IN THE HIGH COURT AT CALCUTTA (Criminal Revisional Jurisdiction)

APPELLATE SIDE Present:

The Hon’ble Justice Krishna Rao C.R.R. No. 1419 of 2012 With CRAN No. 1 of 2012 (Old No. CRAN 1258 of 2012)

Tapan Co-operative Agricultural Marketing Society Limited Versus Nazrul Islam  None appears on behalf of any of the parties.

Hearing Concluded On : 21.11.2025 Judgment on : 12.12.2025 Krishna Rao, J.:

1. This Revisional Application under Section 401 of the Code of Criminal Procedure, 1973, is filed by the complainant against the order of acquittal passed by the Learned Special Judge and Additional Sessions Judge–I, Dakshin Dinajpur, Balurghat in Special Case No. 03 of 2008 dated 30th July, 2011, under Section 409 of the Indian Penal Code, 1860. The revisional application is filed along with an application under Section 5 of the Limitation Act, 1963 being CRAN No.1 of 2012 (Old No. CRAN 1258 of 2012) for condonation of delay of 127 days in preferring the revisional application.

2. The applications are pending since the year 2012 but none has come forward to move the applications. Though the main application is under Section 401 of the Code of Criminal Procedure, 1973, this Court has taken up both the applications together to decide on merit.

3. The case is initiated by the Police of P.S. Tapan being FIR No. 193/07 dated 9th December, 2007, under Section 409 of the Indian Penal Code, 1860 against the respondent Nazrul Islam on the written complaint of the Chairman, Tapan Co-operative Agricultural Marketing Society Limited dated 9th December, 2007. As per the complaint, the accused Nazrul Islam misappropriated 232 quintal, 54 kilograms and 946 grams of rice of mid-day-meal of school and Sishu Siksha Kendra, approximately valued at Rs. 2,31,130/-. On 9th December, 2007, on the basis of the written complaint, an FIR being No. 193/07 dated 9th December, 2007, under Section 409 of the IPC was initiated at the Tapan Police Station. On completion of investigation, police has submitted charge-sheet for the offence under Section 409 of the IPC.

4. To prove the case, the prosecution has examined altogether 9 witnesses. The accused has not adduced any evidence on his behalf. After considering all the materials on record, the Learned Special Judge and Additional Sessions Judge–I, Dakshin Dinajpur, Balurghat has passed the judgment on 30th July, 2011 and held that the accused Nazrul Islam is not found guilty to the charge punishable under Section 409 of the IPC and the accused has been acquitted from all the charges on account of benefit of doubt under Section 235 of the Cr.P.C. Being aggrieved and dissatisfied with the order of acquittal, the complainant, namely, Tapan Co-operative Agricultural Marketing Society Limited has filed the present revisional application under Section 401 of the Cr.P.C.

5. As per the case of the prosecution, the accused was a godown keeper of the society wherein the rice of mid-day-meal was stored. On the basis of the complaint, the police has initiated the case for the offence under Section 409 of the IPC. To establish the case against the accused for the offence under Section 409 of the IPC, the accused must be public servants, bankers, agents, brokers, factors and merchants are attorneys. There must have an entrustment of the property, there must have been mens rea and there must have been committed a breach of trust regarding the property entrusted. Public servants are defined under Section 21 of the IPC. Section 21 refers to individuals who perform public duties for the Government. The employees of the Co- operative Society are not public servants under Section 21 of the IPC, which applies to Government employees or those working for Corporations established directly by Central or State Act. A Society registered under Cooperative Societies Act is considered a body brought into existence by an act of individuals, not a Corporation established by the legislature itself.

6. In the present case, though the prosecution has exam