Andhra HC (Pre-Telangana)
D. Venkata Rao And Anr. vs State Rep. By S.I. Of Police, Pentapadu ... on 21 June, 2000
Equivalent citations: 2000(2)ALD(CRI)458, 2000(3)LS78A
ORDER T.C.H. Surya Rao, J.
1. This Revision is directed against the order of conviction and sentence passed against the petitioners convicting them for the offence under Section 409 of IPC and sentencing each of them to suffer RI for a period of 11/2 years and to pay a fine of Rs.1500/- and in default to suffer SI for a period of 3 months by the trial court in its Judgment dated 18.7.1996 in C.C. No. 156 of 1991 as confirmed by the appellate Court in C.A. No. 122 of 1996 dated 7.4.1999 of course modifying the sentence of imprisonment from 11/2 years to one year and maintaining the sentence of fine.
2. Both the Revision Petitioners have been working as Junior Assistant and Herbarium Keeper respectively in D.R.G.G. College, Pentapadu. A society has been formed and registered under the provisions of A.P. Co-operative Societies Act (the Act, for brevity) in the name and style of 'D.R.G.G. College Employees' Co-op. Credit Society', Pentapadu (the Society, for brevity). The Revision Petitioners have been the President and Secretary of the said society respectively. The society was obtaining loan from the District Co-op. Central Bank, Tadepalligudem branch so as to distribute the same to its members as loans and after collecting the loan amounts from the members repaying the debt to the District Co-op. Central Bank.
In due course of its business, Society advanced loans to its members after obtaining loan from the District Co-op. Central Bank, Tadepalligudem. The President and Secretary used to collect the loan instalments from the members. On 27.7.1989 on verification it was initially noticed that huge cash balance was pending with both the petitioners without remitting the same into the Dist. Co-op. Central Bank, Tadepalligudem. An enquiry was ordered in this regard by the competent authority from the Cooperative Department. P.W.2 who was deputed for conducting the enquiry under Section 51 of the Act conducted the enquiry into the accounts of the society. P.W.2 on verification of the cash book of the society found the cash balance lying without remittance to the Dist. Co-op. Central Bank. After completing the enquiry, he submitted his report, Ex.P.2 to P.W.1. Thereupon P.W.1 sent a report in Ex.P.1 to Pentapadu Police Station upon which P.W.5, the S.I. of Police registered a crime in Cr. No. 35 of 1990 and issued Ex.P.3, F.I.R. On his transfer, P.W.6, his successor, conducted further investigation and ultimately laid the charge sheet before the Court.
3. At the trial, six witnesses were examined on the side of the prosecution and Exs. P.1 to P.3 were got marked. When the accused were called upon to enter upon their defence, none was examined on their side, but Exs. D.1 and D.2 were marked. On the strength of the evidence on record, both oral and documentary, the trial Court found both the petitioners guilty of the charge under Sec. 409 IPC and convicted them accordingly for the said offence. Both of them were sentenced after hearing them on the quantum of punishment as aforesaid to suffer RI for 11/2 years and to pay a fine of Rs.1500/- and in default to suffer SI for three months. Aggrieved by the order of conviction and sentence passed by the trial court, the Revision Petitioners filed C.A. No. 122 of 1996 before the Sessions Court, West Godavari at Eluru. The appeal was made over to the learned I Additional Sessions Judge, West Godavari at Eluru who confirmed the conviction, but modified the sentence of imprisonment of 11/2 years to one year while maintaining the sentence of fine and default sentence, under the impugned Judgment.
4. Aggrieved by the said order of conviction and sentence of the learned I Addl. Sessions Judge, the present Revision Case has been filed.
5. Sri C. Padmanabha Reddy, the learned senior counsel for the Revision Petitioners/accused submits that there is no legal evidence in support of the charge and, therefore, the finding of guilt arrived at by the trial court and as confirmed by the appellate court is vitiated. The learned counsel further contends that the Revision Petitioners are not 'public servants' as envisaged by Section 21 of IPC and the finding to that effect by both the Courts below is erroneous and, therefore, the charge under Sec. 409 is unsustainable.
6. Of all the witnesses examined in this case, the testimony of P.W.2 is germane for consideration. P.Ws. 3 and 4 have been examined only to speak about the status of the petitioners as the President and Secretary of the Society and their functions in such capacities. Their evidence will not throw any light on the merits of the case, viz., the alleged entrustment and the subsequent misappropriation. P.W.2 is the person who has conducted statutory enquiry under Section 51 of the Act and submitted his report, Ex.P.2. His evidence shows that both the petitioners having collected the loan instalments from the members of the Society failed to remit the same into the Bank. P.W.2 categorically deposed in his evidence that on verification of the cashbook, he found cash balance lying without remittance to the Dist. Co-op. Central bank. Surprisingly, the cash book said to have been verified by P.W.2 has not been filed into Court. No accounts worth the name, germane for consideration to bring home the charge under Sec. 409 of IPC against the accused, have been filed in this case.
7. The learned Additional Sessions Judge relying very much on the testimony of P.W.2 and Ex.P.2 has ultimately come to the conclusion that the Revision Petitioners are guilty of the charge. In paragraph 10 of the Judgment, the learned Judge appreciated the evidence of P.W.2 while arriving at such a conclusion. It is expedient here to extract the observations of the learned Judge in his Judgment in para 10:
"In Ex.P.2 report of P.W.2 to P.W.1 it was stated that the cash balance as on 27.10.1989 was Rs.37,220-20 ps and that the President (the 1st accused) was on Casual Leae on 27.10.1989 and that when he asked the Secretary (the 2nd accused) to produce the said cash balance, the Secretary could not show him any amount and stated that the cash balance was utilized by both of them and would be remitted in Co-op. Central Bank in one month. Therefore, P.W.2 stated in Ex.P.2 that both the Secretary and President have misappropriated Society funds to the tune of Rs.37,220-20 ps as on 27.10.1989..."
8. The learned Judge seeks to buttress his conclusion from Exs. D.1 and D.2, the decrees said to have been obtained by the Society against the Revision Petitioners for an amount of Rs. 1580-95 ps and Rs.64,307-71 ps with interest respectively. At the outset it may be mentioned here that Ex.P.2 is an enquiry report signed by P.W.2 which is not a substantive piece of evidence. Like any other previous statement of a witness, its use is limited to corroborate the testimony of P.W.2 when his testimony is consistent with the same or to contradict him in the event of any inconsistency. Relying upon such report no conclusion can be arrived at. The conclusion of the learned Additional Sessions Judge relying very much on Ex.P.2 is, therefore, vitiated as having been arrived at placing reliance upon a document, which is not a substantive piece of evidence.
9. Then comes the oral testimony of P.W.2, the enquiry officer. As already mentioned, the accounts of the Society have not been filed before the Court. Since it is a case of alleged defulcation of the funds of the Society, which has been maintaining the relevant accounts, it is for the prosecution to place all the accounts before the Court through the relevant witness who can authoritatively speak about the same and mark the relevant entries therein in support of the charge. In the absence of such documentary evidence, it is not safe to rely on the oral testimony of P.W.2. Always documentary evidence is the best evidence.
In Ex.P.2 it is stated that both the accused said to have confessed before the Enquiry Officer and pleaded for time for repayment of the amount in instalments. When Ex.P.2 itself is not a substantive piece of evidence, the recitals therein cannot be relied upon. Further more, the statements said to have been made by both the Revision Petitioners before the Enquiry officer cannot also be relied upon since they are in the nature of extra-judicial confession and such statements can be relied upon after having appreciated the same with reference to other attendant circumstances. The finding of guilt against both the Revision Petitioners has been arrived at basing upon a document which is not a substantive piece of evidence. As discussed above, in the absence of relevant accounts of the Society, the evidence of P.W.2 alone is not sufficient to bring home the guilt of the charge under Sec. 409 of IPC. Exs.D1 and D2 cannot precisely be connected to the amounts mentioned in the charge.
10. Both the Courts below have proceeded on the assumption that the Revision Petitioners are 'public servants'. Admittedly, both of them are employees in a Government College, one being the Junior Assistant and the other being Herbarium Keeper. Their status as such is not germane for consideration in this Criminal case. A registered society has been established for the benefit of the employees of the Government College. The Revision petitioners herein are said to be the President and Secretary of the Society. In their capacity as President and Secretary respectively as such, they are said to have perpetrated the present offence of 'misappropriation of society funds'. Therefore, what is germane for consideration is their status as President and Secretary of the Society, but not their position as Junior Assistant and Herbarium Keeper of the Government College. When once it is established that they are the office bearers of a registered cooperative Society, and they have misappropriated funds of the said Society, the question whether their status as such President and Secretary of the Society attracts the definition of 'public servant' as enjoined in Section 21 of IPC or not is to be considered.
It is no doubt true that under Section 129A of the Act, they are considered to be public servants for the purposes when the provisions of the Act are sought to be invoked. Now, in view of the charge leveled against them under Sec. 409 of IPC, it shall be considered as to whether they can be brought within the definition of 'public servant' as enjoined in Sec. 21 of IPC. Their status as 'public servants' under Section 129A of the Act cannot be imported for the purpose of seeing whether they are 'public servants' or not as per the provisions of Sec. 21 of IPC. The answer in my considered view is definitely in the negative. To bring home the charge under Sec. 409 of IPC, they shall be proved to be the public servants falling within the definition of 'public servant' as enjoined in Sec. 21 of IPC. Section 21 of IPC does not envisage the office bearer of a cooperative society to be a public servant. The provisions of Section 129A cannot be imported into Section 21 of IPC as the latter is a piece of legislation made by the State and the earlier one being a Central legislation. This view of mine is supported by the latest pronouncement of the Apex Court in STATE OF MAHARASHTRA V. LALJIT RAJSHI SHAH1. Dealing with a similar question, the Apex Court held as follows:
"...A 'public servant' within the meaning of Section 2 of the Maharashtra Co-op. Societies Act, 1960 is not a 'public servant' within the meaning of Section 2 of the Prevention of Corruption Act 1947 (II of 1947) by virtue of the provisions of Section 161 of the Maharashtra Co-op. Societies Act, 1960 read with Section 21 of the Indian Penal Code. It is undoubtedly true that the Co-op. Societies Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry 32 of the Seventh Schedule to the Constitution. The legislature no doubt in section 161 of the Mah. Act has referred to the provisions of Section 21 of IPC but such reference would not make the Registrars and other officers under Co-op. Societies Act 'public servants' within the ambit of Section 21 of IPC. The State Legislature had the powers to amend Section 21 of the IPC, but the same being referable to a legislation under Entry I to III of the Seventh Schedule, subject to Art. 254(2) of the Constitution as, otherwise, inclusion of the persons who are 'public servants' under Sec. 161 of the Co-op. Societies Act would be repugnant to the definition of 'public servant' under Section 21 of IPC. That not having been done, by virtue of deeming definition in Section 161 of the Co-op. Societies Act by reference to Section 21 of IPC, the person defined as 'officers' under Maharashtra Co-op. Societies Act cannot be prosecuted for the offences under the Indian Penal Code..."
11. The provisions of Section 129A of the Act are akin to the provisions under Section 160 of the Maharashtra Co-op. Societies Act. In view of the authoritative pronouncement of the Apex Court, the Revision Petitioners cannot be considered to be the 'public servants' under Section 21 of IPC. When once it is established that they are not 'public servants' under Section 21 of IPC, the charge under Section 409 IPC should fail. This is a case where the offence as defined under Section 406 IPC is attracted if ultimately the prosecution is able to establish misappropriation.
It is expedient at this stage to consider the charge framed against both the Revision petitioners for brevity and better understanding of the matter.
"That A.1 and A.2 of you, on or about since 21st day of December, 1986 at Pentapadu, were entrusted with the property i.e., to bring loans to the members of D.R.G.G. College Employees' Co-op. Credit Society, Pentapadu and collect the loan instalments and should credit the same to Cooperative Central Bank Branch at Tadepalligudem in your capacity as President and Secretary of the said society and on 27.7.1989 when L.W.2- Co-op. Sub Registrar, Consumers and Marketing Divisional Cooperative Office, Eluru visited the said society and verified and found cash balance is pending with you without remitting to the Bank and on enquiry conducted by L.W.3, the Supervisor, Cooperative Central Bank Branch, Tadepalligudem, you misappropriated the cash book balance of Rs.38,686-25 ps relating to the said Society and committed criminal breach of trust in respect of the property so entrusted and thereby committed an offence punishable under Sec. 409 of Indian Penal Code and within my cognizance."
12. A perusal of the charge shows that both the Revision Petitioners were said to have been entrusted with the funds of the society on 21.12.1986 at Pentapadu and it was brought to light on 22.7.1989 in the inspection conducted by P.W.2 that both of them misappropriated the said funds to the tune of Rs. 38,686-25.
The offence is said to have been committed, on a perusal of the charge, somewhere after 21.12.1986. The Court on 28.6.1991 took cognizance of the offence under Section 409 of IPC against both the Revision Petitioners when the charge sheet was taken on file and process was ordered to be issued against the Revision Petitioners. Therefore, cognizance was taken nearly more than 5 years after the offence alleged to have been committed by the Revision Petitioners. The period of limitation provided for taking cognizance of an offence under Section 468 of Cr.P.C., is 3 years when the offence is punishable with imprisonment for not more than 3 years. The offence under Sec. 406 IPC is punishable with imprisonment for either description for a period extending upto 3 years. Therefore, it is not more than 3 years. Even if it is ultimately established that the Revision Petitioners are guilty of the charge under Section 406 of IPC, cognizance of the said offence taken by the Court is barred by limitation. The provisions of Section 473 Cr.P.C., have not been invoked to condone the delay. At this distance of time dealing with the Revision Petition this Court is not inclined to condone the delay invoking the provisions of Section 473 of Cr.P.C., For the foregoing discussion, I hold that the Judgment impugned against in this Crl. R.C., is not sustainable in law having been rendered basing upon the evidence which is per se not a substantive piece of evidence.
13. The Crl. R.C. is accordingly allowed setting aside the order of conviction and sentence passed by the trial Court as confirmed by the appellate court with some modifications with regard to the sentence of imprisonment. The bail bonds of the Revision Petitioners shall be cancelled forthwith and they shall be set at liberty, if they are not required in any other case. The fine amounts paid by them shall be refunded to them.