Shri.Shivram Dadabhau Papal vs The State Of Maharashtra
2010 Latest Caselaw 101 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION




                                                                             
               CRIMINAL WRIT PETITION NO.2815 OF 2010




                                                     
    Shri.Shivram Dadabhau Papal,
    Age : 48 years, adult, Occupation:Service,
    R/o: Murarji-Peth, Solapur.                           ...Petitioner




                                                    
            Versus

    1) The State of Maharashtra,
       Through its Secretary,
        Home Department, Mantralaya,




                                          
        Mumbai.
                         
    2) Assistant Police Commissioner/
       Deputy Superintendent of Police,
       Anticorruption Bureau , Solapur.
                        
    3) Deputy Commissioner of Police/
       Superintendent of Police Anticorruption
       Bureau Pune.                                       ...Respondents
      


                                           ......
   



    Mr.Shirish Gupte, Sr.Counsel with Mr.Ajay A.Joshi for Petitioner.

    Mr.J.P.Yagnik, A.P.P. for State.





                                      ......
                             CORAM:- A.M.KHANWILKAR AND
                                     P.D.KODE, JJ.

DATED:- OCTOBER 27, 2010.

P.C.

1. By this Petition, it is prayed that the inquiry against the Petitioner for

offence under the provisions of the Prevention of Corruption Act, 1988

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(hereinafter referred to as `the Act of 1988') be quashed and set-aside on

the ground that the Petitioner cannot be termed as a public servant. The

moot question that arises in this Petition is whether the Petitioner is covered

by the definition of "public servant" within the meaning of the Act of 1988.

Admittedly, at the relevant time, the Petitioner was office-bearer of Solapur

Zilla Sahakari Dudh Utpadak Va Prakriya Sangh Maryadit. If so, the

question is: whether the Petitioner would be covered by definition 2(c)(ix)

which predicates the meaning of public servant as follows:

"2(c)(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or

banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act; or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956)."

2. To attract this definition, the Co-operative Society of which the

Petitioner was office-bearer ought to be engaged in agriculture, industry,

trade or banking. It is not in dispute that the stated Society of which the

Petitioner was office-bearer, was engaged in activities of agriculture. The

fact as to whether the said Co-operative Society was receiving or having

received any financial aid from the State Government can be discerned

from the clarification offered by the Assistant Registrar, Co-operative

Societies vide communication dated 29th July 2010. He has stated that

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during the Co-operative year 1985-1986, the Government land was

transferred to the Co-operative Society, in lieu whereof, the Society was

required to pay amount of Rs.13,40,100/-. The said amount, however, was

treated as contribution of the State Government with the said Co-operative

Society to further the activities of the Society, until the same was fully

repaid till 23rd March 2000. In other words, the market value of the

Government land which was transferred to the Co-operative Society

remained in the Books of Accounts of the Society as contribution of the

State Government between 1985 to 2000. If so, the Co-operative Society

had received financial aid from the State Government during the relevant

period to attract the expansive expression used in Clause (ix) of the

definition of "public servant". It mentions receiving or having received any

financial aid, amongst other, from State Government. The Petitioner,

however, placed reliance on Government Resolutions dated 29th May 1985

as well as 6th March 1986 to contend that the amount which was payable to

the State Government by the Co-operative Society cannot be termed as

financial aid given by the State Government. We are not impressed by this

argument. Neither the Government Resolution dated 29th May 1985 nor 6th

March 1986 would be of any avail to the Petitioner. Insofar as the

Government Resolution dated 29th May 1995 is concerned, the dispensation

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provided is that the amount payable by the Co-operative Society towards

the land price will have to be repaid to the State Government along with

interest which obviously means that the amount remained with the Co-

operative Society as investment or loan - which in either case is financial

aid received by the Co-operative Society from the State Government until it

is fully paid back.

3. Insofar as Government Resolution dated 6th March 1986 is

concerned, the Government considered the question whether the amount to

be received by the State Government towards land price from the concerned

Co-operative Societies should be treated as loan or share capital. The fact

that the amount lying with the Co-operative Society of the State

Government whether is a loan or share capital, will be covered by the

expansive expression of receiving or having received any financial aid from

the State Government. So long as the amount payable to the State

Government or belonging to the State Government remains unpaid, the

office-bearers of such Co-operative Society would be covered by definition

of public servant as envisaged in the Act of 1988. In the present case, it is

not necessary for us to consider as to whether after the amount is fully paid

by the Co-operative Society, the concerned Co-operative Society would

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continue to be covered by the expression received or having received any

financial aid from the State Government. Inasmuch as, in the present case,

as is stated by the learned A.P.P., on instructions, the inquiry against the

Petitioner is confined to acts of commission and omission during the period

between 1985 to 23rd March 2000 in his capacity as office-bearer of the said

Co-operative Society. A priori, the definition of public servant under

Section 2(c) of the Act of 1988 would apply on all fours to the case on

hand. In this view of the matter, there is no substance in this Petition.

Accordingly, the same is dismissed.

4. At this stage, Counsel for the Petitioner submits that the Petitioner be

protected for a reasonable period so as to enable the Petitioner to carry the

matter in appeal. By way of indulgence, we observe that the Respondent

shall not take precipitative action against the Petitioner for a period of four

weeks from today. At the same time, the Petitioner shall co-operate with the

inquiry, which is already in progress.

         (P.D.KODE, J.)                            (A.M.KHANWILKAR, J.)