The President and Secretary of a registered co-operative society are not public servants within the meaning of Section 21 of the IPC, and therefore, the provisions of Section 409 IPC are not attracted. However, Section 408 IPC, which deals with criminal breach of trust by a clerk or servant, is attracted in such cases.

M.M.PUNCHHI, J.

1. The appeal against acquittal has been placed before this Full Bench in the following circumstances :

Talwandi Sabo Co-operative Agricultural Service Society Limited. Talwandi Sabo, District Bhatinda, is a registered society under the provisions of the Punjab Co-operative Societies Act, 1961. There was an embezzlement to the tune of Rs. 1,22,116.50 as reported to the Assistant Co-operative Societies, by an Inquiry Officer appointed for the purpose. It was detected that the embezzlement had been committed by showing bogus loans to have been advanced to some members, showing securities to have been returned to members fictitiously and by recovery of loans from certain members without showing their entries in the account books of the society. Additional embezzlement had also been committed in relation to sale of sugar which had not been accounted for in the books etc. etc. The Assistant Registrar thus on 25-9-1970 sent a letter to the Superintendent of Police, Bhatinda, whereupon a case under S.408, Indian Penal Code, was registered and after investigation the two respondents Kesri Chand, the Secretary of the Society, and Surrinder Singh, the President thereof, were sent up for trial before a Judicial Magistrate 1st Class, Bhatinda. The challan was put in as late as on 29-4-1980.

2. Charge was framed under S.409, Indian Penal Code, against the accused-respondents. The prosecution examined as many as 44 witnesses. Finally on 23-12-1983, Shri Dalbara Singh, Judicial Magistrate 1st Class, Bhatinda, acquitted the accused-respondents taking the view that S.406, Indian Penal code, was at best attracted to the facts of the case, and as the matter had remained under investigation since the year 1970 and challan had not been put in within three years, as prescribed under S.468(2)(c) of the Code of Criminal Procedure, the prosecution was barred by limitation. Strength on the question of limitation was sought from the judgement of the Supreme Court reported in State of Punjab V/s. Sarwan Singh, 1982 Chand LR (Cri 68 : (AIR 1981 SC 1054). Since the learned Magistrate was mainly basing his judgement of acquittal on this factor, he in a most casual manner disposed of the prosecution case in one paragraph reproduced hereafter :

"7. At very outset I find that the galaxy of 44 witnesses of the prosecution have not been able to illuminate and substantiate the case of the prosecution as none of them has proved the entrustment of money in the hands of the two accused. PW-3 Amritpal Singh as stated that in the year 1968 when the accused Kesri Dass was the Secretary of the Society, he had taken the amount of Rs. 3 lacs from Raman Co-op. Bank and he handed over the amount to Kesri Dass. Further he has stated that the entry in the cash book was also made with regard to that amount. The copy of Rokar Bahi Ex. PW-3/A which he has proved and the said amount is shown to have been deposited against the entry No. 62 an 27-1-1969. Further he has deposited that the cashier of the Bank was Dan Chand and it was not necessary for the Cashier to bring the amount from the Bank and to deposit the same. Further he has stated that the Society could authorise anybody by passing the resolution but there is no resolution placed on the file authorising Kesri Chand Secretary to handle the amount. So much so, there is no resolution or letter as regards the appointment of Kesri Dass as Secretary and his functions to be performed. In the present case the prosecution should have established on the file that Kesri Chand was appointed as Secretary and he was entrusted with the duly of bringing the amount and to distribute the amount on behalf of the Society to the loanees, and to receive the loan amount. There is no such evidence on the record that Kesri Chand accused was so appointed by the Society. P.Ws. have deposed that they did not take any loan from the society and also they did not execute the pronote or Tomasak in favour of the Society for any am