IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14.10.2008 Coram The Honourable Mr. JUSTICE K.MOHAN RAM Crl. O.P. No.6946 of 2008 and M.P.No.1 of 2008 K.Rajendiran .... Petitioner -Vs.- The State Rep. by its The Additional Superintendent of Police Vigilance and Anti Corruption, Vellore .... Respondent Prayer:- Criminal Original Petition filed under Section 482 of Cr.P.C., for a direction to call for the records relating to the First Information Report dated 21.2.2008 in Crime No.1 of 2008 on the file of the respondent herein quash the same as illegal, without jurisdiction and contrary to the provisions of the Prevention of Corruption Act 1988. For Petitioner : Mr. S.Venkataraman For Respondent : Mr. Hasan Mohamed Jinnah Government Advocate (Crl. Side) O R D E R The above Criminal Original Petition has been filed by the petitioner who is the first accused in Crime No.1 of 2008 on the file of the Additional Superintendent of Police, Vigilance and Anti Corruption, Vellore, the respondent herein, to quash the F.I.R. in that case. 2. Learned counsel for the petitioner submitted that the said criminal case has been registered for the offences under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 read with Section 109 of the IPC by treating the petitioner who was employed as Secretary of Girisamudhram Primary Agricultural Co-operative Bank Limited, Vaniyambadi Taluk, Vellore District, as a public servant coming within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988. He further submitted that the society in which the petitioner was employed as Secretary is not the one receiving or received financial aid and hence the petitioner is not a public servant under the law and hence could not be proceeded at all and hence the F.I.R. in Crime No.1 of 2008 is liable to be quashed. In support of the said contention the learned counsel for the petitioner relied upon a decision of the Apex Court reported in (2007) 4 MLJ 321 (SC) (Greater Bombay Co-op. Bank Ltd. v. United Yarn Tex. Pvt. Ltd.). https://hcservices.ecourts.gov.in/hcservices/ 3. In the decision cited supra the question whether the Secretary of the Co-operative Bank will fall under the definition of 'public servant' is defined in Section 2(c) of the Prevention of Corruption Act, did not come up for consideration. But in that decision the issue that came up for consideration was the applicability of Recovery of Debts Due to Banks and Financial Institutions Act 1993 for co-operative banks established under the registered Co-operative Societies Act 1960 and the Multi-State Cooperative Societies Act 2002 and Andhra Pradesh Cooperative Societies Act 1964 and therefore the said decision has no relevance to the facts of this case. 4. Countering the said submissions made by the learned counsel for the petitioner the learned Government Advocate (Crl. Side) for the respondent submitted that the question that arises for consideration in the above Criminal Original Petition is directly and squarely covered by a decision of the Apex Court reported in 2002 Supreme Court Cases (Cri) 1831 (STATE OF MAHARASHTRA v. PRABHAKARRAO). 5. In the above said decision relied upon by the learned Government Advocate (Crl. Side), the judgment of the Bombay High Court quashing the F.I.R. in a similar situation placed reliance on the decision of the Apex Court reported in (2000) 2 SCC 699 = 2000 SCC (Cri) 533 (State of Maharashtra v. Laljit Rajshi Shah) in which decision it was held that the accused in that case was not a public servant as defined under the Prevention of Corruption Act 1988. The said decision of the Bombay High Court was challenged before the Apex Court and the Apex Court has pointed out that the said decision was rendered in a case covered under Prevention of Corruption Act 1947 and not under the Prevention of Corruption Act 1988. It has also been pointed out that considering the definition of the expression 'public servant' in the definition in Section 21 of the IPC which was adopted in the Prevention of Corruption Act 1947 the Apex Court in that decision took a view that the members of the Managing Committee and Chairman of the Cooperative Societies under the Maharashtra Cooperatives Societies Act are not public servants. While dealing with the above said issue and the decision reported in (2000) 2 SCC 699 (referred to supra) and after referring to the definition of the expression 'public servant' as contained in Section 2 (c) of the Prevention of Corruption Act 1988 the Apex Court has held as under:- “3. Under clause (iii) of Section 2(c), any person in the service or pay of a corporation established by or under a 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 cooperative society engaged in agriculture, industry, have been included in the definition of “public servant”. 4. 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. https://hcservices.ecourts.gov.in/hcservices/ 5. Unfortunately, the High Court in its order has not considered this question at all. It has proceeded on the assumption that Section 21 of the Indian Penal Code is the relevant provision for determination of the question whether the accused in the case is a public servant. As noted earlier, Section 21 IPC is of no relevance to consider the question which has to be on interpretation of provision of Section 2(c) of the Prevention of Corruption Act, 1988 read with the relevant provisions of the Maharashtra Cooperative Societies Act, 1960. 6. In the considered view of this Court the above said decision squarely covers the issue that arises for consideration in the above Criminal Original Petition and therefore for determination of the question as to whether the petitioner will fall under the expression 'public servant' as defined in Section 2(c) of the Prevention of Corruption Act 1988 enquiring into the facts, relating to the management, control and funding of the society is necessary to be ascertained and therefore it will be appropriate if the trial court considers the question if it is raised by any party. Therefore this Court is not inclined to entertain the above Criminal Original Petition and accordingly the same fails and dismissed. Liberty is given to the parties to raise the question of maintainability of the proceedings under the provision of the Prevention of Corruption Act, 1988 before the Trial Court. Consequently the connected MP is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar srk To 1.The Additional Superintendent of Police, Vigilance and Anti Corruption, Vellore 2.The Public Prosecutor, Madras High Court, Chennai - 104 1 cc To Mr.S.Venkataraman, Advocate, SR.57483. Crl.O.P.No.6946 of 2008 & M.P.No.1 of 2008 JP(CO) RVL 23.10.2008 https://hcservices.ecourts.gov.in/hcservices/