# Subash Chandra v. State of U.P. & Ors

- **Citation:** (2025) 11 ILRA 1432
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-17
- **Case number:** Criminal Misc. Writ Petition No. 9586 of 2025
- **Bench:** Abdul Moin, Mrs. Babita Rani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subash-chandra-v-state-of-u-p-ors-54850
- **Pages:** 19

## Headnote

19.09.2025, registered under Sections 13(1)(b)
and 13(2) of the Prevention of Corruption Act,
1988, against the petitioner, an officer of a cooperative bank, was liable to be quashed on the
grounds that
(i) the petitioner had been exonerated in
departmental proceedings,
(ii) he was not a "public servant" within the
meaning of Section 2 of the Act, 1988, and
(iii) the F.I.R. was alleged to be malafide.

Headnotes
Prevention of Corruption Act, 1988 - ss.
2(c), 13(1)(b), 13(2) - Uttar Pradesh Cooperative Societies Act, 1965 - ss. 31-A,
124 - Public servant - Officer of cooperative
bank
-
Departmental
exoneration - Effect - Malice - Quashing
of
F.I.R.
-
Writ
jurisdiction
-
No
interference.

Held:

An officer of a co-operative bank which is
controlled and aided by the State Government
falls within the ambit of "public servant" as
defined under Section 2(c)(iii) of the Prevention
of Corruption Act, 1988, particularly in view of
Sections 31-A and 124 of the Uttar Pradesh Cooperative Societies Act, 1965, which deem
officers of co-operative societies to be public
servants. The petitioner, admittedly being an
officer of such a co-operative bank, is thus
covered by the Act, 1988. [Paras 18-33, 39]

Exoneration of the petitioner in departmental
proceedings did not operate as a bar to lodging
of a criminal case under the Act, 1988, where
no enquiry was in fact conducted by the inquiry
officer on the charge of disproportionate assets,
the inquiry officer having specifically recorded
that he was not competent to examine such
charge. Consequently, there was no finding in
departmental proceedings on the issue of
disproportionate assets. [Paras 42-46]
The Court held that the judgments relied upon
by the petitioner on the effect of departmental
exoneration had no applicability to the facts of
11 All. Subash Chandra Vs. State of U.P. & Ors.
1433
the
present
case,
as
the
charge
of
disproportionate
assets
had
not
been
adjudicated upon in the departmental enquiry.
[Para 46]

The plea of malice, namely that the F.I.R. was
lodged to deprive the petitioner of promotion,
was rejected in view of the finding that no
enquiry had been conducted on disproportionate
assets earlier and that the lodging of the F.I.R.
could not, in such circumstances, be said to be
actuated by malafides. [Paras 47]

In view of the above, the Court held that no
case for interference was made out in exercise
of writ jurisdiction. [Paras 48].
Criminal writ petition was accordingly
dismissed. (E-14)

Case Law Cited
P.S. Rajya v. State of Bihar, (1996) 9 SCC
1 - relied on; Radhey Shyam Kejriwal v.
State of West Bengal, (2011) 11 SCC 581
- relied on; Lokesh Kumar Jain v. State of
Rajasthan, (2013) 11 SCC 130 - relied on;
Ashok Surendra Nath Tiwari v. Deputy
Superintendent of Police, (2020) 9 SCC
636 - relied on; J. Sekar v. Enforcement
Directorate and Others, (2022) 7 SCC 370
- relied on; K.H. Kamladini v. State of
Maharashtra, 2025 SCC OnLine SC 1176
- relied on; Gurubachan Singh Batta v.
Central Bureau of Investigation, 2025
SCC OnLine Delhi 7096 - relied on;
State of Haryana and Others v. Ch.
Bhajan Lal and Others, 1992 AIR 604 -
relied
on;
Government
of
Andhra
Pradesh and Others v. P. Venku Reddy,
(2022) 7 SCC 631 - relied on; Central
Bureau of Investigation v. Ramesh Gelli
and Others, (2016) 3 SCC 788 - relied
on; State of Gujarat v. Manusukhbhai
Kanjibhai Shah, (2020) 20 SCC 360 -
relied on; State of Maharashtra and
Others
v.
Brijlal
Sadasukh
Modani,
(2016) 4 SC 417 - relied on; State of
Madhya Pradesh v. Ram Singh, (2000) 5
SCC 88 - relied on.

List of Acts / Statutes
Prevention of Corruption Act, 1988; Uttar
Pradesh Co-operative Societies Act, 1965;
Indian Penal Code, 1860.
List of Keywords
Prevention of Corruption Act; Public servant;
Officer of co-operative society; Disproportionate
assets; Departmental enquiry; Exoneration;
Malice; Quashing of F.I.R.
Case Arising From
First Information Report dated 19.09.2025,
registered as Case Crime

## Text

_Characters 0–39,977 of 61,867. This is a partial read: ask again with offset=39977 for what follows._

1432 INDIAN LAW REPORTS ALLAHABAD SERIES
subsist. This new provision has been
inserted with a view, that, just delay in
making substitution application within 90
days or case other wise abated within
another 60 days may not be taken normally
as defence by the counsel for the otherwise.
In this view of the matter intention of the
legislature is manifest that in substitution
matters much emphasis need not be given
on the delay cause in moving the
substitution application. The court may
make a realistic approach in the matter and
see that substantial justice is done between
the parties and matter does not drag on
unnecessarily.'

25. In the present case, I am of the
view that the substitution application has
been correctly allowed and the delay has
correctly been condoned by the trial court.

26. In view of the above, no illegality
found in the order impugned and revision is
dismissed.

27. No order as to costs.
----------
(2025) 11 ILRA 1432
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.11.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.
THE HON'BLE MRS. BABITA RANI, J.

Criminal Misc. Writ Petition No. 9586 of 2025

Subash Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sharad Pathak, Abhijeet Mishra

Counsel for the Respondents:
G.A., Gaurav Mehrotra

Issue for Consideration
Whether the First Information Report dated
19.09.2025, registered under Sections 13(1)(b)
and 13(2) of the Prevention of Corruption Act,
1988, against the petitioner, an officer of a cooperative bank, was liable to be quashed on the
grounds that
(i) the petitioner had been exonerated in
departmental proceedings,
(ii) he was not a "public servant" within the
meaning of Section 2 of the Act, 1988, and
(iii) the F.I.R. was alleged to be malafide.

Headnotes
Prevention of Corruption Act, 1988 - ss.
2(c), 13(1)(b), 13(2) - Uttar Pradesh Cooperative Societies Act, 1965 - ss. 31-A,
124 - Public servant - Officer of cooperative
bank
-
Departmental
exoneration - Effect - Malice - Quashing
of
F.I.R.
-
Writ
jurisdiction
-
No
interference.

Held:

An officer of a co-operative bank which is
controlled and aided by the State Government
falls within the ambit of "public servant" as
defined under Section 2(c)(iii) of the Prevention
of Corruption Act, 1988, particularly in view of
Sections 31-A and 124 of the Uttar Pradesh Cooperative Societies Act, 1965, which deem
officers of co-operative societies to be public
servants. The petitioner, admittedly being an
officer of such a co-operative bank, is thus
covered by the Act, 1988. [Paras 18-33, 39]

Exoneration of the petitioner in departmental
proceedings did not operate as a bar to lodging
of a criminal case under the Act, 1988, where
no enquiry was in fact conducted by the inquiry
officer on the charge of disproportionate assets,
the inquiry officer having specifically recorded
that he was not competent to examine such
charge. Consequently, there was no finding in
departmental proceedings on the issue of
disproportionate assets. [Paras 42-46]
The Court held that the judgments relied upon
by the petitioner on the effect of departmental
exoneration had no applicability to the facts of
11 All. Subash Chandra Vs. State of U.P. & Ors.
1433
the
present
case,
as
the
charge
of
disproportionate
assets
had
not
been
adjudicated upon in the departmental enquiry.
[Para 46]

The plea of malice, namely that the F.I.R. was
lodged to deprive the petitioner of promotion,
was rejected in view of the finding that no
enquiry had been conducted on disproportionate
assets earlier and that the lodging of the F.I.R.
could not, in such circumstances, be said to be
actuated by malafides. [Paras 47]

In view of the above, the Court held that no
case for interference was made out in exercise
of writ jurisdiction. [Paras 48].
Criminal writ petition was accordingly
dismissed. (E-14)

Case Law Cited
P.S. Rajya v. State of Bihar, (1996) 9 SCC
1 - relied on; Radhey Shyam Kejriwal v.
State of West Bengal, (2011) 11 SCC 581
- relied on; Lokesh Kumar Jain v. State of
Rajasthan, (2013) 11 SCC 130 - relied on;
Ashok Surendra Nath Tiwari v. Deputy
Superintendent of Police, (2020) 9 SCC
636 - relied on; J. Sekar v. Enforcement
Directorate and Others, (2022) 7 SCC 370
- relied on; K.H. Kamladini v. State of
Maharashtra, 2025 SCC OnLine SC 1176
- relied on; Gurubachan Singh Batta v.
Central Bureau of Investigation, 2025
SCC OnLine Delhi 7096 - relied on;
State of Haryana and Others v. Ch.
Bhajan Lal and Others, 1992 AIR 604 -
relied
on;
Government
of
Andhra
Pradesh and Others v. P. Venku Reddy,
(2022) 7 SCC 631 - relied on; Central
Bureau of Investigation v. Ramesh Gelli
and Others, (2016) 3 SCC 788 - relied
on; State of Gujarat v. Manusukhbhai
Kanjibhai Shah, (2020) 20 SCC 360 -
relied on; State of Maharashtra and
Others
v.
Brijlal
Sadasukh
Modani,
(2016) 4 SC 417 - relied on; State of
Madhya Pradesh v. Ram Singh, (2000) 5
SCC 88 - relied on.

List of Acts / Statutes
Prevention of Corruption Act, 1988; Uttar
Pradesh Co-operative Societies Act, 1965;
Indian Penal Code, 1860.
List of Keywords
Prevention of Corruption Act; Public servant;
Officer of co-operative society; Disproportionate
assets; Departmental enquiry; Exoneration;
Malice; Quashing of F.I.R.
Case Arising From
First Information Report dated 19.09.2025,
registered as Case Crime No. 0023 of 2025,
under Sections 13(1)(b) and 13(2) of the
Prevention of Corruption Act, 1988, Police
Station Lucknow Sector Vigilance Establishment,
District Lucknow.

Appearance for Parties
For the Petitioner: Sri Sharad Pathak, Senior
Advocate, Assisted by Sri Mayank Pandey
For Respondents (State): Learned A.G.A.
For Respondent No. 4: Sri Akbar Ahmad

(Delivered by Hon'ble Abdul Moin, J.
&
Hon'ble Mrs. Babita Rani, J.)

1.Heard Sri Sharad Pathak, learned
Senior Advocate assisted by Sri Mayank
Pandey, learned counsel for the petitioner,
learned AGA appearing on behalf of the
respondents no. 1 to 3, 5 & 6 and Sri Akbar
Ahmad, learned counsel for the respondent
no. 4.

2. Instant criminal writ petition has
been filed praying for the following main
reliefs:-

"(i) Issue a writ, order or
direction in the nature of certiorari
quashing the impugned First Information
Report dated 19.09.2025 lodged at Case
Crime No. 0023 of 2025 at Police Station-
Lucknow Sector Vigilance Establishment,
Lucknow under Sections 13 (1) (B) & 13
(2) of the Prevention of Corruption Act,
1988, a copy of which is annexed as
Annexure No. 1 to this writ petition.

(ii) Issue a writ, order or
direction in the nature of certiorari
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
quashing the impugned enquiry report
dated
04.07.2025
together
with
the
impugned order dated 28.08.2025 passed
by opposite party no. 1, after summoning
the original of the same from the said
opposite parties.

(iii) Issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
24.08.2022 and 25.08.2022 passed by
Opposite Party No. 1, as is contained in
Annexure No. 3 and & respectively to this
writ petition, and all other consequential
action taken pursuant to it may also be set
aside."

3. Learned Senior Advocate appearing
on behalf of the petitioner argues that a
perusal of the impugned First Information
Report would indicate that the said First
Information Report has been lodged against
the petitioner by invoking the provisions of
the Prevention of Corruption Act, 1988
(hereinafter referred to as "Act, 1988").

4. Contention of learned counsel for
the petitioner is that the petitioner was
earlier working as a Manager, Gr-III in the
Uttar Pradesh Sahkari Gram Vikas Bank
Ltd and presently working as Deputy
General Manager in the same bank.

5. The impugned First Information
Report has been lodged against the
petitioner under the provisions of Section
13 (1) (b) & 31 (2) of the Act, 1988 by
alleging that although from a valid legal
sources,
the
amount
earned
by
the
petitioner
is
approximately
Rs.
2,
52,45,522.88/- but he has spent an amount
of Rs. 6,30,30,925.52/- during the period,
and thus has spent of amount of Rs.
3,77,85,372.64/- in excess. He also failed to
submit any satisfactory explanation for the
same and in view of the inquiry conducted
against him, he has been found to be prima
facie guilty and his conduct falls within the
ambit of the aforesaid sections of the Act,
1988.

6. Raising a challenge to the impugned
First Information Report, the instant
criminal writ petition has been filed.

7. The grounds for challenging the
impugned First Information Report are that
(a) earlier for the same charges, a
departmental inquiry had been initiated
against the petitioner by means of the
charge sheet dated 06.09.2018, a copy of
which is annexure 34 to the writ petition.
The charge no. 2 of the said charge sheet
pertained to the charge of disproportionate
assets for which the impugned First
Information Report has been lodged. The
said departmental inquiry resulted in an
inquiry report dated 15.10.2018, a copy of
which is annexure 36 to the writ petition
whereby the petitioner had been exonerated
of all the charges and which has been
accepted by the disciplinary authority vide
order dated 14.12.2018, a copy of which is
annexure
39
to
the
writ
petition.
Consequently,
keeping
in
view
the
judgments of the Apex Court in the cases
of P.S.Rajia Vs. State of Bihar- (1996) 9
SCC 1, Radhy Shyam Kejariwal Vs.
State of West Bengal- (2011) 11 SCC
581, Lokesh Kumar Jain Vs. State of
Rajasthan- (2013) 11 SCC 130, Ashok
Surendra Nath Tiwari Vs. Deputy
Superintendent of Police- (2020) 9 SCC
636,
J.
Sekar
Vs.
Enforcement
Directorate and Ors- (2022) 7 SCC 370,
Kh Kamladini Vs. State of Maharashtra-
(2025)
SCC
Online
SC
1176
&
Gurubachan Singh Batta Vs. Central
Bureau of Investigation- (2025) SCC
Online Delhi 7096 once the petitioner has
been exonerated in the departmental
11 All. Subash Chandra Vs. State of U.P. & Ors.
1435
proceedings as such, the respondents
cannot
proceed
in
the
criminal
proceedings/trial
inasmuch
as
the
departmental proceedings proceed on the
basis of preponderance of probability while
strict proof is required in a criminal trial.
Further, once on the basis of preponderance
of probability itself, nothing has been found
against the petitioner consequently, there
cannot be any occasion for any charge
being found against the petitioner in a
criminal trial (b) the petitioner is not a
public servant as defined under Section 2 of
the Act, 1988 and consequently, the First
Information Report which has been lodged
against the petitioner under the provisions
of the Act, 1988 is beyond jurisdiction and
(c) mala fides.

8. With regard to mala fide, learned
Senior Advocate appearing on behalf of the
petitioner has placed reliance on the
judgment of the Apex Court in the case of
State of Haryana and Ors Vs. Ch.
Bhajan Lal and Ors- 1992 AIR 604 to
contend that there is malicious prosecution
against the petitioner.

9. Elaborating the said ground, the
argument of the learned Senior Advocate
appearing on behalf of the petitioner is that
said First Information Report has been
lodged in order to deprive the petitioner
from promotion on the post of General
Manager.

10. No other ground has been urged.

11. On the other hand, Sri Akbar
Ahmad, learned counsel for the respondent
no. 4 has described the lodging of the First
Information Report to be valid on the basis
of the law laid down by the Apex Court in
the case of Govt. of Andhra Pradesh and
Ors Vs. P. Venku Reddy- (2022) 7 SCC
631 and the Act, 1988, as well as while
placing reliance on Sections 31-A & 124 of
the Uttar Pradesh Co-operative Societies
Act, 1965.

12.
Elaborating
the
same,
the
argument of Sri Akbar Ahmad, learned
counsel for the respondent no. 4 is that the
Apex Court in the case of P. Venku Reddy
(supra) after considering the provisions of
Section 2 of the Act, 1988 wherein a First
Information Report had been lodged
against the supervisor in the District Cooperative Central Bank Ltd under the
provisions of the Act, 1988 has held that
once the said person is an employee of the
Co-operative bank which is controlled and
aided by the Government, he would be
covered
within
the
comprehensive
definition of "Public Servant" as contained
in sub Clause (iii) of Clause (c) of Section
2 of the Act, 1988.

13. Argument is that once the
petitioner himself admits that he is in
service of Co-operative bank as such, he
would be covered by the provisions of the
Act, 1988.

14. Reliance has also been placed on
the provisions of Sections 31-A & 124 of
the Act, 1965 to contend that the officer of
a Co-operative society shall be deemed to
be a Public Servant within the meaning of
the Section 21 of the Indian Penal Code (In
Short "I.P.C").

15. So far as the ground of the
petitioner having been exonerated in the
departmental proceedings, Sri Ahmad,
learned counsel for the respondent no. 4
has attracted the attention of the Court
towards the charge sheet, the inquiry report
& a final order passed by the disciplinary
authority to contend that the said charges
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
had been segregated and it was nowhere
held that the petitioner is not guilty of the
disproportionate assets and thus mere
exoneration
in
the
departmental
proceedings will not and cannot restrain the
respondents
from
lodging
the
First
Information Report under the provisions of
the Act, 1988.

16. So far as the ground of malice is
concerned, it is contended that once the
petitioner has committed an act which is a
criminal act under the provisions of the
Act, 1988 consequently, by no stretch of
imagination can it be said that lodging of
the First Information Report would amount
to malice.

17.
Heard
the
learned
counsels
appearing on behalf of the contesting
parties and perused the records.

18. From the arguments as raised by
the learned counsels appearing on behalf of
the contesting parties and perusal of
records it emerges that admittedly the
petitioner was earlier working as a
Manager, Gr-III in the bank and presently
working as Deputy General Manager in the
same bank.

19. Earlier, a departmental charge
sheet dated 06.09.2018 had been issued to
him which resulted in an inquiry report
dated 15.10.2018 whereby as per the
learned counsel for the petitioner, he was
exonerated of all the charges which report
has been accepted by the disciplinary
authority vide order dated 14.12.2018.

20.
As per
the
learned
Senior
Advocate appearing on behalf of the
petitioner, when the charge sheet pertained
to disproportionate assets and the petitioner
has been exonerated consequently, no
criminal proceedings can be initiated
against him for the same charges on the
ground
that
once
on
the
basis
of
preponderance of probability, which is the
principle as applicable in departmental
proceedings, no charges were made out
against him as such, lodging of the First
Information Report and a criminal case
against the petitioner is legally not
permissible when the trial against the
petitioner in a criminal case would proceed
on the basis of strict proof.

21. In this regard, reliance has been
placed on the judgments of the Apex Court
as referred to above.

22. The other ground taken by the
learned Senior Advocate appearing on
behalf of the petitioner is the ground of
malice i.e the said First Information Report
has been lodged against him in order to
deprive him from promotion to the post of
General Manager.

23. However, the sheet anchor of the
argument of the learned Senior Advocate
appearing on behalf of the petitioner is non
applicability of the Act, 1988 against him
on the ground that he does not fall within
the ambit of being a "Public Servant".

24. The Court now proceeds to
consider the three grounds as raised by the
learned Senior Advocate appearing on
behalf of the petitioner.

25. So far as the ground of the
petitioner not being a "Public Servant" is
concerned, much reliance has been placed
by the learned Senior Advocate appearing
on behalf of the petitioner on the definition
of a "Public Servant" as given under
Section 2 of the Act, 1988 which according
11 All. Subash Chandra Vs. State of U.P. & Ors.
1437
to him does not include an employee of the
cooperative
society/
bank
which
the
petitioner admittedly is.

26. However, this aspect of the matter
has already been considered threadbare by
the Apex Court in the case of P. Venku
Reddy (supra) wherein the Apex Court
has held as under:-

"4. The High Court by the
impugned Order quashed the criminal case
pending against the respondent no. 1 under
the 1988 Act on the sole ground that the
accused is not a 'public servant' as
defined in Sub-clause (ix) of Clause (c) of
Section 2 of 'the 1988 Act'. In the opinion
of the High Court, definition contained in
Sub-clause (ix) of Clause (c) of Section 2
of 'the 1988 Act' covers only President,
Secretary and other office bearers of a
registered co-operative society engaged
amongst other businesses in banking.
Section 2 of the 1988 Act with relevant
Clause (C) and Sub-clauses (iii) and (ix)
read as under : "2. Definition.-In this
Act,
unless
the
context
otherwise
requires,-

(a to b)

(c) 'Public Servant' means-

(i & ii).........

(iii) any person in the service or
pay of a corporation established by or
under a Central, Provincial or State Act, or
an authority or a body owned or controlled
or aided by the Government or a
Government company as defined in section
617 of the Companies Act, 1956 (1 of
1956);

(iv)-(viii).......

(ix) any person who is the
President, Secretary or other office-bearer
of
a
registered
co-operative
society
engaged in agriculture, industry, trade or
banking, receiving or having received any
financial aid from the Central Government
or a State Government or from any
corporation established by or under a
Central, Provincial or State Act, or any
authority or body owned or controlled or
aided by the Government or a Government
company as defined in section 617 of the
Companies Act, 1956 (1 of 1956)"

8. From the above quoted Subclause (ix) of Clause (c) of section 2 of the
1988 Act, it is evident that in the expansive
definition of 'public servant', elected officebearers with President and Secretary of a
registered co-operative society which is
engaged in trade amongst others in
'banking' and 'receiving or having received
any financial aid' from the Central or State
Government, are included although such
elected office- bearers are not servants in
employment of the co-operative societies.
But employees or servants of a cooperative society which is controlled or
aided by the government, are covered by
Sub-clause (iii) of clause (c) of Section 2 of
the 1988 Act. Merely because such
employees of co-operative societies are not
covered by Sub-clause (ix) along with
holders of elective offices, High court ought
not to have overlooked that the respondent,
who is admittedly an employee of a cooperative bank which is controlled and
aided by the government, is covered within
the comprehensive definition of 'public
servant' as contained in Sub-clause (iii) of
clause (c) of Section 2 of the 1988 Act. It is
not disputed that the respondent\accused is
in service of a co-operative Central Bank
which is an 'authority or body' controlled
and aided by the government.
1438 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It cannot be lost sight of that
the 1988 Act, as its predecessor that is the
repealed Act of 1947 on the same subject,
was brought into force with avowed
purpose of effective prevention of bribery
and corruption. The Act of 1988 which
repeals and replaces the Act of 1947
contains a very wide definition of 'public
servant' in Clause, (c) of section 2 of the
1988 Act. The Statement of objects and
Reasons contained in the Bill by which the
Act was introduced in the Legislature
throws light on the intention of the
legislature
in
providing
a
very
comprehensive definition of word 'public
servant'. Paragraph 3 of the statement of
Objects and reasons reads:.

"3. The bill, inter-alia, envisages
widening the scope of the definition of the
expression 'public servant', incorporation
of offences under sections 161 to 165 A of
the Indian Penal Code, enhancement of
penalties provided for these offences and
incorporation of a provision that the order
of the trial court upholding the grant of
sanction for prosecution would be final if it
has not already been challenged and the
trial has commenced. In order to expedite
the proceedings, provisions for day-to-day
trial of cases and prohibitory provisions
with regard to grant of stay and exercise of
powers of revision on interlocutory orders
have been included."

13. As a matter of fact, we find
that the point arising before us on the
definition of 'public servant' that it does
include employee of a banking cooperative society which is 'controlled or
aided by the government' is clearly
covered against the respondent/accused by
the judgment in the case of State of
Maharashtra & Anrs. Vs Prabhakarrao
and Anr.,

15,
The
appeals,
therefore,
succeed and are allowed. The impugned
order of the High Court dated 26.9.2001 is
hereby set aside. The trial court is directed
to proceed with the trial of the case against
the respondent with law."

(emphasis by the Court)

27. From a perusal of the aforesaid
judgment it clearly emerges that the Apex
Court after considering the provisions of
Section 2 (c) (iii) & (ix) of the Act, 1988
has held that the Section 2 (c) (ix) of the
Act, 1988 has got an expansive definition
of "Public Servant", elected office bearers
with the President and Secretary of a
registered cooperative society engaged in
grade amongst others in "Banking" and
"receiving or having received any financial
aid from the Central or State Government"
and that there cannot be any occasion to
over look that the employee of a
cooperative bank which is control and
aided by the Government is covered within
the comprehensive definition of "Public
Servant" as contained in the aforesaid
clause of the Act, 1988. Interestingly,
learned Senior Advocate appearing on
behalf of the petitioner has admitted that
the petitioner is in service of the
cooperative bank.

28. This aspect of the matter can also
be understood after considering Sections
31-A & 124 of the Act, 1965. For the sake
of convenience, Section 31 (A) of the Act,
1965 is reproduced below:-

"31-A.
Appointment
of
Managing Director instead of Secretary
for Apex Societies.-

(1) For every apex society there
shall be, instead of a Secretary, a
11 All. Subash Chandra Vs. State of U.P. & Ors.
1439
Managing Director who shall be a
Government servant not below the rank of
a Class I Officer, nominated by the State
Government, and his services shall be
deemed to be on deputation with the society
and his
salary
and
allowances,
as
determined by the State Government, shall
be paid from the funds of the society.

(2) The Managing Director shall
be ex officio member of the Committee of
Management.

(3) All references in the Act to
Secretary shall in relation to an apex
society be construed, wherever practicable,
as references to the Managing Director.

(4) The Managing Director shall
be the Chief Executive Officer of the apex
society and subject to such control of the
Committee
of
Management
and
the
Chairman, as may be provided in the rules
and the bye-laws of the society, he shall
have
the
following
duties
and
responsibilities, namely-

(i) to have general control over
the administration of the society;

(ii) to convene meetings of the
Committee of Management and the general
body:

(iii) to receive all moneys and
securities on behalf of the society and to
make
arrangements
for
the
proper
maintenance and custody of cash balances
and other properties of the society;

(iv) to endorse and transfer
promissory notes, Government and other
securities and to endorse, sign and
negotiate cheques and other negotiable
instruments on behalf of the society;

(v) to be responsible for the
general
conduct,
supervision
and
management of the day-to-day business and
affairs of the society;

(vi) to sign all deposit receipts
and operate the accounts of the society with
banks;

(vii) to sign all bonds and
agreements in favour of the society;

(viii)
to
create,
subject
to
provisions contained in the budget of the
society, Class III and class IV posts for a
period of 3 months and to make, as
appointing authority, recruitment thereto
through the Board as provided in the
regulations
framed
by
the
State
Government in exercise of the powers
under subsection (2) of Section 122;

(ix) to determine the powers,
duties and responsibilities of the employees
of the society;

(x) to institute, conduct, defend,
compound or abandon any suit or other
legal proceeding by or against the society
or otherwise concerning the affairs of the
society and also to compound and allow
time for payment or satisfaction of any
claims or demand by or against the society;

(xi) subject to the regulations, if
any, which may be framed by the
Committee of Management to enter into
negotiations and sanction contracts up to
the value of Rs. 5 lakhs each during the
construction phase and up to Rs. 2 lakhs
each thereafter and to do all such acts,
deeds and things in the name of and on
behalf of the society in relation to any of
the matters aforesaid for the purposes of
the society;
1440 INDIAN LAW REPORTS ALLAHABAD SERIES

(xii) to delegate all or any of the
powers, authorities and discretions vested
in him to an employee or employees of any
society, subject to the ultimate control and
authority being retained by him."

29. Likewise, Section 124 of the Act,
1965 reads as under:-

"Section 124 - Registrar and
others Officers to be public servants- The
Registrar, or any person appointed or
authorised to conduct audit under Section
64 or to hold enquiry under Section, 65 or
to make inspection, under Section 66, are
authorised under Section 123 to conduct
inspection, an arbitrator or a member of
the board of arbitrators to whom any
dispute is referred under Section 71, or a
member of the Tribunal or a liquidator, or
any person authorised by the Registrar
under Section 93 to make attachment and
sale 1[or any officer of a co-operative
Society] shall be deemed to be public
servant within the meaning of Section 21 of
the Indian Penal Code (Act XLV of 1860)."

30.From a perusal of the Section 31
(A) of the Act, 1965 it emerges that in
every Apex Society, the Managing Director
shall be a Government servant not below
the rank of a Class I officer to be
nominated by the State Government and
that he would be on deputation with the
society and his salary and allowances shall
be paid from the funds of the society.
Section 31 (4) would indicate that the
Managing Director would be having a
general control over the administration of
the
society
with
the
duties
and
responsibilities of the said Managing
Director also including the duty to receive
all money's and securities on behalf of the
society and to be responsible for the
general
conduct,
supervision
and
management of the society etc. The
Managing Director being nominee of the
State Government thus indicates the control
of the State Government over the society.

31. A perusal of Section 124 of the
Act, 1965, however clinches the issue.
Section 124 of the Act, 1965 clearly
indicates that every officer of a cooperative
society shall be deemed to be a Public
Servant within the meaning of Section 21
of the Indian Penal Code. The words "or
any officer of a cooperative society" as
finds placed in Section 124 of the Act,
1965 have been inserted by the U.P.Act
No. 12 of 1990.

32. The Court has gone through the
statement and objects of the Amendment
Act, 1990 which on reproduction reads as
under:-

"[U.P.Act No. 12 of 1990 ; 1990
LLT-IV-119]

THE UTTAR PRADESH COOPERATIVE
SOCIETIES
(SECOND
AMENDMENT) ACT, 1990

Prefatory
Note-Statement
of
Objects and Reasons- The terms of the
Administrators appointed by the Registrar
of the management of the affairs of the cooperative societies under sub-section (4) of
Section 29 of the Uttar Pradesh Cooperative Societies Act, 1965 and of the
committee or administrators, appointed
under sub-section (3) of Section 35 of the
said Act is going to expire on June 30,
1990. The elections of the primary cooperative societies and district level cooperative societies have been held, but due
to some unavoidable reasons it is not
possible to hold elections of the Apex cooperative Societies and to complete the
11 All. Subash Chandra Vs. State of U.P. & Ors.
1441
reconstitution
of
the
Committee
of
Management by June 30, 1990. It has,
therefore, been decided to extend the term
of
the
existing
arrangement
up
to
December 31,1990.

2. Section 34 of the said Act
empowers
the
State
Government
to
nominate two persons on the Committee of
Management
of
those
co-operative
societies, where the State Government has
subscribed in the share capital. Since it is
very difficult for the Government to make
nominations at State level in the primary
co-operative societies which are very large
in number, it has also been decided to
enable the State Government to delegate its
power of nomination to any authority
specified by it in that behalf.

3. It has further been decided to
amend Section 124 of the said Act to
declare the officers of the co-operative
societies as Public Servants.

4.
The
Uttar
Pradesh
Cooperative Societies (Second Amendment)
Bill, 1990 is introduced accordingly."

(emphasis by the Court)

33. From a perusal of Clause 3 of the
statement of objects and reasons of the
Second Amendment Act, 1990 it emerges
that a decision has been taken to amend
Section 124 of the Act, 1965 to declare the
officers of the co-operative societies as
Public Servants meaning thereby that vide
the said amendment made in the year 1990,
the officers of the co-operative society are
deemed to be a Public Servant within the
meaning of Section 21 of the Indian Penal
Code and consequently, the petitioner
being admittedly an officer of the cooperative society would thus also fall
within the ambit of Public Servant as
defined under the Act, 1988.

34. In the instant case, the First
Information Report has been lodged against
the petitioner under the provisions of the
Act, 1988. Accordingly, keeping in view
the law laid down by the Apex Court in the
case of Central Bureau of Investigation
Bank Securities and Fraud Cell Vs.
Ramesh Gelli and Ors- (2016) 3 SCC 788
wherein the Apex Court has held after
considering the statement of objects and
reasons of the Prevention of Corruption Act
Bill that it has been introduced to widen the
scope of the definition of 'public servant'
and after placing reliance on its earlier
judgment in the case of Venku Reddy
(supra) the Apex Court after considering
Section 2 (b) of the Act, 1988 and after
interpreting the word 'public duty' held that
definition of 'public duty' is wide and
discharge of duties in which the State, the
public or the community at large has an
interest, has been brought within the ambit
of an expression 'public duty'. Thus it is
apparent that clearly, provisions of Act,
1988 would be applicable on the petitioner
also.

35. For the sake of convenience, the
relevant observations of the Apex Court in
the case of Ramesh Gelli (supra) are
reproduced below:-

"15. From the Statement of
Objects and Reasons of the P.C. Bill it is
clear that the Act was intended to make the
anti corruption law more effective by
widening its coverage. It is also clear that
the Bill was introduced to widen the scope
of the definition of 'public servant'. Before
P.C.Act, 1988 it was the Prevention of
Corruption Act, 1947 and Sections 161 to
165A in Chapter IX of IPC which were
1442 INDIAN LAW REPORTS ALLAHABAD SERIES
governing the field of law relating to
prevention of corruption. The Parliament
repealed the Prevention of Corruption Act,
1947 and also omitted Section 161 to 165A
of I.P.C as provided under Sections 30 &
31 of P.C. Act, 1988. Since a new definition
of 'public servant' is given under P.C.Act,
1988 it is not necessary here to reproduce
the definition of 'public servant' given in
Section 21 of IPC.

16. Section 2 (c) of P.C. Act,
1988, which holds the field, defines 'public
servant' as under: -

"2.(c) "public servant" means-

(i) any person in the service or
pay of the Government or remunerated by
the Government by fees or commission for
the performance of any public duty;

(ii) any person in the service or pay
of a local authority;(iii) any person in the
service or pay of a corporation established by
or under a Central, Provincial or State Act,
or an authority or a body owned or
controlled or aided by the Government or a
Government company as defined in section
617 of the Companies Act, 1956;

(iv) any Judge, including any
person empowered by law to discharge,
whether by himself or as a member of any
body
of
persons,
any
adjudicatory
functions;

(v) any person authorised by a
court of justice to perform any duty, in
connection with the administration of
justice, including a liquidator, receiver or
commissioner appointed by such court;

(vi) any arbitrator or other
person to whom any cause or matter has
been referred for decision or report by a
court of justice or by a competent public
authority;

(vii) any person who holds an
office by virtue of which he is empowered
to prepare, publish, maintain or revise an
electoral roll or to conduct an election or
part of an election;

(viii) any person who holds an
office by virtue of which he is authorised or
required to perform any public duty;

(ix) any person who is the
president, secretary or other office-bearer of
a registered cooperative society engaged in
agriculture, industry, trade or banking,
receiving or having received any financial
aid from the Central Government or a State
Government
or
from
any
corporation
established by or under a Central, Provincial
or State Act, or any authority or body owned
or controlled or aided by the Government or
a Government company as defined in Section
617 of the Companies Act, 1956;

(x)
any
person
who
is
a
chairman, member or employee of any
Service Commission or Board, by whatever
name called, or a member of any selection
committee appointed by such Commission
or
Board
for
the
conduct
of
any
examination or making any selection on
behalf of such Commission or Board;

(xi) any person who is a ViceChancellor or member of any governing
body, professor, reader, lecturer or any
other teacher or employee, by whatever
designation called, of any University and
any person whose services have been
availed of by a University or any other
public authority in connection with holding
or conducting examinations;
11 All. Subash Chandra Vs. State of U.P. & Ors.
1443

(xii) any person who is an officebearer or an employee of an educational,
scientific,
social,
cultural
or
other
institution, in whatever manner established,
receiving or having received any financial
assistance from the Central Government or
any State Government, or local or other
public authority.

17. Above definition shows that
under Clause (viii) contained in Section 2
(c) of P.C. Act, 1988 a person who holds an
office by virtue of which he is authorized or
required to perform any public duty, is a
public servant. Now, for the purposes of the
present case this court is required to
examine
as
to
whether
the
chairman/managing director or executive
director of a private bank operating under
licence issued by RBI under Banking
Regulation Act, 1949 held/holds an office
and performed /performs public duty so as
to attract the definition of 'public servant'
quoted above.

18. Section 2 (b) of P.C. Act,
1988 defines 'public duty' as under:

"public duty" means a duty in the
discharge of which the State, the public or
the community at large has an interest".

25. In Manish Trivedi Vs. State of
Rajasthan which pertains to a case
registered against a councillor under
Prevention of Corruption Act, 1988, this
Court, while interpreting the word "public
servant", made following observations: -

"14. Section 87 of the Rajasthan
Municipalities Act, 1959 makes every
Member to be public servant within the
meaning of Section 21 of the Penal Code,
1860 and the same reads as follows:

"87. Members, etc. to be deemed
12 (2014) 14 SCC 420 public servants.?(1)
Every member, officer or servant, and
every lessee of the levy of any municipal
tax, and every servant or other employee of
any such lessee shall be deemed to be a
public servant within the meaning of
Section 21 of the Penal Code, 1860
(Central Act 45 of 1860).

(2) The word 'Government' in the
definition of 'legal remuneration' in Section
161 of that Code shall, for the purposes of
sub-section (1) of this section, be deemed to
include a Municipal Board." From a plain
reading of the aforesaid provision it is
evident that by the aforesaid section the
legislature has created a fiction that every
Member shall be deemed to be a public
servant within the meaning of Section 21 of
the Penal Code. It is well settled that the
legislature is competent to create a legal
fiction. A deeming provision is enacted for
the purpose of assuming the existence of a
fact which does not really exist. When the
legislature creates a legal fiction, the court
has to ascertain for what purpose the
fiction is created and after ascertaining
this, to assume all those facts and
consequences which are incidental or
inevitable corollaries for giving effect to
the fiction. In our opinion, the legislature,
while enacting Section 87 has, thus,
created a legal fiction for the purpose of
assuming that the Members, otherwise, may
not be public servants within the meaning
of Section 21 of the Penal Code but shall be
assumed to be so in view of the legal fiction
so created. In view of the aforesaid, there is
no escape from the conclusion that the
appellant is a public servant within the
meaning of Section 21 of the Penal Code.

xxx xxx xxx
1444 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Under the scheme of the
Rajasthan Municipalities Act it is evident
that the appellant happens to be a
Councillor and a Member of the Board.
Further in view of language of Section 87
of the Rajasthan Municipalities Act, he is a
public servant within the meaning of
Section 21 of the Penal Code. Had this
been a case of prosecution under the
Prevention of Corruption Act, 1947 then
this would have been the end of the matter.
Section 2 of this Act defines "public
servant" to mean public servant as defined
under Section 21 of the Penal Code.
However,
under
the
Prevention
of
Corruption Act, 1988 , with which we are
concerned in the present appeal, the term
"public servant" has been defined under
Section 2 (c) thereof. In our opinion,
prosecution under this Act can take place
only of such persons, who come within the
definition of public servant therein. The
definition of "public servant" under the
Prevention of Corruption Act, 1947 and
Section 21 of the Penal Code is of no
consequence. The appellant is sought to be
prosecuted under the the Prevention of
Corruption Act, 1988 and, hence, to
determine his status it would be necessary
to look into its interpretation under Section
2 (c) thereof, read with the provisions of
the Rajasthan Municipalities Act.

xxx xxx xxx 19. The present Act
(the 1988 Act) envisages widening of the
scope of the definition of the expression
"public servant". It was brought in force to
purify
public
administration.
The
legislature has used a comprehensive
definition of "public servant" to achieve the
purpose
of
punishing
and
curbing
corruption among public servants.