JUDGMENT
Harphul Singh Brar, J.
1. This is an appeal filed by the State of Haryana against the judgement of the learned Additional Sessions Judge, Sonepat dated 4-1 -1991 vide which he set aside the judgment dated 3-5-1990 and the order dated 4-5-1990 of the Chief Judicial Magistrate, Sonepat vide which accused Nawabuddin Khan, respondent in this appeal (hereinafter called the ‘respondent) was “convicted Under Section 408 of the IPC and was sentenced to undergo three years rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for three months.
2. Brief facts taken out from the judgment of the lower appellate Court are that respondent Nawabuddin Khan was employed as a Salesman in the stores of various branches of Sonepat Central Consumer store, Sonepat. Charge was taken by him of the goods worth Rs. 91,690.52p. from the Store Keeper of the said Store on 29-6-1982 and thereafter, he was supplied the goods from time to time to be sold in the said store. During the period from 21-1-1982 to 21-9-1984, his total liability was Rs. 2,92,238/- as the goods of the value of the above mentioned amount were entrusted to him for sale but he deposited only Rs. 1,38,752.89 p. and embezzled the goods of the value of Rs. 1,53,485.11 p.
3. The Assistant Registrar, Co-operative Societies, Sonepat sent a written complaint dated 6-5-1985 to the Police Station City, Sonepat through the Superintendent of Police, Sonepat on the basis of which present case was registered against the accused Under Section 408, IPC for having embezzled a sum of Rs. 1,53,485.11 p. being the price of the goods supplied to him during the period he remained posted as a Salesman in the said store.
4. The respondent Nawabuddin Khan was charged by the trial Court Under Section 408, IPC. He was tried for the aforesaid charge by the Magistrate and was ultimately convicted and sentenced, as stated above in the first para of the judgment. On an appeal filed by the respondent, the learned Additional Sessions Judge, Sonepat accepted his appeal and acquitted him.
5. Before the arguments were heard by the Lower Appellate Court, the learned counsel for the respondent Nawabuddin Khan placed on record a certified copy of the award dated 7-11-1989 of the Sub-Registrar, Co-operative Societies, Karnal disclosing that the Sub-Registrar, Co-operative Societies, Karnal had passed an award of Rs. 1,53,485.11 p. besides interest against the respondent in favour of Sonepat Central Co-operative Society Ltd., Sonepat after holding that the said amount had been embezzled by the respondent., when he remained posted as Salesman in the above said store. On the basis of the award of the Sub-Registrar, Co-operative Societies, Karnal dated 7-11-1989 and then relying on the following authorities of the High Court, the Lower Appellate Court set aside the judgment dated 3-5-1990 and the order dated 4-5-1990 of the Chief Judicial Magistrate, Sonepat by holding that as the Arbitrator has passed the award of the same amount on the same facts against the accused, he cannot be held criminally liable for the said amount:-
(1) Hakam Singh v. State of Punjab, Cr. Misc. No. 429-M of 1987 decided on 20-2-1987;
(2) Harbhagwan Dass v. State of Punjab (1983) 2 Rec Cri R 156 (Punj & Har);
(3) Bant Singh v. The Dulley Co-operative Agricultural Service Society Ltd. (1987) 2 Rec Cri R 435 (1) (Punj & Har), and
(4) Kashmira Singh v. State of Punjab, (1989) 1 Rec Cri R 175 (Punj & Har).
6. The learned Additional Sessions Judge also noted an authority of this Court in Rajpal Singh v. State of Haryana, 1978 Cri LJ 609, wherein, it was held that civil remedy provided Under Sections 54 and 55 of the Punjab Co-operative Societies Act (hereinafter called the Act) for recovering an embezzled amount, does not bar criminal prosecution but he did not follow the same, as according to him, the judgment in Kashmira Singh’s case (1989 (1) Rec Cri R 175) (supra) on which he had relied, was rendered later.
7. Learned counsel for the appellant State of Haryana, has contended that the criminal prosecution of the respondent was not debarred. The civil remedy provided to the Co-operative Society under the Act and the criminal prosecution under the law can be taken side by side. He has cited Amrik Singh v. State of Punjab (1989) 2 All Cri LR 778 (Punj & Har) Niranjan Dass v. Punjab State Civil Supplies Corporation Ltd. Chandigarh (1991) 2 All Cri LR 873 (Punj & Har) and D. C. Jain v. Union Territory, Chandigarh, (1994) 1 Rec. Cri R 202 : (1994 Cri LJ NOC 115) (Punj & Har), to support his contention.
8. Learned counsel for the State has very fairly brought to our notice another judgment of this Court rendered in Criminal Revision No. 291 of 1994 dated 3-4-1995 Rajinder Singh v. State of Punjab (1995) 3 Rec Cri R 273, which is in line with the judgment referred to by the learned Additional Sessions Judge for the proposition that no criminal proceedings on the same set of facts which were subject matter before the Arbitrator, are maintainable. The learned State counsel submits that if the judgment cited by him in Amrik Singh’s case (1989 (2) All Cri LR 778) (supra) were brought to the notice of the learned Additional Sessions Judge or to the notice of the Hon’ble Judge of this Court while rendering judgment in Rajinder Singh’s case (supra), the result perhaps, would have been different.
9. We have heard the learned counsel for the State at length and have also heard the learned counsel for the respondent.
10. Reference may be made to Section 54 of the Act which reads as under:-
“(1) If in the course of an audit, inquiry, inspection or the winding up of a Co-operative Society it is found that any person, who is or was entrusted with the organisation or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to this Act, the rules or the bye-laws or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fradulently retained any money or other property belonging to such society, the Registrar may of his own motion or on the application of the committee liquidator or any creditor, enquire himself or direct any person authorised by him by an order in writing in this behalf, to inquire into the conduct of such person.
Provided that no such inquiry shall be held after the expiry of six years from the date of any act or omission referred to in this sub-section.
(2) Where an inquiry is made under sub-section (1), the Registrar may, after giving the person concerned, an opportunity of being heard, make an order requiring him to repay or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent, as the Registrar may consider just and equitable.”
11. Under Sub-section (1) of Section 54 of the Act. the Registrar may enquire into the conduct of such a person who has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has mis-appropriated or fradulently retained any money or other property belonging to the society. Where an inquiry is made under sub-sec. (1), the Registrar may, after giving the person concerned, an opportunity of being heard, make an order requiring him to repay or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent, as the Registrar may consider just and equitable. The action taken by the Registrar Under Section 54 of the Act, does not in any way, debar the society to take criminal action in accordance with law against the person concerned who has mis-appropriated the money or other property belonging to the society. The power Under Section 54 of the Act is conferred on Registrar merely to provide a convenient safeguard to the interest of the co-operative society. The criminal liability of the individual, however, continues to subsist and once it is held that a person has embezzled the money of the society, criminal action can decidedly be taken against him. To hold that the accused cannot be held criminally liable for the same amount regarding which the Arbitrator has passed his award Under Section 54 of the Act against him, is not a valid decision.
12. It has been clearly laid down by the Supreme Court in Pratibha Rani v. Suraj Kumar, (1985) 1 Chand LR (Cri) 666: (1965 Cri LJ 817) that criminal law and Civil law car) run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This, however, does hot affect the civil remedies at all for suing the wrong doer in cases like arson and accident etc. It is an anathema to suppose that when a civil Comedy is available, a criminal prosecution is completely barred. The two types of action are quite different in content, scope and import. The co-operative society has got a right to secure its financial interest and initiate action for recovery of the amount embezzled by the accused but at the same time, the society is not debarred from taking the criminal action against the accused available to it under the law of the land.
13. We find that Pratibha Rani’s case (1985 Cri LJ 817) (supra) was neither noticed by the learned Additional Sessions Judge nor it was brought to the notice of the Hon’ble Judge of this Court who delivered the judgment ill Rajinder Singh’s case(l995(3)Rec Cri R 273)(supra).We are of the firm view that it is a clear mandate of the Supreme Court as laid down in Pratibha Rani’s case (1985 Cri LJ 817) (supra) that civil and criminal remedies can run side by side as their purpose and effect are altogether different. Any contrary view expressed in any judgment of this Court, in our view, does not lay down good law.
14. In view of our discussion made above, this appeal succeeds. The judgment of the learned Additional Sessions Judge dated 4-1-1991 is set aside and the respondent is convicted Under Section 408 of the Indian Penal Code.
15. The learned counsel for the respondent submits that he does not question the conviction of the respondent but prays that the respondent convict be released on probation, as according to him, the instant case relates to the year 1984 and the respondent has already deposited the amount determined against him by the Sub-Registrar. Co-operative Societies. We find the request of the counsel for the respondent as genuine. The case was registered against the respondent in the year 1984 and he has already deposited the amount due against him with the authorities concerned.
16. We thus order the release of the respondent-Nawabuddin Khan on probation of good conduct for one year, on his furnishing bond for keeping peace and good behaviour to the Probation Officer of the district within two months from today. He shall up bear before the Probation Officer when called for within the period of one year. The period of one year shall start from the date when he furnishes the requisite bond to the Probation Officer.
17. This appeal is thus allowed in the above said terms.
