N.L.Ganguly, J. - (1.) THIS petition is directed against the FIR dated 1-2-93 under section 467, 468, 419 and 420 IPC in Case Crime No. 69 of 1993 P. S. Kavi Nagar District Ghaziabad. The prayer is for quashing of the FIR and also for a writ of mandamus commanding; the respondent no. 2 not to arrest the petitioner in the above case Crime of P. S. Kavi Nagar District Ghaziabad.
(2.) THE learned counsel for the petitioner placed before us the FIR, photostat copy of which is annexed as Annexure 1 with the writ petition. THE informant of the FIR is Sri Chaman Singh, who is the Chairman of Ghaziabad Industrial Development Co-operative State Limited. Om Prakash s/o Sri Ram Chander r/o 115, Sahibabad, Ghaziabad was the honarary Secretary of the said co-operative Society since 27th November, 1987. It is said that serious financial irregularities were committed by said Om Prakash which were punishable as a conspiracy also. THE informant stated in the FIR that Om Prakash fictitiously attested the signatures. On 31-3-91 by resolution no. 4 of the Co-operative Societies aforesaid the pay scale of Secretary of the co-operative society was Rs. 100/- per month. THE accused person illegally withdrew one year salary amounting to Rs. 10,80j/- and thereby committed criminal breach of trust and embezzlement. In the receipt book of the cooperative Society, names of fictitious persons were shown. THE names and addresses of the person shown in the register numbers were imaginary and fictitious. THE accused person for his personal gain, embezzled huge amount of money and mis-appropriated them. Fictitious bills and receipts were got printed by the accused persons. THE out-going Secretary had got the fictitious forms etc. printed in the name of the society. THE names of the co-operative Society, members and their addresses of Rajasthan were fictitious. A list of fictitious names of forms namely Sri Raghu Raj Tractors Buldozer and India Tractor and similar 11 other names have been given in the FIR. It is said that clerk Deepa Mathur, Santosh Gupta had prepared the bills, vouchers on the form. THE petitioner Mohd. Yusuf was the real person getting the forgery made. THE forgery, irregularities etc. came to light after the super audit of the accounts of the co-operative Society. Besides serious irregularities in conducting the affairs of the Society, the out-going Secretary Om Prakash and Mohd. Yusuf are said to have removed the receipt books, bill books of the Society for the year 1981-82. The petitioner and Om Prakash were seen straneously removing all records of the Society. Eye witness Madan Pal is mentioned in the FIR that he had seen the accused person taking away the bill book vouchers etc. from the premises in question. Om Prakash out going Secretary was requested to return the records who had also agreed to return the records of the Society. The FIR shows that offences under Indian Penal Code namely under sections 467, 468, 419 and 420 IPC were stated to have been committed. The learned counsel for' the petitioner submitted that there had been an attempt by the Chairman of the co-operative Society to remove the Secretary of the co-operative Society. The injunction was issued by the Civil Courts restraining the Chairman of the co-operative Society in interfering in the working of the Secretary. The matter between the Secretary and the Chairman is pending before the Munsif, Ghaziabad in O. S. No. 1279 of 1992. The injunction order of the Civil Courts is still in force. There is a joint bank account at Punjab National Bank, Shastri Nagar, Ghaziabad operated by the President and Secretary of the Society, jointly. Om Prakash Sharma, Secretary of the Society wrote a, letter to the Punjab National Bank for not permitting to operate the Bank account of the President Thereafter the Bank account has been ceased The contesting opposite party no. 3 opened another account at Oriental Bank of Commerce at Nehru Nagar, Ghaziabad after adding Sri Madan Pal Singh, one of the Directors of the Society. The General Manager/Registrar of the Industrial Society served a notice to the President of the Society and Secretary a lleging serious irregularities in the account of the Society. A civil suit for interim injunction was filed by Sri Om Prakash Sharma being suit no. 1380 of 1982. An injunction was prayed for restraining Sri Chaman Singh and others from selling the Property of the Society and operating the account opened by Sri Chaman Singh. An interim injunction was granted on 19-12-92 and modified by order dated 22-12-92. These facts have been stated in the writ petition to show that the relations between Om Prakash Sharma and number of other persons of the Society were strained and their dispute were pending before the Civil Courts also.
(3.) THE learned counsel for the petitioner placed section 103 of the U. P. Co-operative Societies Act which is quoted as under : "103. Offences and penalities under the Act : (1) it shall be an offence under this Act, if- (i) a committee of management of a co-operative society or a member an officer thereof fails without reasonable cause to submit any return report or information required under the provisions of this Act by the Registrate or by a person of a rank not below that specified by the State Government duly authorised by the Registrar in this behalf, or wilfully makes a false return or furnishes false information or fails to maintain proper account : of (ii) an officer, employee or a member of a co-operative society fraudulently, destroys, mutilates, alters, falsifies or abets the destruction, multilation, alternation or falsification of any books, papers, or securities or makes or abets the making of any false entry in any register, book of account or document belonging to the society : or (iii) the committee of management of a co-operative society, or an officer in possession of the books, record and property of the society refuses or fails without reasonable cause to hand over the custody of such books, records and property belonging to the society to a person lawfully entitled to receive the same under this Act, the rules or the bye-laws: or (iv) the committee of management of a co-operative society or an officer fails, without reasonable cause, to establish a contributory provident Fund for its employees as required by section 63: or (v) An officer or a member of co-operative society who is in possession of information, books and records, fails, without reasonable cause to furnish such information or produce books and papers or give assistance to the person appointed by the State Government under sub-section (1) of section 64, or any person authorised by him to conduct audit, or to the Registrar or a person authorised or appointed by the Registrar under sections 64, 65, 66, 73 or 123 : or (vii) an employer, without sufficient cause, fails to pay a co-operative society the amount deducted by him under sub-section (2) of section 40 within a period of 14 days from the date on which such deduction is made ; or (viii) an officer or member or a co-operative society or any person does any act or omission declared by the rules to be an offence. (2) (a) Whoever commits an offence under clauses (i), (iv) (v) (vii) or (viii) of sub section (i) shall on conviction be liable to be punished with fine which may extend to two hundred and fifty rupees. (b) Whoever commits an offence under clause (ii), clause (iii) or clause (vi) of sub section (1) shall on conviction be liable to be punished with imprisonment of either description which may extend to two years and shall also be liable to fine which may extend to three thousand rupees. (c) Every offence referred to in clause (b) shall be cognizable and bailable. Two other sections of the said Act were also placed i.e. section 104A and 105 of the said Act which are quoted as under : "104-A. Compounding of offences (1) THE Registrar may, either before or after the institution of the prosecution, compound any offence punishable under this Act on realisation of such amount of composition fee as he thinks fit, and where such offence is punishable with fine only then such composition fee shall not exceed the maximum amount of fine fixed for the offence. (2) Where the offence is so compounded- (a) before the institution of the prosecution, the offender shall not be liable to prosecution for such offence and shall, if in custody, be set at liberty; (b) after the institution of the prosecution, the composition shall amount to acquittal of the accused. "105. Cognizance of offences :-(1) No court, inferior to that of a stipendiary magistrate of the first class shall try any offence under this Act. (2) No prosecution shall be instituted under this Act without the previous sanction of the Registrar and such sanction shall not be given without affording to the person sought to be prosecuted an opportunity to represent his case." The learned counsel for the petitioner submitted that the facts disclosed in the FIR clearly show that offence under section 103 of the U. P. Co-operative societies act may be said do have been committed by the petitioner. The learned counsel further submitted that if an offence under the provisions of the U. P. Co-operative Societies Act is committed, there is a specific bar for taking cognizance of the offence unless a previous sanction of the Registrar was obtained for prosecution under section 103 of the Cooperative Societies Act. The learned counsel emphasise the words in section 103 (ii) of the Co-operative Societies Act "fraudulently destroys, mutilates, alters, falsifies or abets of any books, papers or securities etc". The submission is that the facts as disclosed in the FIR, if accepted on its face value, maximum it would constitute offence under section 103 of the U. P. Co-operative Societies Act which could only be prosecuted after prior sanction of the Registrar of the co-operative societies as per provisions of section 105 of the said Act.;