from receipt No. 24) and the 26th March, 1960, amounting to Rs. 345.09 paise, and a sum of Rs. 7.54 paise, brought forward from the Rokar, as will be apparent from the resolution of the Managing Committee dated the 31st March, 1960 (at page 35 of Ext. 11). He urged that from the resolution of the Managing Committee dated the 24th June, 1959, it will appear that a sum of Rs. 458.22 paise was paid to Dhirendra Nath Chatterjee. The said resolution recites that a meeting of the Managing Committee was held under the presidentship of Shri Chuni Lal Singh and that a sum of Rs. 458.22 paise realised between the 13th March, 1959 and the 24th June, 1959, was paid by Amulya Ratan Pathak to Dhirendra Nath Chatterjee and the latter gave a receipt for the same under his signature. The resolution further recites that Dhirendra Nath Chatterjee stated that he would deposit the same in Sadar Co-operative (perhaps meaning the Bank) after full amount was realised.
The receipt for Rs. 458.22 paise said to have been granted in respect of part of the amount of Rs. 810.85 paise has not been produced, nor any explanation has been given for its non-production. It is also not understandable that if a receipt for Rs. 458.22 paise was already granted on the 24th June, 1959, as recorded in the resolution of the said date, the impugned receipt dated the 31st March, 1960, could not be for Rs. 810.85 paise; in other words, the receipt would have been for a sum of Rs. 352.63 paise only. These facts, instead of lending any support to the submissions made by the learned counsel, cast serious doubt on the genuineness of the proceeding of the meeting alleged to have been held on the 24th June, 1959, which seems to be another instance of manipulation of the proceedings book made at the instance of Amulya Ratan Pathak to create a defence.
16. Thus, on a consideration of the facts and circumstances, discussed above, I have no doubt to hold that the receipt (Ext. 16) as also the proceedings recorded in the minutes Book of the Society (Ext. 11) are not genuine documents and that they were brought into existence by the respondent after December, 1961 to set up a false defence.
17. Mr. Jugal Kishore Prasad, appearing for the respondent, has urged that even assuming that the amount in question was not deposited in the Bank by the respondent, he could not be made liable for an offence under Section 409 of the Indian Penal Code, because the relationship between the Bank and the Society was that of a creditor and debtor. Mr. Prasad's argument, therefore, is that the respondent being the Secretary of the Society might have incurred a Civil liability for his failure to deposit the amount in the Bank, but he could not be made criminally liable. He has, in this connection referred to an unreported decision of this Court in the case of Ram Sakal Singh v. State of Bihar, Criminal Appeal No. 606 of 1959, D/- 21-11-1961 (Pat). A careful perusal of the evidence as adduced in this case, however, shows that the aforesaid case has no application to the facts of the present case.
From the testimony of the General Manager of the Bank (P. W. 2) it appears that the Bank had advanced loans to a number of persons who were members of the Society and those loans were to be repaid to the Bank through the Society. In other words, the Secretary of the Society, that is to say, the respondent, was merely working as an agent of the Bank for the purpose of advancing the loan to the members and also for the realisation of the same. In such a circumstance, if he misappropriated the amounts collected by him, which were meant to be deposited in the Bank, he rendered himself liable for prosecution under Section 409 of the Indian Penal Code. In the case of Ram Sakal Singh, Cri. Appeal No. 606 of 1959, D/- 21-11-1961 (Pat) referred to by the learned counsel, certain amounts had been advanced by the Bank as loan to the Co-operative Society for the purpose of fertilizers meant for sale to the agriculturists and the loan in question had to be repaid by the Society to the Bank.
On these facts, this Court held that the prosecution of the Secretary of the Society at the instance of the Secretary of the Bank was misconceived, inasmuch as in regard to the advances made to the Society, the Bank was merely its creditor and it was open to it to sue the Society for the realisation of its dues. In regard to the fertilizers this Court held that although that might have been purchased out of the loans advanced to the Society by the Bank, that did not become the property of the Bank, in regard to which it could be said that there had been any entrustment of the fertilizers by the Bank or any trust had been created in relation to which there could be any breach of trust or criminal breach of trust.
In the present case, as has been shown above, various amounts of loans had been advanced to different individuals by the Bank through the respondent and that the respondent had realised those amounts of loans from the different loanees, evidently on behalf of the Bank, but failed to deposit the same. Obviously, therefore, he was acting as an agent of the Bank and the amounts received by him from the loanees was an entrustment on behalf of the Bank and his failure to account for those amounts rendered him liable for his prosecution under Section 409 of the Penal Code.
18. In another case, Badri Narayan Chaudhry v. The State, Criminal Appeal No. 163 of 1964, D/- 5-5-1966 (Pat), G.N. Prasad, J., who was a party to the decision in Ram Sakal Singh's case, Cri Appeal No. 606 of 195,9, D/- 21-11-1961 (Pat) also, has held that the Secretary of a Co-operative Society can be prosecuted for criminal breach of trust, if it be found that he has misappropriated the funds of the Society and that such a prosecution can be initiated not only at the instance of the appropriate authority of the Society, but also at the instance of the Registrar, Deputy Registrar, or the Assistant Registrar of the Co-operative Societies, as provided under Section 40 of the Bihar and Orissa Co-operative Societies Act. In the present case, it will; appear that the prosecution was initiated at the instance of the Assistant Registrar of the Co-operative Societies. Thus, in any view of the matter, the prosecution of the respondent for an offence under Section 409 of the Indian Penal Code cannot be said to bo illegal or unjustified.
19. The trial Court has found that the respondent, while acting as the Secretary of the Society, was a public servant, as mentioned in the charge, it is doubtful, however, whether an office bearer of a Co-operative Society is a public servant, while discharging his duties as such. There is no doubt, however, that the respondent was acting as an agent of the Bank. That being so, he is clearly liable for an offence under Section 409 of the Indian Penal Code.
20. Thus, regard being had to all these facts and circumstances, I have no hesitation in holding that the court below has gone wrong in acquitting the respondent. The orders of acquittal passed in both the appeals (Criminal Appeals Nos. 207 and 208 of 1963) are, therefore, set aside and Government Appeals "Nos. 1 and 2 of 1966 are allowed. The respondent is accordingly convicted of an offence under Section 409 of the Indian Penal Code in Government Appeal No. 1 of 1966, and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 50/-, in default to undergo further rigorous imprisonment for one month.
He is also convicted of an offence under Section 409 of the Indian Penal Code in Government Appeal No. 2 of 1966, and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 700/-, in default to undergo further rigorous imprisonment for three months. The substantive sentences of imprisonment in both the cases, shall, however, run concurrently. The amount of fines, if realised, in both the cases, should be paid to the Central Cooperative Bank, Dhanbad, as ordered by trial Court.
S.N.P. Singh, J.
21. I agree.