(SHORT NOTE)
GAUHATI HIGH COURT
KN. Saikia, J.
Khudiram Bhowmik, another - Petitioner
versus
State of Assam - Respondent
AND
Prem Lal Gayari and another - Petitioner
versus
State of Assam - Respondent
Criminal Revision No. 236 of 1979 and
No. 19 of 1980
Decided on 2-7-1986
T.C. Mazumdar, Advocate - For the Petitioners.
D.P. Chaliha, P.P. - For the Respondent.

IMPORTANT POINT
The Secretary of a Co-operative society is neither a public servant under section 21 I.P.C., nor an agent of society within the meaning of Section 409 I.P.C.

Headnote:(i) Indian Penal Code, 1860 Sections 21 and 409 - Public servant - Secretary of Co-operative Society established under Assam Co-op. Societies Act - Is Secretary of Cooperative Society public servant with in meaning of Cl. 12 (b) of Section 21 I.P.C.? (No).

       (ii) Indian Penal Code, 1860 Section 409 - Secretary of Co-operative Society is such Secretary - Is such secretary ‘agent’ of Society within meaning of Section 409 I P.C.? (No).

       Held, that agent means a person employed to act on behalf of another. The Assam Cooperative Societies Act prescribes certain duties and functions of the Secretary of the Society. It cannot, therefore, be said that he is an agent of the society within the meaning of section 409 I.P.C.

       (iii) Indian Penal Code 1860- Section 409 - Prosecution of accused alleged to have committed criminal breach of trust as public servant or agent of co-operative society - Accused not found either - Can accused be convicted for lesser offence? (No, for offence under section 409 I.P.C. is confined to categories of person mentioned in that section which are not present in other sections of I.P.C, dealing with criminal breach of trust).

       (iv) Indian Penal Code, 1860 - Section 109 - Substantial offence not established against Principal - Charge of abetment also fails.