THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.4116 of 2007 (Dated: 22-07-2010) Between: Donepudi Nageswara Rao S/o late Dharma Rao Occ: Advocate, R/o Mogalrajpuram Vijayawada-520 010 …Petitioner A n d The Station House Officer, Krishna Lanka Police Station High Court of A.P., Hyd. …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.4116 of 2007 ORDER: This Criminal Petition has been filed by Donepudi Nageswararao under Section 482 Cr.P.C to quash the proceedings in C.C.No.453 of 2006 on the file of the II Additional Chief Metropolitan Magistrate, Vijayawada. 2. The petitioner was the President of Vijayawada Cooperative Building Society Limited, Vijayawada (hereinafter referred to as the `society’). The members of the society lodged complaints to the District Cooperative Officer, Krishna at Machilipatnam regarding the activities of the petitioner as President of the Society. The District Cooperative Officer ordered an enquiry into the affairs of the society. The Cooperative Sub Registrar conducted enquiry and submitted his report. The enquiry revealed misappropriation of the society funds to a tune of Rs.3,30,051.78 ps. A surcharge order was passed against the accused and an E.P was filed for recovery of the same. The enquiry further revealed that the petitioner had not handed over any records of the society even after he was removed from the post of Presidentship with effect from 01.8.2000. The petitioner allegedly executed a registered sale deed in respect of Plot No.24 in favour of Ch.Nageswara Rao on 24.2.2001 though he was not the President of the Society as on that day and he had no authority to register the plot after 01.8.2000. The Commissioner for Cooperation and Registrar of Cooperative Societies, A.P., Hyderabad accorded sanction to prosecute the accused. The District Cooperative Officer, Krishna at Machilipatnam authorized the Divisional Cooperative Officer, Vijayawada to file complaint against the petitioner. Thereupon, the Divisional Cooperative Officer filed a complaint against the petitioner on 22.9.2003, vide Proc.Roc.No.2630/2002/C. Lw-12- M.Kishore Babu received the complaint and registered a case and issued F.I.R.He examined 11 witnesses and recorded their statements under Section 161 Cr.P.C. Of them, 8 witnesses stated of the accused collecting money from them towards instalments, but remitted lesser amounts to the society. After completing investigation, Lw-13-M.Ram Kumar laid charge sheet against the accused before II Additional Chief Metropolitan Magistrate, Vijayawada. The learned Magistrate took the charge sheet on file as C.C.No.453 of 2006. Hence this petition by the accused under Section 482 Cr.P.C with a prayer stated supra. 3. The petitioner in the instant case earlier filed Criminal Petition No.2352 of 2004 with a prayer to quash the F.I.R in Crime No.578 of 2003. The said petition came to be dismissed giving liberty to the petitioner to raise all the contentions as are available in law and that the same will have to be decided on merits. 4. Heard learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the respondent- State. 5. Learned counsel appearing for the petitioner submits that the petitioner and two others were prosecuted on the complaint of one of the members of the society, namely Maddila Narayana Rao, for the offences under Sections 406, 420 read with 34 IPC and Section 79(c ) and (f) of the A.P.Co-operative Societies Act, 1964 (for brevity, ‘the Act’) and they were found not guilty for the said offences and were acquitted accordingly, by judgment dated 3.2.2009 in C.C.No.325 of 2004 on the file of the I Additional Chief Metropolitan Magistrate, Vijayawada and in which case prosecuting the petitioner for the self-same offence would amount to double jeopardy. A further submission has been made that the Divisional Cooperative Officer is not competent to initiate proceedings against the petitioner in respect of his activities as President of the society. In support of his submission, learned counsel placed reliance on the judgment of the Supreme Court in State v.Nalini[1] and a Division Bench judgment of this Court in K.Shivaramaraju and others v. Registrar of Cooperative Societies, A.P., Hyd.[2]. In Shivaramaraju’s case (2nd supra), prosecution was initiated against the appellants therein. The competency of the Divisional Cooperative Officer was questioned. The Division Bench of this Court referred Section 4(2) of the Act and held that there is no provision under which the Divisional Cooperative Officer could have directed and compelled the Managing Committee to launch prosecution. 6. Coming to the facts of the case on hand, it is the Commissioner for Cooperation and Registrar of Cooperative Societies, who accorded sanction for prosecution of the petitioner- accused. Under sub-section (2) of Section 4, every Society registered or deemed to be registered under the Act shall function subject to such directions as may be issued by the Registrar, from time to time, in the interests of the Co-operative movement or the public interest or in order to prevent the affairs of the society from being conducted in a manner detrimental to the interests of the members or of the depositors or creditors thereof, and the society shall comply with such directions. A plain reading of sub-section (2) of Section 4 indicates that the Registrar is empowered to monitor over all functions of the society. The complaint in the instant case came to be presented against the petitioner by the Divisional Cooperative Officer, Vijayawada on sanction being accorded by the Commissioner for Cooperation and Registrar of Cooperative Societies. Therefore, the cited decision has no application to the facts of the case on hand. 7. Learned Additional Public Prosecutor submits that the proceedings in C.C.No.325 of 2003 came to be initiated on the complaint of one of the members of the society , namely Maddila Narayana Rao and he died after being examined as Pw-1 in chief and the case against the petitioner-accused and others ended in acquittal because the witnesses who have been examined as Pws 2 to 4 were not being able to produce the receipts issued by the accused therein and whereas the present complaint came to be filed by the Divisional Cooperative Officer on sanction being accorded for prosecution of the petitioner as Ex.President of the society by the Commissioner for Cooperation and Registrar of Co-operative Societies, and therefore, subsequent prosecution does not amount to double jeopardy. 8. Indisputably, the petitioner herein along with two other accused was prosecuted for the offences under Sections 406 and 420 read with 34 IPC and 79(c ) and (f) of the Act in C.C.No.325 of 2003. The Divisional Cooperative Officer, namely, Dasari Venkata Rama Mohana Rao was examined as Pw-4 and enquiry report was marked as Ex.P-4. Subsequently, charges were framed for misappropriation of the amounts collected from the members and also for not handing over the records of the society. The learned I Additional Chief Metropolitan Magistrate, Vijayawada, on considering the evidence brought on record, came to the conclusion that the charges leveled against the petitioner and two others were not substantiated. Para 20 of the judgment passed in C.C.No.325 of 2003 reads as hereunder:- “ It is to be stated here the Court requires independent evidence before it is establishing the various offences against the accused. The evidence of Pw.3 and the enquiry report submitted by Pw.3 as well as the surcharge proceedings under Ex.P-5 is only corroborative evidence. The main evidence has to give from the victims. Though two victims are examined before the Court, no documentary evidence is filed substantiating the offences alleged against the accused. When the foundation is weak, the super structure is only ornamental. As already stated the primary evidence in this case is weak and do not support the allegations alleged against the accused. The evidence of Investigating officer is of formal nature. The court is therefore unable to rely upon the unsubstantiated oral evidence of the victims, i.e., Pws.2 and 5 in this case. As already stated the evidence of Pw.1 has to be necessarily eschewed as his chief examination itself is incomplete and there is no opportunity for the prosecution to cross examine the witness. In the above view taken the Court, the accused are entitled for acquittal”. 9. The charges leveled against the accused in C.C.No.453 of 2006 are the same charges for which he along with others was prosecuted and he was found not guilty and consequently, an order of acquittal came to be recorded. Prosecuting the accused for the self-same charges on almost identical evidence, in my considered view, definitely amounts to double jeopardy. Under Article 20(2) of the Constitution of India no person shall be prosecuted and punished for the same offence more than once. This clause embodies the common rule of nemo debit vis vekari, which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted, he can take complete defence of his former acquittal or conviction. 10. In view of the above discussion, I find that the prosecution of the accused in C.C.No.453 of 2006 amounts to double jeopardy. Accordingly, this Criminal Petition is allowed quashing the proceedings in C.C.No.453 of 2006 on the file of the II Additional Chief Metropolitan Magistrate, Vijayawada. _____________________ B.SESHASAYANA REDDY, J Dt.22-07-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.4116 of 2007 (Dated: 22-07-2010) [1] 1999(5) SCC 253 [2] Writ Appeal No.560 of 2003 dated 9.4.2003