1987 Supreme(MP) 362

P. C. Pathak, J.
Rakesh Kumar Sharma v. Central Bank of India.
Misc. Cr. Case No. 2254 of 1987 (J); Decided on 7-11-1987.

Headnote:(1) Penal Code, 1860-S.21 (Twelfth)-manager of nationalised bank -is public servant.

       

        (2) Criminal P. C., 1973-S. 197-prosecution of bank employee--no sanction is necessary.

        (3) Criminal P. C., 1973-Ss. 200 and 464-non-examination of complainant u/s. 200-is an error of procedure.

       

       ¼1½ naM lafgrk] 1860&/kkjk 21 ¼ckjgok¡½&jk"Vªh;d`r cSad dk izca/kd&yksd lsod gSA

       ¼2½ naM izfdz;k lafgrk] 1973&/kkjk 197&cSad deZpkjh ij vfHk;kstu&etwjh vko‘;d ugha gSA

       ¼3½ naM izfdz;k lafgrk] 1973&/kkjk 200 ,oa 464&/kkjk 200 ds v/khu ifjoknh dk ijh{k.k u djuk&izfdzk dh =qfV gSA

        The learned trial Court without examining the complainant u/s. 202, Cr.P.C. or his witnesses u/s. 202, Cr.P.C. 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, Cr. P. C.

        Held: 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. Under section 3 (4) of this Act, the new bank was declared a body corporated 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. Thu8, 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 Cl. 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 view taken by the Delhi High Court and prefer to follow the view taken by Kerala, Punjab and Hariyana High Courts.

        In a recent decision, K. Ch. Prasad v. Smt. J. Vanalatha Devi and others, AIR 1987 SC 722, while examining whether sanction under section 197. Cr. P.C., is essential before prosecuting an employee of a nationalized 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 under S. 482. It has always been held by different High Courts that omission to examine the complainant u/8. 200 is an error of procedure, falling within the purview of section 464. Cr. P. C. See Gurdial Singh and others v. Abhey Dass, AIR 1967 Punj. 244. It does not effect the jurisdiction of the Magistrate unless the accused is prejudiced thereby. See Triloki Nath Sinha v. State. AIR 1962 Raj.94. AIR 1967 Punj. 244, 1962 Cr. LJ 780, 1982 Cr. LJ 691 and 1981 Cr. LJ 1411 relied on. AIR 1987 SC 722 followed. 1982 Cr. LJ 2230 and 1983 Cr. LJ NOC 154 dissented from. Petition dismissed.