IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT APPEAL No.1146 of 2006 BETWEEN: S. Ambanna … APPELLANT(S) And Cooperative Tribunal at Chandravihar, M.J.Road, Hyderabad, represented by its Secretary and others … RESPONDENT(S) THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT APPEAL No.1146 of 2006 ORDER: (Per HON’BLE SRI JUSTICE N. RAVI SHANKAR) Appellant in this writ appeal, filed under clause 15 of the Letters Patent, is the petitioner in Writ Petition No.20190 of 2001. He preferred this writ appeal questioning the order dated 20.07.2006 by which a learned single Judge of this Court dismissed the said writ petition. The matter pertains to validity of certain surcharge proceedings initiated by the second respondent- Deputy Registrar of Cooperative Societies, Wanaparthi, Mahaboobnagar District (for short, ‘Deputy Registrar) against the appellant. The writ petition has been filed seeking a writ of certiorari or any other appropriate writ or order to quash the order dated 27.08.2001 of the Cooperative Appellate Tribunal, Hyderabad, passed in C.T.A.No.165 of 1998 and consequently set aside the surcharge proceedings dated 17.08.1998 passed by the Deputy Registrar of Cooperative Societies, Wanaparthi. 2. The facts leading to the filing of the present writ appeal are these. The appellant was formerly president of the Primary Agricultural Cooperative Society, Rajoli (third respondent herein), from 02.07.1987 to 29.06.1990. During an inspection carried out under Section 52 of the A.P. Cooperative Societies Act, 1964 (for short, ‘the Act’) by the competent authority the appellant was found to have committed misappropriation of the funds of the society and also certain irregularities. Basing on the said inspection report surcharge proceedings were initiated against the appellant. Ultimately the Deputy Registrar, after giving show cause notice to the appellant and calling upon his explanation and also after recording the statements of the appellant and others concerned and after considering the record passed the order dated 17.08.1998 in R.C.No.1348/95B directing recovery of a sum of Rs.86,849-55ps from the appellant. Questioning that order, the appellant filed an appeal i.e. C.T.A.No.165 of 1998 before the Cooperative Appellate Tribunal, Hyderabad (for short Tribunal). The said tribunal after giving due opportunity to the appellant and department dismissed the said appeal by its order dated 27.08.2001. Challenging the said order of the tribunal, the appellant filed W.P.No.20190 of 2001. A learned single Judge of this Court dismissed the said writ petition by his order dated 20.07.2006 and questioning the same the present writ appeal is filed. 3. The charges against the appellant are two. The first is that the appellant collected a sum of Rs.65,840/- belonging to the society from Sri C.Madanna, ex-secretary of the society, by giving a hand receipt, dated 30-09-1989, to him representing to him that he would remit it in the society’s bank account and misappropriated the same without remitting it in the society’s bank account. The order of the Deputy Registrar reads that this amount of Rs.65,840-00 was earlier paid by about 45 members of the society towards discharge or part discharge of their loans to the society and this was first collected by the ex-accountant Sri Abdul Khader and handed over to ex-secretary Sri C.Madanna and the appellant being the President of the society at that time took that amount from him. 4. The second charge is that the appellant took a sum of Rs.38,700/- from the ex-secretary Madanna representing that he would disburse the same to four members under a loan scheme which was taken up by the society for disbursement of Rs.12,95,000/- to about 119 members on 28.07.1991, and gave a hand receipt of the same date to the Ex-Secretary but ultimately the appellant did not disburse it and misappropriated that amount also. The details of this charge are also given in the order of the Deputy Registrar. 5. The department’s case is that the appellant is liable for both the amounts covered by the above two charges and consequently surcharge proceedings were initiated against him and also the ex- secretary Sri C.Madanna with whom we are not concerned in this writ appeal. The order dated 17.08.1998 of the Deputy Registrar would show that he recorded the statements of Sri C.Madanna the ex-secretary, Sri Abdul Khader the then accountant, the appellant and two members viz., Sri Anjaneyulu and Smt.Sarada Bai out of the four of the society to whom the amounts pertaining to the second charge are said to have been disbursed, and after examining the accounts and cash books of the society he concluded that the appellant is liable for misappropriation of Rs.65,840/- covered by the first charge referred to supra. With regard to this charge, the Deputy Registrar also held that in the cash book a sum of Rs.69,159-10ps was shown as collected from the members and since this amount exceeds Rs.65,840/- by a sum of Rs.3319/- he further held that both the appellant and Madanna the ex-secretary must be equally held liable and further held that apart from the above sum of Rs.65,840/- the appellant must also be held liable for a sum of Rs.1659-55ps. 6. The Deputy Registrar then dealing with the second charge again considered the evidence and held that both the appellant and Madanna must be held equally responsible for drawing the amount of Rs.38,700/- in the name of paying that amount as loans to the members and consequently held that a sum of Rs.19,350/- (half of Rs.38,700/-) should be recovered from the appellant while further holding that the other half should be recovered from Madanna the ex-secretary. 7. A perusal of the order of the Deputy Registrar, to repeat, would show that he considered the statements of the ex-secretary Sri C.Madanna, the ex-accountant Sri Abdul Khader, the appellant and the two members referred to supra, the receipts given by the appellant and the other record pertaining to the accounts and other affairs of the society and concluded that the appellant is responsible for the loss of Rs.86,849-55ps belonging to the society under both the charges. 8. The learned counsel for the appellant pointed out that both the cash receipts or hand receipts said to have been given by the appellant and relied upon by the Deputy Registrar were forged documents and that though the appellant took a specific plea in that behalf the Deputy Registrar or the tribunal did not consider the same and did not make any attempt to find out about their genuineness. He also argued that by the date of the receipt pertaining to the second charge which is dated 28.07.1991 the appellant also ceased to be the president of the society and the Deputy Registrar without considering the above aspects erroneously saddled him with liability. He further pointed out that the original cash receipts were not produced or verified by the Deputy Registrar during the enquiry. 9. He then pointed out that the tribunal in its order made certain observations that the appellant did not dispute the receipts in question said to have been given by him and proceeded to hold the appellant responsible on that basis and the learned single Judge also affirmed those observations of the tribunal while in fact the appellant throughout disputed the said hand receipts and consequently the surcharge proceedings and the tribunal’s order cannot be sustained. At one stage the learned counsel for the appellant pointed out that the tribunal and as well as the learned single Judge proceeded on the premise that the appellant admitted his complicity and that approach is not correct and consequently this writ appeal should be allowed and the impugned orders be set aside. 10. The learned Government Pleader on the other hand produced the record. His argument is that the order of the Deputy Registrar shows that he considered all the material consisting of the statements of the witnesses and also the relevant cash book and other documents pertaining to the collection of amounts and consequently the said order and also the order of the appellate tribunal which also considered the record can be said to be well- founded. His further argument is that the appellant did not choose to cross-examine the witnesses despite an opportunity being given and therefore he cannot be now permitted to question the statements of the witnesses which show his complicity. He also drew our attention to the limitations of this Court in a writ petition filed for the relief of certiorari and argued that the impugned orders are well-founded and therefore the writ appeal is devoid of merits. 11. We have gone through the record produced by the Learned Government Pleader. Basing on the statements of Sri C.Madanna, Sri Abdul Khader and the above two members and after considering the records the Deputy Registrar passed the order which he passed. The appellant did not choose to cross-examine the above witnesses except pleading that the charges against him and the receipts said to have been given by him are false. The record shows that the appellant gave a statement on 27.11.1997 pleading that his tenure as president was only from 02.07.1987 to 29.06.1990 and therefore, he cannot be said to have given the receipt dated 28-07-1991 for Rs.38,700/- pertaining to the second charge and it is a forged one and therefore he does not propose to cross-examine the accountant Abdul Khader or the ex-secretary Madanna. Then with regard to the first charge also and combining the second charge, the appellant gave various explanations or statements right from 2006 and except denying his complicity and attributing collusion to the ex-secretary and the ex-accountant, the appellant did not choose to cross examine them in the enquiry conducted by the Deputy Registrar. 12. The order of the Deputy Registrar shows that the appellant was given an opportunity to cross examine the witnesses but he did not choose to cross examine them. Thus, having failed to cross-examine the witnesses and establish his defence it is too late for the appellant now to say that the charges against him are false. It may be noted that both the ex-secretary Madanna and the ex-accountant Abdul Khader and the appellant are known to each other as they worked in the society during the same time and the statements of Madanna and Abdul Khader show that the amounts in question were taken by the appellant and their testimony in this behalf remains unchallenged. The Deputy Registrar considered these aspects and the other material on record and concluded against the appellant by the impugned order which was confirmed by the tribunal after going into the matter once again. 1 3 . The learned counsel for the appellant in the course of arguments pointed out that the Deputy Registrar, the tribunal and the learned single Judge made certain observations that the appellant admitted the charges against him and this is incorrect. We have gone through the orders of the Deputy Registrar and the tribunal. Their observations in substance are that the appellant did not choose to cross-examine the witnesses and therefore he cannot be said to have disputed the documents or the oral evidence and this was also held to be so by the learned single Judge. The Deputy Registrar in the course of his order observed that the appellant disputed his signatures in his statement, but he compared the signatures of the appellant on the receipts and the other records containing his admitted signatures and the statements of ex-secretary and ex-accountant and concluded that there was no dispute about the department’s case regarding the receipts. These circumstances were again considered by the tribunal which upheld the order of the Deputy Registrar and they were again considered by the learned single Judge and he did not see any reason to disturb the tribunal’s order. The above contention of the learned counsel for the appellant cannot therefore be said to be correct. 14. One aspect which was argued by the learned counsel for the appellant was that the receipt pertaining to the second charge is dated 28.07.1991 and it is subsequent to the tenure of the appellant and therefore it is highly improbable to believe that the management of the society has given the said amount to him. This aspect was considered by the Deputy Registrar. The second charge pertains to drawing of amount with the help of ex-secretary Madanna on the pretext of paying it to the four members. The appellant’s counsel also pointed out that the original receipts were not considered by the Deputy Registrar and he proceeded to pass orders without considering the same. The order of the Deputy Registrar shows that he considered the statements of ex- secretary Madanna and ex-accountant Abdul Khader about handing over of amounts to the appellant under receipts and concluded against the appellant. To repeat the appellant did not choose to cross examine the above two witnesses and if he is really innocent, he would not have allowed the matter to be decided without cross examining them. The tribunal considered this aspect in para 9 of its order and its observations are as follows: “9. The Inspection Report U/s.52 of the APCS Act, VII of 1964 was conducted by verification of the records and by examining the witnesses and also the documents produced though, similar contentions raised in the explanations submitted by the appellant, the letter dated: 30.9.1989 styled as Receipt signed by the appellant acknowledging that he received a sum of Rs.65,840/- collected by the Secretary in cash and the subsequent letter dated: 28-7-1991 showing the names of (4) persons and the respective amount disbursed as loan and the same acknowledging the receipt of Rs.38,700/- in cash by the appellant and undertaking to repay by himself.” 15. All these circumstances were considered by the Deputy Registrar and also the Co-operative Tribunal. It should be noted here that Section 60 of the Act provides for initiating surcharge proceedings even against a former president or office bearer of the society where the record shows that he is guilty of any misconduct relating to the affairs or money of the society. Thus the contention raised on behalf of the appellant that the second charge pertains to a date subsequent to his tenure cannot be accepted. 16. It may now be noted that in SYED YAKOOB vs. K.S.RADHAKRISHNAN[1] our Honourable Supreme Court stated the limitations placed on the jurisdiction of a High Court in a writ petition or a writ appeal arising therefrom under Article 226 of the Constitution with regard to issuance of a writ of certiorari. It should be noted that a writ of certiorari can be issued only when the tribunal or even the primary authority have exercised a jurisdiction not vested in them by law or have exceeded the jurisdiction conferred upon them by law or have committed a patent error which is apparent on the face of the record in adjudicating the matter in question. 17. In the present case which pertains to surcharge proceedings relating to recovery of misappropriated amounts, it should be noted that the Deputy Registrar Cooperative Societies and the Cooperative Appellate Tribunal had the jurisdiction under the Act to decide the matter. Added to this, the record in the case and the orders passed by the Deputy Registrar and the Cooperative Appellate Tribunal shows that they acted on sufficient evidence and held that the appellant was responsible for the misappropriated amounts. Thus the above two authorities cannot be said to have committed any illegality in exercising their jurisdiction and their decisions cannot also be said to be vitiated by any patent error. All these aspects were considered by the learned single Judge and he dismissed the writ petition. 18. In view of the aforesaid reasons and circumstances, we find that the impugned orders do not suffer from any illegality or want of jurisdiction and therefore do not call for our interference. Accordingly it is held that there are no merits in this writ appeal and the same is dismissed. No costs. _____________________ A.GOPAL REDDY, J. _______________________ N. RAVI SHANKAR, J. 15th February 2011 CVRK [1] AIR 1964 SC 477