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TMI Blog1955 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 5 of 1952 of the Sessions Court at Lucknow. This is an appeal by special leave against the judgment of the High Court of Allahabad affirming the conviction of the appellant by the Sessions Judge, Lucknow under sections 409 and 477-A of the Indian Penal Code. On 12-2-1949 a Society known as the Model Town Co-operative Housing Society, Ltd., was registered under the provisions of the Co-operative Societies Act (II of 1912), its object being to acquire vacant sites in the town of Lucknow and to allot them to its members so as to enable them to build houses of their own. The appellant was the chief promoter thereof, and collected monies from prospective shareholders by way of share money. The first general body meeting of the Society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misappropriated the same. The charge under section 477-A was that on 22-4-1949 the appellant acting as the Secretary of the Society falsified the minute book, Exhibit P-18, by omitting to show therein the share money received from the three persons above mentioned. The defence of the appellant was that the three amounts aforesaid were paid to him not as prospective Secretary for the purpose of allotment of shares, but were deposited with him in his individual capacity for purchasing shares, in case the Society worked well. The trial of the offence under section 409 was held with the aid of assessors and that under section 477-A with the aid of a jury, the same persons acting both as assessors and jurors, and they returned a verdict of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share would be allotted to him and otherwise the money would be returned. This letter was written long after proceedings had been taken by the Registrar, and the courts below did not attach much importance to it. On the other hand, Dr. Seth himself gave evidence in these proceedings which deprives Exhibit D-5 of very much of its value. Exhibit P- 10 is the receipt granted to Sri Chaturvedi. It expressly recites that ₹ 500 was received as share money for five shares in the Society. Notices were also issued to both Sri Chaturvedi and Dr. Bhanti to attend the general body meeting of the Society to be held on 1st March 1949 for electing the President and members of the Managing Committee of the Society, and Dr. Seth and Dr Bhanti actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 477-A? The conviction of the appellant under section 409 based on the finding of the Sessions Judge that those amounts were paid as share money would stand, notwithstanding that it would be against the decision of the High Court. This anomaly could be avoided, it is argued, by holding that the reference under section 307 must be of the whole case. Reliance is placed in support of this contention on the observations in Emperor v. Haria Dhobi(A.I.R. 1937 Patna 66 ). We are unable to agree with this contention. If the procedure adopted by the Sessions Judge is to be held to be illegal, it can only be on the ground that he contravened some provision of law which requires him to refer the whole case to the High Court. It is conceded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was next contended that the true status of the appellant was that of a servant and not of an agent, and that he should have been charged not under section 409 but under section 408. The substance of the charge against the appellant is that as the promoter of a Society he lawfully received the amounts paid by Sri Chaturvedi, Dr. Bhanti and Dr. Seth, but that after its incorporation, when he failed on 22-4-1949 to hand over those amounts to the Treasurer and to include their names as shareholders in the minutes book, he committed offences under sections 409 and 477-A. Now, what is the status of the appellant as Secretary of the Society in which capacity he committed the offences, servant or agent? The distinction between the two is thus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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