Allowed

Satish Chandra Shukla v. State of U.P. Thru. Secy. Home Civil Sectt. Lko and Another

Allahabad HC4 Jan 2024/546/2022

Case brief

AI extract

What is this about?

In a criminal revision, the High Court examined a plea of limitation under Section 468 Cr.P.C. and the applicability of Section 409 IPC to a cooperative society secretary. The Court allowed the revision, distinguishing the nature of the accused.

What did the court decide?

The impugned order rejecting the application for discharge is set aside, and the trial court is directed to decide the application for discharge afresh.

Satish Chandra Shukla Vs State of U.P… — Public Procurement and Tenders | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:1014

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A.F.R.

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Court No. - 27

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Case :- CRIMINAL REVISION No. - 546 of 2022 Revisionist :- Satish Chandra Shukla

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Opposite Party :- State Of U.P. Thru. Secy. Home Civil Sectt. Lko And Another

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Counsel for Revisionist :- Ranjana Agnihotri,Satyendra Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Ratnesh Kant Agnihotri, Advocate holding brief of Ms. Ranjana Agnihotri, the learned counsel for the revisionist and Ms. Charu Singh, the learned A.G.A for the State.

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By means of the instant revision filed under Section 397/401 Cr.P.C, the revisionist has assailed the validity of order dated 21.04.2022 passed by the Additional Civil Judge (Junior Division)/ Judicial Magistrate, Court No. 3, Unnao in Misc. Case No. 1392/2021, whereby, the revisionist's application for discharge under Section 239 Cr.P.C has been rejected.

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Briefly stated, the facts of the case are that an F.I.R was lodged on 08.04.1994, stating that the complainants are old members of Sadhan Sahkari Samiti Ltd. They used to take loan for purchasing fertilizers, seeds and cattle from the Samiti and to repay the same. The revisionist was Secretary of Sadhan Sahkari Samiti and he had removed the entire record of the Samiti somewhere around the year 1987. Lock of the Samiti premises was broken open by the Tehsildar but even thereafter, the record was not handed over by the revisionist. Thereafter, the government had announced waiver of the loans. About a month prior to lodging of the F.I.R, the applicant had demanded passbooks of the complainants on the pretext that he would get the loan waiver entered in the passbooks. Accordingly, the complainants had handed over their passbooks to the

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revisionist. Thereafter, the new secretary of Sadhna Sahkari Samiti was demanding money from the complainants. Upon making inquiries from the bank, the complainants came to know that the revisionist has got entries of amount made in excess of the amounts borrowed by the complainants. The revisionist was not returning the passbooks of the complainants.

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After investigation, a final report was submitted on 03.01.1996. However, even after submissions of the final report, the complainant was summoned and his statement was recorded on 02.06.1998 wherein he stated that the final report had wrongly been submitted. Accordingly, cognizance of the offence was taken by means of an order dated 17.08.1999.

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The revisionist has challenged the order dated 17.08.1999 by filing application under Section 482 Cr.P.C No. 3514 of 2009, which was disposed off by means of an order dated 18.09.2009, without entering into the merits of the case, directing that the revisionist may apply for bail and it was further stated that the plea that the offence under Section 409 I.P.C is not made, out can be raised at the time of framing of charges by moving a discharge application. Thereafter, the revisionist moved an application for discharge on 23.07.2010 which has been rejected by means of the impugned order dated 21.04.2020.

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The learned counsel for the applicant submitted that the proceedings are barred by Section 468 Cr.P.C ., which provides as follows:-" Bar to taking cognizance after lapse of the period of limitation. Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in Sub-Section (2), after the expiry of the period of limitation.

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The period of limitation shall be—

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six months, if the offence is punishable with fine only;

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one year, if the offence is punishable with imprisonment for a term not exceeding one year;

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three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

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For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment."

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As per the learned counsel for the applicant, Section 406 I.P.C provides for a maximum punishment for imprisonment up to three years and as per the provision contained in Section 468 (2)(c), the limitation for taking cognizance of an offence will be three years and no court can take cognizance of the offence after the expiry of period of limitation. The offence was allegedly committed between the years 1987 till the year 1994 and cognizance of the offence has been taken on 17.08.1999.

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8. The learned A.G.A. has placed reliance of the judgment in the case of Sarah Mathew v. Institute of Cardio Vascular Diseases , (2014) 2 SCC 62, in which the Hon’ble Supreme Court held that “ for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance.

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The judgment in Sarah Mathew (Sura) has been followed and reaffirmed in Amritlal v. Shantilal Soni , (2022) 13 SCC 128, wherein is has been stated that: -

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“ 11. Therefore, the enunciations and declaration of law by the Constitution Bench in Sarah Mathew case [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] , do not admit of any

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doubt that for the purpose of computing the period of limitation under Section 468CrPC, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance of the offence.”

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As the F.I.R. was lodged on 08.04.1994 alleging that the applicant had removed the entire record of Sadhan Sahkari Samiti Ltd. In the year 1987, but it also alleges that the applicant had taken away the passbooks of the complainants about 1 ½ month prior to lodging of the FIR and thereafter he got entries made in the passbooks showing borrowings made by the complainants in excess of the borrowings which they had actually made, some offence was committed about 1 ½ month prior to lodging of the FIR and, therefore, the F.I.R. was lodged within the period prescribed by Section 468 Cr.P.C. and the proceedings cannot be quashed on the ground of the same being hit by Section 468 I.P.C.

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The next submission of the learned counsel for the revisionist is that the revisionist was the Secretary of Sadhan Sahkari Samiti and he was not a public servant and, therefore, he cannot be tried for an offence under section 409 I.P.C.

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Per contra, the learned A.G.A has submitted that the revisionist was acting as an agent of the government and, therefore, he would fall within the purview of Section 409 I.P.C.

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Section 409 I.P.C provides as follows:-

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"Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. "

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For making out an offence of criminal breach of trust by a public servant or by a banker, merchant or agent provided in Section 409 I.P.C, it is necessary that the accused should have been entrusted with any property or with any dominion of property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent. The only allegation against the revisionist in the F.I.R is that he was working as a Secretary of Sadhan Sahkari Samiti and members of the Sadhan Sahkari Samiti had handed over their passbooks of their bank accounts to the revisionist. The passbooks related to the bank accounts, and the revisionist is not an employee of any bank and he is not a banker. The revisionist is not even a merchant, factor, broker or attorney.

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In S.S. Dhanoa vs. Municipal Corporation, Delhi, 1981 3 SCC 431 , the Hon'ble Supreme Court has held that a cooperative society is not a corporation established by or under an act of the Central or State legislature and that an officer of a cooperative society would not fall within the definition of public servant as defined in Section 21 I.P.C.

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So far as the submissions of the learned A.G.A that the revisionist is an agent is concerned, suffice it to say firstly that when Section 409 speaks of an agent, it provides that the property should have been interested to a person in the way of his business as an agent, which implies that the property should have been handed over by the principle of which the accused is an agent. There is no allegation that the revisionist was an agent of the complainants. Therefore, the offence under Section 409 will not be made out against the revisionist, who was the secretary of Sadhan Sahkari Samiti even if he be treated to be an agent of the Government. The allegations will at the most make out commission of an offence under Section 405 I.P.C, which defines criminal breach of trust and which is punishable

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by imprisonment for a term which may extend to three years or with fine or with both as provided in Section 406 I.P.C. It is clarified that the while deciding the aforesaid plea, this Court has not held that the Secretary of a Sadhan Sahkari Samiti is an agent of the Government.

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In view of the forgoing discussion, I am of the view that no case is made out for trial of the revisionist for commission of an offence under Section 409 Cr.P.C. However, there is no illegality in prosecution of the revisionist for commission under Section 406 I.P.C.

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Accordingly, the revision is allowed . The order dated 21.04.2022 passed by the Additional Civil Judge (Junior Division)/ Judicial Magistrate, Court No. 3, Unnao rejecting the application for discharge filed by the revisionist is hereby set aside and the trial court is directed to decide the revision for discharge under Section 239 Cr.P.C afresh in light of the observation made in this order.

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(Subhash Vidyarthi,J.)

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Order Date :- 4.1.2024 Preeti.

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Digitally signed by :- PREETI GAUTAM High Court of Judicature at Allahabad, Lucknow Bench

Satish Chandra Shukla v. State of U.P. Thru. Secy. Home Civil Sectt. Lko and Another

Case brief

What is this about?

What did the court decide?

Satish Chandra Shukla v. State of U.P. Thru. Secy. Home Civil Sectt. Lko and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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