Rakesh Kumar Sharma vs Central Bank of India

P.C. Pathak, J.

Non-applicant Central Bank of India through its Branch Manager filed a complaint against the applicant and one Avinash Sengar, under sections 447, 448 and 454, Indian Penal Code.

The learned trial Court without examining the complainant u/s 200, Criminal Procedure Code or his witnesses u/s 202, Criminal Procedure Code registered the complaint and issued process to the applicant and another. Aggrieved by issue of process, the applicant has filed this petition u/s 482, Criminal Procedure Code.

The learned counsel for the applicant submitted that the learned trial Court committed error in issuing of process without examining the complainant and his witnesses. He invited my attention to section 200, Criminal Procedure Code under which the Magistrate is bound to examine the complaint. Such examination is not necessary only if the complainant is a ''public servant'' and the complaint is filed acting or purporting to act in the discharge of his official duties. He referred to the definition of word ''public servant'' in section 21 of the Indian Penal Code. According to him the Branch Manager of Central Bank of India is not a public servant within the meaning of section 21 of the Code. The omission to examine the complainant is therefore, a material irregularity and the order issuing process is liable to be quashed.

Learned counsel for the applicant relied on a Division Bench case in Oriental Bank of Commerce Vs. Delhi Development Authority and Another, and another Single Bench decision in Raghunath Rai Kumar, Bombay v. B. N. Khanna, Delhi and Ors. 1983 Cri.L.J.154. The judgments in both the cases were written by Shri M. L. Jain, J.

Learned counsel for the non-applicant submitted that the Central Bank of India is one of the Nationalised Banks and its employees are public servants as held in Kurian Vs. State of Kerala, and Republic of India v. Khagendranath Jha 1982 Cri.L.J. 691. A Single Bench of the Orissa High Court held that officer of State Bank of India is public servant within the meaning of section 21, clause Twelfth, Indian Penal Code. He also relied on Kundan Lal Sharma v. State of Punjab 1981 Cri.L.J. 1411 wherein the Branch Manager of United Commercial Bank a Nationalised Bank was held to be a public servant.

After giving my anxious consideration over the respective submissions of the parties, I am of the opinion that the Central Bank of India is a Corporation established under a Central Act, viz. Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. u/s 3(4) of this Act, the new bank was declared a body corporate with perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, and to contract and to sue and be sued in its name. Section 3(3) of the Act provides that entire capital of each corresponding new bank shall stand vested in, and allotted to, the Central Government. Section 617 of the Companies Act, 1956, defines a Government company as any company in which not less than fifty one per cent of the paid up share capital is held by the Central Government. Thus the complainant Bank is not only a Corporation but also falls under the category of a Government company. The decision of Delhi High Court drew a distinction between the expression "body corporate" used in section 3(4) of the Act and "corporation" in section 21, clause Twelfth(b) of the Code. But in my opinion, distinction seems to be artificial inasmuch as both these expressions are interchangeable as one finds in section 2(7) of the Companies Act. In this view of the matter, I respectfully disagree with the view taken by the Delhi High Court and prefer to follow the view taken by Kerala, Punjab and Haryana High Courts.

In a recent decision, K. Ch. Prasad Vs. Smt. J. Vanalatha Devi and Others, , while examining whether sanction u/s 197, Criminal Procedure Code is essential before prosecuting an employee of a Nationalised Bank, the Supreme Court held that though he is a ''public servant'' still on his criminal prosecution the provisions of section 197 are not attracted. Even the Supreme Court thus held that the employee of a Nationalised Bank to be a ''public servant''.

Even otherwise this is not a fit case for interference u/s 482. It has always been held by different High Courts that omission to examine the complainant u/s 200 is an error of procedure, falling within the purview of section 464, Criminal Procedure Code. See - S. Gurdial Singh and Others Vs. Abhey Dass, . It does not effect the jurisdiction of the Magistrate unless the accused is prejudiced thereby. See - Triloki Nath Sinha Vs. State, .

The petition fails and is accordingly dismissed.