Point of law: If IPC gives way to the MV Act and the provisions of Cr.P.C. succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence committed.

JUDGMENT :

1. Heard learned counsel for the petitioner; learned A.G.A. for respondent nos. 1 and 2 and perused the record.

2. The instant petition seeks quashing of the first information report (for short FIR) dated 19.06.2020 registered as Case Crime No. 120 of 2020, under Sections 409 I.P.C. at Police Station-Baberu, District-Banda.

3. The allegation in the impugned FIR is that while the petitioner was working as Secretary of Kisan Sewa Sahkari Samiti Limited, Baberu (for short the society) there had been defalcation of 10.485 MT of urea, valued at Rs. 88,140 and 20 bags of D.A.P. valued at Rs. 23,000, the consideration of which was not deposited in the bank account of the society. The allegation is founded on inspection/ inquiry report which indicated that though the said stock of fertiliser was reflected by entries made in the stock register but the stock was not available.

4. It appears from the pleadings that, on the said ground, the petitioner was also placed under suspension and, later, dismissed from service.

5. The case of the petitioner is that the petitioner had been a Cadre Secretary of a Primary Agricultural Credit Co-operative Society, which though, as part of centralized service, is governed by the provisions of U.P. Primary Agricultural Credit Cooperative Centralised Service Rules, 1976 framed under section 122-A of the U.P. Co-operative Societies Act, 1965 (for short Act, 1965) but salary is paid through business margin of the society and not by the State. As such, the petitioner is not a pubic servant. And since the petitioner is neither banker nor merchant nor agent of the society, no offence punishable under Section 409 I.P.C. is made out. It is also the case of the petitioner that if there is any defalcation, as alleged, there could be recovery of the amount defalcated, if any, under the provisions of the Act, 1965, such as section 68 of the Act, 1965 and, in case of any dispute, there could be a reference for arbitration under section 70 of the Act, 1965. Moreover, if any offence is committed by an employee of the society then there could be prosecution under section 103 of the Act, 1965, for which a special procedure is provided under section 105 of the Act, 1965.

6. In a nutshell, the submission of the learned counsel for the petitioner is that the Act, 1965 is a complete and self-contained code which, by necessary implication, ousts the applicability of Indian Penal Code (for short the Penal Code or IPC). And, in any view of the matter, an offence punishable under section 409 IPC is not made out. Hence, the FIR is liable to be quashed. In support of the above submission, the learned counsel for the petitioner placed reliance on a decision of the Apex Court in State of Maharashtra vs. Laljit Rajshi Shah, AIR 2000 SC 937 : (2000) 2 SCC 699, wherein, with reference to the Maharashtra Co-operative Housing Societies Act, the Apex Court affirmed the view of the Bombay High Court that the Chairman and members of the Management Committee of a Co-operative Society in Maharashtra are not public servants within the meaning of Section 21 of the Penal Code and therefore are not liable to be prosecuted for an offence punishable under section 409 of the Penal Code or under the provisions of the Prevention of Corruption Act.

7. Per Contra, the learned AGA submitted as follows: that there is nothing in the Act, 1965 which may expressly or impliedly bar the applicability of the Penal Code; that even assuming that there could be recovery of the defalcated amount from the petitioner as per the provisions of the Act, 1965 but that would not absolve the petitioner of his liability to be punished for commission of an offence under the Penal Code, if found guilty; that section 103 of the Act, 1965 though enumerates various offences but they do not specifically deal with an offence of the nature of criminal breach of trust as defined by section 405 of the Penal Code; that section 105 of the Act, 1965 provides for a special procedure