Decided on March 29,1984



K.S.Lodha, J. - (1.)The petitioner Bhawani Shanker Akhilesh was employed as a Manager of the Mahalaxmi Kraya Vikraya Sahakari Samiti Ltd, Pratapgarh. During the audit for the year 1966 67, it came to the notice of the department that Shri Bhawani Shanker had mis-appropriated and mis-used the funds of the Society to the tune of Rs. 7581.21. Thereupon a notice u/s 74 of the Rajasthan Co operative Societies Act, 1965 (hereinafter called 'the Act') was issued to the petitioner by the Assistant Registrar, Co-operative Societies, Chittorgarh to show cause why this amount may not be recovered from him. Shri Bhawani Shanker filed a reply to this notice but thereafter he did not produce any evidence in support of the objections raised by him and the Assistant Registrar passed a decree for the recovery of Rs. 7581.21 along with interest from 30-6-60 to 31-12-69 amounting to Rs. 2274.30, total amounting to Rs. 9855.51 with further interest @ 12% from 1-1-70 to the date of realisation. Aggrieved of this order, Bhawani Shanker filed an appeal to the Registrar, Co-operative Societies who by his order dated 22-8-70 remanded the matter for fresh enquiry. Thereupon again the Assistant Registrar issued another notice u/s 74 of the Act to show cause why this amount may not be recovered. Shri Bhawani Shanker again filed his reply reiterating the reply filed by him earlier. This time after hearing Shri Bhawani Shanker, the learned Assistant Registrar found him guilty of mis-appropriating a sum of Rs. 7581.21 and passed a decree for recovery of the same along with interest from 30-6-60 to 31-12-69 amounting to Rs. 2274.30, further interest from 1-1-70 to 31-5-71@ 12% p. a. amounting to Rs. 1288.77 total Rs 11-144-29 along with sur-charge or compensation of Rs. 2000/- The grand total being Rs. 13.144.28. It was further directed that he shall pay this amount within one week and shall further pay interest @ 12% p. a. on the sum of Rs. 7581.21 from 1-6-71 upto the date of the payment. Shri Bhawani Shanker again filed an appeal against this order, which was dismissed by the learned Registrar, Co-operative Societies, by his order dated 24-1-72. Still not satisfied. Shri Bhawani Shanker filed a revision to the Hon'ble Minister for Co-operative Societies, Government of Rajasthan, Jaipur, but this revision was also dismissed on 5-5-76. Shri Bhawani Shanker has challenged these orders by this writ application.
(2.)The main contentions of the learned counsel for the petitioner are that the recovery of the aforesaid amount was barred by time as the action u/s 74 could have been initiated only within six months from the date of any act or omission referred to in sub-section (1) of that section but in the present case, the act or omission is alleged to have taken place on 30-6-60 whereas the first notice u/s 74 of the Act was issued on 25-4-71 i. e. much beyond the period of six years and, therefore, the Registrar or the Assistant Registrar for the matter of that had no jurisdiction to initiate proceedings u/s 74 of the Act. His second contention was that the petitioners did not get proper opportunity of defending himself as he had not been given the copies of the accounts nor was he explained the accounts and his third contention was that the Registrar could not have directed payment of compensation or sur-charge when he had already directed payment of interest on the amount said to have been misappropriated. The non-petitioners, the State of Rajasthan, the Registrar, Co-operative Societies and the Assistant Registrar, Co-operative Societies, Chittorgarh, not have filed any reply but have contested the writ application. Non-petitioner No. 4 Shri Mahalaxmi Kraya Vikraya Sahakri Samiti Ltd., Pratapgarh, has filed a reply controverting the allegations of the petitioner and alleging that the proceedings u/s 74 of the Act were not barred by time, that the petitioner had been afforded full opportunity of being heard but he himself did not participate in the proceedings after filing the reply. So far as the last contention of the petitioner is concerned, it does not appear to have been raised in the memo of the writ petition but as the matter is purely a question of law, I have allowed the learned counsel to agitate the same despite the objection of the learned counsel for the non-petitioners who had contended that the payment of interest as well as compensation was permissible u/s 74.
(3.)I have given my careful consideration to the rival contentions. So far as the first contention of the learned counsel for the petitioner is concerned, I am of the opinion that it deserves to be partly accepted in as much as although the initiation of the proceedings u/s 74 was not barred by time the charging of interest from 30-6-60 to 15-6-67 of course, appears to be clearly barred. The claim of non petitioner No. 4 is based on a running account. The debit and credit entries have been going on since long and the balances have been carried forward every year. In the accounting year 1967 the past balance of Rs. 7577.59 has been brought forward and thereafter taking into account the debits and credits during the year, a balance of Rs. 7581.29 has been struck on 16-6-67. Shri Bhawani Shanker, who had been examined in the course of the enquiry has not denied this running account but had only alleged that he could not have verified the whole account as some of the entries were made in his absence on leave due to illness. It was when this account of the year 1966-67 was audited that the authorities found that the petitioner Bhawani Shanker had misappropriated this amount and had not paid back the same to the society. Therefore, when the account was taken and the balance was struck oa 15-6-67 during the years 1966-67, the act or omission referred to in Sec. 74 of the Act must be deemed to have taken place and the initiation of the proceedings u/s 74 by notice dated 25-4-71 were well within six years of that act of omission and, therefore, cannot be said to be barred by time.

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