@JUDGMENTTAG-ORDER
S. Ashok Kumar, J.@mdashThis Criminal Revision Case has been filed by A.2 in C.C.No:111/90 on the file of the Chief Judicial Magistrate,
Vellore which was convicted for offences u/s 120B r/w. 109, 467, 471 r/w. 467, 477A, 467 (four counts), 471 r/w. 467 (two counts) 49 and
477A IPC and sentenced to imprisonment till raising of the court and to pay a fine of Rs. 500/= for each offence mentioned above totalling Rs.
4,500/=, in default to undergo 6 months rigorous imprisonment, which has been confirmed by the Additional District and Sessions Judge, Vellore
in C.A.No:40 of 1994, dated 13.6.2003.
2. The brief facts which lead to the filing of this Revision Case are as follows:
(a) The petitioner who is A.2 in the Calendar Case is an Agricultural Extension Officer of the Polur Panchayat Union and in that capacity he was
also the Ex-Officio President of the Polur Agro Engineering and Service Cooperative Centre, which was registered as a Cooperative Society
under the Cooperative Societies Act. The main object of the Centre is to render services to the agriculturists by supplying the agricultural inputs
such as fertilizers, pesticides and other agricultural implements to the ryots at reasonable prices. The Managing Directors of the Agro Centres are
empowered to purchase those articles and sell them to the ryots at reasonable rates of profits. The Managing Directors are designated as Block
Managers who are the full time employees of the Centres. The Extension Officer (Agriculture) of the Panchayat Union in whose jurisdiction the
centre operates is the Ex-officio President of the Agro Centre. He belongs to the Agricultural Department on deputation to the post.
(b) The first accused was the Managing Director -cum- Block Manager of the Polur Agro Centre. The second accused, the petitioner herein was
the Agricultural Extension Officer and the Chairman of the Centre. Another accused Karuppiah is an individual, Proprietor of Kalai Mark Ploughs
at Melur in Madurai District. There are other staffs like Clerks to look after the daily service of the Centre. They used to maintain day book, ledger
cash book etc., Entries should be made by the Clerk -cum- salesman in a day book and normally it must be countersigned by the Managing
Director and the Chairman of the Centre. Every day''s account should be closed with the signature of the Managing Director, the Chairman the
Salesman of the Centre. Money payable to anybody should be paid only by way of cheque signed by the Managing Director and the Chairman.
(c) During the Audit Accounting Year 1979-80, P.W.3 found that Voucher No. 236 and 247(A), dated 24.10.1980 and 1.11.180 to the value of
Rs. 4,000/= each had been forged in the name of Coimbatore Agro Engineering Service and Traders. and the lea that Rs. 8000/= by way of two
vopuchers prepared and amount were to be paid to Coimbatore Company was rejected by the Auditor. In Ex.P.19, report, the Auditor has
specifically made the remarks that these two vouchers have been forged. In Ex.P.2, the day book, the entry relating to the Voucher 236 and
247(A) were found missing. Instead, an advance of Rs. 4,000/= to Kalai Mark Plough works and K.G. Lakshmanan were found substituted in
that place which are marked as EXs.P.3 and P.4. According to the Auditor, the written sheets from the day book have been removed and
substituted by fresh sheets. According to him an attempt has been made to misappropriate the public money.
3. Before the Chief Judicial Magistrate, on behalf of the prosecution P.Ws.1 to 18 were examined and Exs.P.1 to P.47 were marked. On behalf
the accused D.W.1 was examined and Ex.D.1 was marked. When the accused were questioned u/s 313 Cr.P.C., with regard to the incriminating
circumstances appearing in the evidence of the prosecution witnesses, they denied the same as false.
4. On a consideration of the oral and documentary evidence, the learned Chief Judicial Magistrate came to the conclusion that the charges against
the accused are proved and convicted and sentenced them as stated above. Against the same, the accused preferred appeal in C.A.No. 40 of
1994 before the Addl. District and Sessions Judge, Vellore, who also confirmed the same. Aggrieved over the same, the present revision has been
preferred by A.2.
5. Learned Counsel for the revision petitioner submitted that the evidence avaialble on record would show that there is no loss to the Society.
There is no allegation of anybody has obtained wrongful gain of Rs. 8000/= which is said to be intended for payment for Coimbatore Agro
Company, has been paid to A.3 and another person at Melur, Madurai. According to the learned Counsel for the revision petitioner, the office of
A.2 is not situated in the Agro Centre and only vouchers will be brought by the Clerk which will be signed by A.2 while at his office in the
Panchayat Union. Under such circumstances, A.2 will have no chance to verify whether the vouchers find an entry in the day book or relevant
register, which is maintained at the Agro Centre. Therefore, there is no evidence that A.2 signed these two vouchers with an intention to cheat or to
forge and fabricate the documents.
6. In a similar case in L. Chandraiah v. State of A.P. reported in 2003 (4) Cri 479 , where signatures had been obtained from the appellant in the
vouchers by some other accused, the Hon''ble Supreme Court, held as follows:
9. ...So far as the evidence relating to the offence u/s 467 IPC is concerned, there is no evidence to show that the appellants before us forged the
documents which purported to be a valuable security. The evidence is only to the effect that they had negligently put their signatures on those
vouchers while passing the vouchers for payment. There is no evidence to show that the appellants had knowledge of the fact that the vouchers
were forged vouchers. The trial court has found in clear terms that A.1, A.2 and A.3 were not acting pursuant to the conspiracy and, therefore,
acquitted them of that charge. Such being the position, before recording a conviction, the court should have insisted on evidence which would have
proved that A.1 to A.3 passed the vouchers with knowledge that the vouchers were forged and fabricated. It appears that no such evidence is
available on record. So far as the offence u/s 409 IPC is concerned it must be proved that a person entrusted with property or with any dominion
over property, in his capacity as public servant commits criminal breach of trust in respect of such property, as defined in Section 405 IPC,
meaning thereby that he dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in
violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he
has made touching the discharge of such trust, or willfully suffers any other person so to do. The crucial word used in Section 405 IPC is
dishonestly, and therefore, it implies the existence of mens rea, that is to say a guilty mind. If there is no evidence to show that the appellants had
knowledge that the vouchers were fabricated by A.3, it cannot be said that they acted with a criminal intent. It may be, and as rightly observed by
the courts below, that they acted in a negligent manner and if they had taken due care they would have detected the fraud, but they failed to do so.
However, that by itself would not constitute an offence u/s 409 IPC though it may expose the appellants to disciplinary action under the relevant
rules. Learned Counsel also brought to our notice he fact that in respect of the same Sub Post Office, some vouchers prepared and counter signed
by A.3 on the reverse side were sent to the Head Post Office at Mancherial. P.W5 the Investigation Officer has referred to several such vouchers
which were sent to the Head Post Office for payment, and the officers of the Head Office also sanctioned payment on the basis of such fabricated
vouchers. Obviously, the officers at the Head Office were also not very careful, and as a result A.3 succeeded in his evil design to fraudulently
withdraw a large sum of money. Learned Counsel submitted that on the basis of these facts not only the appellants were cheated by A.3 but even
the officers of the Head Post Office were similarly cheated by A.3.
10. In the absence of any evidence to show that A.3 was acting in conspiracy with A.1 and A.2 or that A.1 and A.2 had knowledge of the fact
that A.3 had fraudulently and dishonestly prepared forged vouchers on the basis of which the amounts were sought to be withdrawn, the offences
under Sections 467, 471 or 409 IPC are not proved against the appellants.
7. In Gnanasekaran v. State by Inspector of Police, CCIW, CID, Cuddalore reported in 1984 L.W.44, this Court held thus:
In this revision against the order of the Sessions Judge confirming a conviction under Sections 477-A and 409, IPC, it was contended for the
petitioner that the person who conducted the enquiry in pursuance of the order of the Deputy Registrar of Cooperative Societies u/s 65 of the
Cooperative Society Act, did not examine the entries in the stock register, Ex.P.4 and also the cash book, that the entire conviction was based on
the entry of 5 bags under Ex.P.5 while there was no corresponding entry in the sales chitta and day book and that does not mean that the entry
under Ex..5 is a false one, that the prosecution has to prove the necessary ingredients by positive and acceptable evidence and that the mere false
entry or failure to account for itself is not sufficient to warrant a conviction u/s 477-A IPC or u/s 409 IPC and thus onus of the prosecution never
shifts to the accused. It was further contended that mere false entry is not sufficient and further evidence to prove the ingredients are necessary. In
the instant case, the prosecution has not adduced any evidence to prove that the accused had secured the goods and he was under a duty to
account to the Society and that he has made false entries etc,. it is well established that in our criminal jurisprudence, the accused is entitled to put
forth inconsistent pleas and the onus of the prosecution never shifts. In my view, the stray suggestion put to P.W.2 would not automatically
establish that the petitioner had made false entries and thereby misappropriated the value of the goods.
8. There is considerable doubt whether Ex.P.5 and P.6 pertains to Coimbatore Agro Industries or Coimbatore Agro Engineering & Traders.
P.W.3, Auditor had prepared the audit report for the year 1979-80 and he noticed Ex.P.5 and P.6. He would state that he had written to
Coimabtore Agro Industries and not to Coimbatore Agro Engineering & Traders. His further evidence is that he has not written any letter to
Coimabtore Agro Industries to find out whether they have received any advance from Polur Agro Service Centre. He also admitted that he has not
examined any person from Royal Electricals or P.W.6 in connection with Exs.P.12 and p.13 and has not verified whether the expenditure of Rs.
8000/= was ratified in the audit for the year 1980-81. P.W.5 subsequent Auditor also admitted that he cannot state whether Coimbatore Agro
Industries and Coimbatore Agro Engineering & Traders are one and the same firm. P.W.15 would also confirm that only one Day Book was
purchased by the Agro Centre. If that be so, the evidence of P.W.8 cannot be accepted as it has come in evidence that even the Managing
Director, who is A.1 used to write records.
9. Learned Counsel for the revision petitioner also submitted that the petitioner being the Ex-officio President of the Cooperative Society and with
respect to the Cooperative Society the petitioner is not a ""Public Servant"" within the meaning of Section 2 of the Indian Penal Code, therefore, the
petitioner cannot be convicted for an offence u/s 409 IPC. Even if the case of the prosecution is accepted regarding the entries of the petitioner in
Ex.P.5 and P.6, the same would only got to show that the petitioner had at best negligently signed in Ex.P.5 and P.6 and therefore cannot be
convicted for an offence u/s 408 IPC along with A.1 It is further submitted that as the Board of Directors had ratified the expenditure in Exs.P.5
and P.6 the prosecution will have to necessarily fail. There is also no evidence to show that the petitioner had signed in Exs.P.12 and P.13. In
support of his contention, learned Counsel relied on the decision of this Court in K. Somasundaram v. State rep. by Inspector of Police reported in
1990 L.W.Crl 172 wherein this Court held thus:
To find the petitioner guilty of the offence u/s 409 IPC, he must be a public servant, banker, merchant or agent. There is a plethora of authorities
that the President of a Cooperative Society will not be a public servant as defined in Section 21 IPC.
The Supreme Court has held that a Cooperative Society is not a statutory body because it is not created by a statute. It is a body created by an
act of a group of individuals in accordance with the provisions of a statute. A Cooperative Society is, therefore, not a Corporation established by
or under an Act of the Central or State Legislature. Therefore, on the enunciation of law detailed , the petitioner cannot be deemed to be a public
servant. If that be so, it is not possible to affirm his conviction for the offence u/s 409 IPC.
10. In Shanmugam and Ors. v. State of Tamil Nadu rep. by Inspector of Police, CCIW (CID) Trichy reported in 2000 (3) MWN 133, this Court
in a similar case held that Vice President of a Cooperative Society is not a ""public servant"" as defined u/s 21 IPC. and he cannot be held guilty for
offence u/s 409 IPC.This Court further held that the prosecution cannot be allowed to shift their stand from stage to stage to sustain the conviction
on the accused by treating him as an agent of the Society.
11. In the present case, the petitioner being the Ex-Officio President of the Cooperative Centre, and not being a ""public servant"", who only
countersigned the vouchers, there is no material to show that the petitioner either directly or indirectly involved himself in being a party to the
offence of criminal breach of trust or criminal misappropriation. The role of the petitioner either directly or indirectly in misappropriating the amount
is not established by the prosecution and hence the conviction without any legal evidence to support it is liable to be set aside. More over, the
occurrence is said to have taken place in the year 1979-80, almost 26 years ago. The revision petitioner was under the distress for the last 26
years. For all these reasons stated above, and in view of the decisions cited supra, I hold that the petitioner is not guilty of any of the offence
alleged against him and consequently, the conviction and sentence are liable to be set aside.
12. In the result, the Criminal Revision Case is allowed setting aside the conviction and sentence imposed by the trial court which has been
confirmed by the appellate court. The fine amount paid by A.2 shall be returned to him.
