1. This judgment will dispose of Criminal Misc. Applns. Nos. 306/M, 903/M, 944/M, 946/M, 959/M, 969/M, 1017/M, 1910/M and 1912/M, all of 1977. The learned Counsel appearing for the parties agree that common questions of law and fact arise in all these petitions which may be considered and disposed of together.
2. The common features in these petitions Under Section 482, Cr.PC praying for the quashing of the First Information Report, charge-sheets and other proceedings in each case, are that some Cooperative Marketing-cum-Processing Societies had appointed certain Village Cooperative Societies as Distributors for the sale of fertilizer. The petitioners in these cases had been appointed as Salesmen by the respective Village Cooperative Societies for facilitating the sale of fertilizer to the farmers. The only differentiating feature of one case is that the petitioner in Criminal Miscellaneous Application No. 944/M of 1977, namely, Jagtar Singh was the Secretary of the Village Coperative Society, while the petitioner in Criminal Miscellaneous Application No. 959/ M of 1977, i. e., Jaswant Singh is the father of Jagtar Singh aforesaid. This Jaswant Singh was the Salesman of the same Village Cooperative Society. The First Information Report in these two cases is common and the allegation of criminal misappropriation has been made against both father and the son. It is alleged in all the petitions that the petitioners had been appointed as Salesmen of the various Societies after they had entered into an agreement with the Society prescribing the terms regarding the commission to be received by the Salesmen. In some cases, the petitioners had also arranged for sureties who executed surety bonds pledging their property in favour of the Society as a safeguard for realisation of the amount found due from the Salesmen. In all these agreements, it was also provided that the Assistant Registrar, Cooperative Societies, or his succeasor-in-office would be an Arbitrator to decide disputes arising between the parties. It appears that large amounts became outstanding against the various petitioners who had not passed on the sale proceeds of the fertilizer to the Village Cooperative Society or the Marketing Society, with the result that the matter was referred to Arbitrator and in all these cases award for various amounts were issued against the petitioners. It is needless to give the details of the amounts found due from tiem in each case, but it would suffice to say that the amount in every case is to the tune of several thousands and in some cases over one lac. The highest liability is against the petitioner in Criminal Misc. Appln. No. 903/M of 1977, which is Rs. 1,48,424.69 paise.
3. In spite of awards, no recovery appears to have been effected from the petitioners and ultimately the Assistant Registrar of the Cooperative Societies lodged a report with the police in each case praying for prosecution of the petitioners Under Section 406/409, I. P. C, for having misappropriated the amounts in their entrustment. In consequence of these reports, cases were registered against the petitioners and challans were filed in Court. It is also not disputed that in all the cases, the trial Court has framed charges against the petitioners. The suffocation of criminal prosecution appears to have prompted the petitioners to approach this Court Under Section 482, Cr.PC for quashing of the proceedings in their respective cases
4. Mr. N. C. Jain, learned Counsel appearing for the petitioners in most of the cases, has raised certain contentions which may be noticed in turn. The argument which has been advanced at the outset is that the Punjab Cooperative Societies Act, 1961 (hereinafter referred to as the Act) is a complete Code in regard to the matter under consideration and no proceedings outside the purview of this Act, including those under the general law of the land are permissible. The arugment is indeed beyond my comprehension, but let us examine the line adopted by the learned Counsel. Reference is made to Section 54 of the Act which reads as under:
Surcharge : (1) If in the course of an audit, inquiry, inspection or the winding up of a co-operative society it is found that any person, who is or was entrusted with the organisation or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to this Act, the rules or the bye-law or has caused any deficiency in the assets of the society by breach of trust or willful negligence or has misappropriated or fraudulently retained any money or other property belonging to such society, the Registrar may, of his own motion or on the application, of the committee, liquidator or any creditor, inquire himself or direct any person authorised by him by an order in writing in this behalf, to in-i quire into the conduct of such person:
Provided that no such inquiry shall be held after the expiry of six years from the date of any act or omission referred to in this Sub-section.
(2) Where any inquiry is made under Sub-section (1), the Registrar may, after giving the person concerned an opportunity of being heard, make an order requiring him to repay "or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent, as the Registrar may consider just and equitable.
On the basis of the above section, it is contended that as the Act specifically makes provision for suitable action against the employees of the Cooperative Society who are found guilty of breach of trust or wilful negligence or who have misappropriated or fraudulently retained any money belonging to the society, the prosecution of such persons under the general criminal law is barred or at least impliedly barred. Evidently no such bar has been placed in the statute itself. If in the interest of internal administration, the Registrar of Cooperative Societies has been invested with the power to enquire into allegations of this nature against an employee of the Society, it does not make .such an employee immune from the law of the land. After holding an inquiry as contemplated Under Section 54 of the Act, the Registrar is empowered to issue an order requiring the defaulter to repay or restore the money misappropriated by him. Such a power is conferred merely to provide a convenient safeguard of the interests of the Cooperative Society. The criminal liability of the individual, however, continues to subsist. The argument that the petitioners in all these cases had accepted their liability to pay the amounts found due against each one of them and hence the recovery can be made only by means of civil process and not by criminal prosecution, is also of no avail. If the argument is taken to its logical end, a thief after committing a theft of money, may admit having committed the theft and then claim immunity from criminal prosecution by asserting that the money stolen by him may be recovered only by civil process. Surely, this is not envisaged by law. The learned Counsel in the same context referred to the provisions of Section 55 of the Act, wherein it is provided that notwithstanding anything contained in any law for the time being in force, if any dispute touching the business of a Cooperative Society arises between the Society and its agent or employee, such a dispute is to be referred to the Registrar for arbitration. There is no controversy on the point that the cases of the petitioners were referred for arbitration to the Registrar and in all these cases awards were made for the amounts found due from them. Irrespective of this fact, the criminal liability of the petitioners is not ousted. In all the cases, the allegation is that the petitioners had misappropriated the entire amounts of the sale proceeds of the fertilizer sold by them to the farmers. It is not a question of a dispute in regard to payment of their commission. Section 55 of the Act does not, therefore, debar criminal prosecution.
5. In the next leg of his arguments, it is urged that recourse to criminal law was not justifiable merely with the purpose of pressurising payment of money. The contents of the First Information Report filed in these cases have been read out, wherein it is mentioned that the Salesmen had failed to deposit the amounts due from them in spite of being told to do so several times. A request was, therefore, made for registering cases Under Section 406/409, I. P. C, against them and for investigation into the matter. It is also mentioned that the investigation be started against the petitioners "so that the amount in question may be recovered." The mere phraseology used in the First Information Report is not so material. What is important is the purport and substance of the allegations. The First Information Report is only meant for the purpose of setting into motion the machinery of law for investigation with a view to take proper action against an offender found guilty of commission of an offence. It would naturally be the anxiety of the department to recover the huge amounts alleged to have been misappropriated by the petitioners and the mere fact that an indication in regard to this anxiety is made in the First Information Report would not necessarily lead to, the conclusion that it is a mere civil liability and the report has been launched only with a view to pressurise the petitioners. In fact, it is possible to advance this argument practically in every case of this nature. In any case, it would not provide sufficient justification to quash the criminal proceedings. It would be for the Court which is seized of the case to see if really the petitioners are guilty of an offence and not for this Court to decide the matter at this initial stage. There is, thus, no occasion to quash the proceedings in all these cases.
6. A word may be said about the case, Criminal Miscellaneous No. 944/M of 1977, in which Mr. G. S. Sandhu, learned Counsel for the petitioner, apart from adopting the arguments of Mr. N. C. Jain, as above has tried to differentiate the case of the petitioner Jagtar Singh, by submitting that this petitioner was the Secretary of the Co-operative Society and it was his father Jaswant Singh (petitioner in Criminal Misc. No. 959/M of 1977) who was the Salesman of the Society. The contention of the counsel is that the petitioner was not entrusted with the fertilizer and had nothing to do with the misappropriation of the sale proceeds. However, as already noticed, the names of both these petitioners find mention in First Information Report No. 80 of 1975, wherein it was alleged that the supply of the fertilizer was made to Jagtar Singh in his capacity as Secretary of the Society and this fertilizer was carried away by his father Jaswant Singh, who was the Salesman. There is a further allegation that the embezzlement of the amount of Rs. 47, 021 49paisehad been done jointly by both of them. The mere fact, therefore, that Jagtar Singh was not the Salesman, would not justify any special treatment to him for the purpose of his petition Under Section 482, Cr.PC
7. All the nine petitions are misconceived and are accordingly dismissed.