A manager of a cooperative society registered under the West Bengal Cooperative Societies Act, 1983 is a public servant within the meaning of section 21 of the Indian Penal Code and can be prosecuted under section 409 of the Indian Penal Code for misappropriation of funds.

JOYMALYA BAGCHI, J.

Order dated 08.04.2016 passed by the learned District Judge at Birbhum in Special Case No. 3 of 2012 rejecting the prayer of the petitioner to discharge from the impugned prosecution has been assailed.

2. The contention of the petitioner is to the effect that he being a manager of Khayrasol Anchalic Farmer Service Cooperative Society Limited (hereinafter referred to as ‘cooperative society’) is not a public servant under section 21 of the Indian Penal Code and, accordingly, prosecution instituted against him under section 409 of the Indian Penal Code is not maintainable. The learned lawyer for the petitioner relies on (2013) 1 C.Cr.LR (CAL) 479 [Dilip Kr. Sarkar v. State of West Bengal], in support of such contention. He also submits that the alleged misappropriated sum had been accounted for to the cooperative society even before registration of the First Information Report showing that the impugned prosecution is a mala fide one.

3. Mr. Singh, learned Public Prosecutor appears for the State opposes such prayer.

4. I have considered the submissions made on behalf of the petitioner. In Dilip Kr. Sarkar (supra) a learned Single Judge of this Court (as His Lordship then was) relying on State of Maharashtra v. Laljit Rajshi Shah, reported in AIR 2000 SC 937, held that an officer of cooperative society cannot be said to be a public servant within the meaning of section 21 of the Indian Penal Code for the purpose of prosecution under section 409 of the Indian Penal Code. The deeming clause under section 8 of the West Bengal Cooperative Societies Act, 1988 (hereinafter referred to as the Act of 1983) cannot extend to offences under other statutes including the Indian Penal Code and, accordingly, quashed the proceeding. However, the ratio in Laljit Rajshi Shah (supra) was clarified by the Apex Court in State of Madhya Pradesh v. Rameshwar, (2009) 11 SCC 424 and State of Maharashtra v. Brijlal Sadasukh Modani, (2016) 4 SCC 417 wherein the Apex Court held that the officers of a cooperative society receiving aid from the Government shall fall within the expression ‘public servant’ for prosecution under the general law as well as under the Prevention of Corruption Act, 1988.

5. In State of Madhya Pradesh v. Rameshwar, reported in (2009) 11 SCC 424, the Apex Court held as follows:-

“46. The High Court also did not, while considering the definition of the expression “public servant”, take into account the fact that the decision in Laljit Rajshi Shah case was no longer applicable in view of the amended provisions of Section 2(c) of the Prevention of Corruption Act, 1988, defining the said expression.”

6. It further held as follows:-

“48. Mr. Tankha's submissions, which were echoed by Mr. Jain, that the M.P. Cooperative Societies Act, 1960 was a complete code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted in view of the fact that there is no bar under the M.P. Cooperative Societies Act, 1960, to take resort to the provisions of the general criminal law, particularly when charges under the Prevention of Corruption Act, 1988, are involved.”

7. It is pertinent to note in the aforesaid report that the Apex Court was dealing with a case not only under the Prevention of Corruption Act, 1988 but also under section 409 IPC and, inter alia, held the provisions of M.P. Cooperative Societies Act did not restrict its applicability to the general criminal law in a case of corruption. Similar view had been expressed by a Division Bench of this Court in Soumyendra Krishna Deb Biswas v. The State, 1992 C Cr LR (Cal) 148, wherein the Bench held that in a case of corruption prosecution against an officer of the co-operative society may lie under general law, that is, section 409 IPC apart from section 142 of the Act of 1983. This view is reinforced by the operation of section 138(4) of the Act of 1983 which, inter alia, provid