IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.2524 of 2007 DATE:21.06.2010 Between: Ravuri Sivaprasad …… Petitioner/Accused. And: State of A.P represented by Inspector of Police, Anti Corruption Bureau, Ongole, through its Public Prosecutor. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.2524 of 2007 ORDER: The petitioner/A-1 is working as Superintendent in-charge in the office of Managing Director, Prakasam District Milk Producers Mutually Aided Cooperative Union Limited, Ongole (in short, the union). He is accused of offences under Sections 7, 12, 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 (in short, the P.C Act) in Crime No.5/RCT-NPK/2007 of Anti Corruption Bureau (A.C.B), Ongole. 2) The only point urged in this case by the senior counsel appearing on behalf of the petitioner is that the petitioner is not a public servant within the meaning of Section 2(c) of the Act. It is contended that the petitioner is an employee in Mutually Aided Cooperative Society formed under Mutually Aided Cooperative Societies Act on 14.11.2002 and that therefore, he is out of the list of public servants mentioned in 2(c) of the Act. It is further contended that as per Section 2(c)(ix) of the Act, only elected office bearers of a registered cooperative society like President and Secretary are included and not full time or part time employees of such society and that even though such cooperative society received financial aid from Central or State Government. It is further contended that the purpose of enacting Mutually Aided Cooperative Societies Act is to keep such societies away from financial aid or grant of Central or State Government. On the other hand, it is contended by the Special Public Prosecutor for A.C.B took this Court through previous history relating to this union. It is contended that in the year 1960 integrated milk projects with UNICEF aid were operated under the control and jurisdiction of the Department of Animal Husbandary in Government of Andhra Pradesh and that during the year 1970-71, the Department of Dairy Development, Government of Andhra Pradesh was formed and that on 01.04.1974 A.P. Dairy Development Corporation, Hyderabad was formed as A.P. State Government undertaking and that on 01.08.1974 the A.P. Dairy Development Corporation was abolished and on 01.10.1981 A.P. Dairy Development Cooperative Federation, Hyderabad was formed and that the union was formed on 15.11.1985 and that the staff who were working were absorbed with milk union on 01.01.1989 as is where basis and that the union was formed under the Mutually Aided Cooperative Societies Act on 14.11.2002 and that the petitioner was initially employed as telephone operator in Prodduturu Milk Products Factory on 10.05.1980 and subsequently promoted as Senior Assistant and was transferred to Office of the General Manager, the union by Vice Chairman and Managing Director of A.P. Dairy Development Corporation on 07.01.1991. It is further contended on behalf of the prosecution that the union entered into an agreement with National Dairy Development Board (Government of India undertaking) on 22.10.2005 and since then the National Dairy Development Board has been extending financial aid and also holding administration over the union and that the union requested the Board to manage the union and that after entering into an agreement by providing personnel and technical assistance and also taken up all related operations including marketing and selling activities of the union for a period of 7 years with effect from 01.01.2006. The A.C.B filed copy of management agreement entered into between the union and National Dairy Development Board on 22.10.2005. On the other hand, it is contended for the petitioner that as per Section 2(d) of the A.P. Mutually Aided Cooperative Societies Act, 1995, such societies like the union are prohibited from raising share capital from the Government or cooperative society and shall return share capital, if any, to the Government and that therefore the union is not accepting any aid from the Government nor the union is under the control of any Government or Government organisation and that simply because the union borrowed some amount from any financial institution, which may be a Government undertaking, that does not mean that the union had taken any aid from that financial institution and that relationship between the union and the financial institution is only one relating to the loan only as debtor and creditor. The petitioner also filed bye-laws relating to the union in support of his contention. Having regard to the above contentions raised by both the parties basing on disputed questions of fact, this Court is of the opinion that the respective contentions of the parties have to be scrutinised after both the parties leading evidence before the trial Court in case the petitioner is charge sheeted after the investigating officer considering the petitioner’s contentions raised in this petition. The above disputed questions of fact cannot be considered and decided in this petition under Section 482 Cr.P.C. 3) In Government of A.P V. P.Venku Reddy[1], the Supreme Court while considering scope and effect of Section 2(c)(ix) and Section 2(c)(iii) of the Act, held as follows: “FROM the above quoted sub-clause (ix) of Clause (c) of S. 2 of the 1988 Act, it is evident that in the expansive definition of 'public servant', elected office-bearers with President and Secretary of a registered co-operative society which is engaged in trade among others in 'banking' and 'receiving or having received any financial aid' from the Central or State Government, are included although such elected office bearers are not servants in employment of the co-operative societies. But employees or servants of a co-operative society which is controlled or aided by the government, are covered by sub-clause (iii) of Clause (c) of S. 2 of the 1988 Act. Merely because such employees of co-operative societies are not covered by sub-clause (ix) along with holders of elective officers, High Court ought not to have overlooked that the respondent, who is admittedly an employee of a co-operative bank which is controlled and aided by the government, is covered within the comprehensive definition of 'public servant' as contained in sub- clause (iii) of clause (c) of S. 2 of the 1988 Act. It is not disputed that the respondent/accused is in service of a co-operative Central Bank which is an 'authority or body' controlled and aided by the government.” In State of Maharashtra V. Prabhakar Rao[2], again the Supreme Court considered scope of Section 2(c) and observed: “Under clause (iii) of section 2 (c) any person in the service or pay of a corporation established by or under Central, Provincial or State Act or an authority or a body owned or controlled or aided by the government and under clause (ix) the president, secretary and other office-bearers of a registered co-operative society engaged in agriculture industry, have been included in the definition of "public servant'. The question for consideration is whether the accused in the present case comes within the purview of the aforementioned clauses or any other clause of section 2 (c)of the Prevention of Corruption Act, 1988 for determination of the question, enquiry into facts, relating to the management, control and funding of the society, is necessary to be ascertained”. 4) This Court is also of the opinion that for determination of the question raised herein, enquiry into facts is necessary to find out whether the union is controlled or aided by any Government or a government company and whether the union is receiving any financial aid from any Government or from Corporation established by or under an enactment or any authority or body controlled or aided by the Government. In that view of the matter, no relief can be granted to the petitioner in this petition. 5) Hence, the petition is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J June 21, 2010 KSH [1] AIR 2002 SUPREME COURT 3346 [2] (2002)7 Supreme Court Cases 636