Ratnavel Pandian, J.
1. All the above writ petitions have been filed for the issue of a writ of certiorari for quashing the common judgment rendered by the District Judge of Coimbatore East at Erode (Tribunal constituted under Section 96 of the Co-operative Societies Act) in the appeals preferred by the former office-bearers (President, Secretary and the Treasurer) and the other directors of the Satyamangalam Co-operative Urban Bank Limited, Sathyamangalam (hereinafter referred to as the Bank) in C.M.A. Nos. 111, 112, 125 and 146 to 151 of 1974 on his file, allowing the said appeals in part and dismissing them in other respects. Writ Petitions Nos. 104 to 109 and 111 of 1977 are filed by the Bank against the allowance in Part of C, M. A. Nos. ,147, 149, 150, 151, 146, 125 and 148 respectively of 1974 : Writ Petitions Nos. 696 to 701 of 1977 are individually filed by the different directors of the Bank viz., Thiruvalargal Arumugam, Ramachandran, Muthuswami, Narayanaswami, Govindarajulu Chettiar and S.A. Mohamed Jaffar (arrayed as third respondent in W.P. Nos, 108, 107, 104,105,106 and 111 respectively of 1977) against the decisions in C.M.A. Nos. 146, 151, 147, 149, 150 and 148 respectively of 1974. W.P. No. 523 of 1977 has been find by Thiru. S.L. Giddiah, who was the President of the Bank and who has been arrayed as the third respondent in W.P. No. 109 of 1977, against the order in C.M.A. No. 125 of 1974. (At this juncture, it is represented to me that the Secretary, viz., S.M. Ramalingam of the Bank, whose appeal C.M.A. 123 of 1974 has been dismissed in toto by the Tribunal, has preferred W.P. No. 3907 of 1976 and the same is pending decision before some other learned Judge of this Court).
2. It is seen from the records that the inspection of the accounts of the Bank, conducted by the Deputy Registrar under Section 66 of the Tamil Nadu Co-operative Societies Act (hereinafter referred to as the Act) revealed certain grave irregularities resulting in heavy loss to the Bank, Therefore, the Deputy Registrar of Co-operative Societies, Gobichettipalayam at Erode, issued notices dated 30th September, 1970 under Section 71(1) of the Act to the then office-bearers of the Bank viz., Giddiah (President), Ramalingam (Secretary) and Manickam (Treasurer) and also to the then directors, directing them to show cause as to why a surcharge order should not be passed against them for the recovery of a total sum of Rs. 1,33,825 under four heads viz., (1) Rs. 17,500 under the head 'Refund of Provident Fund' which relates to the withdrawal by the then Secretary, (2) Rs. 84,000 cash credit said to have been paid to the President, (3) Rs. 3,150 accumulations of interest not collected, and (4) Rs. 29,175 under the head 'Loans issued in excess of the amount specified in the mortgage deeds'. As regards the first item, as per the order of the Deputy Registrar, a sum of Rs. 5,356.67, which was actually available to the credit of the Secretary, has been deducted and in the final order the loss under the first item has been arrived at Rs. 12,143.33. All the above writ petitions are only in respect of the amount of Rs. 12,143.33 under item 1 and Rs. 84,000 covered by item 2.
3. The writ petitions by the President and the directors are directed against the allowance of surcharge in respect of the amount in item-1 mentioned above, in favour of the Bank, whilst the writ petitions by the Bank are filed against the disallowance of surcharge in respect of the amount in Item 2.
4. The first item relates to the withdrawal of the amount of Rs. 17,500 by the Secretary on the strength of a resolution passed on circulation by the Board of Directors sanctioning the Secretary to withdraw an amount of Rs. 17,500 standing to his credit in his Provident Fund account. This resolution sanctioning the withdrawal of the above said amount was passed with a view to enable the Secretary to make good the deficit in the cash balance of Rs. 19,800 detected by the Senior Inspector (Auditor) on 25th October, 1969. Accordingly this deficit amount was made good by the Secretary by paying this amount of Rs. 17,500 withdrawn by him and a further sum of Rs. 2,300 towards the balance on 29th October, 1969. The case of the Bank is that the Secretary was not eligible for the refund of the entire amount standing in his Provident Fund account inclusive of the contributions made by the Bank, since he was in active service on the date of the resolution sanctioning him to withdraw the amount, but he would be entitled to withdraw at the most only the amount actually contributed by him with interest thereon. It is submitted on behalf of the Bank that that the amount of Rs. 17,753.34 standing in the Provident Fund account of the Secretary as on that date consisted of the Secretary's own contributions with interest thereon and also the contributions made by the Bank with interest thereon, and therefore the amount of contribution made by the Secretary himself with interest thereon upto date, which came to Rs. 8,876.67 alone, was available for being withdrawn by she Secretary according to the bye-laws. As the Secretary had already taken an advance of Rs. 3,520 the balance he could withdraw as per the bye-laws was only Rs. 5,356.67. Thus, consequent upon the withdrawal of Rs. 17,500, the Bank sustained a loss of Rs. 12, 143.33 which the office-bearers and the directors were liable to reimburse to the Bank.
5. With regard to the second item, it is said that when the accounts were checked on 28th October, 1969 by the Auditor, it was noted that under the date 8th July, 1969 the expenses recorded in the rough chitta and the cash book were inflated to the tune of Rs. 84,000 without any supporting vouchers. Subsequent to this, on 1st November, 1969 a debit entry for the said sum was made on the foot of a consolidated voucher for the above sum of Rs. 84,000 said to have been signed and given by the then : President of the Bank viz., Thiru. Giddiah.
6. After holding an enquiry in that regard by affording an opportunity to the above-said office-bearers to make their representations, the Deputy Registrar finally passed an order dated 30th July, 1974 upolding the joint and several liability of the abovesaid office-bearers and the directors in regard to these two items; but, as regards items 3 and 4, only the Secretary was held liable. Aggrieved by that order, they preferred the civil miscellaneous appeals above* referred to before the Tribunal, which, by its impugned order, sustained the order of the Deputy Registrar with regard to the first item, so far as it related to the liability of the then President, Secretary and the Board of Directors, while setting aside the same so far as it related to the liability of the Treasurer.
7. With regard to the second item, the Tribunal, holding that the voucher said to have been signed and given by the President must have been fabricated by the Secretary to suit his own purpose, held that the Secretary alone was liable for the loss and consequently sustained the order as against the Secretary, but set aside the order with regard to item 2 as regards the then President, the Treasurer and the Board of Directors. In this connection, it may be mentioned that the appeal preferred by the Secretary in C.M.A. No. 122 of 1974, questioning the order of surcharge passed against him in respect of all the four items was dismissed by the Tribunal.
8. The President and the directors, besides contending that there was no wilful negligence on their part resulting in the loss ot the assets of the Bank, as provided for in Section 71(1) of the Act, have also submitted that both the first and the second respondents failed to note that in fact no deficiency has been caused to the assets of the Bank inasmuch as the Bank has subsequently proceeded against the ex-Secretary for the recovery of the amount covered under item-I and has also got an award with reference to the said item as against the Secretary and in such circumstances, the judgment of the second respondent dismissing their appeal in respect of item-1 is vitiated.
9. The Bank, in its writ petitions seeking to set aside that portion of the judgment dismissing the award in respect of item-2 viz., Rs. 84,000 contends that the Tribunal did not consider the scope of Section 71(1) of the Act properly and that inasmuch as the Bank has suffered a heavy loss of Rs. 84,000 the President and the other directors are responsible and liable to make good the loss since they failed to exercise proper control over the affairs of the Bank and to safeguard the funds thereof by taking an immediate action against the Secretary and the Treasurer, who were responsible for the cash in the Bank.
10. From the above contentions the following questions arise for consideration:
(1) Whether there is any deficiency in the assets of the Bank as alleged by the Deputy Registrar of Co-operative Societies, so far as item-1 is concerned?
(2) If there is any such deficiency, whether such deficiency has been caused by any wilful negligence within the meaning of Section 71(1) of the Act, on the part of the President and the directors, by any payment contrary to the bye-laws?
(3) So far as item-2 is concerned, whether the deficiency to the extent of Rs. 84,000/ was caused--
(a) by any misappropriation on the part of the President, and if so, whether the directors had failed to take proper action for the recovery of the amount to make good the loss?
(b) not due to any misappropriation on the part of the President and if so, whether the President and the directors had failed to exercise proper control over the affairs of the Bank, thus allowing the deficiency to be caused by their wilful negligence?
Question No. 1 :--The case of the Bank is that it has sustained a deficiency in its assets to the extent of Rs. 12,143.33 covered by item-1 since the Secretary was not entitled to withdraw an amount of Rs. 17,500 as loan from his provident fund account, but was entitled to withdraw only a sum of Rs. 5,536.67. The President and the directors do not dispute that they passed a resolution allowing the Secretary to withdraw a total sum of Rs. 17,500 which amount, according to them was amount standing to the credit of the Secretary in his Provident Fund account. According to them, the sanction accorded to the Secretary to withdraw the said amount cannot, first of all, be said to be contrary to bye-law 623 of the Bye-laws of the Bank and even if it is assumed that the said sanction was not in conformity with the said bye-law, they cannot be said to have acted deliberately and with wilful negligence to cause any deficit in the assets of the Bank, since no one brought to their notice the relevant rule or bye-law regarding the refund of the Provident Fund deposit.
11. It is not in dispute that the Secretary was in service on the date when he withdrew the amount, viz., on 29th October, 1969. Therefore, the bye-law that would be applicable to this case is not bye-law 62(10), but bye-law 62(13) (i), which empowers the President to grant temporary advances to an employee from the amount standing to his oredit in his Provident Fund account subject to the following conditions, viz., (1) that the said employee satisfies the President as to the necessity for the advance and (2) that the advance to be so paid shall not exceed four months' pay and shall in no case exceed the amount of subscriptions and interest thereon standing to the credit of the employee in the fund at the time when the advance is granted. It is not the case of the President and the directors that the loan sanctioned did not exceed the Secretary's four months pay. But, what was submitted before me is that as per the said bye-law, 'the amount of subscriptions and the interest thereon standing to the credit of the employee' can be allowed to be withdrawn, and that the term 'subscriptions' used in bye-law 62(13) (i) (b) is wider in its scope so as to include the contributions made by the Bank and the interest accruing thereon, in addition to the contributions of the employee himself.
12. Having regard to the nature of withdrawal contemplated under bye-law 62(13) viz., its being a temporary advance, the expression 'amount of subscriptions' has to be interpreted as the amount actually subscribed by the employee, when considered In the background of the other clauses of this bye-law. If the service of an employee is terminated either by retirement or by death, in case such an event occurs within one year after his joining the Fund, only the amount actually contributed by the employee could be claimed on his behalf, under clause 7; in case the event occurs after one year but within ten years after his joining the Fund, the amount actually contributed by him plus half of the contributions made by the Bank, together with interest thereon, would be refundable, as per clause 8; if the contingency occurs after ten years of his joining the Fund, the amount withdrawable on his behalf would be the contributions made by the employee himself and also by the Bank, together with interest thereon, as per clause 9. Clause 10 relates to the amount to be paid to the employee in case of his dismissal, and it says that the employee would be entitled to withdraw only the amount actually contributed by him with interest thereon. Now, clause 13 relates to temporary advances to be paid to an employee at the discretion of the President on his satisfying himself about the necessity for the advance. When clauses 7 and 8 themselves do not allow an employee or his representatives to claim the entire amount Jo his credit, viz., his own contributions and the contributions made by the Bank, it is abundantly clear that clause 13 would not have contemplated the grant of the entire contributions inclusive of the Bank's contributions to the employee, towards a temporary advance applied for by him. Secondly, clause 13 says that the advance shall not exceed four months' pay of the employee and shall in no case exceed the amount of subscriptions and interest thereon standing to the credit of the employee. Thus it can be seen that the maximum limit contemplated by this clause is either four months' salary or the 'subscriptions' to the credit of the employee with interest thereon. Therefore, the intendment of the framers of the bye-laws should have been to sanction, as advance, only the subscriptions made by the employee himself with interest thereon as the maximum, but not inclusive of the contributions made by the Bank employer viz., the Bank. It should be remembered that it is only the grant of a temporary advance that has been applied for by the Secretary in this case, because a person in service could not have asked for the refund of the entire amount standing to his credit in his Provident Fund account inclusive of the contributions made by the Bank. Moreover, the expression used in bye-law 62(13) is 'subscriptions' as distinguished from 'contributions' appearing in other clauses. It would be quite appropriate to refer to the definitions of the words 'Provident Fund' and 'Contributions' as given in Section 2, Clauses (e) and (b), of the Provident Funds Act (Central Act XIX of 1925). Section 2(e) says:
Provident Fund' means a fund in which 'subscriptions or deposits of any class or classes of employees are received and held on their individual accounts and includes any contributions and any interest or increment accruing on such subscriptions, deposits or contributions under the rules of the Fund.
Section 2(b) defines the word 'contribution' thus:
Contribution' means any amount credited in a Provident Fund, by any authority administering the Fund, by way of addition to, a subscription to, or deposit or balance at the credit of an individual account in the fund;....
From the above definitions, it is clear that the word 'subscription' is generally used to denote the contributions made by the employee, while the word 'contribution' is a common term meaning the amount contributed by the employee as well as by the employer. For the above-stated reasons. I am unable to accept the contention of the counsel for the President and the directors that the word 'subscriptions' occurring in bye-law 62(13) is wider in its scope, including the contributions of the employer, viz., the Bank. On the other hand, I am of the view that as per bye-law 62(13), the Secretary was entitled to withdraw only the subscriptions actually made by him and the interest that had accrued thereon as on the date of his application. In such circumstances, by their act of sanctioning to the Secretary a refund of a sum of Rs. 17,500, the President and the directors had caused to the Bank a deficit to the extent of Rs. 12,143.33 as held by the Deputy Registrar and as confirmed by the Tribunal.
Question 3(a) :--Before adverting to the question as to whether there was any wilful negligence on the part of the President and the directors either with regard to item-1 or with regard to item-2, I shall render a finding on question 3(a) viz., whether the deficiency to the extent of Rs. 84,000 was caused by any misappropriation on the part of the President.
13. Admittedly there was a loss of assets in the Bank, to the tune of Rs. 84,000, as on 8th July, 1969, as the expenditure account in that regard was not supported by any voucher whatsoever. This deficiency was detected by the Inspector (Auditor) during the check of of the accounts on 28th October, 1969. After this detection, the matter was discussed in a Board Meeting on 1st November, 1969 and the Secretary was suspended. However, the Secretary came forward with a case on 1st November, 1969, after he was suspended that the said amount of Rs. 84,000 had been received by the President on various dates and that he had obtained a voucher from the President evidencing the receipt of the said amount and that based on such a voucher he (Secretary) made an entry in the accounts as 'debit' under suspense account of the President and on the receipts side, the sum of Rs. 84,000 was shown to have been received. The President has stoutly denied the genuineness of the said voucher and the signature therein as his, and stated that the said voucher was nothing but a forgery.
14. The said voucher, admittedly to have been written by one Hanumanathan, reads that the sum of Rs. 84,000 had been received by the President on several occasions. The Deputy Registrar, in his order, observed as follows:
It is not for me to discuss the genuineness or otherwise of the voucher reported to have been given by the President. The contents of the voucher and the payments of Rs. 84,000 were dealt in the criminal cases. But the responsibility of the directors and the employees with regard to the deficit caused to . the assets of the Bank has to be fixed with reference to the Bye-laws, Act and Rules .... The President is in over-all control of the affairs of the society. He has also not exercised proper control over the affairs of the Society....
After making the above observation, he has held that the President and the directors, along with the ex-Secretary and the Treasurer, were responsible for the deficit of Rs. 84,000 as they failed to safeguard the funds of the Bank by taking appropriate and immediate action for the recovery thereof. But, the Tribunal set aside the surcharge proceedings for the recovery of the sum of Rs. 84,000, as against the President, the Treasurer and the directors, for the reasons mentioned in paragraphs 5 and 6 of its judgment, observing:
Considering the fact that the Secretrary produced the voucher for Rs. 84,000 purported to bear the signature of the President at a very much belated stage and even after the meeting on 1st November, 1969, when action was proposed against him, coupled with the Fact that the President has repudiated the genuineness of the said voucher, I am satisfied that the said voucher must have been fabricated by the Secretary to suit his own purpose, particularly in the context of his prior conduct.
15. It is not in dispute that in the the rough chitta and cash book dated 8th July, 1969, there was an unauthorised correction and manipulation of entries, thereby inflating the amount to the tune of Rs. 84,000 without the support of any document, and this was detected on 28th October, 1969 by the auditor. The total of the figures in the day book, on the disbursement side, was found to have been inflated to Rs. 95,116.26, whereas the actual total should have been only Rs. 11,816.26, Likewise, the cash balance as on 5th July, 1969 was shown as Rs. 26,258.03, whereas the actual cash balance should have been Rs, 1,10,258.63. This, difference of Rs. 84,000 is stated to have been misappropriated. This deficit was continued till 1st November, 1969 on which date an entry has been made to the effect that a sum of Rs. 84,000 had been paid to the President under a voucher said to have been signed by the President and on which date the Secretary was suspended by the Board of Directors.
16. Now, it has to be seen whether the voucher purported to have been signed and given by the President is a true and genuine one, or whether it has been fabricated by the Secretary with the ulterior motive of throwing the blame for the deficit on the President, as contended on behalf of the President.
17. There are various circumstances in this case indicating that the President could not have passed the disputed voucher acknowledging the receipt of Rs. 84,000 after the said deficit was detected by the auditor. Firstly, there is no entry either in the day book or in the ledger to show that the President was paid various amounts on several occasions, totalling up a sum; of Rs. 84,000. From the entries found in the day book, it can be seen that on 8th July, 1969, on the disbursement side, the total amount expended has been shown as Rs. 95,816-26, by inflating a sum of Rs. 84,000 without any Individual entry or the expenditure of Rs. 84,000 for that late. Secondly, though the Secretary in his statement given before the Deputy Registrar of Co-operative Societies on 31st October, 1969, had stated that the President had given him a signed voucher, acknowledging the receipt of Rs. 84,000, the Secretary had not produced any such voucher before the Deputy Registrar Admittedly, the voucher in question is dated 1st November, 1969. Incase the Secretary had been possessed, of such a voucher even on 31st October, 1969 as claimed by him in his statement, that voucher should have been passed on or before 31st October, 1969, but at any rate not on any day subsequent to 31st October, 1979. The fact that the Secretary in his statement dated 31st October, 1969 had claimed that he was possessed of a receipt from the President, (which receipt bears the date 1st November, 1969), shows that the Secretary had made such a statement on 31st October, 1969, with an idea or hope of bringing about such a voucher subsequently to support his defence. The receipt bearing the date 1st November, 1969 ipso facto, in my opinion, unfolds that the receipt has been subsequently prepared with the date 1st November, 1969, forgetting that even on 31st October, 1969 he had claimed to have been possessed with such a voucher. If really he had obtained the receipt on or before 31st October, 1969, he should have entered the payment of Rs. 84,000 to debit of the President on 31st October, 1969 or earlier, as the case may be, but not on 1st November, 1969. Thirdly, Krishnaswamy Reddy, J., in Crl. R.C. 1046 of 1971, while setting aside the conviction and sentence passed against Giddiah (accused-1 therein) by the Courts below on a criminal prosecution initiated against him, along with the Secretary (accused-2 therein) on the allegation that a sum of Rs. 84,000 had been misappropriated, has observed as follows;
This voucher(Exhibit P-15) was not produced by accused-2 before the Deputy Registrar, though he stated that accused-1 had already passed the voucher and it was with him. ... The case of the revision. Petitioner is that the signature in Exhibis P-15 is not his. But however, it transpiret that the revision-petitioner must have up his signature in blank receipts and th contents were filled up by accused-2 late hesitatingly. Otherwise, there is nor reason for accused-2 for not producing the voucher if he had the voucher Exhibit P-15 with its contents on 31st October, 1969.
This observation goes a long way in discrediting the case of the Secretary that the voucher was handed over to him by the President. Fourthly, the Secretary in his statement before the Deputy Registrar on 23rd February, 1974, did not make any whisper about this disputed voucher purported to have been signed and issued by the President. Fifthly, the President has consistently and repeatedly denied having issued any such receipt to the Secretary. On coming to know of this defalcation, the President and the directors suspended the Secretary and the Treasurer even on 1st November, 1969. In case the President had passed the receipt, he would not have taken the drastic action of suspending the Secretary even on 1st November, 1969. Sixthly, as per bye-law 23, the Secretary and the Treasurer shall have the custody of the properties of the Bank including the cash and jewels. Therefore, it was obligatory on the part of the Secretary, who was responsible for the executive, administration of the Bank, to see that the accounts were regularly kept, supported by vouchers and that the cash balance tallied with the accounts. Now the Secretary cannot shirk his responsibility in this regard by simply stating that he acted according to the whims and fancies of the President and paid him amounts as and when the latter demanded, without passing any voucher then and there and without making any entry in the relevant registers- Thus, it is clear from the above circumstances that the disputed voucher could not have been passed by President Giddiah as submitted by the Secretary, but it should have been got up for the occasion by the Secretary only on or after 1st November, 1969. As pointed out by Krishnaswamy Reddy, J., it is most likely that this receipt should have been fabricated in a blank sheet of paper signed by the President. For the reasons above-stated, I hold that the deficiency of Rs 84,000 has not been occasioned on account of any misappropriation on the part of the President Giddiah.
18. In view of my above finding, the latter portion of question 3(a) does not arise for consideration.
Questions 2 and 3(b) : Under these questions the pivotal issue for consideration is whether the deficiency to the assets of the Bank items 1 and 2, had been occasioned due to any wilful negligence, as contemplated under Section 71(1) of the Act, on the part of the President and the directors.
The word 'negligence' in the popular sense, is the lack of due diligence or care; but for legal purposes it is clear that there can be no negligence unless it is an actionable wrong. Actionable negligence or negligence, in the legal sense postulates a violation of the duty to use care. Accordingly, negligence is defined as a failure to exercise the degree of care demanded by the circumstances or such want of that care which the law prohibits under the particular circumstances existing at the time of the act or omission which is involved. Otherwise stated, negligence consists of the failure to exercise the care which an ordinarily prudent person would use under the circumstances in the discharge of the duty then resting 'upon him, so as to avoid inflicting injury on or to protect the aggrieved party, from any such injury or loss. Where there is no duty, there can be no actionable negligence.
19. The degree of negligence that is contemplated under Section 71(1) of the Act is not a mere negligence, but wilful negligence. The word 'wilful' has not been defined in the Act. The word 'wilfulness' or wantonness' imports pre-meditation or knowledge and consciousness that an injury or loss is likely to result from the act done or from the omission to act. Thus, the term imports a constructive intention as to the consequences which, entering into the wilful act, the law imputes to the offender and in this way a charge, which otherwise would be mere negligence, becomes, by reason of a reckless disregard of probable consequences, a wilful wrong. In other words, the conduct of a person, to amount to 'wilful negligence', must be something more than ordinary negligence. To constitute wilful negligence, the act done or omitted to be done must be intended or must involve such reckless disregard of security and right as to imply bad faith. The wilful or intentional negligence is something distinct from mere carelessness or inattention, however gross, and consists of a wilful and intentional failure or neglect to perform a duty necessary to protect from harm or loss to any person or property of another. In examining whether there is wilful negligence, it has to be seen first whether the person concerned is guilty of negligence and if so, whether that negligence is wilful and secondly, whether the said wilful negligence is the proximate cause of the injury or loss sustained.
20. Mr. K. Parasaran referred me to a plethora of decisions dealing with the scope of the expression 'wilful' occurring in various Acts which came up for consideration before various Courts.
21. In Queen v. Robert Downes (1875) 1 Q.B.D. 25, the words wilful neglect' came up for interpretation while hearing an appeal filed by a prisoner convicted on an indictment of manslaughter for having caused the death of his child on account of his wilful neglect to provide adequrate medical aid, and Lord Coleridge, C. J., for speaking himself, observed:
By 'wilful neglecting' I understand an intentional and deliberate abstaining from providing the medical aid, knowing it to be obtainable....and the neglect on the part of the prisoner who caused death was a wilful disobedience to the law and a wilful neglect of the duty imposed by statute. It was, therefore, culpable neglect.
In the same case, Bramwell, B., while agreeing with the opinion expressed by Coleridge, C. J., expressed his view in the following words:
But the statute imposes an absolute duty upon parents whatever their conscientious scruples may be. The prisoner, therefore, wilfully, not maliciously but intentionally, disobeyed the law, and death ensued in consequence....
In Smith v. Barnham (1875) Exch. D.I. 419, a question arose whether the appellant in that case, in discharging the refuse in the course of his business, wilfully threw it into the stream within the meaning of 4 Geo. 3, C. 96. Therein, Bramwell, B., defined the word thus:
'Wilfully' appears to me in this section to mean wantonly or cause lessly.
In re Mayor of London and Durhs' Contract (1894) 2 Ch.D.524, Lopes, L. J., said:
It is difficult to lay down any general definition of 'wilful'. The word is relative, and each case must depend upon its own particular circumstance.
Again, at page 538, it is said:
If the neglect or default in this case arose from the voluntary act of the parties, either awake or asleep, with reference to their rights and interests, and did not at all arise from the pressure of external circumstances over which they could have no control, I apprehend that the neglect or default was 'wilful.
In Reg v. Senior (1899) 1 Q.B.D. 283, while dealing with the expression 'wilfully neglects' occuring in Section 1 of the Prevention of Cruelty to Children Act of 1894, Lord Russel of Killowen C. J. speaking for the Bench, defined the word wilfully' in the following words:
'Wilfully' means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the Act goes with it. Neglect is the want of reasonable care, that is, the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind....
This has been followed in Oakey v. Jackson (1914)1 K.B.216, Johnson, J., in Graham v. Belfast and Northern Counties Rly and Co. (1901) 2 I.R. 13, while interpreting the words 'wilful misconduct', says thus:
Wilful misconduct in such a special condition means misconduct to which the will is a party as contra-distinguished from accident, and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or to omit to do (as the case may be), a particular thing, and yet intentionally does, or fails or omits to do it, or persists in the act, failure or omission, regardless of consequences.
Lord Alverstone, C. J., in Forder v. Great Western Railway (1905) 2 K.B. 532, adopted the above definition of the word 'wilful misconduct', adding the following:
or acts with reckless carelessness, not caring what the result of his carelessness may be.
I would like to point out here that Pollock, M. R., agrees with the definition quoted by Lord Alverstone, C. J., with the addition he has made, and is of opinion that this definition is in close accord with the previous decisions on the subject.
22. In In re Postmaster General and Colgan's Contract(1906) 1 Ir. Rep.p. 287, Barton, J., has opined thus:
'The words 'default' and 'wilful' are relative terms. Each case must depend upon its own circumstance. A concise summary of their meaning is given by Stirling, L. J., in Bennett v. Stone (1903) 1 Ch.D. 509
According to the rule laid down in Young and Harston's Contract (l885) 31 Ch.D. 168, a vendor commits default, if he fails to do something which he ought reasonably to do, regard being had to the terms of the contract which he entered into with the purchaser and is guilty of wilful default if he so fails when he is a free agent and knows what he is doing and intends to do what he does.
To this may be added as an obvious corollary that an honest mistake, the result of oversight or inadvertence is not wilful unless persisted in after the attention of the vendor has been called to it.
Warrington, L. J., in In Re Equitable Fire Insurance Co. (1925) 1 Ch.D. 407, quotes with approval, a passage from the judgment of Bramwell, L.J., in Lewis v. G. W. Rly. Co (1895) 3 Q.B.D. 206, which runs thus:
Wilful misconduct means misconduct to which will is a party, something opposed to accident or negligence; the misconduct, not the conduct, must be wilful.
Sargeant, L. J., was of the same opinion at page 529, and held:
The word 'wilful' connoted that the person was consciously acting or failing to act in a reprehensible manner. If an officer failed to give a consideration to the question of his duties, acted recklessly and without caring whether he was fulfilling them or not, such officer could not be protected.
But, he adds:
In my judgment, these were words which would excuse an officer if through some inadvertence or error of judgment and while endeavouring honestly to carry out his duty, he does or omits to do something which, apart from these words, might have rendered him liable.
Romer, J., in In re City Equitable Fire Insurance Company (1925) 1 Ch.D. 407 observes at page 434:.an act or omission to do an act is wilful, whether the person of whom he was speaking knows that he is doing and intends to do what he is doing : But if that act or omission amounts to a breach of duty and therefore to negligence, is the person guilty of wilful negligence? In my opinion, that question must be answered in the negative unless he knows that he is committing and intends to commit a breach of his duty or is recklessly careless in the sense whether his act or omission is or is not a breach of duty.
The Privy Council, in Ardeshir Bhicaji Tamboli v. The Agent G. I. P. Rly. Co., Bombay (1928) 54 M.L.J. 167 : L.R. 55 IndAp 67 : 27 L.W. 667 : A.I.R. 1928 P.C. 24, quoting with approval the interpretation of the expression 'wilful default' given in Queen v. Downes (1875) 1 Q.B.D. 25, and in R. V, Senior(1899) 1 Q.B.D. 283, having regard to the facts of that case arising out of the Indian Railways Act of 1890, held that though there was ample evidence of neglect, there was no evidence or finding of wilful neglect and that therefore there was no wilful neglect within the meaning of the risk note.
23. The Allahabad High Court in Hudson v. Official Referee : AIR1929All326 , was dealing with proceedings under Section 235 of the Companies Act, 1913, against an Auditor of the Company, and was discussing the question whether the Auditor, even if he was assumed to be an officer of the company, entitled to indemnity as per Article 118 of the Articles of Association of that company, was liable for the loss of the company due to any wilful acts or defaults on his part. The Division Bench, in that context, examined the meaning of the words 'wilful acts or defaults', and after referring to the various decisions on the point, observed thus:
The adjective 'wilful' in 'wilful acts or defaults' has evidently been used as a description and not definition. The idea intended to be conveyed is that the default is occasioned by the exercise of volition or as the result of the non-exercise of will due to supine indifference, although the defaulter knew or was in a position to know that loss or harm was likely to result. The word does not necessarily suggest the idea of moral turpitude. We have also to eliminate the elements of accident or inadvertence OF honest error of judgment. The default must be the result of deliberation or intent or be the consequence of a reckless omission. 'Wilful default' therefore is indicative of some misconduct in the transaction of business or in the discharge of duty by omitting to do something either deliberately or by a reckless disregard of the fact whether the act or omission was or was not a breach of duty.
A Division Bench of the Bombay High Court in Govind v. Rangnath : AIR1930Bom572 , while examining a case of the directors' liability for compensation for recklessly sanctioning acts of agents or managing agents, in a proceeding taken under Section 235 of the Companies Act, 1913, pointed out that although no doubt the liability of a director for damages for delinquency depends more or less on the particular circumstances of each particular case, and also the memorandum of association of the company, yet apart from this, where the directors have been wilfully shut* ting their eyes to the acts of the agents or managing agents, and recklessly sanctioning acts of such agents consciously and thereby aiding misfeasance, misappropriation and falsification of balance-sheets and the state of affairs continues over a series of years, the directors are guilty of wilful misconduct and ace liable to pay compensation.
24. In South Indian Railway Company Limited v, V.M.S.P. Brothers : AIR1932Mad545 , Reilly, J., while sitting in Bench with Ananthakrishna Iyer, J., referred to the meaning of the words 'wilful neglect' in his separate judgment, as follows:
But, there can be no doubt that 'wilful' in the expression wilful neglect' does carry with it some element of intention or at least of a conscious disregard of duty.
In Babu Ramlal v. Secretary of State : AIR1936Pat257 , following the observation of a Division Beach of that Court in Durga Dutta Shri Ram Firm v. The Secretary of State (1930) 11 Pat. L.T. 161 it has been pointed out that 'the expression 'wilful default' means that the act was done deliberately and intentionally and not by accident or inadvertence so that the mind of the person who does the act goes with it.
25. In Gopalaswami Gounder v. Krishna-swami Gounder : AIR1941Mad53 , Sir Lionel, Leach, C. J., speaking for the Bench, while dealing with the scope of Section 23 5 of the Companies Act, 1913, applied the following principles laid down In re Etie Limited (1928) 1 Ch.D. 86:
Breach of duty, of course, includes a misfeasance or a breach of duty in the stricter sense and the section will apply to a true case of misapplication of money or property or a case where there has been retention of money or property which the officer was bound to have paid or returned to the company.
Subba Rao, J., as he then was, in Govindarajulu Chetty, In re (1951) 1 M.L.J. 348, while interpreting the word 'wilful' occurring in section IS of the Tamil Nadu General Sales Tax Act IX of 1939, after having referred to various case-law and the meaning attributed by different Judges to the word 'wilful', has made the following observation:
As a general rule, a guilty mind is an essential ingredient to crime. This mental element is ordinarily expressed in statutes by the use of the words such as 'maliciously' 'fraudulently', 'negligently', 'knowingly' etc. It is true that the rule is not inflexible and in some statutes particularly in the realm of municipal law, an act is made an offence without an intention on the part of the accused. .... In the instant case, the legislature designedly used the word 'wilful' to express the mental element necessary to constitute the offence. The word 'wilful' excludes bona fides in respect of the returns. An honest and reasonable but mistaken belief in the existance of circumstances which, if true, would have made an act lawful, is a good defence. ' Wilful' is a word of description. It describes the act constituting an offence, viz., submission of a false return.
A submission of a false return cannot be a wilful submission unless the dealer has deliberately made the return with the knowledge that he was excluding a taxable item. Otherwise, every submission of a return omitting a particular taxable item, though the assessee bona fide believed as one exempt from taxation, would become an offence. So construed, the word 'wilful' becomes nugatory, for, except in the case of arithmetic mistakes or omissions, a submission of a return omitting to include an item held subsequently by the taxing authorities to be taxable, differing from the view of the assessee, will be an offence.
In my view, this construction which leads to startling results should not be accepted unless the words in the statute are clear and unambiguous. Not only I do not see any such words, but to my mind the word 'wilful' used in the section was intended only to hit at intentional omissions of an assessee with full knowledge that the item omitted is a taxable one.
Krishnaswamy Naidu, J. in Karnataka Films Limited v. The Official Receiver, Madras : AIR1952Mad481 , while considering the scope of the liability of the directors and officers of a company under Section 235 of the Companies Act of 1913, after referring to the relevant case-law on that question, accepted the well-known principle laid down in Coventry and Dixons case (1880) 14 Ch.D. 660. In that case, their Lordships had said:
This is not a section for punishing a man who has been guilty of misfeasance, but for compensating the company in respect of the loss occasioned by his misfeasance.
The Supreme Court, in R.G.N. Kulkarni v. State (1954) A.L.J. 822, while interpreting the word 'wilfully detains' occurring in Section 53 of the Post Office Act of 1898, has observed that the word 'wilful' has been used by the Legislature to mean only such detention which was deliberate and for some purpose.
26. In Om Prakash Gupta v. State of Uttar Pradesh : 1957CriLJ575 , the Supreme Court, while giving the meaning of the word 'wilfully' occurring in Section 405 of the Indian Penal Code, points out:
Wilfully' presupposes a conscious action, while even by negligence one can allow another to do a thing.
Ramaprasada Rao, J., as he then was, in T. R. Ramanathan v. State of Madras : (1973)1MLJ325 , while examining the scope of Section 71 of the Tamil Nadu Co-operative Societies Act (LIII of 1961), has observed thus:
Under Section 71, the essence of the surcharge proceedings lies in the misappropriation or fraudulent retention of any money or property of the bank. Further, such acts of delinquency which border on breach of trust should have caused deficiency in the assets of the Bank. The concerted action of the persons concerned, which might be characterised as wilful negligence on their part, should result in a loss to the bank. It is therefore clear that there should be a provable nexus between the delinquency and the resultant loss to the bank. The conduct of the person, officer or servant of the bank should be such that it should lead to the bank being deprived of its assets. If, therefore, such a link is established between the impugned act and the resultant loss to the bank, then the Registrar in surcharge proceedings under Section 71 has power to direct the delinquent person to contribute to the assets of the bank by way of compensation in respect of such misappropriation, misapplication of funds, fraudulent retention thereof, breach of trust to the affairs of the bank, or wilful negligence on their part.
Ramanujam J. in Subbammal v. The President, Tenkasi Co-operative Urban Bank : AIR1977Mad92 , after referring to various decisions giving interpretation to the word 'wilful', held thus:
The above decisions clearly indicate that the use of the phrase 'wilful negligence' in Section 71 of the Act (Tamil Nadu Co-operative Societies Act of 1961) is for the purpose of holding a person in management liable if he has caused loss to the Society by his intentional and purposeful omission. Therefore, the learned Counsel for the petitioner is right in his submission that mere negligence, however gross it may be, may not be sufficient to attract the section.
In Corpus Juris Secondum, Vol. 65, page 374, 'wilful negligence' is defined thus:
'Wilfulness' and 'wantonness' are distinct from, and incompatible with, negligence, since the latter is based on inadvertence, whereas the former terms involve purpose or design. Nevertheless, although they are sometimes held to be misnomers, the terms 'wilful negligence' and 'wanton negligence' are frequently used by the Courts to describe something more than ordinary or even gross negligence. The terms 'negligence' and 'wilfulness' are not synonymous, but are distinct in meaning and accurately speaking, are incompatible and signify the opposite of each other, in that the absence of intent is a distinguishing characteristic of negligence as discussed supra, whereas 'wilfulness' cannot exist without purpose or design, and a wilful injury will not be inferred when the result may be reasonably attributed to negligence or inattention.... The phrase 'wilful negligence' has been held to be a contradiction in terms, for to say an injury resulted from the negligence and wilful conduct of another is to affirm that the same act is the result of two opposite mental condtions, or heedllessness or purpose or design,... However, 'wilful negligence' is sometimes defined as being a kind of negligence and held, at least when the element of wilfulness is given a restricted meaning, to a proper term, and the term 'wilful negligence' is frequently ' vised by the Courts, and as to have a well-understood significance in the law; as meaning something more than simply negligence or even gross negligence, and as indicating a voluntary breach of duty under such circumstances as indicate a reckless or wanton disregard of consequences. It has been defined as that degree of neglect arising where there is a reckless indifference to the safety of human life, or an intentional failure to perform a manifest duty to the public, in the performance of which the public and the person injured had an interest.
P. R. Ramanatha Iyer in his Law Lexicon, after collecting the various decisions relating to the interpretation of the words 'wilful neglect' and 'wilful default' has given the meaning of the expression 'wilful negligence' as a conscious acting or failing to act in a reprehensible manner.
27. One of the decisions referred to in Words and Phrases Permanent Edition, 28, viz., Smith v. Weber 16 N.W. 2d. 537, 539, 70 S.D. 232, gives the following definition:
'Wilfulness' and 'negligence' are opposites, wilfulness signifying presence of intention, purpose or design and negligence in their absence, arising from inattention, thoughtlessness, or heedlessness, and there is a distinction between negligence characterized by inadvertence-and wilful injury characterized by 'advertence'.
The expression 'wilful default' occurring in Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960), has come up for interpretation by various Courts on various occasions.
28. Anantanarayanan, C.J.. in Durairaj. v. Rathnabai (1967) 1 M.L.J. 324, pointing out that there is a sharp distinction between 'default' and 'wilful defaut quoted with approval the following observation made by Ramamurti, J, in Khivraj Chordia v. Maniklal Bhattad : AIR1966Mad67 .
The principle that emerges from the several decisions is that for default to be regarded as wilful default, the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rents or a reckless indifference.
Ramaprasada Rao, J., as he then was. in Rajagopal v. Saraswathi Ammal : (1977)2MLJ8 , explained the above words 'wilful default' occurring in the said Act, as follows:
Repeatedly the Courts here and elsewhere have taken the view that the expression 'wilful default' is not an expression of art but a meaningful phraseology used by the statute with a definite purpose. The default committed by a tenant should be so telling and conspicuous that any reasonable person apprised of such circumstances and having the occasion to adjudicate upon such facts should come to the conclusion that the tenant was recalcitrant and supremely indifferent and purposely evading the performance of his legitimate obligation of sending the rents to the landlady in time, ... The wilfulness should be the result of recalcitrancy and deliberateness.
Having regard to the interpretations and discussions in respect of the term 'wilful' appearing in various enactments, as found in the case-law decided by the learned English and Indian Judges which serve as a guide to the construction of the term 'wilful' used in Section 71(1) of the Act, I am of the view that in order to pass a surcharge order under that section against a person entrusted with the organisation and management of a cooperative society or an officer or servant thereof, such person should have done an actionable wrong, either by commission or omission, in a deliberate and reprehensible manner, with reckless callousness and with a supine indifference (but not by accident or inadvertence), without taking due care and precaution ordinarily expected from a reason-able and prudent man under those existing circumstances, that is to say, not caring what the result of his carelessness would be. To make it explicit, it may be stated that he should have acted in breach of legal obligations or in conscious disregard of duty or with an intentional failure to perform the manifest duty, in the performance of which the public have an interest, and that such commission should be the proximate cause of the loss or deficiency in question.
29. In the light of the above principles, I shall now examine whether the President and the directors had by their wilful negligence caused the loss to the assets of the Bank, under items 1 and 2. The gist of the explanation given by the President and the directors for having allowed the Secretary to withdraw the sum covered under item-I is that their attention was not drawn to the relevent rules and the bye-law dealing with the sanction of advances to the employees of the Bank from their Provident Fund accounts, and that the sanction accorded by them was not a wanton violation of the bye-law. The Deputy Registrar has rejected their explanation and surcharged them on the ground they had accorded the sanction by passing a resolution on circulation without having regard to the bye-law. The Tribunal has confirmed that finding stating that they have acted with utmost negligence and even adverse to the interest of the Bank, shielding the Secretary with regard to the deficit covered under item-1 and allowing the Secretary to make good the deficit, by enabling him to withdraw an amount of of Rs. 17,500 whilst the amount actually available to be withdrawn by him was only Rs. 5, 355-67 and thus causing deficiency in the assets of the Bank to the extent of Rs. 12,143-33. Admittedly, the amount covered under item-1 was sanctioned to the Secretary while he was in service. I have already discussed bye-law 62(13), while dealing with question No. 1, and held that the President and the directors had caused to the bank a deficit of Rs. 12,143.33 by sanction of the excess amount to the Secretary, thereby violating the said bye-law, and thus confirmed the finding of the Tribunal as regards item-1. The version of the President that he was not aware of the deficit in cash balance to the extent of Rs. 19,800 till 1st November, 1969 and that the advance was sanctioned to the Secretary as he was in a financial crisis, cannot be accepted, as pointed out by the Tribunal, having regard to the facts and circumstances of this case. On behalf of the President and the directors, it was submitted that actually there was no loss to the Bank as the entire amount taken by the-Secretary has been handed over to the ' Bank to make good the deficiency caused to the assets of the Bank, and therefore the President and the directors cannot be condemned and made liable to pay the amount, which action would amount to punishing them twice on the came cause of action. No doubt, a person shall not be condemned twice on the same cause of action. But, the question is whether the President and the directors can be said to be penalised twice by mulcting them with the liability to pay the present deficiency of Rs. 12,143.33, even though the said amount, unauthorisedly allowed to be withdrawn, had not been taken away by the Secretary but paid to the Bank to make good the loss of Rs. 19,800 in the cash balance. By sanctioning an excess amount of Rs. 12,143-33 to the Secretary, the President and the directors have caused a loss to the Bank to that extent in its assets. If they had not allowed that amount to be withdrawn by the Secretary, of course' the position would have been different. Instead of asking the person responsible for the deficit of Rs, 19,800 to reimburse that amount to the Bank, the President and the directors had caused a deficiency in the assets of the Bank, to the extent of Rs. 12,143-33. Therefore, the present position is that notwithstanding the fact that the deficiency in the cash balance to the extent of Rs. 19,800 as found by the auditor, has been reimburssed by the Secretary, such reimbursement has been made only by causing another deficiency to the extent of Rs. 12,143-33, for which deficiency all those who were responsible for the unauthorised sanctioning are necessarily liable. The said deficiency has been caused only by the reckless carelessness and on account of the supine indifference on the part of the President and the directors who, in breach of their legal obligation imposed upon them by the provisions of the Act, Rules and bye-laws, had, in conscious disregard of the said duty, caused the actionable wrong viz, the causation of the deficiency, in the assets of the Bank covered under item-1. In such circumstances, therefore, it has to be held that the President and the directors had caused the said deficiency due to their wilful negligence within the meaning of Section 71(1) of the Act. Hence, the Deputy Registrar, who is vested with the power of surcharging the guilty persons by virtue of the operation of Section 71 of the Act, was right in passing the impugned order, thereby securing compensation for the loss occasioned by the misfeasance of the office-bearers, so far as item 1 is concerned.
30. The remaining point to be considered is question 3(b), viz., whether the President and the directors had committed any actionable wrong in causing the deficiency of Rs. 34,000 covered under item 2, by their wilful negligence, making themselves liable for reimbursement of the said amount.
31. This deficiency of Rs. 84,000 was found out by the auditor on 28th September, 1969 As pointed out above, the cash balance as on 8th July, 1969, was shown as Rs 26,258-03 whilst the actual cash balance ought to have been Rs. 1,10,258 03. In order to cover up the deficit in the cash balance to the extent of Rs. 84,000 on the disbursement side of the day book, the total expenditure has been inflated by the said amount. This deficiency was continued till 1st November, 1969, on which date the President is alleged to have given a consolidated receipt acknowledging the receipt of the said amount of Rs. 84,000 on various occasions. I have held, concurring with the view taken by the Tribunal, that the said receipt should have been got up for the occasion by the Secretary only on or after 1st November, 1969, and that it is most likely that the said receipt should have been fabricated in a blank sheet of paper signed by the President and as such the said deficiency has not been occasioned on account of any misappropriation on the part of the President. No doubt, the President, the directors and other office-bearers might become liable, provided that deficiency was also caused by the wilful negligence on their part. Mr. N. R. Chandran would urge that the President and the directors have got a legal duty to look into the accounts and verify the same as contemplated by the law and when once it is seen that these office-bearers have been recklessly careless by not looking into the accounts even from 8th July, 1969, till it was detected and keeping themselves ignorant as to how much amount was available as the assets of the bank and as to whether there was any deficiency and as to whether the entries in the account books were supported by genuine vouchers etc., they would certainly be liable for such loss as such conduct would constitute wilful negligence within the meaning of Section 71(1) of the Act. He would further submit that these office-bearers cannot absolve their responsibility by simply saying that they have not looked into the accounts and that the very fact that the President and the directors have passed the resolution on 18th November, 1969 to attach the properties of the Secretary for the recovery of the amount, would show that they were aware of the said deficiency.
32. As per bye-law 23, the Secretary and the Treasurer shall have the custody of all the properties of the Bank including its cash and jewels and at the close of each day's transaction, the cash balance shall be kept in the Bank's iron safe under double lock system one of the keys being in the custody of the Secretary and the other one in the custody of the Treasurer. But, in the absence of the Secretary or the Treasurer or both, the President is empowered to make suitable arrangements. Further, the Secretary is responsible for the executive administration of the Bank, of course, subject to the control of the President, who is given the general control over all the affairs of the Bank. The legal duty cast upon the President and other members of the Board in respect of the control of the cash balance etc., as per bye-law 23, is as follows:
The President or any other members of the Board authorized by it in this behalf shall verify the cash balance and other valuables and securities of the Bank at least once in a half year.
Therefore, in view of the above by-law, if the President or any one of the authorized members has failed in their legal duty in detecting the deficit in the cash balance on verification of the accounts then it can be said that they have allowed the Bank to sustain the loss by their wilful negligence It is not in dispute that the financial year of the Bank commences on the 1st July and ends with the end of June. The entries found in the Day Book and the rough chitta showing a sum of Rs. 84,000 on the expenditure account, unsupported by any voucher, are found to have been made only on 8th July, 1969. Therefore, it is possible that this amount of Rs. 84,000 might have been taken on 8th July, 1969, or on any day between 1st July, 1969 and 9th July, 1969. If that entry inflating the amount on the expenditure side had been made before the end of June, one can reasonably say that the President or any other authorized member had neglected their duty of detecting the deficiency by making a verification of the account and the cash balance. It is not the case of the Bank that there was any inflation on the expenditure side or deficiency in the cash balance before the end of the last financial year. Hence, such circumstances would lead to the conclusion that the deficit could not have been caused before the end of June, 1969, viz., during the last financial year, but would lead to a reasonable inference that this deficit should have been caused only after the commencement of the financial year 1969-70 and that this inflated entry should have been made only in order to cover up the deficiency caused. There is no direct evidence as to whether the actual deficiency in the cash balance had been occasioned on a single day or on different occasions. Nevertheless, the inference would be that there was a deficiency in the cash balance to the tune of Rs. 84,000 on 8th July, 1969. This was detected on 28th October, 1969, by the Senior Inspector (Auditor). As per bye-law 23, the President or the authorized member should have made a verification of the account and the cash balance for the half year of the financial year 1969-70, at any time between 1st July, 1969; and 31st December, 1969. The Auditor checked the accounts and detected the deficiency in the month of October, 1969. The President and the authorized members were at liberty to verify the accounts even after October, 1969 and therefore, we cannot impute any wilful negligence on the part of the President and the board of Directors. What can be said is that the auditor had detected the deficiency before it could have been detected by the President and other directors. It is true that the President is in over-all control of the affairs of the society. But, it does not mean that on each and every day, the President ought to have verified the accounts, cash balance etc , as the bye-law does not impose such kind of duty, but only says that it is for the Treasurer to verify the cash balance at the close of every day. At any rate, the Court would not be justified in drawing an inference that there was a wilful negligence within the meaning of Section 71(1) of the Act on the part of the President or the directors.
33. On coming to know of the deficiency they placed the Secretary under suspension even on 1st November, 1969, and took further steps for the recovery of the deficiency by attaching his properties by passing a resolution on 18th November, 1969. The Board of Directors have stated is their explanation submitted to the Deputy Registrar that immediately after the suspension of the Secretary and the Cashier, they intimated the Reserve Bank and other concerned officials by wire about the deficiency caused to the assets of the Bank and took all possible steps and that there was a permanent departmental auditor in the Bank, whose duty was to check the accounts then and there and to report to the Board of Directors any irregularities noticed and that the said auditor had not brought to the notice of the directors any irregularity, enabling them to take suitable action. It is further submitted on behalf of the Bank that the conduct on the part of President and the directors in not instituting criminal proceedings immediately after the detection of the deficiency against the guilty persons, would constitute wilful negligence on their part. This contention has no merit in view of the fact that they have suspended the Secretary and the Treasurer even on the evening of 1st November, 1969, and taken action for the recovery of the amount by attaching their properties. It is not in dispute that after issuing a notice dated 7th February, 1970 under Section 72 of the Act of the managing committee of the Bank, it was dissolved on 22nd February, 1970 by an order of the Registrar. In my view, notwithstanding the act that no criminal complaint had been lodged before any public authority against the erring persons by the President and the directors, they have taken all other possible steps which they could take within their powers, to recover the amount of deficit covered under item 2. In this connection, I would like to point out that the connected files reveal that a criminal case was instituted against the President, the Secretary, the Treasurer, and the directors (arraying them as accused to 9) on being investigated by the Commercial Crimes Wing, Coimbatore, and they were all tried in C. C. 428 of 1970 on the file of the Sub-Divisional Magistrate, Erode, who convicted all the three. But, on appeal, the Treasurer (accused-3) was acquitted. As regards the Secretary (accused-2), the conviction and sentence passed against him under Section 499, Indian Penal Code, were set aside; but his conviction under Section 477-A, Indian Penal Code, was altered into one under Section 477-A read with Section 109, Indian Penal Code, and while retaining the sentence of fine imposed on him, the sentence of imprisonment was set aside on the altered conviction. But. in the case of the President (accused-1), while the conviction and sentence under Section 409 read with Section 109, Indian Penal Code, passed against him, were confirmed, the sentence of imprisonment imposed on him under Section 477-A read with Section 109, Indian Penal Code, was set aside while the sentence of fine was retained. The President saccused-1) preferred Cr. R. C. 1046 of 71 before this Court, and the said revision was allowed and the President was acquitted of all the charges.
34. For all the above stated reasons, I am in full agreement with the view expressed by the Tribunal. 'I am unable to conclude that there has been an inordinate delay in taking action against the Secretary by the President and the Board of Directors.'
35. From the above discussion, I find on question No. 3(b) that the President or the Board of Directors have not committed any actionable wrong by acting in supine indifference without taking due care and precaution ordinarily expected from a reasonable and prudent man under the circumstances that were existing then, or by acting in breach of any of their legal obligatons in the performance of their duty in the conduct of the affairs of the Bank, so far as the defieit of Rs. 84,000 covered under item 2 is concerned. Accordingly, I hold that there is no wilful negligence within the meaning of Section 71(1) of the Act on the part of the President and the directors in the causation of the deficiency of Rs. 84,000.
36. In the result, the order passed by the Tribunal is confirmed in its entirety and consequently all the writ petitions are dismissed, as devoid of any merit, without costs.