PETITIONER:
RAMARAO & ANR.
Vs.
RESPONDENT:
NARAYAN & ANR.
DATE OF JUDGMENT:
20/12/1968
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
GROVER, A.N.
CITATION:
1969 AIR 724 1969 SCR (3) 185
1969 SCC (1) 167
ACT:
Registrar under section whether a court within the meaning
of s. 195 of Code of Criminal Procedure-Sanction of such
court whether required for prosecution in respect of
offences under ss. 465 and 471 I.P.C. committed in
proceedings before it-Said offences under I.P.C. whether
fall within description of offences under s. 146(p) of
Maharashtra Act– Sanction of Registrar for prosecution
whether necessary.
HEADNOTE:
The Nagpur District Land Development Bank Ltd. was
registered as a society under the Maharashtra Cooperative
Societies Act, 1960. There was dispute as to whether one
‘M’ had been elected as a member of the Bank at a meeting of
the Board of Directors. The Registrar of Cooperative
Societies referred the dispute to a nominee. Certain
documents including the minutes book of the Bank were
produced before the nominee. ‘M’ filed a complaint against
the President and Secretary of the Bank charging them with
offences under ss. 465 and 471 I.P.C. for having forged the
minute book and producing it before the nominee. The two
accused raised an objection that the magistrate had no
jurisdiction to take cognizance of the complaint without the
previous sanction of the Registrar of Cooperative Societies
under s. 148(3) of the Maharashtra Cooperative Bank Act,
1960. The trial magistrate rejected the contention. The
order was confirmed by the Court of Session and the High
Court Of Bombay. In appeal before this Court the following
contentions were urged on behalf of the accused-appellants :
(i) That the nominee of the Registrar appointed under s. 95
of the Maharashtra Cooperative Societies Act, 1960, was a
‘court’ within the meaning of s. 195 of the Code of Criminal
Procedure and a complaint for offences under ss. 465 and 471
Indian Penal Code alleged to have be-en committed by a party
to any proceeding in respect of the document produced or
given in evidence in such proceeding, cannot be entertained
except on a complaint in writing of such court, or of a
court to which it is subordinate, (ii) That the ingredients
of the offence of forgery punishable under s. 465 I.P. Code
‘and of the offence under s. 146(p) of the Maharashtra
Cooperative Societies Act are the same, and the general
provision is on that account pro tanto repealed, and in any
event in view of s. 148(3) of the Maharashtra Act no
prosecution could be initiated in respect of the offences
charged otherwise than with the sanction of the Registrar.
HELD : (i) The nominee exercising power to make an award
under s. 96 of the Maharashtra Cooperative Societies Act,
1960, derives his authority not from the statute but from
investment by the Registrar in his individual discretion.
The power invested is liable to be suspended and may be
withdrawn. He is not entrusted the judicial power of the
State : he is merely an arbitrator authorised within the
limits of the power conferred to ‘adjudicate upon the
dispute referred to him. He is -not a court within the
meaning of s. 195 of the Code of Criminal Pro-
‘Sup.CI/69-13
18 6
Thadi Subbi Reddi v. Emperor, A.I.R. 1930 Mad. 869, Velayuda
Mudali & Anr. v. Co-operative Rural Credit Society & Ors.,
A.I.R. 1934 Mad. 40, Y, Mahabaleswarappa v. M. Gopalaswami
Mudaliar, A.I.R. 1935 Mad. 673, Nand Lal Ganguli v. Khetra
Mohan Ghose, I.L.R. 45 Cal. 585, Jagannath Prasad v. State
of Uttar Pradesh, [1963] 2 S.C.R. 850, Lalji Haridas v.
State of Maharashtra & Anr., [1964] 6 S.C.R. 700, Shri
Virindar Kumar Satyawadi v. State of Punjab, [1955] 2 S.C.R.
1013, Brajnandan Sinha v. Jyoti Narain, [1955] 2 S.C.R. 955,
Hari Pandurang & Anr. v. Secretary of State for India in
Council I.L.R. 27 Bom. 424, Thakur Jugal Kishore Sinha v.
Sitamarhi Central Co-operative Bank Ltd. [1967] 3 S.C.R. 163
and Malabar Hill Co-operative Housing Society Ltd. Bombay v.
K. L. Gauba & Ors. A.I.R. 1964 Bom. 147, considered.
(ii) Section 146(p) of the Maharashtra Cooperative
Societies Act, 1960 and ss. 463 and 464 I.P.C. are two
distinct offences which are capable of being committed with
different intentions by different sets of persons and it
could not be contemplated that the Legislature of the State
of Maharashtra intended to repeal pro tanto the provisions
of s. 465 I.P.C. by enactment of s. 146 of the Maharashtra
Cooperative Societies Act. The prosecution in the present
case not being under the Maharashtra Act sanction of the
Registrar under s. 148 thereof was not necessary. [201 H-202
A]
Om Prakash Gupta v. State of Uttar Pradesh, [1957] S.C.R.
423 and T. S. Balliah v. T. S. Rengachari, [1969] 3
S.C.R. 65, applied.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION:Criminal Appeal No. 51 of
1967.
Appeal by special leave from the judgment and order dated
October 3, 1966 of the Bombay High Court, Nagpur Bench in
Criminal Revision Application No. 168 of 1966.
R. K. Garg, S. C. Agarwala, G. V. Kalikar, S. K. Dhingra
and M. S. Gupta, for the appellants.
W. S. Barlingay and A. G. Ratnaparkhi, for respondent No.
1.
H. R. Khanna and S. P. Nayar, for respondent No. 2.
The Judgment of the Court was delivered by
Shah, J. The Nagpur District Land Development Bank Ltd. is
registered as a society under the Maharashtra Co-oPerative
Societies Act, 1960. ‘One Narayan Tanbaji Murkute applied
for membership of the Bank -as a “non-borrowing member”. At
a meeting of the Bank held on June 30, 1964, the application
of Murkute and of 94 others were granted and they were
enrolled as members. But in the list of members entitled to
take part in the General Meeting dated June 30, 1964 the
names of Murkute and others were not included.
Murkute and others then applied to the Registrar Co-
operative Societies for an order declaring that they were
entitled to participate in the election of office-bearers
and for an injunction restraining the President and the
Secretary from holding the
187
annual General Meeting. The Registrar referred the dispute
for adjudication under s. 93 of the Maharashtra Co-operative
Societies Act, 1960, to H. V. Kulkarni, his nominee. The
nominee decided the dispute on May 7, 1965 and held that
Murkute and other applicants were members of the Bank. In
the proceeding before the nominee certain documents
including the minutes book of the Bank were produced. It is
claimed by Murkute that those ‘books were fabricated by the
President and the Secretary with a view to make it appear
that Murkute and other persons were never elected members of
the Bank.
On August 7, 1965, Murkute filed a complaint in the Court of
the Judicial Magistrate, First Class, Nagpur, charging the
President and Secretary of the Bank with committing offences
under ss. 465 and 471 I.P. Code. It was alleged in the
complaint that the two accused had dishonestly and
fraudulently introduced a clause in Resolution No. 3
appearing in the minutes book with the intention of causing
it to be believed that the clause was part of the original.
Resolution passed by the Board of Directors in the meeting
held on June 30, 1964, whereas it was known to them that at
that meeting no such clause was passed.
The two accused raised an objection that the Magistrate had
no jurisdiction to take cognizance of the complaint without
the previous sanction of the Registrar of Co-operative
Societies under s. 148(3) of the Maharashtra Co-operative
Societies Act, 1960. The Trial Magistrate rejected the
contention. The order was confirmed by the Court of Session
and the High Court of Bombay.
In this Court counsel for the accused raised two
contentions that- (1) that, the nominee of the Registrar
appointed under s. 95 of the Maharashtra Co-operative
Societies Act, 1960, was a “court” within the meaning of s.
195 Code of Criminal Procedure, and a complaint for offences
under ss. 465 and 471 I.P. Code alleged to have been
committed by a party to any proceeding in respect of a
document produced or given in evidence in such proceeding,
cannot be entertained except on a complaint in writing of
such court, or of a court to which it is subordinate; and
(2) that offences charged in the complaint fell within the
description of the offence under s. 146(p) of the
Maharashtra Co-operative Societies Act, 1960, and without
the sanction of the Registrar the complaint was not
maintainable.
Section 195 Code of Criminal Procedure insofar as it is
relevant provides :
“(1) No Court shall take cognizance(a)
(a)
(b)
188
(c) of any offence described in section 463
or punishable under section 471 . . . when
such offence is alleged to have been committed
by a party to any proceeding in any Court in
respect of a document produced or given in
evidence in such proceeding, except on the
complaint in writing of such court, or of some
other Court to which such Court is
subordinate.
(2) In clauses (b) and (c) of sub-section
‘(1), the term ”Court” includes a Civil,
Revenue or Criminal Court, but does not
include a Registrar or Sub-Registrar under the
Indian Registration Act, 1877.”
Murkute complained that the President and the Secretary of
the Bank who were parties to the proceeding before the
nominee of the Registrar had committed offences under ss.
465 & 471 I.P. Code in respect of documents produced or
given in evidence at the trial. If the Registrar’s nominee
is a Court within the meaning of s. 195 Code of Criminal
Procedure the Magistrate could not take cognizance except on
the complaint in writing by the Registrar’s nominee or of
some court to which he was subordinate. To determine
whether the Registrar’s nominee is a court, it is necessary
to refer to the relevant provisions of the Maharashtra Co-
operative Societies Act, 1960, relating to the functions of
the nominee and the powers with which he is invested,
counsel for the appellants urges that by the Maharashtra Co-
operative Societies Act the power of the Civil Court to
entertain disputes with regard to certain matters concerning
cooperative societies is expressly excluded from the
jurisdiction of the Civil Court, and the Registrar or his
nominee is alone competent to determine those questions;
thereby the Registrar and his nominee are invested with the
judicial power of the State and they are on that account
“courts” within the meaning of s. 195 of the Code of
Criminal Procedure.
Section 2(2) of the Maharashtra Co-operative Societies Act,
1960, defines “arbitrator” as meaning “a person appointed
under this Act to decide disputes referred to him by the
Registrar and includes the Registrar’s nominee or board of
nominees.” Section 91 and the following sections which occur
in Ch. IX relate to disputes and arbitration. By s. 91,
insofar as it is material, it is provided :
“(1) Notwithstanding anything contained in any
other law for the time being in force, any
dispute touching the constitution, election of
the office bearers, conduct of general
meetings, management or business of a society
shall be referred by any of the parties to the
dispute……….. to the Registrar, if both
the parties hereto are one or other of the
following
189
(a)
(b) a member, past member or a person
claiming through a member, past member or a
deceased member of a society, or a society
which is a member of the society.
(c)
(d)
(e)
(2) When any question arises whether for the
purpose of the foregoing subsections matter
referred to, for decision is a dispute or not,
the question shall be considered by the
Registrar, whose decision shall be final.
(3) Save as otherwise provided under sub-
section (3) of section 93 no Court shall
have jurisdiction to entertain any suit or
other proceedings in respect of any dispute
referred to in sub-section (1).”
Section 93 provides :
“(1) If the Registrar is satisfied that any
matter referred to him or brought to his
notice is a dispute within the meaning of
section 91, the Registrar shall, subject to
the rules, decide the dispute himself, or
refer it for disposal to a nominee, or a board
of nominees, appointed by the Registrar.
(2) Where any dispute is referred under the
foregoing sub-section, for decision to the
Registrar’s nominee or board of nominees, the
Registrar may at any time, for reasons to be
recorded in writing withdraw such dispute from
his nominee or board of nominees, and may
decide the dispute himself, or refer it again
for decision to any other nominee, or board of
nominees, appointed by him.
(3) Notwithstanding anything contained in
section 91 the Registrar may, if he thinks
fit, suspend proceedings in regard to any
dispute, if the question at issue between a
society and a claimant or between different
claimants, is one involving complicated
questions of law and fact, until the question
has been tried by a regular suit instituted by
one of the parties or by the society. If any
such suit is not instituted within two months
from the Registrar’s order suspending
proceedings, the Registrar shall take action
as is provided in subsection
190
Section 94 provides for the procedure of settlement of
disputes and power of the Registrar, his nominee or the
board of nominees. It provides, insofar as it is material :
“(1) The Registrar, or his nominee or board of
nominees, hearing a dispute under the last
preceding section shall hear the dispute in
the manner prescribed, and shall have power to
summon and enforce attendance of witnesses
including the parties interested or any of
them and to compel them to give evidence on
oath, affirmation or affidavit and to compel
the production of documents by the same means
and as far as possible in the same manner, as
is provided in the case of a Civil Court by
the Code of Civil Procedure, -1908.
(2) Except with the permission of the
Registrar or his nominee or board of nominees,
as the case may be, no party shall be
represented at the hearing of a dispute by a
legal practitioner.”
Sub-section (3) of S. 94 authorises the Registrar, his
nominee or the board of nominees to join or substitute new
parties. Section 95 authorises the Registrar or his nominee
or board of nominees to pass an order of attachment and
other interlocutory orders. Section 96 provides
“When a dispute is referred to arbitration the
Registrar or his nominee or board of nominees
may, after giving a reasonable opportunity to
the parties to the dispute to be heard, make
an award on the dispute, on the expenses
incurred by the parties to the dispute in
connection with the proceedings, and fees and
expenses payable to the Registrar or his
nominee or, as the case may be, board of
nominees. Such an award shall not be invalid
merely on the ground that it was made after
the expiry of the period fixed for deciding
the dispute by the Registrar and shall,
subject to appeal or review of revision, be
binding on the parties to the dispute.”
Section 97 provides
“Any party aggrieved by any decision of the
Registrar or his nominee or board of nominees
under the last preceding section, or an order
passed under section 95 may,……………
appeal to the Tribunal.
Section 98 provides that every order passed by the Registrar
or his nominee or board of nominees or in appeal therefrom
shall, it -not carried out, on a certificate signed by the
Registrar, be deemed to be a decree of a civil court, and
shall be executed in
191
the same manner as a decree of such court or be executed
according to the law and under the rules for the time being
in force for the recovery of arrears of land revenue. By s.
99 a private transfer or delivery of, or encumbrance or
charge on, property made or created after the issue of the
certificate of the Registrar under s. 98 shall be null -and
void as against the society on whose application the
certificate was issued.
Jurisdiction of the Civil Court by s. 91(3) to entertain a
suit in respect of any dispute referred to in sub-s. (1) of
s. 91 is expressly excluded and the dispute is required by
law to be referred to the Registrar or his nominee. Against
the decision of the Registrar’s nominee an appeal lies under
s. 97 and the order made for payment of money is enforceable
as a decree of the Civil Court. The Registrar or his
nominee called upon to decide the dispute are bound to hear
it in the manner prescribed and they have power to summon
and enforce attendance of witnesses and to compel them to
give evidence on oath, affirmation or affidavit and to
compel production of documents. The effect of these
provisions, according to counsel for the Appellants, is that
the judicial power of the State to deal with -and dispose of
disputes of a civil nature which fall within the description
of s. 91(1) is vested in the Registrar’s nominee and he is
on that account made a “court” within the normal connotation
of the term.
Section 195(2) of the Code of Criminal Procedure enacts that
the term “court” includes a Civil, Revenue or Criminal
Court, but does not include a Registrar or Sub-Registrar
under the Indian Registration Act, 1877. The expression
“court” is not restricted to courts, Civil, Revenue or
Criminal; it includes other tribunals. The expression
“court” is not defined in the Code of Criminal Procedure.
Under s. 3 of the Indian Evidence Act “Court” is defined as
including “all Judges and Magistrates, and all persons,
except arbitrators, legally authorised to take evidence”.
But this definition is devised for the purpose of the
Evidence Act and will riot necessarily apply to the Code of
Criminal Procedure. The expression “Court of Justice” is
defined in the Indian Penal Code by s. 20 as denoting “a
Judge who is empowered by law to act judicially as a body,
when such Judge or body of Judges is acting judicially”.
That again is not a definition of the expression “Court” as
used in the Code of Criminal Procedure. The expression
“Court” in ordinary parlance is a generic expression and in
the context in which it occurs may mean a “body or
organization” invested with power, authority or dignity. In
Halsbury’s Laws of England, 3rd Edn., Vol. 9, Art. 809 at p.
342 it is stated :
“Originally the term “court” meant, among
other meanings, the Sovereign’s place; it has
acquired the
192
meaning of the place where justice is
administered and, further, has come to mean
the persons who exercise judicial functions
under authority derived’ either immediately or
mediately from the Sovereign. All tribunals,
however, are not courts, in the sense in which
the term is here employed, namely, to denote
such tribunals, as exercise jurisdiction over
persons by reasons of the sanction of the law,
and not merely by reason of voluntary
submission to their jurisdiction, Thus,
arbitrators, committees of clubs, and the
like, although they may be tribunals
exercising judicial functions, are not
“Courts” in this sense of that term. On the
other hand, a tribunal may be a court “in the
strict sense of the term although the chief
part of its duties is not judicial.
Parliament is a court. Its duties are mainly
deliberative and legislative : the judicial
duties are only part of its functions.”
In Art. 810 it is stated
“In determining whether a tribunal is a
judicial body the facts that it has been
appointed by a nonjudicial authority, that it
has no power to administer an oath, that the
chairman has a casting vote, and that third
parties have power to intervene are
immaterial, especially if the statute setting
it up prescribes a penalty for making false
statements ; elements to be considered are (1)
the requirement for a public hearing, subject
to a power to exclude the public in a proper
case, and (2) a provision that -a member of
the tribunal shall not take part in any
decision in which he is personally interested,
or unless he has been present throughout the
proceedings.
A tribunal is not necessarily a court in the
strict sense of exercising judicial power
because (1) it gives a final decision; (2)
hears witnesses on oath; (3) two or more
contending parties appear before it between
whom it has to decide; (4) it gives decisions
which effect the rights of subjects; (5) there
is an appeal to a court; and (6) it is a body
to which a matter is referred by another body.
Many bodies are not courts, although they have
to decide questions, -and in so doing have to
act judicially, in the sense that the
proceedings must be conducted with fairness
and impartiality, such as the former
assessment committees, the former court of
referees which was constituted under the
Unemployment Insurance Acts, the blenchers of
the Inns of Court when considering the conduct
of one of their members, the
193
Disciplinary Committee of the General Medical.
Council when considering questions affecting
the conduct of a medical man, a trade union
when exercising disciplinary jurisdiction over
its members, or the chief officer of a force
exercising discipline over members of the
force.”
A body required to act judicially in the sense that its
proceedings must be conducted with fairness and impartiality
may not therefore necessarily be regarded as a court.
Counsel for the appellants however invited our -attention to
a number of decisions in support of his contention that
wherever there is a dispute which is required to be resolved
by a body invested with power by statute and the body has to
act judicially it must be regarded -as a court within the
meaning of s. 195 of the Code of Criminal Procedure.
Counsel asserted that every quasi-judicial authority is a
court within the meaning of s. 195 (2) of the Code of
Criminal Procedure. The contention is inconsistent with a
large body of authority of this Court to which we will
presently refer.
By s. 195 of the Code of Criminal Procedure, it is enacted
that certain offences amounting to contempt of lawful
authority of public servants i.e. offences falling under ss.
172 to 188 I.P; Code, offences against public justice under
ss. 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209,
210, 211 and 228, when such offences are alleged to have
been committed in or in relation to, any proceeding in any
Court, and offences described in s. 463 or punishable under
ss. 471, 475 or 476, when such offences are alleged to have
been committed by a party to any proceeding in any Court in
respect of a document produced or given in evidence in such
proceeding, cannot be taken cognizance of by any court,
except in the first class of cases on a complaint in writing
of the public servant concerned, and in the second and third
class of cases on the complaint in writing of such Court or
some other Court to which it is subordinate.
An offence ordinarily signifies a public wrong : it is an
act or omission which is a crime against society : it may
therefore be brought to the notice of the Court by any
person, even if he is not personally aggrieved by the act or
omission. To that rule there are certain exceptions which
are specified in ss. 195, 196, 197, 198, 198A of the Code of
Criminal Procedure and other special statutes. Authority of
courts to entertain complaints in respect of the offences so
specified is barred in view of the special nature of the
offence which vitally affect individuals only or public
bodies and in the larger interest of society it is deemed
expedient to exempt them from the general rule.
194
The nominee of the Registrar acting under s. 96 performs the
functions substantially of an arbitrator to whom a dispute
is ,referred for adjudication. The Registrar may appoint a
single nominee or a board of nominees and may at any time,
for reasons to be recorded in writing, withdraw such dispute
from the nominee or ‘board of nominees, and may decide the
dispute himself, or refer it again for decision to another
nominee, or board of nominees, -appointed by him. Under
sub-s. (3) of s. 93 it is open to the Registrar to suspend
proceedings in regard to any dispute, if the question at
issue between -a society and a claimant or between different
claimants, is one involving complicated questions of law or
fact. The jurisdiction of the nominee or board of nominees
arises by reason not of investment by statute, but by
appointment made by the Registrar who exercises control over
the proceeding. The nominee therefore derives his authority
from his appointment by the Registrar : the Registrar is
entitled to withdraw his authority; and the Registrar may
fix the time within which a dispute shall be disposed of :
his adjudication is again called an award. The nominee is
even entitled to make a provision for the ‘expenses payable
to the Registrar or to himself. It is true that the
procedure of the nominee is assimilated to the procedure
followed in the trial of a Civil proceeding. The nominee
has the power to summon witnesses, to compel them to produce
documents and he is required to hear the dispute in the
manner prescribed by the Code of Civil Procedure. Thereby
he is required to act judicially i.e. fairly and impartially
: but the obligation to act judicially will not necessarily
make him a court within the meaning of S. 195 of the Code.
The position of a nominee of the Registrar is analogous to
that of an -arbitrator designated under a statutory
arbitration to which the provisions of S. 47 of the
Arbitration Act, 1940, apply.
The authorities to which our attention was invited by
counsel for the appellants may now be considered. It may be
sufficient here to observe that the tests laid down by this
Court in certain cases to be presently noticed make many of
the cases relied upon of doubtful authority. In Thadi Subbi
Reddi v. Emperor(1) it was held by a single Judge of the
Madras High Court that the Registrar before whom a Co-
operative Society files its suit, or its claim for enforcing
a bond, is a “Court” within the meaning of S. 195 of the
Code of Criminal Procedure, for the Registrar to whom a
dispute touching a debt due to a society by a member is
referred has power to administer oaths, to require the
attendance of all parties concerned and of witnesses, and to
require the production of all books and documents relating
to the matter in dispute, and the Registrar is required to
give a decision in writing, and when it is given the
decision may be enforced on application to the Civil Court
having jurisdiction as if it were a decree of the Court.
2 00
deface, or secrete or attempts to secrete any document which
is or purports to be a will, or an authority to adopt a son,
or any valuable security, or mischief in respect of such
document. section 477A penalises falsification of accounts
by a clerk, officer or servant or by a person employed in
the capacity of a clerk, officer or servant. The offence of
forgery and its allied offences may be committed if a false
document is made with intent to cause damage or injury to
public or any person, or to support any claim or title, or
to cause any person to part with property, or to enter into
any express or implied contract, or with intent to commit
fraud or that fraud may be committed, (S. 463). In order to
attract s. 463 I.P. Code there must therefore, be making of
a false document with the intention mentioned in that
section. By 464 it is provided :
“A person is said to make a false document-
First.-Who dishonestly or fraudulently makes,
signs, seals or executes a document or part of
a document, or ,,makes any mark denoting the
execution of a document, -with the intention
of causing it to be believed that such
document or part of a document was made,
signed, sealed or executed by or by the
authority of a person by whom or by whose
authority he knows that it was -not made,
signed, sealed or executed, or at a time at
-which he knows that it was not made, signed,
sealed or ,executed; or
Secondly-Who, without lawful authority,
dishonestly or fraudulently, by cancellation
or otherwise, alters a, document in any
material part thereof, after it -has been made
or executed either by himself or by any other
person, whether such person be living or dead
at -the time of such alteration; or
Thirdly Who dishonestly or fraudulently causes
any person to sign, seal, execute or alter a
document, -knowing that such person by reason
of unsoundness of mind or intoxication cannot,
or that by reason of deception practised upon
him, he does not know the contents of the
document or the nature of the alteration.”
Making of a false document by a person in all the three
clauses must be done dishonestly or fraudulently and with
the necessary intention or knowledge contemplated by the
three clauses.
Section 146 of the Maharashtra Co-operative Societies Act,
1960, does not make any such intention as is referred to in
ss. 463 and 464 I.P. Code an ingredient of the offence: it
also renders a person who is merely privy to the
destruction, mutilation, alteration, falsification or
secreting or to the making of any false or
201
fraudulent entry in any register, book of account or
document belonging to the society liable to be punished.
under s. 146 (p) The offence may be committed under s. 146
only by an officer or member-past or present-of the society.
Even destruction or secreting of a document or security is
penalised under s. 146 of the Act.
We are unable to accept the contention that these two
sections s. 146(p) of the Maharashtra Co-operative
Societies Act and s. 465 P. Code,-are intended to deal with
the same offence. It is true that certain acts may fall
within both the sections. For instance, tampering with or
altering or falsifying any, register, book of account or
security, or making any false or fraudulent, entry in the
register, book of account or document belonging to the
society, may when done with the requisite intention mention-
ed in s. 464 read with s. 463 I.P. Code be also an offence
under s. 146(p) of the Maharashtra Co-operative Societies
Act. But that, in our judgment, is not a ground for holding
‘that s. 465 I.P. Code and the related offences were
intended to be pro tanto repealed by the enactment of s.
146(p) of the Maharashtra Cooperative Societies Act. When
the Indian Penal Code seeks to impose in respect of offences
under As, 477 imprisonment which may extend to imprisonment
for life, or with imprisonment upto a period of seven years
for an offence under s. 477A it would be difficult to hold
that when committed by an officer or a member of a society
the maximum punishment which can be imposed by virtue of s.
146(p) would be three years rigorous imprisonment only.
This Court in Om Prakash Gupta v. State of Uttar Pradesh(1)
held that the offences under s. 409 I.P. Code and s. 5(1)(c)
of the Prevention of Corruption Act, are distinct and
separate offences and s. 409 I.P. Code is not repealed by s.
5(1) (c) of the Prevention of Corruption Act.
In a recent judgment of this Court in T. S. Balliah v. T. S.
Rengachari(2) we had occasion to consider whether s. 177
I.P. Code was repealed by s. 52 of the Indian Income-tax
Act. It was pointed out that in considering the problem the
Court must consider the true meaning and effect, of the two
Acts, and unless there is repugnancy or inconsistency
between the two enactments or that the two enactments cannot
stand together they must be treated as cumulative.
It is clear from a perusal of s. 146 (p) of the Maharashtra
Co-operative Societies Act, 1960, and ss. 463 and 464 I.P.
Code. that they are two distinct offences which are capable
of being
(1) [1957] S.C.R.423.
7 Sup C 1/69-14 (2) [1969] 3 S.C.R. 65.
202
Committed with different intentions by different sets of
persons and it, could not be contemplated that the
Legislature of the State of Maharashtra intended to repeal
pro tanto the provisions of S. 465 I.P. Code by enactment
of s. 146 of the Maharashtra Co-operative Societies Act.
It is unnecesary in the circumstances to consider the
question whether the Maharashtra State Legislature was
competent to repeal the provisions of s. 465 I.P. Code. The
law relating to Co-operative Societies may be enacted in
exercise of the power under List II Entry 32 of the Seventh
Schedule to the Constitution, but if s. 146 is directly
intended to trench upon a provision ,of the Indian Penal
Code-falling within List 11 Entry 1, sanction of the
President under Art. 254(2) would apparently be necessary.
Both the contentions raised by counsel for the appellants
fail. The appeal is dismissed.
G.C. Appeal dismissed.
203