I.D. Sharma vs State of Himachal Pradesh

V.P. Bhatnagar, J.—The learned special judge, Shimla by his judgment dated June 5, 1985, convicted the accused for having committed offences u/s 5(2) of the Prevention of Corruption Act and Sections 409, 467, 465/471 and 477 of the Indian Penal Code. He sentenced the accused to undergo rigorous imprisonment for a period of one and a half years under various Sections of the Penal Code and rigorous imprisonment for the same period and a fine of Rs. 1000/- u/s 5(2) of the prevention of Corruption Act. In default of payment of fine the accused was directed to undergo further rigorous imprisonment for a period of three months. Aggrieved from the said judgment, the present appeal has been preferred by the accused.

Two modes are stated to have been resorted to by the accused in committing embezzlement. The first is that the amounts deposited with the accused in his capacity as incharge of extension counter of the State bank of India, snow don hospital, Shimla, by various account holders were duly reflected in their pass books but these amounts were not accounted for and instead converted by him to his own personal use. However, he made bogus entries pertaining to the deposit of these very amounts on later dates. In this way, he misused the said amounts during the intervening period. According to the prosecution, the accused embezzled a total amount of Rs. 12,500/- by taking recourse to this mode wherein eleven separate items are involved. However, evidence has been led with respect to 5 items only having an amount of Rs. 6,900/-. The second mode is that the accused withdrew certain amounts from various accounts by himself forging the withdrawal forms and making relevant entries in the record. These amounts were subsequently deposited by him in a similar manner by preparing fictitious pay-in-slips. In this manner, he embezzled a total amount of Rs. 13,000/- for various periods. The prosecution has, however, led evidence only with respect to 3 items having an amount of Rs. 12,500/-.

At the very outset, shirt. Chandel, learned Counsel for the Appellant-accused, has raised a preliminary point urging that an employee of the State bank of India is not covered by the definition of public servant'' as given in clause 12th(b) of Section 21 of the Indian penal code. His contention is that the State bank of India is neither a corporation established by or under a central Act nor a government company as defined in Section 617 of the companies Act. He has relied upon the provisions of Section 3(2) of the State Bank of India Act, 1955 and has argued that the State bank of India is a ''body corporate'' as distinguished from a ''corporation'' and further has drawn support from the provisions of Section 46A of the banking regulation Act, 1949, wherein the bank employees are to be deemed as public servants for the purposes of chapter ix of the Indian Penal Code. The contention is that such employees expressly stand excluded from the definition of public servant as given in Section 21(12)(b), which is not a part of chapter ix of the penal code. He has cited Oriental Bank of Commerce Vs. Delhi Development Authority and Another, and N. Vaghul and Ors. V. State of Maharashtra and Ors. (1987 Cri.L.J. 385 ) in support of his argument.

The contention of Chandel appears to be devoid of any merit. To hold that a State bank employee is a public servant for the purposes of chapter ix of the Indian penal code as clearly postulated u/s 46A of the Banking Regulation Act, 1949, and, therefore, punishable for an offence of corruption u/s 161 of the Indian Penal Code but, at the same time, not a public servant for the purposes of prevention of corruption Act being not covered under the definition of public servant given in Section 21(12)(b) and, therefore, not punishable u/s 5 of the Prevention of Corruption Act for an Act of corruption would be apparently or incongruous proposition and amount to violating the intendment of the legislature. Section 46A of the Banking Regulation Act, 1949, merely lays emphasis on the proposition that the bank employees would be public servants and, therefore, punishable for various offences under chapter ix of the Penal Code but it, under no stretch of imagination, excludes these employees from the ambit of Section 21(12)(b) of the Indian Penal Code, if otherwise covered by the definition given there under. In fact, the point under discussion has been dealt with in depth in State of Maharashtra v. L.D. kanchan and Ors. (1989 Cri.L.J.697) by the Bombay high court wherein all the contentions raised by shri Chandel have been negatived. I am in respectful agreement with the reasoning given therein and find no hesitation in holding that the employees of the State bank of India are public servants u/s 21(12)(b) of the Indian Penal Code and, therefore, can be tried for offences under the Prevention of Corruption Act, 1947. This view has also been taken by Kerala high court in Kurian Vs. State of Kerala, Allahabad high court (Lucknow bench) in S.C. agarawal v. State of U.P. (1979 Cri.L.J. 922) and the Punjab and Haryana high court in Kundan Lal Sharma Vs. State of Punjab, . I am of the opinion that the contrary view taken by the Delhi high court in the matter in Oriental Bank of Commerce Vs. Delhi Development Authority and Another, with all respect, is not good law.

1 arn also in agreement with the views expressed in State of Maharashtra v. L.D. Kanchan and Ors. (1989 Cri.L.J. 697) that the observations made in paras 20 and 21 of n. Vaghul and Ors. V. State of Maharashtra and Rs. (1987 Cri.L.J. 385) which tend to support the argument of shri Chandel are in the nature of obiter and that the question whether bank employees are public servants within the meaning of Section 21(12)(b) of the Penal Code was not finally decided upon therein.

The preliminary point raised by R. Chandel is, therefore, rejected.

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