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Petitioner: NURUL ISLAM VS Respondent: THE STATE
P L D 1960 Dacca 431
P L D 1960 Dacca 431
Before Rahman, J,
NURUL ISLAM‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 70 of 1958, decided on 18th December, 1958.
Bengal Co‑operative Societies Act (XXI of 1940), S. 90‑ Liquidator appointed by Registrar Co‑operative Societies and Collecting Agent appointed by such Liquidator‑ Public servants- Penal Code (XLV of 1860), S. 21.
Under section 90 of the Bengal Co‑operative Societies Act, 1940, the Registrar of Co‑operative Societies, who is a public officer under the employ of the Provincial Government, has the power to appoint a person to be the Liquidator of the Society and when such a Liquidator is appointed the Liquidator has to work under the general directions and control of the Registrar and the properties of the Co‑operative Society for the time being vest in the Registrar. Thus the Liquidator is really in the position of a public servant entrusted with the realisation of the debts due t to a Co‑operative Society from its debtors, if necessary, through certificate proceedings. Hence persons appointed by such a Liquidator are also public servants. A Collecting Agent is really an agent of the Liquidator himself, that is to say, he is entrusted with the performance of that duty of the Liquidator which relates to the collection of the outstanding of the Co‑operative Societies ordered to be liquidated and as such he is also a public servant.
Abdul Wahab Mia v. The State P L D 1957 Dacca 492 distin guished.
In re Thimmakka and another A I R 1942 Mad. 552 and In re S. Pamiah‑ and others A I R 1951 Mad. 773 ref. Sudhangshukumar Basu for Appellant. Ruhul Islam for the State.
JUDGMENT
The appellant before me was a Collecting Agent of Liquidated Societies to the district of Bakerganj working on a commission basis under the Inspector‑Liquidator of Co‑operative Societies, Bagerhat. On the 16th of June, 1954, he was posted at Morrelganj and was entrusted with the duty of collecting the dues of the Liquidated Societies by granting receipts on printed forms. It was his duty also, after having made the collections, to deposit the same in the office of the Liquidator at Bagerhat.
2. It is alleged that as such Collecting Agent he, between the 30th of June, 1954, and the 29th of January, 1955, collected various sums from Syeduddin Ahmad, Shamsuddin Howladar and Momtazuddin Howladar by granting receipts for the same but he deposited lesser amounts in the office of the Liquidator and mis appropriated the balance of Rs. 95 from out of the amount collected from Syeduddin Ahmed, Rs. 201 out of the amount collected from Shamsuddin Howladar and Rs. 15 out of the amount collected from Momtazuddin Howladar.
3. On receipt of certain complaints against the appellant alleging such misappropriations, the Sub‑divisional Co‑ope rative Officer, Bagerhat, who was in charge of the Liquida tion work during the absence of the Liquidator on training at Pubail, called upon hint to account for the moneys collected by him. But although the collection drive, which commenced from the 20th of February, 1955, ended on the 7th of March, 1955, the appellant did not return to headquarters. He neither returned the receipt books nor made over the collection money to the Liquidator.
4. It then transpired on inquiry that lie had left for his permanent residence at Petuakhali. So, a formal complaint was lodged by the Sub‑divisional Co‑operative Officer, Bagerhat, on the 10th of March, 1955. This was, under the directions of the Sub‑divisional Magistrate, sent to the police‑station for being treated as the first information report and a case under section 409 of the Pakistan Penal Code was started against him. The inves tigation was carried on by the District Anti‑corruption Branch, which, after completing the investigation and obtaining the necessary sanction, submitted a charge‑sheet against the appellant.
5. The appellant pleaded not guilty to the charge and his case appears to have been that he had actually issued receipts for larger amounts than what were paid to him by the debtors at their own request and assurance that they would pay up the balance subsequently. They did not, however, pay up the said balances. So, he could not deposit the full amount as recorded in ', the receipts granted to the debtors. He further pleaded that, whilst out on collection at village Kharuikhali, he used to stay at the house of Syeduddin Ahmed who was the President of the local Union Board and that he used to keep the amount collected by him with the said President for safe Custody. But the said Syeddudin Ahmed had only returned to him a part of the amount and told him that he would pay the balance at Bagerhat. The said Syeduddin Ahmed, however, did not fulfil his promise even at Bagerhat. Hence the appellant could not deposit the entire amount in the office of the Liquidator, although he had disclosed all these facts to the officers concerned at the said office and told them that he would pay up whatever money was found due from him.
6. In support of this case, the prosecution examined some ten witnesses and filed a large number of documents consisting of receipt books, issue registers, counterfoils of receipt books, letter of appointment of the appellant, the sanction and the seizure list.
7. Out of the witnesses examined, P. W. 1 was the Head Clerk and Accountant of the Bagerhat Central Co‑operative Bank. He proved the appointment of the appellant as the Collecting Agent on a commission basis, as also the issue of the printed receipt books to him together with relevant entries in the issue register. The collection returns submitted by the appellant were also proved by him. He also proved the carbon counter foils of the receipt books seized from the appellant which showed collection of larger amounts. In cross‑examination, it was suggested to him that the accused had told him that he had issued receipts for larger amounts than what had been paid by the debtors on the assurance that the balance would be paid later. The witness, however, denied this. He also denied that the appel lant ever sought his advice on any such matter.
8. P. W. 2 was Shamsuddin Howladar. He proved that the appellant realised from him Rs. 61‑4‑6 on 30‑6‑54, Rs. 100 on 30‑8‑54 and Rs. 172 on 29‑1‑55. He also proved the receipts that were issued by the appellant to him for these payments. He denied categorically that the appellant ever gave him any receipt for, any amount which was larger than what was paid by him. He also denied that the appellant ever kept any moneys with his brother Syeduddin Ahmed, the President of the Union Board, though he admitted that, when the appellant was out on collection, he used to stay in the baithakkhana ghar of his brother. He throughout maintained that it never happened that the accused gave him a receipt without receiving payment from him:
9. P. W. 3 was Momtazuddin Howladar who proved that on 30‑9‑54 he paid two sums, namely, Rs. 30 and Rs. 15, under two receipts bearing numbers 1820 and 1821. It was suggested to him that he had told the police that he had paid Rs. 34 and not Rs. 30. He, however, denied this. But the police‑officer was not asked as to what this witness had stated to him. This witness also denied that he ever asked the appellant to write out a receipt on the assurance that he would pay the amount of the receipt later on or that on any occasion he paid a lesser amount than what was indicated in the receipt.
10. P. W. 4 is Syeduddin Howladar who proved that he paid Rs: 50 on 30‑9‑54 and Rs. 75 on 29‑1‑55. He admitted in cross- examination that the appellant used to sleep on a cot of the Headmaster in a room of his baithakkhana and also used to have his food there. But he denied that he took any money from the appellant on the assurance of paying him back the amount at Bagerhat. He denied that he accompanied him to Bagerhat or that there was any occasion for him to refuse to pay back any money to the appellant.
11. P. W. 5 was merely a witness to the seizure of the receipts from the houses of. Syeeduddin Ahmed, Shamsuddin Howladzr and Momtazuddin Howladar.
12. P. W. 6 was the Sub‑Inspector of the Anti‑Corruption Branch who investigated this case but was transferred just before the submission of the charge‑sheet.
13. P. W. 7 is another police‑officer who took up the investigation from P. W. 6 but he also could not complete the investigation.
14. P. W. 8 was the Inspector of the Co‑operative Societies and Liquidator at Bagerhat at the relevant time. He stated that his duty was to collect the debts of the liquidated Societies and to distribute the same to the creditors of those societies and to settle. disputes, if any. He said that he had appointed the appellant to collect such liquidation dues for the societies by his order of the 26th of May, 1954, (Exh. 1), with the approval of the Assistant Registrar of Co‑operative Societies, Khulna. In cross‑examina tion, he further clarified that the Liquidator was the appointing authority of temporary Collecting Agents on salary or commis sion basis with the approval of the Assistant Registrar of Co operative Societies. No such approval of the Assistant Registrar of Co‑operative Societies was, however, proved in this case. But the witness stated that the approval must have been obtained. This witness also purported to prove an order which he claimed was an order sanctioning the staff of the Liquidator upto the 31st of May, 1955, Exh. 22. He also denied that the appellant had ever told him that he had issued any receipt to any debtor without receiving the full amount.
15. P. W. 9 was the Sub‑divisional Co‑operative Officer, Bagerhat, who acted as Liquidator during the absence of P. W. 8 on training at Pubail. It was he who placed the appellant under suspension and lodged the complaint upon which this case was started. This witness also denied that the appellant ever told him that he had issued receipts for larger amounts than what he bad actually collected at the request of the debtors. He, however, admitted that the witness did express his willingness to pay up whatever money was found due from him on the taking of accounts.
16. P. W. 10 is another Assistant Inspector of the Anticorruption Branch who ultimately took charge of the investigation, completed it and submitted the charge‑sheet on the 14th of October, 1956, after obtaining sanction from the Assistant Registrar of Co‑operative Societies, Khulna. The sanction is Exh. 23.
17. The appellant in his examination under section 342 of the Code of Criminal Procedure also stated that he used to keep moneys collected by him in deposit with Syeduddin Ahmed Howladar and would take it from him at the time of coming to Bagerbat to deposit the same in the office of the Liquidator. On this occasion, however, the said Syeeduddin Howladar could not pay him the full amount but promised to do so at Bagerhat. Even at Bagerhat, however, he did not fulfil this promise. So, be deposited with' the Co‑operative Societies the actual amount that was paid to him by Syeduddin Howladar. He also, stated that Shamsuddin Howladar took a receipt from him saying that the money would be paid by his brother, the President, but the President did not repay the money and asked him to realise the amount by selling his furniture lying at his rented house at Bagerhat. He duly informed P. W. 1 and his other officers at the office about these facts. But they said that he would be criminally prosecuted if he did not realise the money and deposit the same. He denied that he had received any summons to come to the office whilst he was in mofussil.
18. On this evidence, the learned Special Judge of khulna held that the prosecution had proved beyond any reasonable doubt that the appellant was a public servant and that, in his capacity as such a public servant, he had misappropriated the amounts alleged by the prosecution and, hence, convicted him under section 409 of the Pakistan Penal Code and sentenced him to suffer rigorous imprisonment for nine months and to pay a fine of Rs. 400 or in default to suffer further rigorous imprisonment for six months.
19. Mr. Sudhangsu Kumar Basu, appearing on behalf of the appellant, has, in view of the evidence on the record, very frankly stated that he would find it difficult to support the appeal on merits. But he h4s pressed before me three points of law only. The first is that the trial has, been vitiated by reason of a mis joinder of charges. The second is that the trial was ab initio void as the Special Judge had no jurisdiction to try the case under the Criminal Law Amendment Act, the appellant not being a public servant, and the third is that, in any event, the sanction given was not a proper sanction in so far as the Liquidator and not the Assistant Registrar was the appointing authority.
20. His first point appears to be that in so far as the appel lant has, when being given the substance of the charge under section ‑242 of the Code of Criminal Procedure, been given the details of the items receipt wise, which he was alleged to have collected, he was really being charged in respect of seven items of misappropriation between the 30th of June, 1954, and the 29th of January, 1955, and this offended against the provisions of section 234 (1) of the Code of Criminal Procedure and further that the provisions of section .222 (2) of the said Code did not validate the charge inasmuch as the gross sum in respect of which the misappropriation is alleged to have been committed has not been mentioned but particular items with exact dates have been set out in the charge. 1 am, however, unable to agree with the learned Advocate that there has been any misjoinder in the present case. The statement of the offence under section 242 does mention the gross sum misappropriated from each of the three witnesses, namely, Syeduddin Ahmed, Shamsuddin Howladar and Momtazuddin Howladar. The gross sum mentioned in the case of Syeduddin Ahmed is Rs. 95, from Shamsuddin Howladar it is Rs. 201 and from Momtazuddin Howladar Rs. 15. Thus, only three offences of misappropriation have been alleged to have been committed by the appellant between the course of one year, namely, the 30th of June, 1954, and the 29th of January, 1955. This could legitimately be done under sections 222 (2) and 234 (1) read together.
21. The next contention of the learned Advocate is that the appellant was not a public servant and, therefore, he could not have been tried by a Special Judge under the Criminal Law Amendment Act. In support of this contention, he has relied upon a Division Bench decision of this Court in the case of Abdul Wahab Mia v. The State (P L D 1957 Dacca 492), where it was held that a Secretary of a Central Co‑operative Bank was not a public servant within the meaning of clause 10 of section 21 of the Pakistan Penal Code. The learned Advocate for the State, however, has drawn my attention to the provisions of section 90 of the Bengal Co‑operative Societies Act, 1940, which provides that when an order is passed for the winding‑up of a Co‑opera tive Society, the Registrar of Co‑operative Societies, who is a public officer under the employ of the Provincial Government, has the power to appoint a person to be the liquidator of the society and when such a liquidator is appointed, the Liquidator has to work under the general direction and control of the Registrar and the properties of the Co‑operative Societies for the time being vest in the Registrar and, furthermore, under the 4th item of the 3rd Schedule to the said Act, the Liquidator has, under section 91, powers to realise contributions assessed by him through the Certificate Officer as a public demand under the Public Demands Recovery Act. Again, under the 4th and 5th Schedules to the said Act, an order or award of the liquidator is appealable to the Registrar within two months from the date thereof. Thus, it is pointed out that the liquidator is really in the position of a public servant entrusted with the realisation of the debts due to a Co‑operative Society from its debtors, if necessary, through certificate proceedings. Hence, persons appointed by such a liquidator are also public servants. There is a radical difference between the position of a liquidator appointed by the Registrar under the Co‑operative Societies Act and the Secretary or president of a Co‑operative Society as such.
22. It is contended that the position of a liquidator under this Co‑operative Societies Act is the same as that of a Liquida tor or Receiver appointed by a Court. There can be no manner of doubt that a Liquidator or a Receiver appointed by a Court is a public servant within the meaning of section 21 of the Pakistan Penal Code.
23. Though the learned Advocate for the State did not cite any authority in support of this view, it appears that in the case of In re Thimmakka and another (A I R 1942 Mad. 552), Horwill, J., held that a Sales Officer appointed under the Madras Co‑operative Societies Act was a public servant, since, the duty of a Sales Officer under the said Co‑operative Societies Act was to take property in execution of the decrees of the society. He, therefore, conformed to the definition of a public servant under section 21 of the Penal Code. Similarly, in the case of In re S. Pamiah and others (A I R 1951 Mad. 773), Govinda Menon, J.,' held that a Commissioner appointed by a Court to divide the properties by metes and bounds, as a result of a preliminary decree for partition, was a public servant within the meaning of the term under section 21 of the Penal Code, as he was considered to be an officer appointed specially by a Court of Justice to investigate and report on a question of fact. If these be the criteria for determining as to who is or is not a public servant then it seems to me that a Collecting. Agent appointed by a Liquidator is a public servant inasmuch as a Liquidator is appointed by the Registrar is a quasi judicial pro ceeding and has even certain judicial powers of making awards which may be enforced through certificate, proceedings. The Liquidator has, therefore, to take charge of and dispose of property as a quasi‑judicial officer, for, there are even appeals to the Registrar from his orders.
24. A Collecting Agent is really an agent of the Liquidator himself, that is to say, he is entrusted with the performance of that duty of the Liquidator which relates to the collection of the outstanding of the Co‑operative Societies ordered to be liquidated. I am, therefore, unable also to accept this contention of the learned Advocate for the appellant that the appellant is not a public servant.
25. Now, coming to the third objection, namely, that the sanction has not been granted by the appropriate authority, I am afraid I must in this case too hold against the appellant, for, I have already pointed out that under clause (2) of section 91 of the Co‑operative Societies Act the Liquidator himself acts under the general direction and control of the Registrar of Co‑operative Societies, and, therefore, really the Registrar of Co‑operative Societies is the ultimate appointing authority and the sanction granted by the Assistant Registrar is, therefore, a valid sanction and cannot be challenged now.
26. Since no other point has been urged before me, this appeal fails for the reasons given above.
27. The appeal is accordingly dismissed and the conviction and sentence of the appellant are confirmed. He will now surrender to his bail and serve out the remainder of his sentence and pay the fine required of him.
K. B. A. Appeal dismissed.