9911796707
TMI Blog1988 (11) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1, L. D. Kanchan, who was working as branch manager of the Indian Overseas Bank, Byculla branch, Bombay, was prosecuted in the Court of the Special Judge, Greater Bombay, Bombay, along with others, by the Central Bureau of Investigation, on the allegations that in the months of April to July, 1977, he entered into a criminal conspiracy with others for committing offences of cheating the Indian Overseas Bank by allowing the other accused persons to open bank accounts in the names of fictitious firms and in pursuance of the said conspiracy, forged promissory notes and bogus purchase bills and allowed them to obtain large amounts of loans on the strength of the said forged documents. He and others, therefore, were charged for offences punishable under sections 120B, 465, 467, 468, 471 and 420 of the Indian Penal Code and further he being a "public servant" for committing an offence of criminal misconduct, punishable under section 5(1)( d ) read with section 5(2) of the Prevention of Corruption Act, 1947. At the hearing, he made an application before the special judge that he was not a "public servant" and hence an offence under section 5(1)( d ) read with section 5(2) of the Prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed). But it is necessary that I take note of some of the submissions made by counsel." Then, dealing with the point further, he observed in para 21 of his judgment, as under : "Section 46A, Banking Regulation Act, 1949, lays down that a chairman, director, manager and other employees of a banking company shall be deemed to be a public Servant for the purposes of Chapter IX, Indian Penal Code". In the Banking Companies (Acquisition and Transfer of Undertakings) Act of 1970, section 14 prescribes that every custodian of a corresponding new bank, viz., a nationalised bank, shall be deemed to be a public servant, i.e., for the purposes of Chapter IX, Indian Penal Code, Act No. 45 of 1860 section 14 repeats the deeming being restricted to Chapter IX of the Indian Penal Code. The reply given on behalf of accused Nos. 1 and 2 to the very arresting reply of the complainant is that the same was introduced by way of abundant caution. It did not exclude the operation of clause (12) of section 21, Indian Penal Code. That bank employees are public servants for the purposes of section 21, clause (12)( b ), Indian Penal Code, is the ratio of the decisions in S. C. Agrawal v. State of U. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Supreme Court, let us proceed to analyse the various provisions of law in order to find out whether an employee of a nationalised bank is a "public servant" or not within the meaning of section 21(12)( b ) of the Indian Penal Code. Section 2 of the Prevention of Corruption Act, 1947, provides that for the purposes of the said Act, "public servant" means a public servant as defined in section 21 of the Indian Penal Code. Chapter IX of the Indian Penal Code deals with the offences by or relating to public servants. Section 161 therein is a penal provision for punishing a public servant who indulges in taking gratification other than legal remuneration in respect of an official act. Therefore, if a "public servant" is intended to be prosecuted and punished under section 161 of the Indian Penal Code for indulging in an act of corruption, one has to resort to the provisions of section 21 of the Indian Penal Code in order to ascertain whether or not the said person is a "public servant", for, section 21 of the Indian Penal Code defines a public servant. Therefore, we are here concerned with the definition of "public servant" as provided in clause (12)(b) of section 21 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acts of 1970 and 1980 clearly shows that an employee of a nationalised bank is a "public servant" within the meaning of Chapter IX of the Indian Penal Code for which definition, as stated above, one has to resort to section 21(12)( b ) of the Indian Penal Code. Section 2 of the Prevention of Corruption Act provides that "public servant" in the said Act means a "public servant" as defined in section 21 of the Indian Penal Code. Therefore, it is obvious that one who is a "public servant" for the purpose of Chapter IX of the Indian Penal Code is also a "public servant" within the meaning of section 21(12)( b ) of the Indian Penal Code in so far as it relates to the definition of a "public servant" under the Prevention of Corruption Act. Any other interpretation of the word "public servant", giving two different meanings, one under the Indian Penal Code and the other under the Prevention of Corruption Act, would lead to absurdity. It is difficult to accept a proposition that one who indulges in the misconduct of taking bribe can be punished under section 161 of the Indian Penal Code if he is an employee of a nationalised bank and at the same time cannot be dealt with under section 5(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and 1980, provide that : "(1)On the commencement of this Act, there shall be constituted such corresponding new banks as are specified in the First Schedule." (3)The entire capital of each corresponding new bank shall stand vested in, and allotted to, the Central Government. (4)Every corresponding new bank shall be 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 may issue and be sued in its name." A harmonious reading of these provisions of law makes it clear that a nationalised bank is not only a "body corporate"(which word is interchangeable with the word "Corporation") established under a Central Act but also a "Government company" within the meaning of section 617 of the Companies Act and the employees of such a bank are "public servants" within the meaning of clause (12)( b ) of section 21 of the Indian Penal Code. This question had come up for consideration before a Division Bench of the Kerala High Court in Kurian v. State of Kerala [1982] Crl LJ 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
