1 2815.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2815 OF 2010 Shri.Shivram Dadabhau Papal, Age : 48 years, adult, Occupation:Service, R/o: Murarji-Peth, Solapur. ...Petitioner Versus 1) The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai. 2) Assistant Police Commissioner/ Deputy Superintendent of Police, Anticorruption Bureau , Solapur. 3) Deputy Commissioner of Police/ Superintendent of Police Anticorruption Bureau Pune. ...Respondents ...... Mr.Shirish Gupte, Sr.Counsel with Mr.Ajay A.Joshi for Petitioner. Mr.J.P.Yagnik, A.P.P. for State. ...... CORAM:- A.M.KHANWILKAR AND P.D.KODE, JJ. DATED:- OCTOBER 27, 2010. P.C. 1. By this Petition, it is prayed that the inquiry against the Petitioner for offence under the provisions of the Prevention of Corruption Act, 1988 2 2815.10.sxw (hereinafter referred to as `the Act of 1988’) be quashed and set-aside on the ground that the Petitioner cannot be termed as a public servant. The moot question that arises in this Petition is whether the Petitioner is covered by the definition of “public servant” within the meaning of the Act of 1988. Admittedly, at the relevant time, the Petitioner was office-bearer of Solapur Zilla Sahakari Dudh Utpadak Va Prakriya Sangh Maryadit. If so, the question is: whether the Petitioner would be covered by definition 2(c)(ix) which predicates the meaning of public servant as follows: “2(c)(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act; or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).” 2. To attract this definition, the Co-operative Society of which the Petitioner was office-bearer ought to be engaged in agriculture, industry, trade or banking. It is not in dispute that the stated Society of which the Petitioner was office-bearer, was engaged in activities of agriculture. The fact as to whether the said Co-operative Society was receiving or having received any financial aid from the State Government can be discerned from the clarification offered by the Assistant Registrar, Co-operative Societies vide communication dated 29th July 2010. He has stated that 3 2815.10.sxw during the Co-operative year 1985-1986, the Government land was transferred to the Co-operative Society, in lieu whereof, the Society was required to pay amount of Rs.13,40,100/-. The said amount, however, was treated as contribution of the State Government with the said Co-operative Society to further the activities of the Society, until the same was fully repaid till 23rd March 2000. In other words, the market value of the Government land which was transferred to the Co-operative Society remained in the Books of Accounts of the Society as contribution of the State Government between 1985 to 2000. If so, the Co-operative Society had received financial aid from the State Government during the relevant period to attract the expansive expression used in Clause (ix) of the definition of “public servant”. It mentions receiving or having received any financial aid, amongst other, from State Government. The Petitioner, however, placed reliance on Government Resolutions dated 29th May 1985 as well as 6th March 1986 to contend that the amount which was payable to the State Government by the Co-operative Society cannot be termed as financial aid given by the State Government. We are not impressed by this argument. Neither the Government Resolution dated 29th May 1985 nor 6th March 1986 would be of any avail to the Petitioner. Insofar as the Government Resolution dated 29th May 1995 is concerned, the dispensation 4 2815.10.sxw provided is that the amount payable by the Co-operative Society towards the land price will have to be repaid to the State Government along with interest which obviously means that the amount remained with the Co- operative Society as investment or loan - which in either case is financial aid received by the Co-operative Society from the State Government until it is fully paid back. 3. Insofar as Government Resolution dated 6th March 1986 is concerned, the Government considered the question whether the amount to be received by the State Government towards land price from the concerned Co-operative Societies should be treated as loan or share capital. The fact that the amount lying with the Co-operative Society of the State Government whether is a loan or share capital, will be covered by the expansive expression of receiving or having received any financial aid from the State Government. So long as the amount payable to the State Government or belonging to the State Government remains unpaid, the office-bearers of such Co-operative Society would be covered by definition of public servant as envisaged in the Act of 1988. In the present case, it is not necessary for us to consider as to whether after the amount is fully paid by the Co-operative Society, the concerned Co-operative Society would 5 2815.10.sxw continue to be covered by the expression received or having received any financial aid from the State Government. Inasmuch as, in the present case, as is stated by the learned A.P.P., on instructions, the inquiry against the Petitioner is confined to acts of commission and omission during the period between 1985 to 23rd March 2000 in his capacity as office-bearer of the said Co-operative Society. A priori, the definition of public servant under Section 2(c) of the Act of 1988 would apply on all fours to the case on hand. In this view of the matter, there is no substance in this Petition. Accordingly, the same is dismissed. 4. At this stage, Counsel for the Petitioner submits that the Petitioner be protected for a reasonable period so as to enable the Petitioner to carry the matter in appeal. By way of indulgence, we observe that the Respondent shall not take precipitative action against the Petitioner for a period of four weeks from today. At the same time, the Petitioner shall co-operate with the inquiry, which is already in progress. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)