IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5301 OF 2015 BETWEEN:
Suresh T.M., S/o. Late Madaiah, Aged about 46 years, R/at Thenkanahalli, Honnanayakana Halli Post, Channapatna Taluk, Ramnagara District – 562 160. …Petitioner (By Sri. Vishnumurthy, Advocate) AND:
R. Sridhara, S/o. Late S. Rangaswamy, Aged about 53 years, Co-operative Development Officer, Channapatna Taluk, Channapatna, Ramnagara District – 562 160. ...Respondent (Respondent served and unrepresented) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the entire proceedings in C.C.No.127/2015 (PCR No.5/2015) registered against the petitioner, pending on the file of the Senior Civil Judge & JMFC, Channapatna, for an offence u/s 109 of Co-operative Societies Act, 1959 and Section 420 of IPC.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R The petitioner was the erstwhile Secretary of the Milk Manufacturing Co-operative Society of Thenkenahalli Village, Channapatna. He was kept under suspension from 19.02.2015 on the directions of the Registrar of Co- operative Society. The Co-operative Development Officer, Channapatna Taluk, filed a private complaint against the petitioner seeking action under Section 109 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as the ‘Act’, for short) r/w Section 420 of IPC.
2. Heard learned counsel for the petitioner and perused the records. Respondent is duly served and unrepresented.
3. Learned counsel for the petitioner submits that the sole basis for prosecution of the petitioner is the alleged violation of the order said to have been issued by the Assistant Registrar of Co-operative Societies, Ramanagara Sub-Division, Ramanagara dated 18.03.2015. The said order does not direct the petitioner herein to hand over the charge of the Milk Federation Co-operative Society to his successor. Rather, the said order directs the successor – Sri. Yogesh to break upon the lock of the office and to take possession of the properties and the documents of the Society. Therefore there is no propriety in proceeding against the petitioner on the ground that the petitioner has failed to give effect to the order passed by the Assistant Registrar of the Co-operative Societies.
4. The order dated 18.03.2015 passed by the Assistant Registrar of the Co-operative Societies, is produced along with the petition. It reads as under:
“¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹gÀĪÀ CA±ÀUÀ¼À »£É߯ÉAiÀÄ°è J£ï.¨Á¸ÀÌgï ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À ¸ÀºÁAiÀÄPÀ ¤§AzsÀPÀgÀÄ gÁªÀÄ£ÀUÀgÀ G¥À«¨sÁUÀ gÁªÀÄ£ÀUÀgÀ DzÀ £Á£ÀÄ PÀ£ÁðlPÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À PÁAiÉÄÝ 1959 PÀ®A 31 J (4) gÀ£ÀéAiÀÄ zÀvÀÛªÁVgÀĪÀ C¢üPÁgÀªÀ£ÀÄß ¥ÀæAiÉÆÃV¹ ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ vÉAPÀ£ÀºÀ½î ºÁ®Ä GvÁàzÀPÀgÀ ¸ÀºÀPÁgÀ ¸ÀAWÀ ¤, F ¸ÀAWÀzÀ zÁR¯ÁwUÀ¼À£ÀÄß ªÀÄvÀÄÛ ¸ÀévÀÄÛUÀ¼À£ÀÄß EqÀ¯ÁVgÀĪÀ AiÀiÁªÀÅzÉà DªÀgÀt CxÀªÁ ¸ÀܼÀªÀ£ÀÄß ¸ÀA§AzsÀ¥ÀlÖ DgÀPëÀPÀ G¥À ¤jÃPÀëPÀgÀ £ÉgÀªÀÅ ¥ÀqÉzÀÄ ¥ÀAZÀgÀ ªÀÄvÀÄÛ DqÀ½vÀ ªÀÄAqÀ°AiÀĪÀgÀÄ ºÁUÀÆ UÁæªÀĸÀÜgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è ¥ÀAZÀ£ÁªÉÄAiÀÄ ªÀÄÆ®PÀ ¥ÀæªÉò¸À®Ä, ±ÉÆâü¸À®Ä CxÀªÁ ©ÃUÀ MqÉzÀÄ vÉUÉAiÀÄ®Ä ªÀÄvÀÄÛ ¸ÀAWÀzÀ CAvÀºÀ zÁR¯ÁwUÀ¼À£ÀÄß ªÀÄvÀÄÛ ¸ÀévÀÄÛUÀ¼À£ÀÄß ªÀ±À¥Àr¹PÉÆAqÀÄ CªÀÅUÀ¼À£ÀÄß ¸ÀAWÀzÀ ¥Àæ¨sÁgÀ ªÀÄÄRå PÁAiÀÄð¤ªÀðºÀuÁ¢üPÁjAiÀĪÀjUÉ PÀÆqÀ¯Éà ªÀ»¹PÉÆqÀ®Ä ²æà Dgï ²æÃzsÀgï ¸ÀºÀPÁgÀ C©üªÀÈ¢Þ C¢üPÁj ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ EªÀjUÉ C¢üPÁgÀ ¤ÃqÀ¯ÁVzÉ ºÁUÀÆ F §UÉÎ vÉUÉzÀÄPÉÆAqÀ PÀæªÀÄzÀ §UÉÎ F PÀbÉÃjUÉ ªÀgÀ¢ ¸À°è¸À®Ä DzÉò¹zÉ.”
There is nothing in the said order to indicate that the petitioner herein was directed to hand over the charge of the co-operative society to his incumbent. Under the said circumstances, the allegations made in the complaint that the petitioner herein has violated the directions issued by the Assistant Registrar of the Co-operative Societies and thereby committed an offence under Section 109 cannot be accepted.
5. Section 109 (1) (1-A) and (2) of the Act reads as under:
“(1) Any person other than a co-operative society carrying on business under any name or title of which the word “Co-operative” or its equivalent in any Indian language, is part, without the sanction of the State Government, shall be punishable with a fine which may extend to [two thousand] rupees.
[(1-A) if default is made in giving effect to the order of the Registrar within the period specified in sub-section (3) of Section 105-A, the Co-operative Society and every [office bearer] of the society who is in default shall be punishable with fine which may extend to one thousand rupees or with further fine which may extend to one hundred rupees for every day after the first during which the default continues.
“(2) Any member or past member or the nominee, heir or legal representative of a deceased member of a co-operative society who contravenes the provisions of Section 32 or 33 by disposing of any property in respect of which the society is entitled to have a first charge under that section or do any other act to the prejudice of such claim, shall be punishable with fine which may extend to [five thousand] rupees.”
6. Undisputedly, the petitioner herein was suspended from employment. There is nothing on record to show that he was required to comply with any written order passed by the Assistant Registrar of the Co-operative Societies. Under the said circumstances, prosecution of the petitioner for the alleged default under Section 109 of the Act cannot be sustained. Even though provision of Section 420 of IPC is also invoked, the complaint does not contain allegations attracting the ingredients of the said offence. Therefore, prosecution of the petitioner is wholly illegal and an abuse of process of Court.
Accordingly, petition is allowed. Proceedings in C.C.No.127/2015 (PCR No.5/2015) registered against the petitioner, pending on the file of the Senior Civil Judge & JMFC, Channapatna, for the offence u/s 109 of Co- operative Societies Act, 1959 and Section 420 of IPC, is quashed.
Sd/- JUDGE SV