By Advocate Vinod Sampat
ANSWER IS …YES AND LIABLE TO BE PROSECUTED UNDER ANTI CORRUPTION ACT.
Just go through supreme court of India And Indian High Courts Rulings on the Subject Matter.
As per S. 2(20) of Maharashtra Co.op. Societies Act (MCS Act), the Chairman, Secretary, Treasurer and Committee Member are officers of society and as per S. 161 of MCS Act, an officer as defined by S. 2(20) of MCS Act shall be deemed to be a public servant within the meaning of S. 21 of Indian Penal Code.
The point of law is that all government servants are public servants, but all public servants are not government servants. The immunity of necessity of government sanction before cognizance of offence against a public servant under any criminal law by court as granted by S. 197(1) of Code of Criminal Procedure is granted only to government servants who are public servants and not to non-government public servants or deemed public servants such as office bearers of co.op. society. This fearful paradox is threatening to office bearers of co.op. a society who may be alleged to have committed fraud with society money which is nothing but public money held by such office bearers in trust for members of society.
It is pertinent to note that Hon’ble Supreme Court of India by its judgment dated 6.3.2002 in State of Maharashtra versus Prabhakarrao, (2002) 7 SCC 636 has declared that office bearers of cooperative society are public servants for action under Prevention of Corruption Act, if not within meaning of S. 21 of Indian Penal Code which S. 21 was considered by Hon’ble Bombay High Court for quashing of FIR against office bearers of society. The public servant as defined by S. 2(c) of 1988 Anti Corruption Law means any person who holds an office by virtue of which he is authorized/required to perform any public duty and S. 2(b) of said 1988 law has given wider meaning to public duty.
Now again Hon’ble SC in its very recent judgment dated 23.2.2016 dismissing Criminal Writ Petition No. 167 of 2015 has declared that officer of a banking company is a public servant within the meaning of 1988 Anti Corruption Law, if not within the meaning of S. 21 of IPC. However, the point of difference is that bank officers are paid public servants and office bearers of a cooperative society are unpaid public servants although it is correct to say that such office bearers perform the public duty by holding public money viz. funds of society in trust for members of society.
It is pertinent to note that S. 21 of Indian Penal Code speaks about “public servant” and S.161 of Maharashtra Co.op. Societies Act speaks about “deemed public servant”. The Hon’ble SC in State of Maharashtra versus Laljit Rajshi Shah, 2000 (2) Mh. L. J. (SC) 801 has clearly explained the difference between “public servant” and “deemed public servant”. But the Hon’ble SC by its latter judgment of 2002 has also made it clear that office bearers of a cooperative society are public servants for the purpose of 1988 Anti Corruption Law.
It is now true that aforesaid provision of S.161 read with S. 2(20) of MCS Act make office bearers of cooperative society public servants within the meaning of S. 21 of IPC and aforesaid 2002 SC judgment make such office bearers public servants within the meaning of 1988 Anti Corruption Law.