Treatment of President of Co-operative Society as public servant.

The petitioner who was acting as the President of Karamadai Co-operative Marketing Society, Dayanur, Kallampalayaam Village, Avinashi Taluk, was tried in C.C.No.375 of 1979, on the file of the Sub Divisional Judicial Magistrate, Tiruppur, for offences under Secs.409, 477-A and 467, Indian Indian Indian Penal Code, found guilty thereof and sentenced to undergo imprisonment till raising of Court and to pay a fine of Rs.1,000 in default to undergo rigorous imprisonment for six months for the offence under Sec.409, Indian Indian Indian Penal Code and imprisonment till raising of Court and to pay a fine of Rs.500 on each count, in default to undergo rigorous imprisonment for three months under Sec.467 and 47A, Indian Indian Indian Penal Code. The sentences were directed to run concurrently:

2. The aggrieved petitioner preferred Crl.A.No.680 of 1978 before the Court of Sessions, Coimbatore. The appellate Court agreed with the findings of the trial Magistrate and confirmed the convictions and sentences imposed on the petitioner and dismissed the appeal.

3. A few facts may be necessary for the disposal of this revision. The allegation against the petitioner was that between 7.1.1975 and 14.2.1976, he as the Vice President at the relevant time was entrusted with a sum of Rs.32,500 as advance to procure rice from the Karnataka State and he committed criminal breach of trust in respect of the said amount and in that process with intent to defraud and to cover up the misappropriation, falsified Exs.P18 to P22, the vouchers belonging to the Society and produced them before the Enquiry Officer purporting them to be receipts for procurement of paddy from the farmers in Karnataka State.

4. It is not disputed that on 7.1.1975 the petitioner received Rs.32,500 from the Society and that is vouchsafed the receipt Ex.P5. Therefore, the entrustment of the money has not only been established by the prosecution but has also been admitted by the petitioner himself. It is also the case, as evidenced, that on several dates, commencing from 7.2.1975, the petitioner had paid the entire sum to the co-operative society together with interest. The complaint itself was lodged only on 19.8.1976 after the entire money was paid by the petitioner. Mr.K.M.Santhanagopalan, learned counsel appearing for the petitioner, contended that there was no proof that the petitioner is the author or forgery. He would further contend that the petitioner did not falsify any records belonging to the society to attract the ingredients of Sec.477-A, I.P.C. In respect of the offence under Sec.409, I.P.C., it is his contention that the President of the Co-operative Society is not a public servant within the meaning of Sec.21, I.P.C. and therefore, even if the case of the prosecution is to be accepted, the petitioner can be said to have committed only an offence under Sec.406, I.P.C. I have heard Mr.A.C.Chakravarthi, the learned Government Advocate appearing for the respondent.

5. The charge of forgery relates to Exs.P18 to P22. P.Ws.5 to 6 who have been examined as the authors of these receipts clearly admitted that the signatures found therein were not made by them and that the petitioner did not purchase any paddy from both of them. Exs.P21 and P22 were not even sent to the Handwriting Expert. The expert was not able to fix the petitioner as the author of Exs.P18 to P20. On this ground, it is apparent that the petitioner cannot be convicted for the offence under Sec.467, I.P.C. To find the petitioner guilty of the offence under Sec. 467, I.P.C. the prosecution must establish that he had forged the documents with necessary mens rea. That having not been done, the petitioner will be entitled to be acquitted of the charge of forgery.

6. In respect of the charge under Sec.477-A, I.P.C. it is fairly conceded by the learned Government Advocate that the ingredients of Sec.477-A, I.P.C., will not be attracted since the petitioner had not falsified the accounts belonging to the