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IN THE HIGH COURT OF ALLAHABAD
Arun Kumar Singh Deshwal, J.
Brijpal Singh - Applicant
Vs.
State of U.P. and Another - Opposite Party
Application U/S 482 No. - 45468 of 2023
Decided On : 08-04-2024
Forgery - Cooperative Society - 2(o), 68, 70, 95, 103, 104, 105, 119 - The court discussed the interpretation of statutes and the prosecution of an employee of a cooperative society for offences under the Indian Penal Code (IPC) and the Uttar Pradesh Co-operative Societies Act, 1965. It concluded that forgery is punishable under both the Act and the IPC, and the prosecution can be conducted under either of the two. The Act does not provide punishment for breach of trust, which can be prosecuted under Section 406 IPC. The employee and officer of the cooperative society are not public servants under Section 21 of the IPC for the purpose of offences mentioned in the IPC. The court directed the lower court to conclude the pending proceeding expeditiously.
Fact of the Case:
The applicant challenged criminal proceedings pending in the court of Additional Chief Judicial Magistrate, Court No.18, Etah, arising from a case crime, alleging misappropriation of stock of fertilizers, breach of trust, and forgery in the document of a cooperative society, causing a loss of Rs. 5997497.20.
Finding of the Court:
The court found that forgery is punishable under both the Act and the IPC, and the prosecution can be conducted under either of the two. The Act does not provide punishment for breach of trust, which can be prosecuted under Section 406 IPC. The employee and officer of the cooperative society are not public servants under Section 21 of the IPC for the purpose of offences mentioned in the IPC. The court directed the lower court to conclude the pending proceeding expeditiously.
Issues: The issues involved the interpretation of statutes and the prosecution of an employee of a cooperative society for offences under the IPC and the Uttar Pradesh Co-operative Societies Act, 1965.
Ratio Decidendi: The court held that forgery is punishable under both the Act and the IPC, and the prosecution can be conducted under either of the two. The Act does not provide punishment for breach of trust, which can be prosecuted under Section 406 IPC. The employee and officer of the cooperative society are not public servants under Section 21 of the IPC for the purpose of offences mentioned in the IPC.
Final Decision: The application was dismissed, and the lower court was directed to conclude the pending proceeding expeditiously, preferably within one year.
Key Points: - The Act does not provide punishment for breach of trust; breach of trust can be prosecuted under Section 406 IPC. (!) - Forgery can be prosecuted under either the UP Co-operative Societies Act, 1965 or the IPC; double jeopardy bars punishment under both for the same offence. (!) (!) (!) - An employee/officer of a cooperative society can be prosecuted under the IPC for offences like forgery and breach of trust, even if those offences are also punishable under the Act; discretion at charge framing is allowed. (!) (!) (!) - Section 26 General Clauses Act allows prosecution under two acts but not punishment twice; however, breach of trust (not covered by Act) can be charged under IPC without being barred by Section 26. (!) (!) - The court directs expeditious disposal of the pending proceedings and clarifies jurisdiction over cooperative society fraud cases. (!) (!) (!)
JUDGMENT :
Arun Kumar Singh Deshwal, J.
1. Heard Sri Jagdev Singh, Advocate assisted by Sri Sheetla Prasad Singh, learned counsel for the applicant, Sri K.B. Srivastava, learned counsel for opposite party no.2 and Sri Rajeev Kumar Singh, learned A.G.A. for the State.
2. By way of the present application, the applicant has challenged the criminal proceeding of Case No.13001 of 2018 (State Vs. Brijpal Singh & Others), pending in the court of Additional Chief Judicial Magistrate, Court No.18, Etah arising out of Case crime No.125 of 2008, u/s 409, 420, 467, 468, 471 IPC, Police Station-Naya Gaon, District-Etah, and also the charge sheet No. 3, dated 24.05.2011 as well as the cognizance order dated 21.07.2011.
3. Facts giving rise to the present case are that the applicant was working as Secretary Sadhan Sehkari Samiti Ltd. Navar Block, Aliganj, Etah. On receiving specific complaints against the applicant, District Assistant Registrar Co-operative Society, Etah, vide order dated 30.11.2007, directed to conduct an enquiry against the applicant. In pursuance of the order dated 30.11.2007 of District Assistant Registrar Cooperative Society, Etah, the enquiry was conducted by a committee consisting of the Additional District Cooperative Officer and Deputy General Manager, District Cooperative Bank Ltd., Etah and on receiving the enquiry report, District Assistant Registrar Cooperative Society by his order dated 02.07.2008 directed to lodge an F.I.R. against the applicant based on the finding of above enquiry report. In pursuance of the order dated 02.07.2008, Deputy General Manager District Cooperative Bank, Etah lodged an F.I.R. dated 13.07.2008 in Case Crime No.125 of 2008 u/s 467, 468, 471, 409, 419 and 420 IPC against the applicant for the allegation of misappropriation of stock of fertilizers, breach of trust as well as forgery in the document of society and causing loss of Rs.5997497.20 to society. Police, after investigation, had submitted chargesheet against the applicant and two other co-accused namely, Malti Devi and Mahendra Singh Chauhan on 24.05.2011, u/s 409, 420, 467, 468, 471 IPC and ACJM-I, Agra had taken cognizance over the chargesheet on 21.07.2011 and registered, the case no.481 of 2011 and subsequently case was transferred in the Court of ACJM-II, Agra and applicant also obtained bail on 18.04.2012, thereafter, case was also transferred on 16.06.2018 from District-Agra to District-Etah in pursuance of circular of Lucknow Bench of this Court. Since the date of transfer of this case from District-Agra to District-Etah, this case has been pending in the Court of Additional Chief Judicial Magistrate, Court No.18, Etah.
4. The initial contention of learned counsel for the applicant was that ACJM-18, Agra has no jurisdiction to try the offences regarding the scam in cooperative society because, as per the Government Notification dated 22.09.2006, ACJM-II was nominated as a Special Court to try such cases. On considering this submission, this Court has called the report from District Judge Etah by order dated 06.02.2024 regarding this issue. In pursuance of the order dated 06.02.2024, District Judge Etah has submitted his report dated 19.02.2024, mentioning therein that A.C.J.M., Court No.18, Etah is the second senior most A.C.J.M. in Etah. Therefore, as per the Government Notification dated 22.09.2006, he is trying all cases regarding scams in cooperative societies. Hence, this Court, after perusal of that report as well as hearing learned counsel for the parties, decided this issue on 18.03.2024, holding that A.C.J.M., Court No-18 being ACJM-II, Etah has been correctly trying the case of impugned proceeding. Thereafter, learned counsel for the applicant proceeded to argue on other points.
5. Learned counsel for the applicant has submitted that the U.P. Co-operative Societies Act, 1965 (hereinafter referred to as 'the Act, 1965') is itself a complete code having specific provisions like Sections-103, 104 and 105 of the Act, 1
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