P.Jyothy Srinivas vs The State Of Andhra Pradesh,
2024 Latest Caselaw 4880 AP

Andhra Pradesh High Court - Amravati

P.Jyothy Srinivas vs The State Of Andhra Pradesh, on 28 June, 2024

                                                1


          THE HON'BLE DR.JUSTICE K. MANMADHA RAO

         WRIT PETITION Nos.6884, 6662 and 15986 of 2016

COMMON ORDER:

The Writ Petition No.6884 of 2016 is filed, seeking the

following relief:

".....to issue a Writ, Order or direction one in the nature of Writ of Certiorari th calling for the records in Crime No 28/16 dated 26.02.2016 on the file of the 5 respondent under Section 409 r/w Section 34 of IPC pursuant to the sanction of nd criminal prosecution by the 2 respondent against the petitioner is illegal, unsustainable and contrary to the law laid down by the Hon'ble Supreme Court reported in 2000 (2) SCC 699 and Hon'ble High Court in 2000 (2) ALT (Crl) (AP) 272 and consequently quash the same and pass such other orders."

The Writ Petition No.6662 of 2016 is filed, seeking the

following relief:

".....to issue a Writ, Order or direction one in the nature of Writ of Certiorari th calling for the records in Crime No 28/16 dated 26.02.2016 on the file of the 5 respondent under Section 409 r/w Section 34 of IPC pursuant to the sanction of nd criminal prosecution by the 2 respondent against the petitioner is illegal unsustainable and contrary to the law laid down by the Hon'ble Supreme Court reported in 2000 (2) SCC 699 and Hon'ble High Court in 2000 (2) ALT (Crl) (AP) 272 and consequently quash the same and pass such other orders."

The Writ Petition No.15986 of 2016 is filed, seeking the

following relief:

".....to issue a Writ, Order or direction one in the nature of Writ of Certiorari rd calling for the records in Crime No 49/16 dated 29.04.2016 on the file of the 3 respondent under Section 406 and 409 r/w Section 34 of IPC pursuant to the nd sanction of criminal prosecution by the 2 respondent against the petitioners and quash the same as illegal, unsustainable and contrary to the law laid down by the Hon'ble Supreme Court reported in 2000 (2) SCC 699 and Hon'ble High Court in 2000 (2) ALT (Crl) (AP) 272 and pass such other orders."

2. Since the facts and issue involved in both the Writ Petitions,

I find it expedient to decide these matters by a Common Order.

3. Heard Mr. Y. Sudhakar, learned counsel for the petitioners

and learned Assistant Government Pleader, Home for the

respondents / police; learned Assistant Government Pleader, Co-

operation for the respondents/ Co-operative Society and Mr. V.

Ashok Ram, learned counsel for the unofficial respondent.

4. Learned counsel for the petitioner submitted that the

petitioner in W.P.No. 6884 of 2016 by name P.K.R.Subrahmanyam,

who is 2nd petitioner in W.P.No.15986 of 2016 was died on

22.07.2021 and filed Death Certificate in support of his contention.

5. For the sake of convenience, W.P.No.6662 of 2016 is taken

as leading case.

6. The precise case of the petitioners is that Mr. P. Jyothy

Srinivas was elected as the President of the Venkateswara Large

Size Co-operative Society Limited, Dwaraka Tirumala, West

Godavari District (in short "the society") i.e 6th respondent herein.

The District Co-operative Officer, West Godavari District i.e 3rd

respondent contrary to the procedure prescribed under Section 51 of

the A.P. Co-operative Societies Act (in short "APCS Act") on the

basis of alleged report dated 15.12.2014 of the Supervisor, District

Co-operative Central Bank Limited, Dwaraka Tirumala constituted a

three men committee to submit a report in the matter. The Enquiry

Officer conducted an enquiry and submitted a report dated

29.08.2015, based on mere surmises and conjectures that the

petitioner herein and Mr. P.K.R.Subramanyam, Ex-Secretary were

responsible for the loss caused to the society to a tune of Rs.

60,600/- by creating taxi bills, vouchers were created in the name of

purchase of printing, stationary, books etc., to a tune of Rs.

1,94,433/- and recommended to recover the total amount of Rs.

2,55,033/- from the petitioner and said P.K.R.Subramanyam and

also an amount of Rs. 2,95,646/- for sales of gas cylinders etc.,

Basing on the report, the 3rd respondent issued proceedings dated

23.11.2015 directed the 4th respondent to initiate civil action under

Section 60 of APCS Act and also criminal action. Thereby issued

notice dated 15.12.2015 calling upon the petitioner and others and

they have appeared and furnished relevant particulars. While the

matter stood thus, the 4th respondent acting on the proceedings of

the 2nd respondent dated 07.02.2016 granted permission to initiate

prosecution against the petitioner and lodged a complaint dated

26.02.2016 with the 5tyh respondent. Pursuant to the complaint, the

5th respondent registered a case in Crime No. 28 of 2016, dated

26.02.2016 under Section 409 read with 34 of IPC, which is illegal

and arbitrary. Hence these present writ petitions are came to be

filed.

7. During hearing learned counsel for the petitioners

vehemently argued that the petitioners are not a public servants asx

per law laid down by the Hon'ble Apex Court in "State of

Maharashtra v. Laljit Rajshi Shah and Others"1, wherein it was

held that the Co-operative Societies Act is completely self contained

statute with its own provisions and has created specific offence quite

different from the offences in the Indian Penal Code and that though

the Legislature had incorporated the provisions of Section 21 of the

Indian Penal Code into Co-operative Societies Act in order to define

a 'public servant' but those 'public servants' cannot be prosecuted

for having committed the offence under the Indian Penal Code. The

Hon'ble Apex Court held that a specific category of officers while

exercising powers under specific sections have by legal fiction

become 'public servants' and it is only for the purposes of the Co-

Cooperative Societies Act and that by itself does not make those

persons 'public servants' under the Indian Penal Code, so as to be

prosecuted for having committed the offence under the penal code.

Therefore, in view of the Judgment of the Hon'ble Apex Court, the

proceedings initiated against the petitioners are liable to be quashed.

(2000) 2 SCC 699

8. Further, he relied on a decision of this Court in "D. Venkata

Rao v. State rep., by S.I of Police, Pentapadu P.S. West

Godavari District"2 wherein it was held as follows:

"12. It is no doubt true that under Section 129-A of the Act, they are considered to be public servants for the purposes when the provisions of the Act are sought to be invoked. Now, in view of the charge leveled against them under Section 409 of IPC, it shall be considered as to whether they can be brought within the definition of 'public servant' as enjoined in Section 21 of IPC. Their status as public servants' under Section 129-A of the Act cannot be imported for the purpose of seeing whether they are 'public servants' or not as per the provisions of Section 21 of IPC. The answer in my considered view is definitely in the negative. To bring home the charge under Section 409 of IPC, they shall be proved to be the public servants falling within the definition of 'public servant' as enjoined in Section 21 of IPC. Section 21 of IPC does not envisage the office bearer of a cooperative society to be a public servant. The provisions of Section 129A cannot be imported into Section 21 of IPC as the latter is a piece of legislation made by the State and the earlier one being a Central legislation. This view of mine is supported by the latest pronouncement of the Apex Court in State of Maharashtra vs. Laljit Rajshi Shah'. Dealing with a similar question, the Apex Court held as follows: -"..A 'public servant' within the meaning of Section 2 of the Maharashtra Cooperative Societies Act, 1960 is not a 'public servant' within the meaning of Section 2 of the Prevention of Corruption Act 1947 (II of 1947) by virtue of the provisions of Section 161 of the Maharashtra Co-operative Societies Act, 1960 read with Section 21 of the Indian Penal Code. It is undoubtedly true that the Cooperative Societies Act has been enacted by the State Legislature and their powers to make such legislation is derived

ALT (Cri) 2000(2) -(AP) 272

from Entry 32 of the Seventh Schedule to the Constitution. The Legislature no doubt in Section 161 of the Mah. Act has referred to the provisions of Section 21 of IPC but such reference would not make the Registrars and other officers under Cooperative Societies Act 'public servants' within the ambit of Section 21 of IPC. The State Legislature had the powers to amend Section 21 of the IPC, but the same being referable to a legislation under Entry I to III of the Seventh Schedule, subject to Art. 254(2) of the Constitution as, otherwise, inclusion of the persons who are 'public servants' under Section 161 of the Cooperative Societies Act would be repugnant to the definition of 'public servant' under Section 21 of IPC. That not having been done, by virtue of deeming definition in Section 161 of the Co-operative Societies Act by reference to Section 21 of IPC, the person defined as 'officers"

under Maharashtra Cooperative Societies Act cannot 'be prosecuted for the offences under the Indian Penal Code..." The provisions of Section 129-A of the Act are akin to the provisions under Section 160 of the Maharashtra Co-operative Societies Act. In view of the authoritative pronouncement of the Apex Court, the Revision Petitioners cannot be considered to be the 'public servants' under Section 21 of IPC. When once it is established that they are not 'public servants' under Section 21 of IPC, the charge under Section 409 IPC should fail. This is a case where the offence as defined under Section 406 IPC is attracted if ultimately the prosecution is able to establish misappropriation.

9. Therefore, learned counsel for the petitioners submitted that

the petitioners are the President and Secretary of the society, who

are comes under the definition of Public Servant or not is the

question arises for determination in this Writ Petition. Since this

issue already been decided by this Court in W.P.No.3502 and 3974

of 2016, dated 30.04.2024, wherein it was held that the ratio laid

down by this Court in the decision cited supra, the petitioners are not

come under the purview of Section 12-A of the APCS Act and that

they are not liable to be prosecuted. Hence, requested to allow the

writ petitions.

10. On the other hand, the respondents 2 to 4 have filed

counter-affidavits denying all material averments made in the writ

affidavit and mainly contended that the petitioners have committed

serious financial and administrative irregularities while working in the

society. Therefore, the three men committed noticed basing on

available records and recommended to order an inquiry under the

provisions of APCS Act. Pursuant to the provisions of Section 51 of

the APCS Act, the District Co-operative Officer, West Godavari

District i.e 3rd respondent vide proceedings dated 23.11.2015 has

issued review on the findings of the inquiry report and directed the

4th respondent for taking further actions as recommended by the

inquiry officer to recover the misappropriated amounts. Accordingly

the Deputy Registrar vested with the powers under Section 60 of the

APCS Act initiated civil action against the petitioners to recover the

misappropriated amounts and issued Surcharge Notice dated

15.12.2015 and also recommended criminal action against the

petitioners. In law, there is no bar on or prohibition against initiating

criminal proceedings, if so, warranted by the facts of the case.

Therefore, the filing of criminal case and registration of crime is as

per the provisions of Act and Rules of Co-operative Societies.

Therefore, the writ petition is not maintainable and same is liable to

be dismissed.

11. Learned counsel for the respondents relied on a decision

in "Devendra Singh Parihar v. State of U.P and Others"3, wherein

the Division Bench of High Court of Allahabad held as follows:-

"20. Having gone through the provisions of the Act, 1965, we find that there is nothing in the Act, 1965 which may either expressly or impliedly bar prosecution of an employee or member or office bearer of a co-operative society in the State of Uttar Pradesh for an offence punishable under the Penal Code, if otherwise the ingredients of that offence are made out. Further, the offence of criminal breach of trust as defined under Section 405 IPC is qualitatively different from any of the offences specified in Section 103 or any of the provisions of the Act, 1965. None of the offences specified therein specifically deal with dishonest misappropriation or conversion or disposal of the property entrusted as is contemplated by Section 405 IPC. The decision of the Apex Court in State of Maharashtra v. Laljit Rajshi Shah (supra) relied by the learned counsel for the petitioner is not to be read so as to infer that there could be no prosecution for any offence under the Penal Code. Rather, it has to be understood in the context of the facts of that case which were in respect of prosecution of a chairman and member of the management committee of a cooperative society in Maharashtra, who were not public servant, and therefore their prosecution, by treating them as such, under Section 409 IPC and under the Prevention of Corruption Act, was found bad in law. Moreover, in that case the Apex Court had no occasion to examine whether they could be prosecuted under Section 406 IPC. Thus, in

MANU/UP/2175/2020

the light of the discussion made above, keeping in mind the provisions of Section 26 of the G.C. Act and the decisions noticed above, we are of the firm view that a co-operative society employee/servant or member or an office-bearer, notwithstanding the provisions of the Act, 1965, can be prosecuted for an offence punishable under the Penal Code, provided the necessary ingredients of that offence are made out".

12. He further relied on a decision of composite High Court at

Hyderabad in "Nuthulapati Naga Basweshwer Rao v. State of

Telangana"4, wherein it was held as follows:

"47. The main contention before this Court is that, the petitioner is not an employee appointed by the Government and he was appointed by the society itself. But, as seen from the allegations made in the charge-sheet, he was appointed initially as a clerk by the Government and subsequently worked as Paid Secretary at Minarpally Village, Bodhan Mandal, Nizamabad District. If, really, the petitioner was appointed by the Executive Committee of the society, he is not liable for the offences punishable under Section 13(2) read with Section 13(1)(e) of P.C. Act. If, for any reason, the petitioner was appointed by the Registrar of Cooperative Societies, as contended by the learned Counsel for the petitioner, certainly, the District Registrar Co- operative Societies is the competent authority. But, no material is placed before this Court to ascertain whether the petitioner is appointed by the Government or by the District Registrar of Co- operative Societies. When there is a doubt as to the competent authority as to whether the previous sanction is required should be given by Central or State Government or any other authority, such sanction shall be given by the Government or authority which would have been competent to remove the public servant from his

2019(1) ALD (Crl) 839

office at the time when the offence was alleged to have been committed.

48. Here, the APC & Principal Secretary to Government issued sanction orders under Section 19(1) of P.C. Act and when there is any such doubt to the authority as to who has appointed the petitioner, it is left open to the petitioner to raise such contention before the Special Judge for SPE & ACB Cases, Karimnagar and on raising such objection, the Special Judge for SPE & ACB Cases, Karimnagar is bound to consider the same and decide the same in accordance with law.

13. So also, he relied on a decision in "State of Maharashtra

and Another v. Prabhakar Rao and Another5", wherein the

Hon'ble Division Bench of the Court has discussed the case "State

of Maharashtra v. Laljit Rajshi Shah and Others" cited supra,

wherein the said decision was rendered in a case covered by the

Prevention of Corruption Act, 1947 and not under the statute which

is applicable in the said case. Considering the definition of the

expression 'public servant' defined in section 21 I.P.C which was

adopted in the Prevention of Corruption Act, 1947, the court took the

view that members of the managing committee and chairman of the

co-operative societies under the Maharashtra Co-operative Societies

Act are not public servants. Therefore, learned counsel for the

respondents vehemently opposed to allow the writ petition and

requested to dismiss the writ petition.

Http://indiankanoon.org/doc/1689306/

14. It is the contention of the learned counsel for the

petitioners as per legislative intent is that a specific category of

officers while exercising powers under specific sections have by

legal fiction become public servants and it is only for the purposes of

the Cooperative Societies Act. Therefore, it does not make those

persons 'public servants' under the Indian Penal Code, so as to be

prosecuted for having committed the offence under the Penal Code

and the petitioners are not comes under the definition of Public

Servants. Hence, prosecution against the petitioners is unwarranted

as per decision cited supra.

15. Whereas, learned Government Pleader for Co-operation

has drawn the attention of this Court with regard to Section 129-A of

the A.P.Co-operative Societies Act, 1964. As per "Section 129-A of

the Act, the Registrar or any person authorized by him to recover

any amount or to execute any orders issued or decisions taken

under any of the provisions of this Act and every officer and

employee of a society shall be deemed to be public within the

meaning of Section 21 of the Indian Penal Code, 1860" Therefore,

as per provisions of Section 129-A and Section 2(k) of A.P.Co-

operative Societies Act, 1964, the petitioners comes under the

definition of Public Servant.

16. No doubt, there is an allegation with regard to

embezzlement of Government funds in the society by the

petitioners. But in the instant case, the petitioners are the President

and Secretary of the society, who are comes under the definition of

'Public Servant" or not is the question arises for determination in this

writ petition.

17. No doubt, as per decision of D. Venkata Rao's case cited

supra, the petitioners are not come under the purview of Section

12-A of the APCS Act and the same is also answered in

W.P.No.3502 of 2016 and batch, dated 30.04.2024 by this Court.

The issues involved in this writ petition and W.P.No.3502 of 2016

and batch are one and same and also squarely covered.

18. The discussion made in W.P.No. 6662 of 2016 is adapted

to W.P.No. 6884 of 2016 and W.P.No.15986 of 2016 as the issues

involved is one and the same. Therefore, all the writ petitions are

deserves to be allowed in the light of facts and circumstances and

also following the decision of this Court in W.P.No.3502 of 2016 and

batch, dated 30.04.2024, the present writ petitions are liable to be

allowed.

19. Having regard to the facts and circumstances of the case,

upon perusal of material on record and considering the submissions

of both the counsel, the three Writ Petitions are allowed by a

common order, while quashing the Crime No 28 of 2016 dated

26.02.2016 and Crime No. 49 of 2016, dated 29.04.2016 registered

against the petitioners concerned. There shall be no order as to

costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

_____________________________ DR.JUSTICE K. MANMADHA RAO Dated 28.06.2024

KK

THE HON'BLE DR.JUSTICE K. MANMADHA RAO

WRIT PETITION Nos.6884, 6662 and 15986 of 2016

Date: 28.06.2023.

KK