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PATNA HIGH COURT
S.N.P.Singh and K.B.N.Singh JJ.
State Of Bihar
Versus
Amulya Ratan Pathak
Government Appeal No. 1 of 1966 ; 2 of 1966 ;
Decided On : MAY 7, 1963
CRIMINAL BREACH OF TRUST - CO-OPERATIVE SOCIETY - SECRETARY - AGENT OF BANK - LIABILITY - Sec. 409, INDIAN PENAL CODE - BIHAR AND ORISSA CO-OPERATIVE SOCIETIES ACT, 1935.
Fact of the Case:
Respondent Amulya Ratan Pathak, Secretary of Radha Nagar Multipurpose Co-operative Society, collected Rs. 810.85 P. from loanees as an agent of the Central Co-operative Bank between 13-3-59 to 26-3-60, but failed to deposit it. He claimed to have handed over the amount to Dhirendra Nath Chatterjee, President of the Society, who denied receiving it and claimed the receipt produced by Pathak was forged.
Finding of the Court:
1. The receipt (Ext. 16) and the proceedings recorded in the minutes Book of the Society (Ext. 11) are not genuine documents and were brought into existence by the respondent after December, 1961 to set up a false defence. 2. The respondent, while acting as the Secretary of the Society, was acting as an agent of the Bank and the amounts received by him from the loanees was an entrustment on behalf of the Bank and his failure to account for those amounts rendered him liable for his prosecution under Sec. 409 of the Penal Code.
Issues: 1. Whether the receipt (Ext. 16) and the proceedings recorded in the minutes Book of the Society (Ext. 11) are genuine documents? 2. Whether the respondent, while acting as the Secretary of the Society, was a public servant? 3. Whether the respondent can be prosecuted for criminal breach of trust under Sec. 409 of the Indian Penal Code?
Ratio Decidendi: 1. The genuineness of the receipt and the proceedings was doubtful due to: - The body portion of the receipt was in the handwriting of the respondent, but the signature was of the President. - The President denied receiving the amount and claimed the receipt was forged. - The minutes of the proceeding book of the meeting held on the 31st March, 1960, on which date the receipt is said to have been granted, were not recorded in due course of business, nor were the signatures of the members obtained on it properly. - The word "Koshadhyaksha" was interpolated and added at the instance of the respondent. 2. The respondent, while acting as the Secretary of the Society, was acting as an agent of the Bank and the amounts received by him from the loanees was an entrustment on behalf of the Bank and his failure to account for those amounts rendered him liable for his prosecution under Sec. 409 of the Penal Code.
Final Decision: The orders of acquittal passed in both the appeals (Criminal Appeals Nos. 207 and 208 of 1963) are, therefore, set aside and Government Appeals Nos. 1 and 2 of 1966 are allowed. The respondent is accordingly convicted of an offence under Sec. 409 of the Indian Penal Code in Government Appeal No. 1 of 1966, and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 50/-, in default to undergo further rigorous imprisonment for one month. He is also convicted of an offence under Sec. 409 of the Indian Penal Code in Government Appeal No. 2 of 1966, and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 700/-, in default to undergo further rigorous imprisonment, for three months. The substantive sentences of imprisonment in both the cases, shall, however, run concurrently.
K.B.N.SINGH, J.
1. Both the Government appeals have been heard together with the consent of the parties as common questions of fact and law are involved. This judgement will, therefore, govern both the appeals. These appeals are for setting aside the orders of acquittal passed by Shri Rash Behari Prasad Sinha, Additional Sessions Judge, Dhanbad, in Criminal Appeals Nos. 207 and 208 of 1963, reversing the findings of Shri N.N. Chakravarty, Assistant Sessions Judge, Dhanbad, in Sessions Trials. Nos. 24 and 24/A of 1963, who convicted the respondent of the offence under Sec. 409 of the Indian Penal Code in both the cases.
2. Respondent Amulya Ratan Pathak was the Secretary of Radha Nagar Multipurpose Co-operative Society (hereinafter referred to as the Co-operative Society), a Society registered under the Bihar and Orissa Co-operative Societies Act, 1935, during the years 1958-62 and co-accused Dhirendra Nath Chatterjee was its President. The allegation against respondent Amulya Ratan Pathak and co-accused Dhirendra Nath Chatterjee was of having committed criminal breach of trust in respect of a sum of Rs. 810.85 P. collected from loanees as agents of the Central Co-operative Bank between 13-3-59 to 26-3-60. Both were put on trial by a common commitment order dated the 1st May, 1963, under Sec. 409 of the Indian Penal Code. The learned Assistant Sessions Judge at the trial by the order dated 19th September, 1963, split up the trial on the ground that one charge of embezzlement could not embrace a period exceeding one year. Accordingly, one trial (Sessions Trial No. 24 of 1963) for criminal breach of trust in respect of a sum of Rs. 729.96 paise, committed during the period 13th March, 1959 to the 28th December, 1959, and another trial (Sessions Trial No. 24A of 1963) with regard to the remaining period, i.e. from the 20th March, 1960, to the 31st March, 1960, in respect of a sum of Rs. 73.35 Paise, were started.
In both the sessions trials, the learned Assistant Sessions Judge, by separate judgements, convicted respondent Amulya Ratan Pathak under Sec. 409 of the Indian Penal Code and in sessions trial No. 24A of 1963, sentenced him to undergo rigorous imprisonment for six months and a fine of Rs. 50/-, in default to suffer rigorous imprisonment for a further period of one month; and in sessions trial No. 24 of 1963, sentenced him to undergo rigorous imprisonment for two years and a fine of Rs. 700.00 and in default to rigorous imprisonment for a further period of six months. The learned Assistant Sessions Judge acquitted the co-accused Dhirendra Nath Chatterjee in both the sessions trials.
3. Respondent Amulya Ratan Pathak filed two criminal appeals before the Sessions Judge, Dhanbad, against his conviction in both the sessions trials. The appeal arising out of sessions trial No. 24 of 63 was numbered as Criminal Appeal 207 of 63, while the appeal filed from Sessions Trial No. 24A of 63 was numbered as Criminal Appeal 208 of 63. Both the appeals were heard by the Additional Sessions Judge, Dhanbad, who allowed both the appeals by his judgements dated the 25th of September, 1965, acquitted respondent Amulya Ratan Pathak and set aside the convictions and sentences under Sec. 409 of the Indian Penal Code passed against him in both the sessions trials. It is against these two orders of acquittal that the State of Bihar has filed both the present Government appeals. Government Appeal No. 1 of 66 arises out of an order of acquittal in Criminal Appeal No. 208 of 63 which arose out of Sessions Trial No. 24A of 63 while Government Appeal No. 2 of 66 arises out of an order of acquittal in Criminal Appeal No. 207 of 66 which arose out of Sessions Trial No. 24 of 63.
4. The prosecution case, in short, is that Radha Nagar Multi-purpose Co-operative Society, which is a Society registered under the Bihar and Orissa Cooperative Societies Act, 1935, is affiliated to the Central Co-operative Bank, Dhanbad (hereinafter referred to as the C
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