THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1541 OF 2004 Date: 27-07-2011 Between: A. Devendra. - - - Petitioner/ Appellant/ Accused. AND The State of A.P., Rep by its Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent/ Respondent/Complainant. The Court made the following: THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1541 OF 2004 ORDER: This Criminal Revision Case is preferred by the Petitioner-Accused (for short, ‘the accused’) against judgment rendered in Criminal Appeal No.80 of 2002, dated 13- 08-2004, passed by the III Additional District and Sessions Judge, Tirupati, Chittoor District, preferred against conviction and sentence imposed in Calender Case No.60 of 1999 on the file of Judicial Magistrate of First Class, Nagari, Chittoor District. 2. The Accused was prosecuted in C.C. No.60 of 1999 for the offences punishable under Sections 452, 353 and 506 of I.P.C. After due trial, the learned Judicial Magistrate of First Class, Nagari, Chittoor District, convicted the accused for the said offences under Section 248 (2) Cr.P.C. and accordingly sentenced him to undergo Simple Imprisonment for a period of six months and to pay a fine of Rs.500/- for each offence punishable under Sections 452, 353 and 506 of IPC, vide judgment, dated 28-02-2002 by reason of which, the appeal was preferred which was dismissed confirming the findings of the trial Court, consequent upon which the Revision has been preferred. 3. The prosecution version is that on 20-04-1999 at about 03-00 p.m. the accused trespassed into the co-operative Rural Bank, Nagalapuram road Nagari and caught hold of the throat and collar shirt of the de-facto complainant who was the Secretary/Public Servant and further abused him and threatened him at the point of knife and committed the said offences. 4. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the Calender Case No.60 of 1999. 5. Heard the learned counsel for the accused and the learned Additional Public Prosecutor appearing for the Respondent-State. 6. It is the contention of the learned counsel for the accused that the offence took place in a public office and therefore Sections 452 of I.P.C. is not applicable and further being the Secretary of the Co-operative Rural Bank, Nagari, the de-facto complainant (PW.1) was not a public servant and further PWs. 2 and 3 examined as eye witnesses to the incident did not support the prosecution case but only PW.2 was declared as hostile witness to the prosecution and even according to the de-facto complainant (PW.1) on the very same date of the incident he went to the police station for the purpose of giving report but, he actually gave the report only on the next date of the incident, by which his version is to be suspected and further prior to the institution of the case, the accused sent several petitions against the de-facto complainant (PW.1) to his Superior Authorities on the ground that he committed several irregularities with regards to granting of loans to various farmers and in fact as a counterblast to that he filed false report to the police, following which, the case was registered. It is also his contention that the appellate Court just extracting Section 21 I.P.C. and without examining as to how the de-facto complainant (PW.1) was a public servant held that he was a ‘public servant, which is not tenable. 7. Therefore, it is to be mainly examined as to: 1) Whether the prosecution placed sufficient evidence with regards to the allegations made against the accused? 2) Whether the de-facto complainant (PW.1) was a public servant within the meaning of Section 21 of I.P.C.? 3) Whether the Courts below properly examined the matter and arrived at correct conclusions? 4) Whether the convictions and sentence imposed by the Courts below are tenable or not? 8. I have gone through the record. It is pertinent to note here that PWs. 2 and 3 examined as eye witnesses to the incident did not support the prosecution version, whereas, only PW.2 was declared hostile witness and PW.3 was not declared as hostile witness to the prosecution case. Leaving their evidence apart, the evidence of PW.1 is only available. It is significant here that Exs.D-1 to D-5 provide that the accused sent those petitions to the Superior Authorities of the de-facto complainant (PW.1) alleging that he involved in several irregularities with regards to granting of loans to various farmers including his brother. 9. There is no dispute about sending those petitions to the superior authorities of the de-facto complainant (PW.1 by the accused. Therefore, it clearly provides that prior to the institution of this case, the de-facto complainant (PW.1) got a grouse against the accused, under such circumstances, it is not safe to rely upon the evidence of the de-facto complainant (PW.1) unless it is properly scrutinized and there is corroborating evidence. It is important that though he deposed that on the very same date of the incident he went to the police station for the purpose of giving the corresponding report, in fact, the report was given to the police on the next day and the delay caused in giving the report to the police is not explained, for which, adverse inference is to be drawn. In my opinion, in the circumstances of the case it is fatal. 10. Further, admittedly the incident took place in a public office to which, the public got accessibility and therefore the question of application of Section 452 I.P.C. does not arise at all. Further in State of Punajab Vs. Kesari chand and another[1] relied upon by learned counsel for the accused in support of his contention, it is observed as follows : “12. It is explicit from Dhanoa’s case (supra) that in the context of clause twelfth of S. 21 of the Indian Penal Code, the expression ‘corporation’ was given, in so many words, a narrow legal connotation but in Daman Singh’s case (supra), a context which was different from that of the Penal Code, a liberal interpretation was given to the expression ‘corporations’ occurring in Art. 31A (1) (c) of the Constitution so as to include co- operative societies created and controlled by a statue. It has been noticed many a time that the members who compose the corporation are quite different from the corporation itself; for a corporation is a legal person just as much as individual. Thus, it is a group of individuals who first associate on their own volition to become a co-operative society and then seek a status as a body corporate under the Co-operative Societies Act. This would be evident from the language of S. 30 of the Punjab Co- operative Societies Act. So the body of individuals, which form a co- operative society, do not owe their existence to a corporation established by or under a State Act but only owe their corporate status of their seeking to the Act. It seems to us that the Supreme Court in Daman Singh’s case (supra), when observing that the Society was created by a statue meant that its corporate status had been created by a statue. Equally, when in S.S. Dhanoa’s case (supra) the Court had observed that the society was not created by a statue had in mind that mere incorporation under a statue was not its getting created as in the backdrop there stood a body already created by an act of a group of individuals. Thus, on closer analysis we are of the considered view that the President and the Secretary of the Co-operative Society are not ‘public servants’ within the meaning of clause twelfth (b) of S. 21 of the Indian Penal Code and to whom the provisions of S. 409 Indian Penal Code, are not attracted, because the co-operative society is not a ‘corporation’ established by a State Act in whose service or pay they supposedly are or are assumed to be.” Further, in another decision reported in Hanmant Janardhan Patil Vs. The State of Maharashtra[2] a question arose with regards to the prosecution of Chairman, Vice-Chairman and Secretary of Co-operative Society in the state of Maharashtra under Section 5 (1) (c) read with Section 409 of I.P.C. and it was opined that the accused could not be categorized as Public servant for the purpose of Prevention of Corruption Act, 1947 and under Section 21 of Indian Penal Code, 1860. 11. The test here is whether the Co-operative Rural Bank was established under State Act or not to apply the provisions of section 21 I.P.C. there is no material to that affect to hold whether the de-facto complainant was a public servant or not. 12. The decisions cited supra are applicable here. Therefore it cannot be said that the de-facto complainant (PW.1) happened to be a public servant within the meaning of Section 21 I.P.C. However, for the other reasons discussed the evidence of the de- facto complainant (PW.1) is not acceptable and further the prosecution failed to establish the charges leveled against the accused. Further the Courts below did not consider the matter properly. In the result, the Criminal Revision Case is allowed and the conviction and sentence imposed by the trial Court and confirmed by the appellate Court are set aside and the accused is acquitted under Section 248 (1) Cr.P.C of the offences punishable under Sections 452, 353 and 506 of I.P.C. __________________________ G. KRISHNA MOHAN REDDY, J July 27, 2011. Dsh THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 142 CRIMINAL REVISION CASE No.1541 OF 2004 (Allowed) Date:27-07-2011 DSH. The prosecution version in brief is that the accused approached the complainant on 01-04-1994 and obtained a sum of Rs.45,000/- as hand-loan on the same day and accordingly the accused issued a post-dated cheque 14-04-1994 for Rs.45,000/- drawn on Development Co-operative Bank Limited, Warangal Branch. Once again, the accused approached the complainant on 14-04-1994 and requested him to present the cheque in the Bank on 15-09-1994. Accordingly, when the complainant presented the said cheque in Andhra Bank, Warangal on 15-09-1994, it was returned with a cheque return memo on the ground of ‘insufficient funds in the account of the accused’. The complainant therefore got issued a lawyer’s notice dated 23-09-1994 calling upon the accused to repay the amount. The accused having received the notice on 28-09-1994 replied denying his liability and failed to repay the said amount. 6. [1] AIR 1987 Punjab and Haryana 216 (FB) [2] 1993 Crl.L.J. 3042