Subal Charan Jena vs Gopal Chandra Misra and Another

K.B. Panda, J.—Gopal Chandra Misra Respondent No. 1 and Janardan Panda Respondent No. 2 are respectively the ex-President and ex-Secretary of the Singapada Co-operative Society at Natabarpur Sasan (hereinafter referred to as the Society). Both of them were being prosecuted u/s 115(6) of the Orissa Cooperative Societies Act, 1962 (hereinafter referred to as the Act). But they were finally acquitted occasioning this appeal by Subal Charan Jena, Ex-Administrator of the Society and Marketing Development Officer, Nayagarh Central Cooperative Bank, Nayagarh (hereinafter referred to as the Bank).

The allegation against the Respondents was that they in spite of several notices and demands did not make over the records and registers of the Society after its supersession on 28-11-1968 when the administration and control of the Society were taken over by the Administrator (p.w.4) and subsequently his successor (p.w.3).

The defence was that one Duryodhan Jena who had been appointed as the Supervisor by the Bank which was financing the Society to see that the work of the Society was running properly was in fact handling these registers and papers and that they were not in possession of the required papers and registers. Finally a complaint was filed by Subal Charan Jena (p.w.3), the Appellant who was the ex-Administrator of the Society against the two Respondents u/s 115(6) of the Act.

The prosecution examined 5 witnesses and the defence one. Out of them, p.w. 1 is the Administrative Inspector of the Bank who had inspected the office of the Society in the year 1965 and before whom the Respondents had produced the papers. P.w. 2 is the Assistant Registrar of Cooperative Societies, Khurda Circle who stated that because of mismanagement in the Society there was supersession on 18-6.1971. He is the Officer who had sanctioned prosecution in the case of Respondents under Ext. 5. P.w. 3, as already stated, is the complainant who was the successor of the first Administrator after supersession. P.w. 4 is the Sub-Assistant Registrar of Cooperative Societies, Khurda Circle and the first Administrator of the Society. P.w. 5 is the Legal Assistant in the Bank who is a formal witness. D.w.1, who was a member of the Society, helped the defence in that he said that Duryodhan Jena Supervisor used to stay in the Society''s Office, working there and that the books and registers were being kept by him ~ and not by the Respondents.

On an assessment of the evidence, the learned Court held that the charge has not been established against the Respondents and hence acquitted them.

It was contended on behalf of the Appellant that the evidence has not been assessed in its proper perspective and that the learned Court below has lost sight of Rule 40 of the Orissa Cooperative Societies Rules, 1965 (hereinafter referred to as the Rules) which raises a presumption that the Secretary, that is, Respondent No. 2 was to be deemed to be in charge of the books and ''records of the Society.

There is no evidence on record as to who are the members of the Society. There is no independent evidence that the two Respondents were in fact dealing with and maintaining and were in possession of the records and registers of the Society. The witnesses referred to above are all formal official witnesses. It was contended that in view of the Rules and the provisions of Section 115(6) a presumption has to be drawn that the President and the Secretary were dealing with and in possession of the registers which were required of them to be produced before the Administrator after supersession. Section 115(6) of the Act runs thus:.

115(6) Any officer of a society who, having ceased to hold office and having remained in possession at the time of such cessation, of any document, cash valuable security or other property which belongs to the society or the custody whereof lawfully belong~ to such society without sufficient cause, refuses, neglects or

fails to deliver up the same to his successor in office shall be punishable with fine which may extend to one thousand rupees or with simple imprisonment which may extend to three months or with both.

This presupposes that the accused persons must be in possession at the time of their cessation of office of any document, cash or valuable security or any other property belonging to the Society. Thus the initial burden lay on the prosecution to establish that at the time they laid down their office or at the time of supersession, they were in fact in possession of the documents that were wanted of them under Ext. 5. Suffice it to say, there is no such evidence. That apart in the complaint petition that was filed on 24.9-1971 over an occurrence of 27-2-1971 it is stated thus:

Thus the accused persons have in collusion with each other without sufficient cause refused and neglected to deliver charge of the following records of the said society to the complainant

The "following records" are given in the schedule thus:

Cash Book

Loan Register

Member-deposit Register.

From this it is clear that it is only these three records that were in possession of the two Respondents which were demanded of them, but they refused or neglected to deliver charge. Obviously, other registers and papers were in charge of the Administrator. The proceeding book of the Society would have shown as to how many members were there and who were in charge of which paper. This is so in view of Rules 40 and 41 of the Rules which run thus:

Custody of Accounts, Book and Records: The book and records of a society shall be kept in the custody of the Secretary or such other officer as the Committee may authorise.

Officer who will maintain Account Books, etc.: The Committee shall specify which of the officers of the Society shall

(a) keep books of accounts,

(b) keep custody of cash and stores,

(C) keep other books and registers, and (d) prepare returns and statements; Provided that a person charged with keeping of accounts shall not be in charge of cash except under a special or general order of the Registrar.

They envisage that the Committee has the authority to authorise either the Secretary or any other Officer to be the custodian of the records of the Society, under the former rule, while under the latter it is more specific in which the Committee must say as to which of the officers of the Society shall keep which register. Since the other registers and the proceeding book of the Society are presumed to be with the Administrator, it was meet and proper for the prosecution to have produced them to show that at the relevant time these two Respondents were in charge of the papers required under the petition of complaint. No reason has been given as to why this was not done nor any member of the Committee examined to establish this fact.

As would be evident from Ext. 5, the sanction order, the prosecution was not definite about its case. It says

Whereas I am satisfied on perusal of official records and correspondences that (1) Sri Gopal Chandra Mishra (2) Sri Janardan Panda (3) Sri Danardan Panda (4) Sri Purna Chandra Sa mal (5) Sri Jogi Sahu, ex-members of the Managing Committee of Singhapada Co-operative Society have failed to deliver records and properties of the said society to their successor in office and have committed other offences. I Sri M.M. Patnaik, Assistant Registrar, Co-operative Societies, Khurda Circle, Khurda in exercise of the powers conferred on me u/s 116(2) of the Orissa Co-operative Societies Act, 1962 by the Government of Orissa in their notification No. legal- 1/71-2212 A.G. (c) dated 22.3.1971 do hereby accord sanction for their prosecution in proper Court of law for offences under the Orissa Co-operative Societies Act, 1962.

This is dated 18-6-1971. Thus, after the alleged date of occurrence 27-2-1971 and before filing of the complaint on 24-9-1971 this sanction was accorded. This shows that the official records and correspondence were placed before the sanctioning authority. From those records he found that five ex-members of the Managing Committee, including the two Respondents were guilty of the charge u/s 115(6) of the Act. Be it stated here that though sanction was accorded against the two Respondents as ordinary members and not as President and Secretary, yet complaint was filed only as against the two and specifically against the President and the Secretary. It was contended on behalf of the Appellant that in the petition of complaint, the number of persons sanctioned to be prosecuted may be lessened which cannot vitiate the proceeding, though the number cannot be enhanced. However, no authority was produced in support of this contention. Obviously the sanctioning authority on perusal of the records placed before him and on application of his mind granted sanction. It is not a mechanical thing. Besides, after the sanction and before filing of the complaint, there is no intervening authority to modulate the sanction order. At least the learned Counsel appearing for the Appellant could not enlighten me that under the Act there is any provision for any other authority to alter or amend the sanction order. This Ext. 5 unmistakably shows as though five persons were suspected to have kept back the records and registers of the Society for which the sanction was given for their prosecution. But curiously two of them were prosecuted and it was not stated as to who was in possession of which paper or which record. Thus in the absence of any documentary evidence that the two Respondents were in charge of these papers and further ill the absence of any oral evidence that in fact they were dealing with these papers and they were the custodians thereat and lastly in view of the sanction order (Ex. 5) which is very indefinite, I see nothing wrong in the order of acquittal which would justify interference.

Accordingly the appeal is dismissed.