Bhagirathi Das and Others vs Manindra Sahu

G.K. Misra, J.—Petitioner No. 1 was the President of the Ranpur Large Sized Agricultural Co-operative Society and House Building Co-operative Society, Petitioner No. 2 was the Secretary of the said Agricultural Co-operative Society and Petitioner No. 3 was the Secretary of the said House Building Co-operative Society. Petitioners 4 to 6 are respectively the wives of Petitioners''1 to 3 Manidra Sahu (opposite party). who was a Member of the Agricultural Co-operative Society, filed a complaint in the Court of the Sub-Divisional Magistrate, Jajpur, alleging that the Petitioners at different times to the Co-operative Societies without disclosing that these were previously mortgaged and sometimes giving false descriptions of the properties and thus committed various offences under the Penal Code including one u/s 420, Indian Penal Code. On the basis of the averments in the complaint and the statement on oath) cognizance was taken u/s 420,

Indian Penal Code. After their appearance, the Petitioners raised an objection that cognizance of the case could not have been taken in the absence of prior sanction of the Registrar of the Co-operative Societies. The learned Subdivisional Magistrate by his order dated 5-5-1965 held that the offence mentioned in the complaint was one u/s 137 of the Orissa Co-operative Societies Act, 1951 (Orissa Act XI of 1952), hereinafter referred to as the Act, and as such, sanction u/s 138 of the Act was mandatory, and that in the absence of the sanction the complaint was not maintainable. In revision the learned Sessions Judge took the contrary view and held that the case was maintainable without the sanction. Against this order the criminal revision has been filed.

Mr. Mohanti assails the view of the learned Sessions Judge as being contrary to Sections 51, 137 and 138 of the Act. To appreciate his contention it is necessary to extract the sections so far as they are relevant.

51.(3) A member of a society which includes among its objects advance of loans to its members shall, before the completion of each such transaction, furnish to the society full, true and accurate information regarding any sale, mortgage or transfer in any form whatsoever of his immovable property or any portion or share thereof and regarding any loan proposed to be incurred from any person other than the society on the security of such property or otherwise including the amount and the object of such loan.

137(1) It shall be an offence under this Act, if any person or an officer or master of society-

(a) intentionally neglects or refuses to do any act or make any return, statement or report or furnish any information required to be done, made or furnished under this Act or the rules made thereunder;

(b) wilfully makes a false return or furnishes false information required to be made or furnished under this Act or the rules;

138(3) No prosecution for an offence under this Act shall be instituted without the previous sanction of the Registrar and the Registrar shall not sanction the prosecution of any person unless he has given such person an opportunity of being beard.

On the facts alleged in the complaint it is .manifest that the Petitioners have committed offences u/s 137(1)(a) and (b) of the Act. u/s 51(3), a member of the Society, who wants to take advance of loans, must furnish to the Society full, true and accurate information regarding any sale, mortgage or transfer. The complaint alleges that false information was given by the Petitioners to the Societies while asking for loans. Sanction of the Registrar would have been essential u/s 138(3) of the Act if the Petitioners had been prosecuted u/s 137(1)(0.) and (b).

It is, however, to be noted that the Petitioners were not prosecuted u/s 137(1)(b) because they committed graver offences. The matter did not stop at their furnishing false information. As a result of such false information being given, the Societies were induced to advance loans which they would not have advanced if the true state of affairs had been brought to their notice. The deception was possible as some of the Petitioners were President and Secretaries of the Societies. Thus the Petitioners cheated the Societies and thereby dishonestly induced the Societies to advance loans, and prima facie committed an offence u/s 429, Indian Penal Code. The offence u/s 420 includes elements which by themselves complete offences u/s 137(1)(a) and (b). The question for consideration is-Is the prosecution bound to confine itself to a complaint u/s 137(1)(0.) and (b) when a graver offence was committed u/s 420, Indian Penal Code. The answer must be in the negative When an offence of murder is committed, necessarily offence of grievous hurt is committed. It is difficult to find any force in the argument that, the prosecution should be for grievous hurt and not for murder.-The analogy applies here with full force. When the prosecution is for graver Offence, there need not be any prosecution for minor offences which are included in'' the graver offence. In case of commission of an offence u/s 420, Indian Penal Code, no sanction is necessary. The learned Sessions Judge took the correct view. Similar matter came up for consideration before a Bench of this Court in State Vs. Banchhanidhi Mehar, , and their Lordships took the identical view.

In the result, the revision falls and is dismissed. Records be sent back at once. The learned Magistrate is directed to dispose of the case expeditiously as the trial was stayed, for a long time.

Revision dismissed and Case remanded.