IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 9942 of 2005 Between: S. Anjaneyulu S/o. Rama Rao, Ilaparru PACS, Nandivada Mandal, Krishna District. ... PETITIONER AND 1 The Station House Officer, Nandivada, Krishna District. 2 The Divisional Cooperative officer, Gudivada, Krishna District. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the impugned action of the 2nd respondent in initiating proceedings against the petitioner on the basis of the enquiry under section 51 of the A.P.C.S. Act and consequential action of the 1st Respondent in registering the same as Crime No. 9/2005, dt. 14-3-2005 and quash the entire proceedings as the same are illegal, abuse of process and without jurisdiction and pass such other order or orders in the interest of justice. Counsel for the Petitioner: MR.G.V.SHIVAJI Counsel for the Respondent No.1: GP FOR HOME Counsel for the Respondent No.2: GP FOR COOPERATION The Court made the following: ORDER: Heard both the counsel. 2. Petitioner submits that he was elected President of Ilaparru Primary Agricultural Cooperative Society (PACS), Nandivada Mandal in the month of July 1995 and he functioned as President up to June 2000. He was continued as Chairman of the Person-in-Charge Committee up to March 2003 and thereafter regular officials were appointed. While so, an enquiry was conducted under Section 51 of the Andhra Pradesh Cooperative Societies Act, 1964 (for short ‘the Act’) into the affairs of the Ilaparru PACS and a report had been filed alleging that the petitioner and others misappropriated certain amounts, based on which a police report was given. The first respondent registered a case in Cr.No.9 dated 14.03.2005 for the offence under Sections 408, 420, and 447 read with Section 34 of the Indian Penal Code. He further submits that a show cause notice dated 18.12.2004 has been issued to show cause as to why the misappropriated amount by the petitioner and 8 others shall not be recovered. He further submits that no final orders have been passed under Section 60 of the Act and without obtaining any finality about the misappropriation of the funds, it cannot be said that he had misappropriated the funds and that he is liable for criminal prosecution. 3. Counter has been filed on behalf of the first respondent stating that on the complaint received from the second respondent a case in Cr.No.9 of 2005 was registered on 14.03.2005 and while the investigation was under progress, the interim orders of this Court have been received and therefore, investigation has not been completed. 4. Learned counsel for the petitioner submits that as per the judgment of this Court in WP.No.4563 of 2003 dated 03.04.2003 an enquiry under Section 51 of the Act is only tentative in nature and unless it is followed by proceedings under Section 60 of the Act, no final liability can be fixed; therefore, unless the liability is fixed on the individual under Section 60 of the Act, it cannot be said that he has misappropriated the funds of the society. 5. If that be so, till the final orders are passed under Section 60 of the Act the question of prosecuting a particular person or members of the Managing Committee does not arise. 6. Petitioner further submits that no notice has been issued during the course of the enquiry and without any final order being passed under Section 60 of the Act, just basing on the complaint the criminal prosecution has been launched. 7. Learned Government Pleader appearing for the second respondent submits that the Government vide memo No.4997/Coopn-VI(1)/05 dated 23.042005 stated that once show cause proceedings have been issued under Section 60 of Act no further action shall be taken on the enquiry report. 8. If that be so, I am of the opinion that even before final orders have been passed under Section 60 of the Act determining the amount, it cannot be said that the petitioners has fraudulently misappropriated the said amount. Therefore, the proceedings initiated based on the enquiry proceedings under Section 51 of the Act are illegal and unsustainable. The writ petition is accordingly allowed quashing the criminal prosecution in Cr.No.9 of 2005 keeping it open for the second respondent to file a fresh report as and when the final orders are passed under Section 60 of the Act determining the misappropriated amount. There shall be no order as to costs. ______________ V. ESWARAIAH, J March 5, 2008 DSK