P L D 1957 Dacca 492 (PLP)

ISPAHANI, J.‑

These are two appeals which are heard together for convenience. In both the appeals, the appellant is Abdul Wahab Mia. He is the Secretary of the Mathbaria Cent ral Co‑operative Bank within P.S. Marthabari. It was alleged that he had committed criminal misappropriation of the funds of the said Bank while he was the Secretary. On 26th January 1956, when the case was opened before the Special Judge, Bakarganj, on the prayer of the Public Prosecutor, the case was split up into two cases, namely, Special Case No. 1 of 1955 out of which Criminal Appeal No. 164 of 1956 arises and Special Cases No. 1/A of 1955 out of which Criminal Appeal No. 163 of 1965 arises. Both the cases were heard by the said Special Judge and in Special Case No. 1 of 1955 the appellant was convicted under section 409 of the P.P.C: and sentenced to rigorous imprisonment for 2 years and also sentenced to pay a fine of Rs. 6,000, in default to rigorous imprisonment for 6 months more. Out of the fine, if realized, Rs. 4,237 was ordered to be paid to Mathbaria Central Co‑operative Bank. In Special Case No. 1/A of 1955 he was convicted under section 409 and sentenced to rigorous imprisonment for 2 years and also to pay a fine of Rs. 7,000, in default to rigorous imprisonment for 6 months more. Out of the fine, if realized, Rs. 5,824 was ordered to be paid to the said Bank. The sentence ;in this case was ordered to run concurrently with the sentence passed in Special Case No. 1 of 1955. In Criminal Appeal No. 164 of 1956, as Secretary of Mathbaria Central Co‑operative Bank and as a public servant, the appellant is alleged to have misappropriated a sum of Rs. 4, 237 of the Bank between the period 30th November 1948 to 21st November 1949. That amount comprises three different items. In Criminal Appeal No. 163 of 1956, the appellant in his aforesaid capacity is alleged to have misappro priated two items of money belonging to the Bank and totaling Rs. 5,824 between the period 7th December 1949 and 8th Noember 1950. Mr. Abdulla, who has appeared on behalf of the appellant, contended that the appellant was not a public servant within the definition of clause 10 of section 21 of the P. P. C. and, as such, his trial by the Special Judge under Act XIX of 1948 was illegal and has caused him prejudice inasmuch as he has been deprived of the benefits of a trial under the ordinary law. He has referred to the definition of a public servant and has contended with the reference to the Bengal Co‑operative Societies Act, 1940, that a Secretary of a Co‑operative Society is not a public servant. In support of his argument, reference was made to Sridhan Mahadeo Pathak v. Emperor (A I R 1936 Bom. 35), where it was held that a Chairman of Co‑operative Credit Society is not a public servant. It was held further that the clause "for any secular common purpose of any village, town or district in clause 10 of section 21 of the Penal Code governs the whole section. It must be for public purpose that the money was received or expended. The definition of officer, in the Bombay Act is practically the same as the definition of officer in the Bengal Co‑operative Societies Act, 1940. Though the Bombay Act is not before us, the definition of the word `officer' is to be found in the judgment at page

36. The matter is concluded by a decision of this Court in Salimullah Khan v. The Crown (6 D L R 527). It was held therein that the cashier of a Central Co‑operative Bank is not a public servant within the meaning of the expression `public servant' as defined in section 21 of the P.P.C. It was held further that neither a Poddar of a Bank nor a President of a CG‑operative Society is a public servant within the meaning of that definition. We agree with the decisions above referred to and hold that the A appellant, who is a Secretary of the Mathbaria Central Co operative Bank, is not a public servant within the definition of clause 10 of section 21 of the P.P.C. As such, the Special Judge had no jurisdiction to try him. His trial must necessarily be under the ordinary law. The result, therefore, is that the appeals are allowed, the convictions and the sentences passed on him in both the appeals are set aside and it is directed that he be tried under the ordinary law according to law. Pending his retrial, the appel lant will remain on the same bail. KHAN, J.‑

I agree. Z. A. S. Retrial ordered.