HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.6391 of 2009 Dated : 27.08.2009 Between : B.Nagaraju & 3 others ….. Petitioners a n d The State of A.P. ….. Respondent HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.6391 of 2009 ORDER: Heard Sri E.V.Bhagiratha Rao, learned counsel for the petitioners, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor, for the sole respondent. The petitioners are facing prosecution in C.C.No.771 of 2005 on the file of the Additional Judicial First Class Magistrate, Vizianagaram, for the alleged offences punishable under Sections 403, 406, 409, 420, 468, 471, 120-B read with Section 34 of the Indian Penal Code in respect of the transactions concerning South Eastern Railway Employees Consumer Co-operative Stores Limited, Vizianagaram, and the contention of the petitioners herein is that the charge sheet filed in pursuance of the investigation conducted by the Police on the report given in pursuance of an enquiry report of the department was not in pursuance of any surcharge proceedings initiated against the petitioners under Section 60 of the A.P. Co-operative Societies Act, 1964 (for short ‘the Act’). The petitioners contend that a departmental enquiry under Section 51 of the Act is insufficient to attribute any criminal liability for misappropriation of funds to the accused as decided in W.P.No.4563 of 2003. It is seen from the material papers on record that in Crl.P.No.259 of 2008 decided on 20.03.2009 by this Court, the learned Judge made a reference to the earlier decision of this Court in W.P.No.4563 of 2003 dated 03.04.2003 wherein it was held that the surcharge proceedings have not been initiated and criminal proceedings were initiated even before such surcharge proceedings were initiated and therefore till such exercise is undertaken, the question of prosecuting a member of the society or its Managing Committee does not arise. The learned Judge observing that no surcharge proceeding under Section 60 of the Act was initiated till then, quashed the criminal proceedings in C.C.No.771 of 2005 insofar as the first and second accused are concerned while leaving it open to the respondents to initiate proceedings under Section 60 of the Act. The present petitioners are A.6, A.8, A.9 and A.11 in the same case and as the order in Crl.P.No.259 of 2008 had admittedly become final in the absence of any challenge, they are entitled to the same relief. Therefore, the criminal petition is allowed quashing the proceedings in C.C.No.771 of 2005 on the file of the Additional Judicial First Class Magistrate, Vizianagaram, against the petitioners while leaving it open to initiate any proceedings under Section 60 of the Act for fixation of liability on the petitioners and for any consequential action arising there from. ______________________ G.BHAVANI PRASAD, J 27th August, 2009 SUR