UMANAND UPADHYAYversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 42839 of 2025

Umanand Upadhyay
                                                             .....Applicant(s)
                                  Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)             :    Shri Kant Shukla
Counsel for Opposite Party(s)        :    G.A., Hridaya Narayan Mishra


                                          Reserved on 11th September, 2026

                                         Delivered on 23rd September, 2026

Court No. - 81
                  HON'BLE MADAN PAL SINGH, J.

   1. Heard Sri S.K. Shukla, learned counsel for the applicant, Sri Abhishek
     Kumar, learned A.G.A. for the State and perused the record.

   2. The present application under Section 528 of the B.N.S.S. has been
     filed with a prayer to quash charge-sheet dated 16.08.2025 and
     cognizance order 09.09.2025 as well as entire proceedings of Criminal
     Case No. 11156 of 2025, arising out of Case Crime No. 182 of 2024,
     under 352, 351(2), 316(5), 238 and 61(2) B.N.S, Police Station
     Siddharth Nagar, District Siddharth Nagar, pending in the court of the
     Chief Judicial Magistrate, Siddharth Nagar.

   3. The brief facts of the present case are that the first informant, Vijay
     Pratap Patel, District Manager, Provincial Cooperative Federation
     (PCF), lodged an F.I.R. against Umanand Upadhyay, Accountant, and
     Amit Kumar Chaudhary, District Manager, PCF, alleging that one
     Manoj Kumar Pandey, who is a Class-IV employee of the PCF,
     informed him that on 01.10.2024, the said Class-IV employee, namely,
     Manoj Kumar Pandey, was telephonically informed by Amit Kumar
     Chaudhary, District Manager, PCF (under suspension), that on
     30.09.2024, Umanand Upadhyay, Accountant (under suspension),
     would come to hand over charge. On the next morning, Umanand
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  Upadhyay contacted Manoj Kumar Pandey and informed him that he
  would reach the office by 9:00 a.m. Upon reaching the office,
  Umanand Upadhyay allegedly took the cheque payment register in his
  bag. When Manoj Kumar Pandey objected to the same, Umanand
  Upadhyay allegedly abused and threatened him and took away the said
  register. It was further alleged that Amit Kumar Chaudhary and
  Umanand Upadhyay, in collusion with each other, had committed
  forgery and criminal breach of trust and had caused certain office
  documents and registers to disappear, thereby causing loss to official
  work and attempting to destroy the evidence.On the aforesaid
  allegations, an F.I.R. was lodged against Amit Kumar Chaudhary,
  District Manager, PCF, and Umanand Upadhyay, Accountant, under
  Sections 303(2), 352 and 351(2) of the B.N.S. After investigation, the
  Investigating Officer submitted charge-sheet against both the
  accused/applicants under Sections 352, 351(2), 316(5), 238 and 61(2)
  of the B.N.S. Thereafter, on 09.09.2025, the Chief Judicial Magistrate,
  Siddharth Nagar took cognizance against Amit Kumar Chaudhary,
  District Manager, PCF, under Sections 316(5) and 61(2) of the B.N.S.
  and against accused Umanand Upadhyay under Sections 316(5), 352,
  351(2), 61(2) and 238 of the B.N.S.

4. Learned counsel for the applicant submits that the present application
  has been filed for quashing the charge-sheet and the order of
  cognizance passed by the Chief Judicial Magistrate. Learned counsel
  for the applicant mainly submits that initially the F.I.R. was lodged
  under Section 303(2) of the B.N.S. (corresponding to Section 379 IPC),
  along with other sections, but the charge-sheet has been filed under
  Section 316(5) of the B.N.S. (corresponding to Section 409 IPC), along
  with other sections. Learned counsel for the applicant further submits
  that the offence under Section 409 IPC is not made out against the
  present applicant, as they are officers/officials of the PCF and under
  Section 21 IPC, both the officers do not fall within the category of
  public servants. In support of his contention, he has placed reliance
  upon the judgment of this Court in Brijpal Singh Vs. State of U.P. &
  Anr., passed in Application U/S 482 Cr.P.C. No. 45468 of 2023,
  decided on 08.04.2024, [2024 (9) ADJ 376].

5. It is further submitted that the offences under Sections 351(2) and 352
  of the B.N.S. are also not made out, as the specific allegation of abuse
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  has neither been mentioned in the F.I.R. nor in the statements of the
  witnesses.

6. Per contra, learned A.G.A. and learned counsel for opposite party no. 2
  have opposed the submissions made by learned counsel for the
  applicants and submitted that the cheque payment register is a valuable
  security, which was taken away by Umanand, who was the custodian
  of the said register at the time of the incident, even though he was
  under suspension, and on the date of the incident the applicants had
  reached the office to hand over the charge. Learned counsel further
  submits that both the applicants are officers/officials of the PCF and
  their salaries were paid by the said Society. Section 316(5) of the
  B.N.S., being in any manner entrusted with property, or with dominion
  over property, dishonestly misappropriates or converts that property to
  his own use, or dishonestly uses or disposes of that property in
  violation of any direction of law or of any legal contract, constitutes
  the offence of criminal breach of trust, and the present applicants were
  also working as agents and, thus, fall within the category of public
  servants as provided under Section 21 of the IPC (corresponding to
  Section 2(28) of the B.N.S.). It is next submitted that both the
  applicants had hatched a conspiracy and deliberately taken away the
  cheque payment register, which is a valuable security, and with regard
  to the said incident, Manoj Kumar Pandey, Class-IV employee, was an
  eye-witness. Hence, a prima facie case is made out against the present
  applicants.

7. Having considered the rival submissions, perused the record and
  examined the case law relied upon by learned counsel for the
  applicants, the moot questions before this Court are, firstly, whether
  the applicants fall within the category of "public servant" as
  contemplated under Section 2(28) of the B.N.S., corresponding to
  Section 21 of the IPC, and secondly, whether a prima facie case is
  made out against the applicants.

8. Before considering the merits of the case, Section 2(28) of B.N.S.
  reads as under:

         (28) "public servant" means a person falling under any of the
         descriptions, namely—
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                      4

(a) every commissioned officer in the Army, Navy or Air Force;

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

(c) every officer of a court including a liquidator, receiver or
Commissioner whose duty it is, as such officer, to investigate or report
on any matter of law or fact, or to make, authenticate, or keep any
document, or to take charge or dispose of any property, or to execute
any judicial process, or to administer any oath, or to interpret, or to
preserve order in the Court, and every person specially authorised by a
court to perform any of such duties;

(d) every assessor or member of a panchayat assisting a court or public
servant;

(e) every arbitrator or other person to whom any cause or matter has
been referred for decision or report by any Court, or by any other
competent public authority;

(f) every person who holds any office by virtue of which he is
empowered to place or keep any person in confinement;

(g) every officer of the Government whose duty it is, as such officer, to
prevent offences, to give information of offences, to bring offenders to
justice, or to protect the public health, safety or convenience;

(h) every officer whose duty it is, as such officer, to take, receive, keep
or expend any property on behalf of the Government, or to make any
survey, assessment or contract on behalf of the Government, or to
execute any revenue-process, or to investigate, or to report, on any
matter affecting the pecuniary interests of the Government, or to make,
authenticate or keep any document relating to the pecuniary interests of
the Government, or to prevent the infraction of any law for the
protection of the pecuniary interests of the Government;

(i) every officer whose duty it is, as such officer, to take, receive, keep
or expend any property, to make any survey or assessment or to levy
any rate or tax for any secular common purpose of any village, town or
district, or to make, authenticate or keep any document for the
ascertaining of the rights of the people of any village, town or district;

(j) every person who holds any office by virtue of which he is
empowered to prepare, publish, maintain or revise an electoral roll or
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                                  5

            to conduct an election or part of an election;

            (k) every person—

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

            (ii) in the service or pay of a local authority as defined in clause (31) of
            Section 3 of the General Clauses Act, 1897 (10 of 1897), a corporation
            established by or under a Central or State Act or a Government
            company as defined in clause (45) of Section 2 of the Companies Act,
            2013 (18 of 2013).

            Explanation.—(a) persons falling under any of the descriptions made in
            this clause are public servants, whether appointed by the Government
            or not;

            (b) every person who is in actual possession of the situation of a public
            servant, whatever legal defect there may be in his right to hold that
            situation is a public servant;

            (c) "election" means an election for the purpose of selecting members
            of any legislative, municipal or other public authority, of whatever
            character, the method of selection to which is by, or under any law for
            the time being in force.

10. The officers and employees of a cooperative society are not mentioned
   as public servants under Section 2(28) of the B.N.S.

11. The Section 2(o) of the U.P. Cooperative Societies Act, reads as under:

            "Officer of a co-operative society" means the president,
            vice-president,     chairman,   vice-chairman,   secretary,
            member of committee of management, treasurer,
            liquidator, administrator or any other persons employed by
            a co-operative society whether with or without
            remuneration to carry on the business of the society or to
            supervise its affairs;"

11. In Brijpal Singh (supra), paragraph no. 32 of the judgment reads as
   under:

            "32. The employee and officer of the cooperative society are
            not public servants as per Section 21 of I.P.C. for the
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                                                   purpose of offences mentioned in I.P.C. Therefore, they
                                                   cannot be prosecuted under Section 409 I.P.C. but definitely
                                                   can be prosecuted for the breach of trust under Section 406
                                                   I.P.C. However, appropriate Section can be added or
                                                   removed at the time of framing of charges."

                                        12. From the perusal of Section 2(o) of the U.P. Cooperative Societies Act
                                           and Section 2(28) of the B.N.S., as well as the judgment passed by the
                                           coordinate Bench of this Court, this Court is of the view that the
                                           officers or officials of a cooperative society do not fall within the
                                           category of public servants under Section 2(28) of the B.N.S.
                                           Consequently, the applicants cannot be prosecuted under Section
                                           316(5) of the B.N.S., corresponding to Section 409 of the IPC.

                                        13. So far as the second question whether a prima facie case is made out
                                           against the applicant is concerned, from a perusal of the F.I.R., the
                                           statements of Manoj Kumar Pandey and the informant as well as
                                           material available on record, a prima facie case is made out against the
                                           applicant.

                                        14. Accordingly, the cognizance order dated 09.09.2025 passed by the
                                           Chief Judicial Magistrate, Siddharth Nagar, is set aside to the extent it
                                           relates to Section 316(5) of the B.N.S. However, the cognizance taken
                                           in respect of the remaining offences under BNS will continue against
                                           the applicant. Section 303(3) B.N.S. is also added and the cognizance
                                           order dated 09.09.2025 is modified to the aforesaid extent. The learned
                                           Magistrate shall proceed with the case in accordance with law.

                                        15. Accordingly, the application is disposed of.

                                    September 23, 2026
                                    Akbar
                                                                                            (Madan Pal Singh,J.)




Digitally signed by :-
MOHAMMAD AKBAR
High Court of Judicature at Allahabad