IMPORTANT POINT
In the absence of a charge of conspiracy the mere fact that the accused happened to be the chairman of the committee of a co-operative society would not make him criminally liable in a vicarious sense for defalcations in certain items of the Society.

JUDGMENT

Fazal Ali, J. - After hearing counsel for the parties, by virtue of our Order dated October 4, 1983, we had allowed the appeal and acquitted the accused-appellant. We now proceed to give the reasons for the said Order.

2. The appellant was convicted by the High Court under S. 408 read with S. 109 Indian Penal Code in respect of criminal breach of trust with regard to several items which have been detailed in the judgment of the High Court. The appellant was also convicted under sections 471 and 467 read with section 109 of the Indian Penal Code. Under the first count (section 408) the appellant was sentenced to two years R.I. and a fine of Rs. 1000/- in default of payment of fine, further six months R.I. Under the second count (section 471) he was sentenced to imprisonment for one year. The High Court further convicted the appellant under section 409, Indian Penal Code for having committed breach of trust in respect of certain oil engines and sentenced him to 3 years R.I. and a fine of Rs. 1000/-; in default of payment of fine, imprisonment for six months. Thus, the sum total of the sentences under various sections mentioned above comes to five years but as the sentences have been made to run concurrently, the total sentences would be three years apart from the fine.

3. The learned Sessions Judge had acquitted the appellant holding that the charges framed against him were not proved but the High Court in an appeal by the State of Gujarat reversed the decision of the Sessions Judge and set aside the appellant's acquittal and convicted him as aforementioned.

4. The facts of the case have been detailed in the judgments of the High Court and the Sessions Judge with clarity and lucidity and need not be repeated all over again except so far as they are relevant for the purpose of deciding the appeal. There was an organization known as 'Jasdan Taluka Sahkari Kharid Vechan Sangh Ltd,' (hereinafter referred to as the 'Sangh') which was like an autonomous cooperative society directly within the control and supervision of the Government. The appellant was the chairman of the Sangh and the other members of the Sangh consisted of two categories, viz., members nominated by the Registrar of Cooperative Societies and those elected by the Sangh itself. The Managing Committee of the 8angh consisted of 8 members out of whom the appellant was he Chairman and A-2 was the Manager while the Tehsildar was the ex-officio Member of the Sangh. Having received a number of complaints against the Sangh, the Registrar of Cooperative Societies ordered one V. B. Shah to act as special auditor and examine and audit the accounts of the Sangh for the year 1965-66. On the basis of the audit report, the Managing Committee was superseded and an administrator was appointed. Meanwhile the Sangh moved the High Court to obtain a stay order against the appointment of the administrator as a result of which the appointment of the administrator was stayed for some time and the stay was vacated in July 1966. Subsequently, one M. K. Parikh was appointed an administrator.

5. The police after usual investigation submitted charge sheet under section 120B, Indian Penal Code against all the accused for entering into a conspiracy to commit criminal breach of trust. So far as the appellant is concerned he was never charged under the sections mentioned earlier. The charge of conspiracy failed and the Sessions Judge acquitted all the accused except A-3 who has convicted under section 40g to R.I. for two years and a fine of Rs. 1000/-. In the instant case, we are only concerned with the appellant who was chairman of the Managing Committee.

6. Mr. Phadke, learned counsel for the respondent, has very fairly conceded that excepting 3 items he would not press the case of the prosecution against the appellant. These items are mentioned at page 154 of the paper book and may be extracted as follows:

(1) Item about purchase of the truck,

(2) Item about purchase of fertilizers,

(3)