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IN THE HIGH COURT AT CALCUTTA
Surya Kumar Tiwari, J.
Nirendra Nath Dey & Anr. – Petitioner
Versus
The State of West Bengal – Opposite Party
AND
Ramkrishnapur Co-operative Bank Limited
Versus
Nirendra Nath Dey& Anr. – Opposlte Parties
Cr. Rev. No. 1305 of 1996
Decided On : September 24, 1996
CRIMINAL LAW - WEST BENGAL CO-OPERATIVE SOCIETIES ACT, 1983 - SECTION 138, 139(4), 142 - INDIAN PENAL CODE, 1860 - SECTION 403, 409 - GENERAL CLAUSES ACT, 1897 - SECTION 26 - COGNIZABILITY OF OFFENCES UNDER THE INDIAN PENAL CODE COMMITTED BY OFFICERS OF CO-OPERATIVE SOCIETIES - APPLICABILITY OF INDIAN PENAL CODE TO CORRUPT PRACTICES UNDER THE CO-OPERATIVE SOCIETIES ACT - SCOPE AND INTERPRETATION.
Fact of the Case:
Petitioners, officers of a co-operative bank, were accused of cheating, forgery, and criminal breach of trust in relation to a loan granted to one of the petitioners. They sought to quash the FIR and investigation, arguing that the offenses were covered by the West Bengal Co-operative Societies Act, 1983, and not the Indian Penal Code.
Finding of the Court:
The court held that the offenses of cheating, forgery, and criminal breach of trust were not covered by the West Bengal Co-operative Societies Act, 1983, and that the Indian Penal Code applied. The court further held that the provisions of the Indian Penal Code were not repealed by the Co-operative Societies Act and that both statutes could be applied concurrently.
Issues: 1. Whether the offenses of cheating, forgery, and criminal breach of trust committed by officers of a co-operative society are covered by the West Bengal Co-operative Societies Act, 1983, or the Indian Penal Code? 2. Whether the provisions of the Indian Penal Code are repealed by the West Bengal Co-operative Societies Act, 1983?
Ratio Decidendi: 1. The court held that the offenses of cheating, forgery, and criminal breach of trust are not covered by the West Bengal Co-operative Societies Act, 1983, because they are not enumerated in the Fourth Schedule of the Act. Section 138 of the Act, which provides for prosecution under the Act for offenses enumerated in the Fourth Schedule, does not apply to these offenses. 2. The court held that the provisions of the Indian Penal Code are not repealed by the West Bengal Co-operative Societies Act, 1983, because there is no repugnancy or conflict between the provisions of the two statutes. Section 26 of the General Clauses Act, 1897, provides that if an offense is punishable under two or more enactments, the offender can be prosecuted under either enactment but cannot be punished twice for the same offense.
Final Decision: The court dismissed the petitioners' petitions to quash the FIR and investigation, holding that the offenses were cognizable under the Indian Penal Code and that the investigation could proceed.
This revisional petition along with connected revisional petition has been filed by the petitioners for quashing the F.I R.
2. Petitioner No. 1 in Cr. Rev. No. 1305 of 1996 had applied for loan to Ramkrishnapur Co-operative Bank, Charu Chandra Singha Lane, Howrah. At the relevant time, petitioner No.1 (in connected case) Samar Mukherjee was the Chairman, petitioner No.2 Kali Kinkar Banerjee was the Secretary and petitioner No.3 Biswanath Banerjee was Assistant Secretary of the said Bank.
3 On 6.12.95 a written complaint was filed in the Court of C.J.M., Howrah. The C.J.M., forwarded the complaint to Howrah Police Station for Investigation under Section 156(3) Cr. P.C. The police registered F.I.R., on 15.12.95 and started investigation.
4. It has been alleged in the complaint filed on behalf of the Bank, that the Chief Executive Secretary and the Assistant Secretary of the Bank entered into criminal conspiracy and granted a loan of Rs.4 lacs to petitioner No. 1, in the connected revisional case i.e. Nirendra Nath Dey without having taken sufficient security. The equitable mortgage was illegal because the petitioner No.2 Goutam Dey was not full owner of the mortgaged property" The petitioners had forged and manipulated the minutes book of the Bank. They also failed to secure a deposit of Rs. 50,000/- from the debtor before sanctioning loan. The account payee cheque was dishonestly converted into a bearer cheque and thereby the petitioners had conspired to cheat the Bank and commit criminal breach of trust.
5. The petitioners have prayed for quashing of the F.I.R. and the Investigation on the ground that Section 138 of the West Bengal Co-operative Societies Act, 1983, provides that any person committing an offence in respect of offences enumerated in 4th Schedule of the said act shall be liable to be prosecuted under this act notwithstanding anything contained elsewhere in the act or any other law for the time being in force.
6. It would suffice to say that the offences enumerated in 4th Schedule do not cover the offences of cheating, forgery and criminal breach of trust. Hence Sec. 138 of the Co-operative Societies Act is not attracted in this case.
7. The learned Counsel for the petitioners has also Invited my attention of Section 142 of the Act which runs thus :–
“Punishment for corrupt practices.–Any Officer or employee or member of a Co-operative Society who–
(a) sanctions or receives, as the case may be, any benamy loan, or
(b) accepts or obtains or induces to accept or attempts to obtain from any person for himself or for any other person any gratification as a motive or reward as is mentioned in Section 161 of the Indian Penal Code, or
(c) signs the minutes of any meeting of the Co-operative Society without attending such meeting, or
(d) dishonestly or fradulently misappropriates or otherwise converts for his own use any property of the Co-operative Society entrusted to him or under his control or allows any other person so to do.
Shall be guilty of corrupt practices and shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and shall also be liable to fine;
Provided that the Court may for any special reason to be recorded in writing, impose a sentence of imprisonment of less than one year.”
8. The learned Counsel for the petitioners submit that the Co-operative Societies Act, is a complete code in itself and any violation thereof is punishable only under the Co-operative Societies Act and not Indian Penal Code. The learned Counsel, have also argued that the Co-operative Societies Act, 1983 has received the assent of precedent. Hence in view of Article 254(2) of the Constitution, the provisions of Co-operative Societies Act of 1983 shall override the provisions of the Indian Penal Code.
9. A similar point was raised before a Division Bench of this Court in case of (1) Soumendra Krishna v. State of West Bengal, 1992 Calcutta Crl. LJ (Cal) 148, and it was held that
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