Madras High Court
K.Subramanian vs State Through on 17 August, 2020
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
CRL.RC. (MD) No.612/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 26.04.2021 Delivered on 29.04.2021
CORAM
THE HONOURABLE MR.SANJIB BANERJEE, CHIEF JUSTICE,
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY
CRL.RC (MD) No.612/2020 &
Crl.MP (MD) No.5514/2020
K.Subramanian .. Petitioner /
Accused
Versus
1.State through
The Inspector of Police
Vigilance and Anti Corruption,
Tirunelveli. [Cr.No.08 of 2016] .. 1st
Respondent / Complainant
2.I.Iyyadurai .. 2ndRespondent
/ Defacto
complainant
https://www.mhc.tn.gov.in/judis/
1
CRL.RC. (MD) No.612/2020
Prayer :- Criminal Revision Petition filed under Section 397 read
with 401 of the Code of Criminal Procedure to call for the records in
connection with the order passed by the Special Court for Trial of
Cases under the Prevention of Corruption Act, Tirunelveli District
in Cr.MP.No.147 of 2020 in Spl.CC.No.01 of 2019 dated 17.08.2020
and set aside the same.
For Petitioner : Mr.G.Thalaimutharasu
For R1 : Mr.K.K.Ramakrishnan
Additional Public Prosecutor
ORDER
M.SATHYANARAYANAN, J (1) INTRODUCTORY:-
The revision petitioner, viz., K.Subramanian, filed Crl.RC.
(MD) No.612 of 2020 on the file of the Madurai Bench of this Court, challenging the order dated August 17, 2020, passed in Crl.MP. (MD) No.147 of 2020 in Spl.CC.No.1 of 2019, on the file of the Special Court for Trial of Cases under the Prevention of Corruption Act, 1988.
The revision petitioner, was working as the Secretary of TN.SPL 150, Mettupatti Primary Agricultural Credit Society, https://www.mhc.tn.gov.in/judis/ 2 CRL.RC. (MD) No.612/2020 Ramanathapuram, Sivagiri Taluk, Tirunelveli District. The defacto-complainant, viz., I.Ayyadurai, is the member of the said Society and he availed a loan of Rs.60,000/- as ''Agricultural Jewel Loan'' in the said Society by pledging 39.400 grams of jewels.
The Government of Tamil Nadu had waived the agricultural jewel loans as well as payment of interest with a direction to the Societies to return the jewels pledged by the farmers. Accordingly, the defacto-complainant approached the revision petitioner herein on 04.11.2016 at about 16.00 hours for return of the pledged jewels by him. The revision petitioner herein, obtained the signature of the defacto- complainant, as if the jewels pledged by him were returned and asked him to come on another day and, accordingly, the defacto-complainant went to the office of the Society at about 11.30 hours on 07.11.2016 and requested the revision petitioner herein to return the pledged jewels. The Petitioner herein is said to have demanded a sum of Rs.6,000/- and on https://www.mhc.tn.gov.in/judis/ 3 CRL.RC. (MD) No.612/2020 negotiation, it was reduced to Rs.5,000/- as illegal gratification other than the legal remuneration, to return the jewels. The defacto-complainant again went to the office of the Society at about 11.45 hours on 10.11.2016 and, in the light of the reiteration of the demand made by the petitioner, paid a sum of Rs.5,000/-, which was said to have been accepted by the petitioner by way of illegal gratification for returning the jewels.
The trap laid in this regard by the 1st respondent / complainant was also successful. Therefore, the petitioner was prosecuted for the commission of the offences under Sections 7 and 13[2] read with 13[1][d] of the Prevention of Corruption Act, 1988 [in short ''the PC Act''] in Spl.CC.No.1 of 2019 on the file of the Special Court for Trial of Cases under the PC Act. The petitioner filed Crl.MP.No.147 of 2020 in Spl.CC.No.1 of 2019 under Section 239 of the Code of Criminal Procedure for discharge on the ground that the persons working in Cooperative Societies cannot come within the ambit of ''public servant'' and that apart, since the petitioner was employed in a https://www.mhc.tn.gov.in/judis/ 4 CRL.RC. (MD) No.612/2020 Cooperative Society, it is not amenable to the provisions of the PC Act. It is further contended that the funds of the Society are generated through share capital / membership subscription and also availing loan from the Apex Cooperative Bank at lower rate of interest and lending the same to its members at a higher rate of interest and does not receive any financial aid from the Government.
The 1st respondent / complainant filed the counter affidavit and took a stand that the employees of the Cooperative Society would come under the purview of Section 2[c][ix] of the PC Act and, in the light of the admission made by the petitioner himself that the Society is getting financial aid from the Government for lower interest and giving loan to the members at higher rate of interest and also repaying the loan to the Government, the employees of the Society would come under the purview of the PC Act and prayed for dismissal of the Discharge Petition.
The Trial Court, vide impugned order dated August 17, 2020, passed in Crl.MP (MD) No.147 of 2020 in Spl.CC.No.1 of 2019, https://www.mhc.tn.gov.in/judis/ 5 CRL.RC. (MD) No.612/2020 accepted the stand of the complainant/1st respondent and held that the petitioner who was the Secretary of the said Society, comes within the purview of ''public servant'' defined under Section 2[c][ix] of the PC Act and dismissed the Petition for Discharge filed by him and, aggrieved by the same, the present Criminal Revision Petition is filed and it has been entertained.
The case was listed before the Hon'ble Roster Bench for hearing. During the course of arguments, on behalf of the petitioner, reliance was placed upon the common order/judgment dated March 6, 2020 made in WP.No.28641 of 2019 and WA.No.2253 of 2018 passed by the Hon'ble First Bench of this Court and reported in 2020 SCC Online Mad 782, wherein it has been held that de hors the fact that the Cooperative Society avails loan from the Central Cooperative Bank and repays it back, the State Government does not grant any aid to the Society.
The Hon'ble Roster Bench – learned Single Judge, doubting the said view, in the light of the decisions rendered by the https://www.mhc.tn.gov.in/judis/ 6 CRL.RC. (MD) No.612/2020 Hon'ble Supreme Court of India reported in 2002 [7] SCC 631 [State of Andhra Pradesh and Others V. P.Venku Reddy] ; 2016 [3] SCC 788 [Central Bureau of Investigation, Bank Securities and Fraud Cell V. Ramesh Gelli & Others] ; and 2016 [12] SCC 360 [Central Bureau of Investigation, State of Madhya Pradesh V. P.G.Jain] as well as the judgment rendered by a Division Bench of this Court reported in 2014 [5] Law Weekly 622 [Joint Registrar/Administrator, M/s.Tirutani Cooperative Sugar Mills Limited V. P.Siva Kumar & Others] , felt that a Larger Bench ought to examine as to whether the principle laid down by the Hon'ble First Bench of this Court in the common order/judgment dated March 6, 2020, made in WP.No.28641 of 2019 and WA.No.2253 of 2018, requires reconsideration.
Accordingly, the case is listed before this Bench. (2) ORDER UNDER REFERENCE:-WP.No.28641 of 2019 & WA.No..2253 of 2018 [J.A.Murugan Vs. The Registrar of Cooperative Societies, Chennai-10 and Another]. https://www.mhc.tn.gov.in/judis/ 7 CRL.RC. (MD) No.612/2020 The Hon'ble First Bench of this Court, in the common order dated March 6, 2020, made in WP.No.28641 of 2019 and WA.No.2253 of 2018 and reported in 2020 SCC Online Mad 782, had taken note of the fact that the petitioner therein was working as the Secretary of the Krishnagiri District National Engineering Employees Cooperative Thrift and Credit Society which caters to the needs of the employees of a private Engineering Company and he was prosecuted for the commission of the offence under Section 7 of the PC Act. The Superintendent of Police, Vigilance and Anti Corruption, vide Communication dated October 27, 2017, requested the Registrar of Cooperative Societies to sanction and prosecute the petitioner therein, viz., J.A.Murugan, who was the Secretary of the said Society and the Registrar of Cooperative Societies, in turn sent a communication to the Joint Registrar of Cooperative Societies on December 1, 2017, to initiate disciplinary proceedings and also granted sanction for prosecution under the PC Act. The petitioner therein, challenging the https://www.mhc.tn.gov.in/judis/ 8 CRL.RC. (MD) No.612/2020 legality of the said communication, filed WP.No.2228 of 2018, contending that the nature of his work does not fall within the definition of ''public servant'' under Section 2[c] [ix] of the PC Act and he also filed WP.No.28641 of 2019 challenging the Circular dated August 11, 2015 issued by the Registrar of Cooperative Societies that they are public servants and fall within the said definition. The learned Single Judge, vide order dated February 02, 2018, dismissed both writ petitions and challenge was made to the said order.
The Division Bench of this Court found that the Society in which the appellant therein was working, is only for the employees working in private companies in Krishnagiri District and it is not open to public at large and further held that the fact that the Cooperative Societies avail loan from the Central Cooperative Bank and repay it back, it does not mean that the State Government grants any aid to the Society and there is no material to even remotely suggest that the Society in question receives any financial https://www.mhc.tn.gov.in/judis/ 9 CRL.RC. (MD) No.612/2020 aid or otherwise from the State or Central Government and the Society is neither controlled or aided so as to make its employees amenable to the PC Act. The Division Bench also distinguished the judgment rendered by the Apex Court reported in 2002 [7] SCC 631 [P.Venku Reddy's case cited supra] and held that the Registrar of Cooperative Societies could not expand the definition of ''public servant'' as defined under the PC Act and the impugned Circular issued by the Registrar of Cooperative Societies as to the amenability of employees of all Cooperative Societies to come within the ambit of the PC Act had no basis and was contrary to the Statute. The Division Bench, citing the said reasons, allowed both the writ petitions, vide common order dated March 6, 2020. (3) The Reference before this Court is ''Whether a Secretary of a Cooperative Society is a public servant as defined under section 2[c][ix] and that he performs public duty as defined under Section 2[b] of the Prevention of https://www.mhc.tn.gov.in/judis/ 10 CRL.RC. (MD) No.612/2020 Corruption Act, 1988?” (4) ARGUMENTS ADVANCED BY MR.G.THALAIMUTHARASU, LEARNED COUNSEL FOR THE REVISION PETITIONER:-
➢ Mettupatti Primary Agricultural Cooperative Society is running its affairs through the contribution of the members of the share capital and obtains loan from the Central Cooperative Bank, Tirunelveli, at a lower rate of interest and lends the same for a slightly higher rate of interest and it does not receive any aid from the Government.
➢ Therefore, there is absolutely no material to suggest that the said Society receives any financial aid or otherwise from the State or Central Government and as such, the employees cannot come within the definition of ''public servant'' as defined under Section 2[c][ix] of the PC Act.
➢ The Annual Audit Report for the Financial Years 2015-2020 do not reflect the receipt of aid or contribution to the share capital by the State Government and, that apart, the recommendation made by the Pay Commission constituted by https://www.mhc.tn.gov.in/judis/ 11 CRL.RC. (MD) No.612/2020 the State Government is also not made applicable to the petitioner.
➢ Insofar as the service conditions are concerned, the Tamil Nadu Payment of Subsistence Allowances Act, 1981, has no applicability and the pensionary benefits are also not applicable and in the light of the said fact also, the petitioner would not come under the definition of ''public servant''.
➢ Heavy reliance has also been placed upon the judgment reported in 2013 [7] MLJ 407 [Thalappalam Ser.
Cooperative Bank Limited and Others V. State of Kerala and Others], wherein it was held that the fact that Societies are subject to control of the Statutory Authority like the Registrar etc., cannot lead to the presumption that the State exercises any direct or indirect control over the affairs of the Society and as such, a Society would not come within the meaning of the ''State'' as defined under Article 12 of the Constitution of India.
➢ In yet another decision reported in 2016 [11] SCC 634 [S.S.Rana V. Registrar of Cooperative Society], a similar https://www.mhc.tn.gov.in/judis/ 12 CRL.RC. (MD) No.612/2020 view has been taken and it was also held that the management and control are statutorily conferred on the Management Committee or the Board of Directors of the Society by the respective Cooperative Societies and not on the authorities under the Cooperative Societies Act.
➢ In sum and substance, it is the submission of learned counsel appearing for the revision petitioner that in the light of the factual position coupled with the ratio laid down in the above cited two decisions, the petitioner herein would not come within the ambit or purview of the PC Act as he is not a public servant. It is his further submission that the Division Bench had rightly taken note of the legal position and correctly arrived at a finding that the Secretary of a Cooperative Society is not a public servant and, therefore, prayed for answering the Reference accordingly.
(5) ARGUMENTS ADVANCED BY MR.K.K.RAMAKRISHNAN,
LEARNED ADDITIONAL PUBLIC PROSECUTOR
APPEARING FOR THE STATE/1st RESPONDENT:-
https://www.mhc.tn.gov.in/judis/ 13 CRL.RC. (MD) No.612/2020 ➔ The 1st respondent has filed a detailed written submission as well as typed set of documents containing the Bye-laws as well as the Special Bye-laws of the Society and other materials and made the following submissions:-
➔ Section 2[19] of the Tamil Nadu Cooperative Societies Act, 1983 [in short ''the TNCS Act''] defines ''officer'' and the term includes President, Vice President, Managing Director, Secretary, Assistant Secretary, Member of Board and any other person empowered under the rules or the by-laws to give directions in regard to the business of the registered Society. Section 2[22] defines ''registered society'' which means a cooperative society registered or deemed to be registered under the Act. Section 2[23] defines ''Registrar'' and it means an officer of the Government appointed to perform the duties of the Registrar of Cooperative societies under the Act and includes any other officer of the Government or any officer of any body corporate owned or controlled by the Government on whom all or any of the powers of the Registrar under the https://www.mhc.tn.gov.in/judis/ 14 CRL.RC. (MD) No.612/2020 Act have been conferred under Section 3. ➔ Chapter VI of the Act deals with State aid to the registered Societies and Section 54 speaks about partnership of Government with Apex Society and sub-section [1] says that an Apex Society which is provided with moneys by the Government under Section 53 shall, with such moneys, establish a fund to be called the ''Principal State Partnership Fund''. Chapter VIII speaks about the Paid Officers and Servants of the Society and Section 73 speaks about the appointment of paid officers and servants of registered society and their conditions of service. Chapter XIV[A] speaks about the Special Provisions applicable to short term cooperative credit structure societies and Chapter XIX deals among other things with Delegation of Powers of the Government under Section 172 ; Power of Registrar to issue directions in public interest, etc., under Section 181 and power of the Government to give directions under Section 182. ➔ Apart from the provisions of the TNCS Act, in terms of 97th Constitution Amendment which came into being from https://www.mhc.tn.gov.in/judis/ 15 CRL.RC. (MD) No.612/2020 February 15, 2012, in Part-IX B, a special status had been given to the Cooperative Societies and therefore, the earlier view as to the non-maintainability of a writ petition, is longer a good law.
➔ It is the further submission that in the light of the fact that the State Government is providing financial aid/assistance to the Apex Society, which in turn, provides financial aid to various Societies, coming under their control and that apart, the National Bank for Agricultural and Rural Development [NABARD] is also providing financial assistance or aid to the Societies, there cannot be any doubt that the Society in which the petitioner is employed, is receiving financial aid of carrying out the functions of the Society for the benefit of its members and also performs a public duty. ➔ The revision petitioner being the Secretary of the Society, is expected to discharge his duty fairly and honestly and for the purpose of returning the jewels to the defacto complainant, in the light of the policy decision taken by the State Government to waive agricultural loans. However, he demanded and https://www.mhc.tn.gov.in/judis/ 16 CRL.RC. (MD) No.612/2020 accepted illegal gratification and the trap laid in this regard, was also successful.
➔ The revision petitioner holding an important position in the Cooperative Society is expected to discharge his duties fairly, honestly and efficiently and it was not part of his duty to demand and accept illegal gratification, that too, from a small farmer.
➔ The petitioner, being the Secretary of the Society, performs public duty and is overall in-charge of the administration which include distribution and collection of the loans and other allied functions for the benefit of agriculturists, especially, small farmers, and as such, he is performing public duty.
➔ The Government acting through the Registrar of Cooperative Societies, is having persuasive control and the fact that the loans granted to the small agriculturists, who are members of the Societies, including the Society in which the petitioner is the Secretary, has been waived and it was also an indicative factor that the Society receives financial aid and assistance https://www.mhc.tn.gov.in/judis/ 17 CRL.RC. (MD) No.612/2020 through Apex Bank and NABARD and funds/financial assistance to them are provided by the State and Central Governments.
➔ Elaborating the submissions, reliance has also been placed on the following decisions:-
a) 2002 [7] SCC 631 [Government of Andhra Pradesh V. P.Venku Reddy] ;
b) 2014 [14] SCC 420 [Manish Trivedi V. State of Rajasthan] ;
c) 2016 [12] SCC 360 [Central Bureau of Investigation V. State of Madhya Pradesh] ;
d) 2016 [3] SCC 788 [Central Bureau of Investigation V. Bank Securities and Fraud Cell] ;
e) 2016 [4] SCC 417 [State of Maharashtra V. Brijlal Sadasukh Modani] ;
f) 2018 [16] SCC 299 [Asian Resurfacing of Road Agency Pvt Ltd., and Another V. CBI] ;
g) 2020 SCC Online SC 42 [Full Bench] [The State of Gujarat V. Mansukbhai Kanjibhai Shah] ;
h) 2009 [11] SCC 424 [State of Madhya Pradesh V. Rameshwar and Others] ;
i) 2014 [5] Law Weekly 624 [Joint Registrar V. P.Sivakumar and others] ;
https://www.mhc.tn.gov.in/judis/ 18 CRL.RC. (MD) No.612/2020
j) 1977 Crl.L.J. 1114 [Full Bench] [A.Kochudevassy and others V. State of Kerala] ; and as well as the meaning / definition of ''State Aid'' given in Page 2613 of 16th Edition, Volume 3 of Stround's Judicial Dictionary of Words and Phrases.
➔ Drawing the attention of this Court to the above cited decisions, it is the submission of learned Additional Public Prosecutor that the scope and purport of the Prevention of Corruption Act, 1988 [PC Act] had been elaborately discussed and findings have been recorded that the purpose for which the PC Act came to be legislated, is to shift focus from those who are traditionally called public officials, to those individuals who perform public duties and therefore, the definition of ''public servant'' defined under section 21 of the Indian Penal Code, has no application. Section 2[b] of the PC Act defines ''public duty'' which means ''a duty in the discharge of which the State, the public or the community at large has an interest'' and as long as an individual, despite the fact that he is employed in a private enterprise, discharge the public duty, he automatically comes within the definition of https://www.mhc.tn.gov.in/judis/ 19 CRL.RC. (MD) No.612/2020 ''public servant'' and as such, he is amenable to prosecution under the provisions of the PC Act.
➔ In sum and substance, it is the submission of the learned Additional Public Prosecutor that the learned Single Judge has rightly doubted the principle of law laid down in the common order/judgment dated March 6, 2020 made in WP.No.28641 of 2019 and Wa.No.2253 of 2018 and prayed for Reference to a Larger Bench to resolve the issue and hence, prays for answering the Reference in affirmative.
(6) This Court has paid its best attention and anxious consideration to the rival submissions and also perused the materials placed before it including the judgments relied on by both sides.
(7) LEGAL PROVISIONS:-
Tamil Nadu Cooperative Societies Act, 1983:-
Section Particulars
2[1] “administrator” means a Government servant or an
employee of anybody corporate owned or controlled by the Government appointed under this Act in the place of the board;
https://www.mhc.tn.gov.in/judis/ 20 CRL.RC. (MD) No.612/2020 Section Particulars 2[5] "apex society" means a state level registered society whose
area of operation extends to the whole of the State of Tamil Nadu and which has as its principal object, the promotion of the principal objects of, and the provision of facilities for the operations of, other registered societies affiliated to it and classified as an apex society by the Registrar; 2[13] "credit society" means a registered society which has as its principal object the raising of funds to be lent to its members for the purposes of agriculture, animal husbandry, pisciculture (including fish catching), apiculture, sericulture, petty trade, cottage and small scale industries including farm based industries, purchase of implements or raw materials, construction, purchase or repair of dwelling houses, discharge of prior debts, meeting ceremonial or educational expenses, purchase of domestic and other requirements or for such other purposes as the Government may, by notification specify in this behalf;
2[14] "financing bank" means a registered society which has as its principal object the lending of money to other registered societies;
2[19] "officer" includes a president, vice-president, managing director, secretary, assistant secretary, member of board and any other person empowered under the rules or the by-laws to give directions in regard to the business of the registered society;
2[21] "primary society" means a registered society, but does not include- (i) an apex society; or (ii) a central society; 2[22] "registered society" means a co-operative society registered or deemed to be registered under this Act.
2[23] "Registrar" means an officer of the Government appointed to perform the duties of a Registrar of Co-operative Societies under this Act, and includes any other officer of the Government or any officer of any body corporate owned or controlled by the Government on whom all or any of the powers of a Registrar under this Act have been conferred under section 3;
https://www.mhc.tn.gov.in/judis/ 21 CRL.RC. (MD) No.612/2020 Section Particulars 54 Partnership of Government with apex society.-(1) An apex
society which is provided with moneys by the Government under section 53 shall, with such moneys, establish a fund to be called the “Principal State Partnership Fund”. (2) An apex society shall utilize the Principal State Partnership Fund for the purpose of – (a) directly purchasing shares in other registered societies; (b) providing moneys to a registered society (hereafter in this chapter referred to as the central society) to enable that society to purchase shares in other registered societies (hereafter in this chapter referred to as the primary societies) (c) making payments to the Government in accordance with the provisions of this chapter; and for no other purpose.
64 Other forms of State aid to registered societies.-
Notwithstanding anything contained in this Act or any other law for the time being in force, the Government may, subject to such conditions as they may by general or special order, specify in this behalf,-
(a) grant loans or make advances to any registered society;
(b) guarantee the re-payment of principal and payment of interest on debentures issued by a registered society;
(c) guarantee the re-payment of share capital of registered society and dividends thereon at such rates as may be specified by the Government;
(d) guarantee the re-payment of principal and payment of interest on loans and advances to a registered society;
(e) guarantee the re-payment of deposits received by a registered society and payment of interest on such deposits; and
(f) give financial assistance in any other form including subsidies, to any registered society.
https://www.mhc.tn.gov.in/judis/ 22 CRL.RC. (MD) No.612/2020 Section Particulars 73 Appointment of paid officers and servants of registered
society and their conditions of service:-Subject to the provisions of sections 74, 75, 76 and 77 and subject 46 to the rules made in this behalf , a registered society may appoint such paid officers and servants as are necessary for the efficient performance of its functions : Provided that the qualifications for the appointment of paid officers and servants, the conditions of service including disciplinary control and the cadre strength of such officers and servants of a registered society or class or category of registered societies shall be such as may be prescribed.
Explanation I.- For the purpose of this chapter “paid officers” does not include the president, vice president and the members of the board.
Explanation II.- For the purposes of this chapter and other provisions of this Act, “competent authority” means the competent authority constituted under sub section (3) of section 75 and includes the single officer referred to in the proviso to the said sub section (3) of section 75. 88 Speaks about supersession of the Board 89 Speaks about appointment of Administrator in certain circumstances.
(8) DISCUSSION:- The provisions of the Tamil Nadu Cooperative Societies Act, 1983, extracted above, would indicate among other things that the concerned apex society is provided with financial aid/assistance through Apex/Central/District Cooperative Banks by the Government. The Mettupatti Primary Agricultural Cooperative Credit Society, in compliance of the order dated April 09, 2021, has https://www.mhc.tn.gov.in/judis/ 23 CRL.RC. (MD) No.612/2020 filed an Affidavit dated April 19, 2021. The affidavit was approved by the President of the said Society and it is averred that the Cooperative Society receives credit from the District Central Cooperative Bank and the said Bank in turn, receives funds from the Tamil Nadu State Cooperative Bank and the Tamil Nadu State Cooperative Bank in turn receives loan from NABARD, which, in turn, receives funds from the Government through allocation. In the typed set filed in support of the said affidavit, Receipts and Payment details and Balance Sheets of the Society are also made available and such documents indicate the availment of the said financial aid. The Cooperative Society distributes the fund to its members, either as credit loan or jewel loan. It is also stated that every Cooperative Society, like Mettupatti Primary Agricultural Cooperative Society, discharges public duty by granting loan to the farmers in the form of agricultural or jewel loan and that apart, ensures crop insurance facilities, disburses crop insurance amounts and undertakes construction and maintenance of agricultural godown, granting of loan to https://www.mhc.tn.gov.in/judis/ 24 CRL.RC. (MD) No.612/2020 women's welfare and self-employment groups etc. It is further pointed out that Rule 152 of the Tamil Nadu Cooperative Societies Rules, 1988, also mandates for common cadre of service through which, the Government is exercising control, not only with regard to the recruitment in each society, but also in selection, appointment and supervision of each paid servants and elected officers of the society. (9) The Circular dated August 11, 2015, which was the subject matter of challenge and had been dealt with in the common order/judgment dated March 06, 2020 made in WP.No.28641 of 2019 and WA. NO.2253 of 2018, also speaks about the interest of public de hors the definition of public servants under Section 2[c][ix] of the PC Act.
(10) It is to be noted at this juncture that the funds of the Society in which the petitioner is employed as the Secretary, is not generated only by way of contribution to the share capital / membership fees but also upon availing funds from the District Central Cooperative Bank as well as the State Government.
https://www.mhc.tn.gov.in/judis/ 25 CRL.RC. (MD) No.612/2020 (11) The underlying object of the PC Act which was originally enacted in the year 1947, has also been succinctly narrated in the judgment reported in AIR 1963 SC 1116 [M.Narayanan Nambiar V. State of Kerala]. The subject-matter of the said decision was the appeal preferred by the appellant/accused against the judgment of the High Court of Kerala, confirming the conviction and sentence awarded to the appellant/accused under section 5[2] read with 5[1][d] of the PC Act, 1947. (12) One of the submissions made in the appeal on behalf of the appellant was that Section 5[1][d] of the PC Act, 1947, would not apply to the case of wrongful loss caused to the Government by a public servant, who by deceit, induced it to part with its property. Elaborating on the said submission, it was argued on behalf of the appellant that clause [d] of section 5[1] being a penal provision, it should be strictly construed and that, if so construed, it would only take in cases of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner described therein and would not cover a case of wrongful loss caused to https://www.mhc.tn.gov.in/judis/ 26 CRL.RC. (MD) No.612/2020 the Government by abuse of his powers.
(13) The Hon'ble Supreme Court of India, in paragraph No.9, of the above said decision, has held as follows:-
''9. The preamble indicates that the Act was passed as it was expendient to make more effective provisions for the prevention of bribery and corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public servant. Bribery is a form of corruption. The fact that in addition to the word “bribery” the word “corruption” is used shows that the legislation was intended to combat also other evil in addition to bribery. The existing law i.e. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under Sections 161 and 165 of the Indian Penal Code committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-
https://www.mhc.tn.gov.in/judis/ 27 CRL.RC. (MD) No.612/2020 existing offences and enacts a rebuttable presumption contrary to the well known
principles of Criminal Jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them.'' [emphasis supplied] (14) In paragraph No.11, it was observed that, ''coming to the spirit of the provision, there cannot be two views. As we have expressed earlier, the object of the Act was to make more effective provision for the prevention of bribery and corruption.
Bribery means the conferring of benefit by one upon another, in cash or in kind, to procure an illegal or dishonest action in https://www.mhc.tn.gov.in/judis/ 28 CRL.RC. (MD) No.612/2020 favour of the giver. Corruption includes bribery but has a wider connotation. It may take in the use of all kind of corrupt practices. The Act was brought in to purify public administration. When the Legislature used comprehensive terminology in Section 5(1)(d) to achieve the said purpose, it would be appropriate not to limit the content by construction when particularly the spirit of the Statute is in accord with the word used therein.'' (15) Reliance has also been placed upon the earlier decision reported in AIR 1962 SC 195 [Dhaneshwar Narayan Saxena V. Delhi Administration], wherein wide net cast by section 5[1][d] of the PC Act, 1947, in order to deal with corruption, was emphasised.
(16) This Court, taking note of the said decision, now considers the other decisions also.
(17) In 2002 [2] SCC 135 [Dilawar Banu Kurane V. State of Maharashtra], a lecturer of a Private College in the State of Maharashtra, who was appointed by Sivaji University for evaluation of the answer scripts in an examination, had https://www.mhc.tn.gov.in/judis/ 29 CRL.RC. (MD) No.612/2020 indulged in corrupt practices and therefore, he was charge sheeted for the commission of the offences under Section 5[2] read with 5[1][d] of the PC Act, 1947. The accused filed a Discharge Petition which was dismissed. So also the revision filed by him before the High Court and therefore, he filed a Special Leave Petition before the Hon'ble Apex Court, which after admission, was converted as a criminal appeal. The Apex Court has taken note of the fact that in terms of Section 73[4] of the Sivaji University Act, the salaried officers and employees of the University including those appointed by the University for a specified periods or for specified work or who receive any remuneration such as allowances, fees and other payments from the University fund, shall deemed to be public servants for the purposes of criminal laws for the time being in force and taking note of the same and also by taking into consideration, the legislative intend, has dismissed the appeal filed by the accused. In the case on hand, the Registrar of Cooperative Societies has issued the Circular No.12/2015 [RC. 35898/2015/SF3] dated August 11, 2015, in exercise of power https://www.mhc.tn.gov.in/judis/ 30 CRL.RC. (MD) No.612/2020 under Section 181 of the TNCS Act, stating that all the appointed paid servants and election persons of the Cooperative Societies would come under the purview of ''public servants'' under the provisions of the PC Act. Though the said Circular, which was the subject matter of challenge in WP.No.28641 of 2019 came to be quashed, the power of the Registrar to issue the Circular under Section 181 of TNCS Act, have not been doubted.
(18) In 2002 [7] SCC 631 [P.Venku Reddy case] [cited supra], criminal prosecution launched against the supervisor in the District Cooperative Central Bank Limited, Nellore, came to be quashed by the High Court of Andhra Pradesh and a challenge was made to the said judgment before the Hon'ble Supreme Court of India. The Apex Court, has considered the object of the PC Act, 1988, and also the definition of ''public servant'' under section 2[c][ix] of the said Act and observed as follows:-
''12.In construing the definition of “public servant” in clause (c) of Section 2 of the 1988 Act, https://www.mhc.tn.gov.in/judis/ 31 CRL.RC. (MD) No.612/2020 the court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of “public servant”, was brought in force to purify public administration. When the legislature has used such a comprehensive definition of “public servant” to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of “public servant”, therefore, deserves a wide construction. (See State of M.P.v.Shri Ram Singh [(2000) 5 SCC 88 : 2000 SCC (Cri) 886 : AIR 2000 SC 870] '' (19) It is to be noted at this juncture that a Larger Bench of the Apex Court in the decision reported in AIR 1963 SC 1116 [cited supra], on an earlier occasion, while interpreting the penal provision, observed in paragraph No.9 that ''as it is a https://www.mhc.tn.gov.in/judis/ 32 CRL.RC. (MD) No.612/2020 socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object, i.e., to prevent corruption among the public servants and to prevent harassment of the honest among them.'' (20) In AIR 2009 SC 372 [State of Punjab V. Karnail Singh], the criminal prosecution launched against the Manager of Punjab Agricultural Development Bank at Budladha under Sections 7 and 13[2] of the PC Act, was quashed and therefore, the State preferred an appeal. The Hon'ble Supreme Court of India, has taken into consideration the definition of ''public servant'' under Section 2[c][ix] of the PC Act, and held in paragraphs No.6 and 7 as follows:-
''6.The High Court has not analysed the factual position. It is also not known whether the details asked by the High Court like the total share capital of the Bank and as to whether it falls within the definition of Governance Company were supplied or not. The effect of the affidavit filed by the Managing Director also was not considered. Learned counsel for the appellant has referred to the provisions of the Punjab https://www.mhc.tn.gov.in/judis/ 33 CRL.RC. (MD) No.612/2020 Cooperative Agricultural Development Bank Act, 1957 [in short the ''Punjab Act''] and various provisions thereof e.g., Section 2[d], 2[f], 2[g] and section 10 to contend that revision petitioner was a public servant. Needless to say the High Court was required to consider the relevance of the aforesaid provisions and other provisions of the Punjab Act.
7.Therefore, we set aside the impugned order of the High Court and remit the matter to it for fresh consideration.'' (21) In the present case, the Affidavit dated April 19, 2021, filed by the President of Mettupatti Primary Agricultural Credit Society, Tenkasi District, in which the petitioner is employed as the Secretary, would disclose that apart from the loans form the District Central Cooperative Bank-particulars of which, are enumerated in paragraph No.7, the particulars of the loan availed from the State Government are also been given. In the common order/judgment dated March 06, 2020, made in WP.No.28641 of 2019 and WA.No.2253 of 2018, the factual aspect as to the provision of financial aid to the Society https://www.mhc.tn.gov.in/judis/ 34 CRL.RC. (MD) No.612/2020 in which the petitioner therein was employed as the Secretary as well as the share capital and other details, have not been taken into consideration and whereas, in the case on hand, the said details are made available which would reveal that the operation of the Cooperative Society depends upon the credit received from the District Central Cooperative Bank, which in turn, receives aid/assistance from the Tamil Nadu State Cooperative Bank and the said Bank in turn, receives fund from NABARD who in turn, receive funds from the Government through allocation.
(22) In 2014 [14] SCC 420 : 2013 SCC Online SC 973 : AIR 2014 SC 648 [Manish Trivedi V. State of Rajasthan], the question arose was whether the Municipal Commissioner or the member of the Municipal Board is a public servant or not? and the Hon'ble Supreme Court of India, has taken into consideration Section 87 of the Rajasthan Municipalities Act, 1959, and held that ''though the Municipal Commissioner or member of the Board does not come within the definition of ''public servant'' as defined under section 21 of the Indian Penal https://www.mhc.tn.gov.in/judis/ 35 CRL.RC. (MD) No.612/2020 Code, but in view of the legal fiction created by Section 87 of the Rajasthan Municipalities Act, they come within the definition'' and it is relevant to extract paragraph No.19 of the said decision:-
''19.The present Act (the 1988 Act) envisages widening of the scope of the definition of the expression “public servant”. It was brought in force to purify public administration. The legislature has used a comprehensive definition of “public servant” to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute. Bearing in mind this principle, when we consider the case of the appellant, we have no doubt that he is a public servant within the meaning of Section 2(c) of the Act. Clause (viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorised or required to perform any public duty, to be a public servant. The word “office” is of indefinite connotation and, in the present context, it would mean a position or place to which certain https://www.mhc.tn.gov.in/judis/ 36 CRL.RC. (MD) No.612/2020 duties are attached and has an existence which is independent of the persons who fill it. Councillors and Members of the Board are positions which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above, it is evident that appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988.'' (23) As already pointed out in the earlier paragraphs, the Registrar of Cooperative Societies of Tamil Nadu has issued a Circular dated August 11, 2015 in exercise of power under section 181 of the TNCS Act to the effect that all the appointed paid servants and elected persons would come under the purview of the definition of ''public servant'' defined under the PC Act. In the considered opinion of the Court, the said Circular came into being in the light of the purport and object of the PC Act, to eradicate corruption and bribery and it is also in public interest.
(24) In 2014 [5] Law Weekly 624 [The Joint https://www.mhc.tn.gov.in/judis/ 37 CRL.RC. (MD) No.612/2020 Registrar/Administrator, M/s.Tirutani Cooperative
Sugar Mills Limited, Tirutani Taluk V. P.Sivakumar and others], which is also referred to by the learned Single Judge in the Order of Reference, the question arose was whether a Cane Officer in a Sugar Mill, is a ''public servant'' or not? A Division Bench of this Court, has taken into consideration the decision in P.Venku Reddy's case reported in 2002 [7] SCC 631 and other decisions and also the nature of the duties performed and it is relevant to extract the following paragraphs:-
''18[i].The Honourable Supreme Court in the decision reported in 2012 [12] SCC 331 [Ramesh Ahluwalia V. State of Punjab] considered the term ''public duty'' performed by the Private Unaided Educational Institution and held that since the Unaided Educational Institutions perform public function/duty, i.e, providing education to children in their institutions throughout India, they are doing public duty amenable to writ jurisdiction and the decision rendered by the Punjab and Haryana High Court to the contrary was set aside. This https://www.mhc.tn.gov.in/judis/ 38 CRL.RC. (MD) No.612/2020 judgment is relied on only for the purpose of public duty performed by unaided educational institutions and its officials are coming within Section 2[c] of the Prevention of Corruption Act, 1988.
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19.In this case, apart from establishment of Sugar Mills under the Tamil Nadu Cooperative Societies Act, 1983, service conditions, particularly the pay scales are being fixed by the Department of Industries insofar as the employees of Sugar Mills are concerned and the same is evident from G.O.Ms.No.138, Industries [Mic.2] Department dated 27.09.2010 wherein pay revision given to Government Employees based on 6th Central Pay Commission was also extended at the request made by the Commissioner of Sugars, based on a Committee Report. Dearness Allowance, Selection Grade / Special Grade Pay, encashment of earned leave, HRA etc., are also extended and in Annexure-I, Sl.No.9, salary of Cane Officer is fixed. The 1st respondent is receiving the said scale of pay fixed by the Government. Thus, it is evident that there is deep and perverse control by the Government over the Sugar Mills as they are https://www.mhc.tn.gov.in/judis/ 39 CRL.RC. (MD) No.612/2020 performing ''public duty''.
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21.The appellant Sugar Mills is aided, i.e., receiving subsidy from the Government. Section 64 of the Tamil Nadu Cooperative Societies Act, 1983 enables the Government to extend financial aid to the Societies/Mills, which reads thus:-
''64.Other forms of State aid to registered societies :-Notwithstanding anything contained in this Actor any other law for the time being in force, the Government may, subject to such conditions as they may by general or special order, specify in this behalf-
(a)grant loans or make advances to any registered society ;
(b)guarantee the repayment of principal and payment of interest on debentures issued by a registered society ;
(c)guarantee the repayment of share capital of registered society and dividends thereon at such rates as may be specified by the Government;
(d)guarantee the repayment of principal and payment of interest on loans and advances to a registered society ;
(e) guarantee the repayment of deposits received by a registered society and payment of interest on such deposits ; and
(f) give financial assistance in any other form including subsidies to any https://www.mhc.tn.gov.in/judis/ 40 CRL.RC. (MD) No.612/2020 registered society.'' 22[a].....
[b]The Hon'ble Supreme Court in yet another decision reported in 2002 [7] SCC 639 [State of Karnataka V. M.N.Ramdas] distinguished the definition given to ''public servant'' under IPC and in Prevention of Corruption Act, 1988. In paragraph 5 of the judgment it is held that the High Court proceeded on the assumption that Section 21 of the IPC is a relevant provision to determine whether the accused in the case is a ''public servant''. It is categorically held that Section 21 of IPC is of no relevance to consider the question, which has to be on interpretation of provision of section 2[c] of the Prevention of Corruption Act, 1988 read with relevant provisions of the Maharashtra Cooperative Societies Act. The Hon'ble Supreme Court set aside the order of Bombay High Court [c]The Punjab & Haryana High Court in the decision reported in 2013 [2] Crimes 666 [Balbir Singh V. State of Punjab] https://www.mhc.tn.gov.in/judis/ 41 CRL.RC. (MD) No.612/2020 considered similar issue and held that the society has its duties towards public and hence public interest is involved in the activities of the Society. Receiving illegal gratification while performing duty will attract penal provisions of Prevention of Corruption Act, against the Cooperative Society employees, which was created and registered under the Punjab Cooperative Societies Act, 1961.
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24.Thus, it is evident that corrupt practices indulged by ''public servant'' is alarming and the Courts are bound to widen the scope of interpretation of the words ''public servant''. The Sugar Mills are performing public duty and the first respondent working as Cane Officer of Thirutani Cooperative Sugar Mills, which is created and registered under the Tamil Nadu Cooperative Societies Act, 1983, is a ''public servant'' within the meaning of section 2[c] of the Act. In the light of the above findings, we are not persuaded to accept the findings given by the learned https://www.mhc.tn.gov.in/judis/ 42 CRL.RC. (MD) No.612/2020 Single Judge.'' (25) We are in respectful agreement with the said decision, especially in view of the fact that bribery and corruption has become the order of the day. In the light of the purpose and object of the PC Act, the definition should be given an expanded meaning to root out corruption. Moreover, the definitions of 'Public Duty' and 'Public Servant' are inclusive and not exclusive. In the case at hand, the allegation is that the petitioner, being the Secretary of the Society, demanded and accepted illegal gratification for returning the jewels to the defacto complainant despite the fact that the loan availed by the complainant/borrower had been completely waived by the State Government. In a lighter vein, it is to be stated that demand and acceptance of illegal gratification does not form part of the lawful duty and responsibility entrusted to him. (26) In 2016 [3] SCC 788 [CBI, Bank Securities and Fraud Cell V. Ramesh Gelli and others], in terms of Section 46-A of the Banking Regulation Act, 1949, Chairman, Director and Managing Director etc., are deemed to be public servants and https://www.mhc.tn.gov.in/judis/ 43 CRL.RC. (MD) No.612/2020 as already pointed out, in the light of the Circular issued by the Registrar of Cooperative Societies dated August 11, 2015, coupled with the fact that the Society receives credit from the District Central Cooperative Bank etc., the details of which have been narrated in paragraph 4 of the Affidavit dated April 19, 2021, filed by the President of Mettupatti Primary Agricultural Cooperative Society, along with the tabular column given in paragraphs No.7 and 8, the Society had received financial aid and as such, the servants employed in the said Society would come within the definition of ''public servant'' as defined under section 2[c][ix] of the PC Act. (27) In Ramesh Gelli's case [cited supra], the charge-sheet was filed against the Chairman, Managing Director and the Executive Director of a Private Bank for the commission of the offences under the provisions of the Indian Penal Code as well as under Section 13[2] read with 13[1][d] of the PC Act and the Trial Court, declined to take cognizance and the challenge made before the High Court, also ended in dismissal. It has been held that a person who holds the office by virtue of https://www.mhc.tn.gov.in/judis/ 44 CRL.RC. (MD) No.612/2020 which he is authorised or required to perform a public duty, is a public servant for the purposes of the Act and the mere performance of public duty of holder of any office, cannot bring such incumbent within the meaning and expression of ''public servant'' and it should be of a public character. (28) The petitioner, who is the Secretary of the Society, discharges public duty in the form of day-to-day administration of the Society and in the light of the fact that the Government had extended benevolence by waiving agricultural loan given to the members of the Society and when a member approaches him for return of jewels pledged, he is said to have demanded and accepted illegal gratification and it does not form part of the duty and responsibility assigned to him. This Court, taking into consideration the object and purpose of TNCS Act, which came into being for betterment of the Cooperative Societies, coupled with the fact that the Constitution has also given a special status to the Cooperative Societies by inserting Part IX-B in the Constitution's 97th Amendment with effect from February 15, 2012, is of the considered view that the https://www.mhc.tn.gov.in/judis/ 45 CRL.RC. (MD) No.612/2020 Secretary of the Cooperative Society is also a public servant and he performs/discharges public duty.
(29) In 2016 SCC Online Pat 6708 [DB] [Chandra Kishore Kumar V. State of Bihar and Others], the petitioner therein/appellant, was an office-bearer of the Private Cooperative Society and therefore, he made a challenge to the prosecution initiated under the provisions of the PC Act and he was unsuccessful before the Courts below. (30) The Hon'ble Mr. Justice HEMANT GUPTA, Acting Chief Justice [as the Hon'ble Judge then was], speaking for the Bench, has also taken note of the decision rendered by the Apex Court in AIR 1981 SC 1395 [S.S.Dhanoa V. Municipal Corporation, Delhi], which came prior to the enactment of the PC Act and factually found that the Society in which the appellant therein was an office-bearer, receives financial aid from NABARD, which is a Central Government Undertaking and, therefore, he would be a public servant as defined under Section 2[c][ix] of the PC Act. The said judgment aptly applies to the facts of the present case in the light of the stand taken https://www.mhc.tn.gov.in/judis/ 46 CRL.RC. (MD) No.612/2020 by the President of Mettupatti Primary Agricultural Cooperative Society in the Affidavit dated April 19, 2021, the details of which have been extracted in the earlier paragraphs. (31) In 2020 SCC Online SC 412 [State of Gujarat Vs. Mansukhbahi Kanjibhai Shar], a Trustee of the Trust called Sumandeep Charitable Trust, which established and sponsors ''Sumandeep Vidyapeeth'' a deemed University, was prosecuted along with the other accused for the commission of the offences under Sections 7, 8, 10, 13[1][b] and 13[2] of the PC Act. The respondents/accused filed an application for Discharge before the Trial Court which was dismissed and on revision, the High Court of Gujarat has allowed the revision and discharged the accused and therefore, the State of Gujarat has preferred the appeal. The Hon'ble Supreme Court of India, in paragraph No.27, has formulated the point as to whether a deemed University would be included within the ambit of PC Act?
(32) In paragraph No34, the Hon'ble Apex Court held as follows:-
''34.On a perusal of Section 2[c] of the PC Act, we https://www.mhc.tn.gov.in/judis/ 47 CRL.RC. (MD) No.612/2020 may observe that the emphasis is not on the position held by an individual, rather, it is on the public duty performed by him/her. In this regard, the legislative intention was to not provide an exhaustive list of authorities which are covered, rather a general definition of ''public servant'' is provided thereunder. This provides an important internal evidence as to the definition of the term ''University''.'' (33) In paragraph No.44, the Apex Court had also taken note of the purport and object of the PC Act and in paragraph No.45, recorded the finding that the High Court had erred in holding that the deemed University is excluded from the ambit of the term ''University'' under Section 2[c][xi] of the PC Act. The Apex Court had also dealt with the definition of ''public duty'' under Section 2[b] of the PC Act and in paragraph No.50, observed as follows:-
''50.Evidently, the language of Section 2[b] of the PC Act indicates that any duty discharged wherein State, the public or community at large has any interest is called a public duty. The first explanation to section 2 further clarifies that any https://www.mhc.tn.gov.in/judis/ 48 CRL.RC. (MD) No.612/2020 person who falls in any of the categories stated under section 2 is a public servant whether or not appointed by the Government. The 2nd explanation further expands the ambit to include every person who de facto discharges the functions of a public servant and that he should not be prevented from being brought under the ambit of public servant due to any legal infirmities or technicalities.'' (34) The Apex Court having found that there were sufficient materials available, proceeded against the accused and set aside the judgment of the High Court of Gujarat and allowed the appeal. The Hon'ble Mr. Justice AJAY RASTOGI, in a separate and concurring verdict dealt with the menace of corruption as well as the purport of the PC Act, and observed as follows:-
''3.Zero tolerance towards corruption should be the top notch priority for ensuring system based and policy driven, transparent and responsive governance. Corruption cannot be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in https://www.mhc.tn.gov.in/judis/ 49 CRL.RC. (MD) No.612/2020 decision making. However, fortification of social and moral fabric must be an integral component of long-term policy for nation building to accomplish corruption free society.
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10. It cannot be lost sight of that the Act, 1988, as its predecessor that is the repealed Act of 1947 on the same subject, was brought into force with avowed purpose of effective prevention of bribery and corruption. The Act of 1988 which repeals and replaces the Act of 1947 contains a definition of ‘public servant’ with vide spectrum in clause (c) of Section 2 of the Act, 1988, so as to purify public administration. The objects and reasons contained in the Bill leading to passing of the Act can be taken assistance of, which gives the background in which the legislation was enacted. When the legislature has introduced such a comprehensive definition of “public servant” to achieve the purpose of punishing and curbing the growing menace of corruption in the society imparting public duty, it would be apposite not to limit the contents of the definition clause by construction which would be against the spirit of the statute.
https://www.mhc.tn.gov.in/judis/ 50 CRL.RC. (MD) No.612/2020 ..
12.In construing the definition of ‘public servant’ in clause (c) of Section 2 of the Act 1988, the Court is required to adopt an approach as would give effect to the intention of the legislature. The legislature has, intentionally, while extensively defining the term ‘public servant’ in clause (c) of Section 2 of the Act and clause (xi) in particular has specifically intended to explore the word ‘any’ which includes all persons who are directly or indirectly actively participating in managing the affairs of any university in any manner or the form. In this context, the legislature has taken note of ‘any’ person or member of “any” governing body by whatever designation called of “any” university to be termed as ‘public servant’ for the purposes of invoking the provisions of Act 1988.'' (35) The Hon'ble First Bench of this Court, in the decision reported in 2020 SCC Online Mad 782 [J.A.Murugan Vs. Registrar of Cooperative Societies and others] [cited supra], in paragraph No.15, had made a factual note that in respect of the Society in which the petitioner therein was https://www.mhc.tn.gov.in/judis/ 51 CRL.RC. (MD) No.612/2020 employed, there is no material to even remotely suggest that the Society in question receives any financial aid from the State or Central Government and therefore, it is neither controlled nor aided so as to render the employees liable to prosecution under the PC Act, 1988. In paragraph No.16 of the said decision, the Division Bench has recorded the finding that the Registrar of Cooperative Societies cannot expand the definition of ''public servant'' in the impugned Circular dated August 11, 2015, as he lacks authority to do so and it is completely in the domain of the legislature to define or lend a meaning to the terms in the Act.
(36) The Division Bench, in our view, has not taken into consideration the definition of ''public duty'' under Section 2[b] of the PC Act. In our considered view, the Society which came into being for the benefit of agriculturists and the petitioner, being the Secretary of the Society, who is in-charge of the day-to-day administration of the Society is a “public servant” as defined under Section 2[c][ix] of the PC Act and performs/discharges “public duty” under Section 2(b) of the https://www.mhc.tn.gov.in/judis/ 52 CRL.RC. (MD) No.612/2020 PC Act.
(37) For a person to be regarded as a public servant within the meaning of Section 2(c)(ix) of the Act of 1988, three conditions have to be fulfilled: the first is the status of the person in the registered co-operative society; the second is the nature of the business that the relevant registered co- operative society is engaged in; and the third is as to whether the society receives or had received during the relevant period any financial aid from the Central Government or a State Government or from any Corporation established by or under a Central, Provincial or State Act, or authority or body owned or controlled or aided by Government or a Government company as defined in Section 617 of the Companies Act, 1956. All three limbs have to be satisfied for the person to be reckoned as a public servant within the meaning of Section 2(c)(ix) of the said Act.
(38) As of the status of the relevant person, he must be the President or Secretary or other office-bearer of a registered co- operative society. As to the nature of business that the co- https://www.mhc.tn.gov.in/judis/ 53 CRL.RC. (MD) No.612/2020 operative society must be engaged in, the relevant areas would be agriculture, industry, trade or banking. The third aspect is of such registered co-operative society, in which the person holds the office of President or Secretary or office- bearer and which registered co-operative society is engaged in the business of agriculture, industry, trade or banking, also receiving financial aid from the Government bodies specified or had received financial aid from the specified Government bodies at the relevant point of time.
(39) In the present case, the petitioner was admittedly the Secretary of the relevant registered co-operative society. Thus, the first limb is satisfied. Again, it is not in doubt that the relevant registered co-operative society in this case is engaged in agriculture. The second limb is also fulfilled. Finally, from the facts as they have been panned out and as apparent from the affidavit filed by the President of the society, it is https://www.mhc.tn.gov.in/judis/ 54 CRL.RC. (MD) No.612/2020 undeniable that the relevant registered co-operative society in this case receives State Government aid or aid from one or more of the Government bodies specified in the provision. The third limb of the clause stands satisfied, too. (40) However, merely because a person is a public servant may not make him amenable to prosecution under the Act of 1988 unless the offence pertains to the discharge of any duty that he is required to perform in the usual course of his employment. Section 2(b) of the act of 1988 defines “public duty” to mean a duty in the discharge of which the State, the public or the community at large has an interest. Section 2(c)
(viii) of the Act of 1988, on the other hand, indicates that a person would be a public servant if he holds an office by which he is authorised or required to perform any public duty. If the definition of “public duty” is imported into clause 2(c)
(viii) of the Act, it would imply that a person ought to be regarded as a public servant within the meaning of the definition of the said Act if such person holds an office by virtue of which he is authorised or required to perform any https://www.mhc.tn.gov.in/judis/ 55 CRL.RC. (MD) No.612/2020 duty in discharge of which the State, the public or the community at large has an interest.
(41) In the present case, in the petitioner's capacity as the Secretary to the relevant registered co-operative society engaged in agriculture, and receiving financial aid from one of the Government bodies specified in Section 2(c)(ix) of the Act, the petitioner was required to discharge such duty in which the community to which the relevant registered co-operative society catered had an interest. As secretary to the relevant registered co-operative society, it was in the usual course of the petitioner's duties to obtain jewellery, to grant loan, to accept repayment and to return the jewellery. The discharge of such duty, therefore, must be seen as public duty within the meaning of the relevant expression. That would also make the petitioner a public servant under Section 2(c)(viii) of the Act of 1988 in relation to the work done; in addition to the petitioner being a public servant in terms of Section 2(c)(ix) o the Act.
(42) The reference is therefore answered accordingly. To https://www.mhc.tn.gov.in/judis/ 56 CRL.RC. (MD) No.612/2020 repeat, the petitioner has to be regarded as a public servant within the meaning of both Section 2(c)(viii) and 2(c)(ix) of the Act of 1988 and the petitioner's dealing with the complainant must be seen to be in course of the public duty that the petitioner was required to discharge in his official capacity qua the relevant registered co-operative society. (43) It is made clear that the observations/findings made herein, are for the purpose of answering the Reference and this Court has not gone into the merits of the case of the prosecution or defence to be projected by the petitioner/accused. (44) The Registry is directed to list this case before the Hon'ble Roster Bench for final disposal.
[S.B., C.J.,] [M.S.N., J.,] [S.K.R., J.] 29.04.2021 AP Internet:Yes To
1.The Inspector of Police Vigilance and Anti Corruption, Tirunelveli.
2.The Public Prosecutor https://www.mhc.tn.gov.in/judis/ 57 CRL.RC. (MD) No.612/2020 High Court, Madras.
3.The Public Prosecutor Madurai Bench of Madras High Court, Madurai.
4.The Registrar of Cooperative Societies, No.170, EVR Road, Poonamallee High Road, Kilpauk, Chennai-600 010.
https://www.mhc.tn.gov.in/judis/ 58 CRL.RC. (MD) No.612/2020 SANJIB BANERJEE, C.J., M.SATHYANARAYANAN, J., AND SENTHILKUMAR RAMAMOORTHY, J., AP Order in Crl.RC (MD) No.612 of 2020 29.04.2021 https://www.mhc.tn.gov.in/judis/ 59