The main legal point established in the judgment is the interpretation of the definition of 'public servant' under S.21 IPC and its applicability to the accused as the secretary of a co-operative society.

1. Sri. P. K. Venugopal, the learned Counsel for the Revision Petitioner, not only contends that there is no legal evidence to hold the accused (Revision Petitioner) guilty of any offence but also argues that his conviction under S.409 IPC., on the assumption that he is a'public servant' is manifestly illegal.

2. The prosecution case briefly stated is as follows: The revision petitioner while acting in his capacity as the secretary of a co-operative society committed misappropriation to the tune of Rs. 1000/- by fraudulently striking the balance at Rs. 127-88 on 8-9-1962 and showing the expenditure to be Rs.2237-07 instead of the actual expenditure of Rs. 1237-07. The accused falsified the accounts to suit the above amount. Both the President and the secretary were proceeded against. It appears that the revision petitioner was absconding for some time and in the meanwhile the President was proceeded against and was ultimately acquitted. Apart from the sum of Rs. 1000/- referred to above, there was a case of criminal breach of trust in respect of a sum of Rs. 385-63 also. The prosecution of the revision petitioner was for offences under S.409 and 477A IPC. The trial court convicted him under both the charges and sentenced him to undergo R.I. for 2 years under S.409 IPC., and six months under S.477A. The Appellate court while confirming the conviction under both the charges, reduced the sentence under S.409 to R. I. for one year and six months, without altering the sentence under S.477A. The correctness of the decisions of the courts below is challenged in this revision petition.

3. The prosecution has through the evidence of pw.1 who was the auditor of the society and pw. 4 who was the Junior Supervisor of the co-operative circle in which the society situates, established that there had been misappropriation. pw. 6, the Deputy Registrar of co-operative societies also has given evidence that daring the material time the revision petitioner was working as the secretary of the society in question. Ext. P8 shows that he was a paid secretary of the society. Ext. P1 audit report gives the relevant facts with respect to the misappropriation. Ext. P2 is the day book of the society. On page 17 of Ext. P2 which has been marked as Ext. P2(a) for the sake of identification, there is an entry to show the closing balance. On that page instead of showing the expenditure at Rs. 1237-07 it was shown as Rs. 2237-07, and a misappropriation of Rs. 1000/- was thus committed. Ext. P2 (b) relates to the cash balance on 6-6-1963. That shows that there was a balance of Rs. 385-63 that day. This amount has not been banded over by the accused to his successor in office. Ext. P3 bye-laws of the society in Clause.23(a) defines the duties of the President and Secretary. As per the same, the Secretary should entrust the cash balance daily to the President and in token thereof he should get a signature in the day book. It was the duty of the Secretary to maintain correct and true accounts of receipts and expenditure. The said register does not show that any of the amounts in question has been entrusted by the secretary to the President. There is, therefore, clinching evidence to show that the money which the revision petitioner came into custody was not made over to the President as he was expected to do in terms of the bye-laws. I do not, therefore, find any merit in the contention advanced by the learned counsel for the revision petitioner that the commission of criminal breach of trust by the accused has not been proved.

4. However, I think, there is considerable force in the argument advanced by him that the courts below were wrong in taking it for granted that the secretary of a co-operative society is a'public servant' as defined in S.21 of the Indian Penal Code. It is rather strange that both the courts below did not bestow any serious thought on this aspect of the matter. 'Public servant' has been defined in S.21 I. P. C., and the portion rel