Kerala High Court
K.S. Xavier vs State Of Kerala on 30 January, 2025
1
W.P(C) No.20552 of 2021 &
O.P.(Crl.) No.98 of 2021
2025:KER:9190
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 30TH DAY OF JANUARY 2025/10TH MAGHA, 1946
OP(CRL.) NO. 98 OF 2021
AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.213 OF 2019 OF ENQUIRY
COMMISSIONER & SPECIAL JUDGE, KOTTAYAM/III ADDITIONAL DISTRICT COURT,
KOTTAYAM
PETITIONER:
K.S.XAVIER
KUNNUMPURATH HOUSE,
KADAKKARAPALLI P.O.,
CHERTHALA, ALAPPUZHA.
BY ADVS.
K.P.SANTHI
SMT.TARA PREM
RESPONDENTS:
1 JAMES
AGED 55 YEARS
CHINKUTHARA HOUSE, FORMER BOARD MEMBER,
THANKEY SERVICE CO-OPERATIVE BANK LIMITED NO.1003, WARD
NO.4, KADAKKARAPPALLY, CHERTHALA-688 529.
2 BAIJU KUJAPPAN,
AGED 50 YEARS
FORMER OFFICE STAFF AND PRESENT SECRETARY,
THANKEY SERVICE CO-OPERATIVE BANK LIMITED NO.1003, WARD
NO.4, KADAKKARAPPALLY,
CHERTHALA-688 529.
3 K.P.PRAKASHAN,
AGED 58 YEARS
KODIVEETTIL, CHERTHALA SOUTH,
AREEPARAMBU, CHERTHALA SOUTH PANCHAYAT,
2
W.P(C) No.20552 of 2021 &
O.P.(Crl.) No.98 of 2021
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FORMER SECRETARY, THANKEY SERVICE CO-OPERATIVE BANK
LIMITED NO.1003, WARD NO.4,
KADAKKARAPPALLY, CHERTHALA-688 529.
4 P.L.JOSE,
AGED 70 YEARS
PUNNACKAL, THAICKAL P.O.,
KADAKKARAPPALLY PANCHAYAT,
KADAKKARAPPALLY VILLAGE, CHERTHALA TALUK,
BOARD MEMBER OF THANKEY SERVICE CO-OPERATIVE BANK
LIMITED NO.1003, WARD NO.4,
KADAKKARAPPALLY, CHERTHALA-688 529.
5 KALESH,
KAIPPARISSERIL, THAICKAL,
KADAKKARAPPALLY PANCHAYAT,
KADAKKARAPPALLY VILLAGE, CHERTHALA TALUK,
BOARD MEMBER OF THANKEY SERVICE CO-OPERATIVE BANK
LIMITED NO.1003, KADAKKARAPPALLY P.O.,
KADAKKARAPPALLY VILLAGE, WARD NO.4,
KADAKKARAPPALLY, CHERTHALA-688 529.
6 THANKEY SERVICE CO-OPERATIVE BANK LIMITED NO.1003,
WARD NO.4, KADAKKARAPPALLY, CHERTHALA-688529,
REPRESENTED BY ITS SECRETARY.
7 THE JOINT REGISTRAR,
OFFICE OF THE JOINT REGISTRAR CO-OPERATIVE SOCIETY
(GENERAL), MULLAKKAL, KERALA-688011.
BY ADVS.
ADITHYA RAJEEV
T.R.HARIKUMAR(K/000295/1992)
ARJUN RAGHAVAN(K/1277/2012)
ADV.DHEERENDRAKRISHNAN -AMICUS CURIAE
ADV.SMT.REKHA S. -SENIOR PUBLIC PROSECUTOR
ADV.A.SRI.RAJESH -SPECIAL PUBLIC PROSECUTOR
(VIGILANCE)
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 30.01.2025, ALONG
WITH WP(C).20552/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
W.P(C) No.20552 of 2021 &
O.P.(Crl.) No.98 of 2021
2025:KER:9190
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 30TH DAY OF JANUARY 2025/10TH MAGHA, 1946
WP(C) NO. 20552 OF 2021
PETITIONER:
K.S. XAVIER
AGED 75 YEARS
KUNNUMPURATH HOUSE,
KADAKKARAPALLI P.O, CHERTHALA,
ALAPPUZHA
BY ADV K.S. XAVIER(PARTY-IN-PERSON)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
CO-OPERATIVE DEPARTMENT,
GOVERNMENT OF KERALA, TRIVANDRUM 695 001
2 REGISTRAR OF CO-OPERATIVE SOCIETIES
DEPARTMENT OF CO-OPERATION,
OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
JAWAHAR SAHAKARANA BHAVAN,
DPI JUNCTION, THYCAUD (PO)
THIRUVANANTHAPURAM 695 014
3 THE JOINT REGISTRAR
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETY(GENERAL), MULLAKKAL, KERALA 688 011
4 THANKEY SERVICE CO-OPERATIVE BANK LIMITED NO. 1003
WARD NO.4, KADAKKARAPPALLY, CHERTHALA 688 529
REPRESENTED BY ITS SECRETARY.
5 ADDL.R5 JAMES,
CHINKUTHARA HOUSE, FORMER BOARD MEMBER,
THANKEY SERVICE CO- OPERATIVE BANK LIMITED NO.1003, WARD
NO.4, KADAKKARAPPALLY, CHERTHALA-688529.
4
W.P(C) No.20552 of 2021 &
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2025:KER:9190
6 ADDL.R6 BAIJU KUJAPPAN,
FORMER OFFICE STAFF AND PRESENT, SECRETARY,
THANKEY SERVICE CO-OPERATIVE BANK LIMITED NO.1003, WARD
NO.4, KADAKKARAPPALLY, CHERTHALA-688529.
7 ADDL.R7 K.P.PRAKASHAN,
KODIVEETTIL, CHERTHALA SOUTH, AREEPARAMBU,
CHERTHALA SOUTH PANCHAYAT, FORMER SECRETARY,
THANKEY SERVICE CO-OPERATIVE BANK LIMITED NO.1003, WARD
NO.4, KADAKKARAPPALLY, CHERTHALA-688529.
8 ADDL.R8 P.L.JOSE,
PUNNACKAL, THAICKAL P.O., KADAKKARAPPALLY PANCHAYAT,
KADAKKARAPPALLY VILLAGE, CHERTHALA TALUK, BOARD MEMBER
OF THANKEY SERVICE CO-OPERATIVE BANK LIMITED NO.1003,
WARD NO.4, KADAKKARAPPALLY, CHERTHALA-688529
9 ADDL.R9 KALESH,
KAIPPARISSERIL, THAICKAL, KADAKKARAPPALLY PANCHAYAT,
KADAKKARAPPALLY VILLAGE, CHERTHALA TALUK, BOARD MEMBER
OF THANKEY SERVICE CO-OPERATIVE BANK LIMITED NO.1003,
KADAKKARAPPALLY P.O., KADAKKARAPPALLY VILLAGE, WARD
NO.4, KADAKKARAPPALLY, CHERTHALA- 688529 [ADDL.R5 TO R9
ARE IMPLEADED AS PER ORDER DATED 15/03/2023 IN IA
NO.1/2023 IN WP(C) 20552/2021]
BY ADVS.
GOVERNMENT PLEADER
T.R.HARIKUMAR
ARJUN RAGHAVAN
PRASAD CHANDRAN
ADV.DHEERENDRAKRISHNAN -AMICUS CURIAE
ADV.SMT.REKHA S. -SENIOR PUBLIC PROSECUTOR
ADV.A.SRI.RAJESH -SPECIAL PUBLIC PROSECUTOR
(VIGILANCE)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2025,
ALONG WITH OP(Crl.).98/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
5
W.P(C) No.20552 of 2021 &
O.P.(Crl.) No.98 of 2021
2025:KER:9190
'CR'
P.G. AJITHKUMAR, J
-------------------------------------------------
W.P. (C) No.20552 of 2021
&
O.P.(Crl.) No.98 of 2021
-------------------------------------------------
Dated this the 30th day of January, 2025
JUDGMENT
The common petitioner is the complainant in Crl.M.P. No.213
of 2019 which he has filed before the Court of the Enquiry
commissioner and Special Judge, Kottayam.
2. The allegation in the complaint is that the accused,
being public servants as president, members of the Managing
Committee and staffers of the Thankey Service Co-Operative Bank
Ltd. No.1003, Kadakkarappally, Cherthala, by abusing their official
powers misappropriated funds of the bank which was provided by
the National Bank for Agriculture and Rural
Development (NABARD) and the State Government for the
purpose of extending various benefits to the loanees, particularly
those who availed agriculture loans. The offences alleged in the
complaint are punishable under Sections 120B, 409, 465 and 471
W.P(C) No.20552 of 2021 &
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of the Indian Penal Code, 1860 and Section 13(2) of the
Prevention of Corruption Act, 1988.
3. The petitioner filed W.P.(C) No.20552 of 2021 in order
to ventilate his grievance that as per Ext.P14, the 3rd respondent
refused to accord sanction to prosecute the accused. He seeks the
following reliefs in the writ petition:
(i) issue a writ of certiorari or such other writ,
direction or order quashing Exhibit P14 as arbitrary,
illegal and unjust;
(ii) issue a writ of mandamus or such other writ,
direction or order directing the 3rd respondent to grant
sanction to the petitioner to prosecute the offenders,
within a time frame to be fixed by this Honourable Court.
4. In O.P.(Crl.) No.98 of 2021, the grievance espoused by
the petitioner is that the Special Judge did not oblige his request
to initiate prosecution proceedings against the accused without
insisting on a sanction as contemplated in Section 19(1) of the PC
Act, 1988. He therefore seeks an order directing the Special Court
to proceed with the complaint, a copy of which was produced as
Ext. P4, without insisting the petitioner to obtain sanction for
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prosecution.
5. The learned counsel, who filed this writ petition and
original petition on behalf of the petitioner relinquished vakalath.
The petitioner appeared in person and expressed his desire to
prosecute the matter on his own. This Court, considering the
seriousness of the matter involved, as per the order dated
15.02.2023 appointed Adv. K.K.Dheerendrakrishnan as Amicus
Curiae.
6. Heard the petitioner in person, the learned Amicus
Curiae, the learned Special Public Prosecutor (Vigilance), learned
counsel for Respondent No. 4 and learned counsel for Additional
Respondents No. 5 to 9 in W.P.(C) No.20552 of 2021, and the
learned counsel for Respondents No. 1 to 6 in O.P.(Crl). No.98 of
2021.
7. Parties and documents are referred to hereunder as
arrayed and marked in W.P.(C) No.20552 of 2021.
8. This Court on 15.02.2023, raised two questions in
order to adjudicate these matters, which are (1) Whether the
President and Board of Directors of the Co-operative Society are
public servants and (2) Whether sanction is necessary to
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prosecute them?
9. The learned Special Judge took the view that sanction
under Section 19(1) of the P.C. Act was required to proceed further
on the complaint. It is seen that the petitioner submitted Ext.P12
before the 2nd respondent-Registrar of Co-operative Societies
requesting to initiate action against the accused persons who are
respondents No.5 to 9 in respect of the alleged misdeeds. It is
mentioned in Ext.P12 that the petitioner had earlier approached
the Joint Registrar of Co-operative Societies, Alappuzha-the 3rd
respondent, seeking sanction for prosecuting the accused. That
request was not soon decided, but eventually it was rejected as
per Ext. P14 dated 06.09.2021. In Ext.P14 order, the Joint
Registrar took the view that the members of the managing
committee and members of the staff of a Co-operative
Society/Bank would not come within the definition of public
servant and that the Joint Registrar was not competent to accord
sanction for prosecution under Section 19(1) of the PC Act. In the
light of Ext.14, the petitioner was left with no other remedy than
can approach this Court by filing a writ petition.
10. The question whether or not the accused are public
W.P(C) No.20552 of 2021 &
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servants they being the president and members of the managing
committee of the Co-operative Bank has to be answered with
reference to the nature of the incriminating act. Who is a public
servant for the purpose of the PC Act is not defined in the Co-
operative Societies Act. Therefore, the definition of the term
'public servant' in Section 2(c) of the P.C. Act has to be applied.
In order to understand whether President and members of the
Managing Committee of a Co-operative Society/Bank are public
servants for the purpose of that Act, Clause (ix) of Section 2(C) of
the PC Act is relevant; it reads:
2(c) "Public Servant" means
i) xxxxx
ii) xxxxxx
(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
W.P(C) No.20552 of 2021 &
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Government company as defined in section 617 of the
Companies Act, 1956 (1 of 1956);
11. The core of the allegation in the complaint is that the
accused misusing their powers as public servants misappropriated
the funds provided to the Thankey Service Co-Operative Bank Ltd
provided by the NABARD and State Government. The funds were
provided to extend benefits to the members of the bank who
availed loans, particularly agricultural loans. As held in State of
Maharashtra v. Brijlal Sadasukh Modani [(2016) 4 SCC 417]
a sprinkle of aid to the co-operative society will bring an employee
within the definition of 'public servant'. This Court in
Ramakrishnan K. v. Additional Legal, Vigilance and Anti-
Corruption Bureau, Thrissur [2021 (1) KLT 650] held that in
the light of the decision of the Apex Court in Brijlal the contention
that the Society has not received financial aid from the
Government and therefore, the office - bearers of the Society were
not public servant coming under Section 2(c)(ix) of the P.C. Act
could not be gone into in detail at the initial stage. It was further
observed that the same was a matter to be dealt with in the course
of the trial of the case.
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12. In the light of the above whether or not the Bank has
received any financial aid from the NABARD or the Government,
and therefore the accused are public servants or not, is liable to
be decided at the trial of the case and not now. Viewed so the 3 rd
respondent should not have cite as one of the reasons to refuse
sanction as per Ext. P14 that the accused were not public servants.
13. The second reason assigned by the 3rd respondent to
decline sanction is that he was not competent under the law to
accord sanction. As a matter of fact, when sanction for prosecution
was declined as per Ext.P14 there was no specific provision
concerning grant of sanction for prosecution of the president,
members of the Managing Committee and staffers of a Co-
Operative Society/Bank. However in this regard, Section 68B was
inserted in Kerala Co-operative Societies Act, 1969 with effect
from 07.06.2024, which read as follows:
68B. Power of Government or Registrar to deal with
irregularities etc.- (1) The Government or the Registrar, as
the case may be, may forward the cases of misappropriation
or irregularities or corruption in the society which comes
under the provisions of the Indian Penal Code, 1860 or/and
of the Prevention of Corruption Act, 1988, to the Police or
Vigilance and Anti-Corruption Bureau, as the case may be, for
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investigation and further action.
(2) The Registrar shall be the authority to accord sanction for
inquiry/enquiry or investigation and also for taking
cognizance of an offence under the Prevention of Corruption
Act, 1988 against the members of the Committee and/or
officers and servants of the society.
(3) In the case of Chief Executive Officers appointed by the
Government, the Secretary to Government, Co-operation
Department shall be the sanctioning authority.
14. In the light of Sub Section (2) of Section 68B, no
further deliberation is required as to who is the authority
competent to accord previous approval under Section 17A of the
PC Act as well as sanction under Section 19(1) of the PC Act. It is
the Registrar of Co-operative Societies who is empowered to take
decisions under Section 17A as well as Section 19(1) of the PC Act
concerning president, members of the Managing Committee and
officers and servants of Co-operative Societies/Banks. In view of
the said specific provision, Ext.P14, which was issued by the 3 rd
respondent, the Joint Registrar cannot sustain in law. Of course,
Section 68B of the Co-operative Societies Act came to the effect
subsequent to Ext.P14. However, the question of previous
approval for enquiry or investigation as well as sanction for
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prosecution under Section 19(1) are to be decided when such
steps have to be initiated. Here, Ext. P4-complaint is still pending
before the Special Court awaiting sanction for prosecution. Hence,
provisions of Section 68B of the Co-operative Societies Act are
applicable to the case. It is also seen that the Registrar of Co-
operative Societies-2nd respondent did not take a decision on
Ext.P12 application yet. Therefore, the question whether or not
previous sanction has to be granted to prosecute the accused in
Ext. P4 complaint shall be taken by the 2nd respondent-Registrar
of Co-operative Societies.
15. In the circumstances, I am of the view that this writ
petition and original petition are liable to be disposed of by setting
aside Ext.P14 order and directing the 2nd respondent Registrar to
take appropriate decision in accordance with law on Ext.P12 with
reference to Section 19 of the PC Act after affording an opportunity
of being heard as provided in the second proviso to Section 19
besides to the petitioner. It is made clear that when a Special Court
decides to direct an investigation into the offence, naturally the
question of previous approval as contemplated under Section 17A
of the PC Act may arise and it is then for the person concerned to
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obtain the previous approval from the competent authority.
The 2nd respondent, the Registrar of Co-operative Societies
shall take a decision in Ext.P12 as expeditiously as possible at any
rate within the time frame as stipulated in the provisos to Section
19 of the PC Act.
Sd/-
P.G. AJITHKUMAR, JUDGE
SMF
W.P(C) No.20552 of 2021 &
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APPENDIX OF WP(C) 20552/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 14-09-2015
SUBMITTED TO THE REGISTRAR OF CO-OPERATIVE
SOCIETIES
EXHIBIT P2 TRUE COPY OF THE REPORT DATED 30-12-2016 OF
THE ASSISTANT REGISTRAR
EXHIBIT P3 TRUE COPY OF THE REPORT DATED NIL OF THE
JOINT REGISTRAR
EXHIBIT P4 TRUE COPY OF CRL.M.P NO 213 OF 2019 FILED
BEFORE THE ENQUIRY COMMISSION AND SPECIAL
JUDGE, KOTTAYAM DATED 13-05-2019
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 17-
07-2019 SUBMITTED TO THE JOINT REGISTRAR.
EXHIBIT P6 TRUE COPY OF THE REMINDER DATED 25-10-2019
SUBMITTED TO THE 3RD RESPONDENT
EXHIBIT P7 TRUE COPY OF THE REPLY DATED 28-10-2019 OF
THE 3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 6-11-2019 OF
THE PETITIONER TO THE JOINT REGISTRAR
EXHIBIT P9 TRUE COPY OF THE REPLY DATED 21-11-2019 OF
THE JOINT REGISTRAR.
EXHIBIT P10 TRUE COPY OF THE APPEAL DATED 25-11-2019
SUBMITTED TO THE DEPUTY REGISTRAR.
EXHIBIT P11 TRUE COPY OF THE REPLY DATED 4-12-2019 OF
THE DEPUTY REGISTRAR.
EXHIBIT P12 TRUE COPY OF THE LETTER DATED 27-11-2019
SUBMITTED TO REGISTRAR OF CO-OPERATIVE
SOCIETIES
EXHIBIT P13 TRUE COPY OF THE REPLY DATED 24-12-2019 OF
THE REGISTRAR OF CO-OPERATIVE SOCIETIES
W.P(C) No.20552 of 2021 &
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EXHIBIT P14 TRUE COPY OF THE ORDER DATED 6.09.2021 OF
THE 3RD RESPONDENT
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APPENDIX OF OP(CRL.) 98/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 14.09.2015
SUBMITTED TO THE REGISTRAR OF CO-OPERATIVE
SOCIETIES.
EXHIBIT P2 TRUE COPY OF THE REPORT DATED 30.12.2016 OF
THE ASSISTANT REGISTRAR.
EXHIBIT P3 TRUE COPY OF THE REPORT DATED NIL OF THE
JOINT REGISTRAR.
EXHIBIT P4 TRUE COPY OF CRL.M.P.NO.213 OF 2019 FILED
BEFORE THE ENQUIRY COMMISSION AND SPECIAL
JUDGE, KOTTAYAM DATED 13.05.2019.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
17.07.2019 SUBMITTED TO THE JOINT
REGISTRAR.
EXHIBIT P6 TRUE COPY OF THE REMINDER DATED 25.10.2019
SUBMITTED TO THE 7TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REPLY DATED 28.10.2019 OF
THE 7TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 06.11.2019 OF
THE PETITIONER TO THE JOINT REGISTRAR.
EXHIBIT P9 TRUE COPY OF THE REPLY DATED 21.11.2019 OF
THE JOINT REGISTRAR.
EXHIBIT P10 TRUE COPY OF THE APPEAL DATED 25.11.2019
SUBMITTED TO THE DEPUTY REGISTRAR.
EXHIBIT P11 TRUE COPY OF THE REPLY DATED 04.12.2019 OF
THE DEPUTY REGISTRAR.
EXHIBIT P12 TRUE COPY OF THE LETTER DATED 27.11.2019
SUBMITTED TO REGISTRAR OF CO-OPERATIVE
SOCIETIES.
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EXHIBIT P13 TRUE COPY OF THE REPLY DATED 24.12.2019 OF
THE REGISTRAR OF CO-OPERATIVE SOCIETIES.
