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Raghunath Rai Kumar Vs. B.N. Khanna and Others - Court Judgment

LegalCrystal Citation
Subject Company
CourtDelhi High Court
Decided On
Case NumberCr. R. No. 52 of 1983
Judge
Reported in[1984]55CompCas518(Delhi); 1983(2)Crimes260; 1983(5)DRJ77
ActsEvidence Act, 1872 - Sections 124; Banking Regulation Act, 1949 - Sections 46A; Indian Penal Code (IPC), 1860 - Sections 21; Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 - Sections 3(3), 8, 9, 10(4), 10(7), 11, 13 and 19; Banking Companies (Acquisition and Transfer of Undertakings) (Amendment) Act, 1980 - Sections 3(3), 8, 9, 10(4), 10(7), 11, 13 and 19
AppellantRaghunath Rai Kumar
RespondentB.N. Khanna and Others
Advocates: S.S. Gupta,; Lalit Bhardwaj,; D.R. Sethi and;
Cases ReferredRanjeet Singh v. State
Excerpt:
evidence act - section 124--chairman add directors of nationalised banks are not 'public officer' for purposes of section 124 of the evidence act. definition of public servant in section 21, i.p.c. applies only to that code. indian penal code - section 21--officers of the nationalised bank are not public servants within the meaning of clause ninth of section 21 i.p.c. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother..........the disputed document to be placed on the file. the learned magistrate was of the view that the bank officers were not public officers within the meaning of s. 124 of the evidence act and that the document is simply a report of investigation conducted by some officer of the bank regarding the financial position of the complainant-firms as the bank doubted the integrity of the said firms when they failed to honour their promises. when the bank has come to certain conclusion about the financial position of the complainant, there cannot be any secrecy in regard to the findings arrived at by the bank. the affidavit did not disclose what public interest is going to be affected by the disclosure and it appeared to the learned magistrate that the report was not of such a secret nature as the.....
Judgment:

M.L. Jain, J.

1. Respondent No. 1, B. N. Khanna, is a partner of M/s. Serhoo Mal Jagdish Rai, Delhi. The said firm had an account at the Sunder Nagar branch of the Union Bank of India (herein 'the Bank'), where, at the relevant time, Miss Trilochan Banga was the branch manager. On August 17, 1982, or about, B. N. Khanna filed a complaint against Miss Trilochan Banga in the Court of the Metropolitan Magistrate under s. 500, IPC, alleging that she called them cheats.

2. During the enquiry under s. 202, Cr. PC, the said complaint made an application that the vigilance officer of the bank be directed to produce the report of investigation in respect of the accounts of his firms, M/s. Serhoo Mal Jagdish Rai and M/s. Saral Trading Co., conducted by Shri S. K. Kataria. In answer to the summons, Shri I. J. Mehta, a clerk, and Shri H. K. Dham, Zonal Manager, appeared before the Magistrate. Shri Dham filed an affidavit on January 7, 1983, objecting to the production of the said vigilance report on the ground that it was a document privileged under s. 124 of the Indian Evidence Act, 1872. However, on January 10, 1983, the bank produced the report before the learned Magistrate. He initialled each page and adjourned the case to January 29, 1983, when the petitioner, Shri Raghunath Rai Kumar, the managing director of the bank, filed an affidavit. He stated that the concerned firms had failed to honour their commitments under the letters of credit and undertakings executed by them and on one pretext or the other they evaded the payment of the documents retired by the bank. What they wanted was to get hold of the goods imported by them under the aforesaid letters of credit without making payment to the bank. Miss Banga objected to this attempt. Then the complaint lodged various prosecutions making false allegations, while the bank directed a probe into the accounts of the firms. The audit cell of the bank conducted an investigation of their accounts. The report of such investigation is a communication made by an officer of the bank in official confidence to another. The managing director claimed that public interest would suffer by disclosure of the said communication. This contention was rejected by the learned Metropolitan Magistrate, by his order of February 16, 1983. He directed the disputed document to be placed on the file. The learned Magistrate was of the view that the bank officers were not public officers within the meaning of s. 124 of the Evidence Act and that the document is simply a report of investigation conducted by some officer of the bank regarding the financial position of the complainant-firms as the bank doubted the integrity of the said firms when they failed to honour their promises. When the bank has come to certain conclusion about the financial position of the complainant, there cannot be any secrecy in regard to the findings arrived at by the bank. The affidavit did not disclose what public interest is going to be affected by the disclosure and it appeared to the learned Magistrate that the report was not of such a secret nature as the disclosure thereof can cause any injury to any public interest. Rather, such disclosure will be in public interest inasmuch as the public would come to know about the financial status of the complainant-firms. Hence, this petition praying for quashing the said order of the learned Magistrate.

3. I have heard Shri Gupte and Shri Sethi. Let me start by reciting s. 124 of the Evidence Act :

'124. Official communications : No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure.'

4. Before I proceed to examine the matter, I want to dispose of one contention of Shri Sethi appearing for the respondents. He referred to S. P. Gupta v. President of India, : [1982]2SCR365 , popularly known as 'transfer of judges' case, in which the Government claimed privilege under s. 123 of the Evidence Act. The Supreme Court observed that such a claim is limited only to such affairs of the State which involve security of the nation and foreign affairs. Shri Sethi contends that 'the approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest'. 'In an open society like ours and in a democratic Government like ours, secrecy except in a very limited case, has to be deprecated'. This case, I am afraid, is not of much relevance because the claim here is not made under s. 123 but under s. 124 of the Evidence Act. I will, thereforee, confine myself to the discussion of s. 124.

5. Whether the document in question is a communication made in official confidence or whether public interest would suffer by its disclosure are questions of fact to be determined upon the examination of the document and other material, if any. I will, thereforee, not discuss these two aspects nor is it required for the present purpose because Shri Gupte, the learned counsel for the bank, did not in this case like to insist that it was a communication a disclosure of which will do damage to public interest. His contention is that this privilege, if the other two conditions satisfy, should be available to the officers of the banks. His main attack is directed against the opinion of the learned Magistrate that bank officers are not public officers.

6. The opening submission of Shri Gupte in this regard is that the officers of the bank are public officers because they are public servants. According to the amendment made on July 19, 1969, and on April 15, 1980, in s. 51 of the Banking Regulation Act, 1949, ss. 46 to 48 thereof have been made applicable to corresponding new banks constituted under s. 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Acts of 1970 and 1980 (herein 'the nationalised bank'). Sections 44 to 48 will obviously include s. 46A. It provides :

'46A. Chairman, director, etc., to be public servants for the purpose of Chapter IX of the Indian Penal Code. - Every chairman, director, auditor, liquidator, manager and any other employee of a banking company shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code.'

7. Since, this section made the chairman, director, manager and other employees, etc., of a nationalised bank to be public servants only for the purposes of offences by or relating to public servants, chiefly those dealing with graft specified in Chap. IX of the IPC, 1860, and for no other, two of the nationalised banks took up the position in Oriental Bank of Commerce v. Delhi Development Authority , that their chairman-cum-managing directors were public servants under sub-cl. (b) of clause twelfth of s. 21, IPC, and claimed that they cannot be prosecuted for offences under the Delhi Development Act, 1957, without sanction under s. 197, Cr. PC, 1973. I overthrew that contention. Amongst other grounds, the one most important was that the bank, though a body corporate, was not a corporation because it had no membership and a member less corporation was a contradiction in terms and unknown to the Indian jurisprudence. One has to note that the definition of a public servant contained in s. 21, IPC, applies only to the provisions of that Code and does not automatically apply for the construction of any other enactment unless it is incorporated or adopted by it. The intention of the Legislature, thereforee, patently was that the employees and other authorities of a nationalised bank will be public servants only for a limited purposes. It could have done otherwise, but did not. The Legislature made this provision by amendments in s. 51 of the Banking Regulation Act, 1949, which further displayed its intention to keep in this respect the nationalised banks at par with other banking companies. They could not be held public servants for all purposes, for if that were done, all the employees of the banking companies shall have to be declared so and that would have thrown the scope of the IPC at large, much against the express provision made by the Legislature. thereforee, the position is that they could not claim the protection of s. 197, Cr. PC, for prosecution of the offences under any provision of law except Chap. IX of the IPC and that too if they satisfied the other conditions of the said section and not otherwise.

8. Shri Gupte has now made a fresh bid to claim that the bank's employees are public servants within clause ninth of s. 21, IPC, according to which every officer whose duty is, as such officer, to take, receive, keep or expend any property on behalf of the Government. He has rightly not concerned himself with the rest of the clause. Shri Gupte contends that it is the duty of the bank's officers to take, receive, keep and expend property on behalf of the Government. In order to illustrate his point, he referred to several provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Acts of 1970 and 1980. First, the long title, which reads :

'An Act to provide for the acquisition and transfer of the undertakings of certain banking companies, having regard to their size, resources, coverage and organisation, in order to control the heights of the economy and to meet progressively and serve better, the needs of development of the economy in conformity with national policy and objectives and for matters connected therewith or incidental thereto.'

9. He then pointed out to sub-s. (3) of s. 3 which says that the entire capital of a nationalised bank stands vested in, and allotted to, the Central Government. Section 8 lays down that every nationalised bank shall in the discharge of its functions be guided by such direction in regard to matters of policy involving public interest as the Central Govt. may, after consultation with the Governor of the Reserve Bank, give. Section 9 provides for a scheme to be prepared by the Central Govt. which takes into consideration the interest of farmers, workers, and artisans, etc., while constituting the board of directors. According to sub-s. (4) of s. 10, every auditor of a nationalised bank is required to make a report to the Central Government of the annual balance-sheet and accounts. Sub-s. (7) of s. 10 further provides that the nationalised bank shall transfer the balance of profits to the Central Government. Selection 11 provides that a nationalised bank shall be deemed to be an Indian company under the I.T. Act, 1961, in which the public are substantially interested. Section 13 is that every director, member of a local board or a committee or auditor, adviser, officer or other employee of a nationalised bank shall, before entering upon his duties, make a declaration of fidelity and secrecy in the form set out in the Third Schedule. Section 19 provides that the board of directors can make regulations only with the previous sanction of the Central Govt. The Third Schedule provides, inter alia, that a bank officer will not communicate or allow to be communicated to any person not legally entitled thereto any information relating to the affairs of the bank or to the affairs of any person having any dealing with the bank. The main purpose of racing through these various provisions is to show that the officers of the nationalised banks are duty bound to take, receive and keep the property on behalf of the Government and since there is an overall control exercised over the nationalised banks by the Central Govt., they should be deemed to be public servants. The question of application of clause ninth was discussed by West J. in Reg v. Ramajirav Jivbajirav [1875] 12 B.H.C.R. 1, and his observations have not so far been improved upon. He said :

'We are of opinion that the word 'officer' in clause 9 of section 21 of the Indian Penal Code is used in a definite sense. It is not superfluous (the words 'whose duty it is as such officer' sufficiently show this), and is not merely equivalent to the word 'person' which occurs in several clauses of the same section. We do not think that the fact of certain duties being enumerated as constituting one who is an officer, a public servant, necessarily has the effect of making any one, on whom any of those duties devolves, an officer. Two things must combine to meet the requirements of the clause quoted above. In the first place, there must be an officer; and, in the second, he must be under an obligation to perform one of the duties there enumerated.

We must, thereforee, see who is an officer. It is clear that it is not every one who has to do with Government in pecuniary matters, or who has to render accounts, or to submit documents, is a Government Officer. Seeking the held of English law, we find in Bacon's Abridgement of Vol. 6, page 2, the article headed 'Of the nature of an officer, and the several kinds of officers', commencing thus : 'It is said that the word 'officium principally implies a duty, and, in the next place, the charge of such duty; and that it is rule that where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer'. And the next paragraph goes on to say : 'There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of office; such as an agreement to make hay, herd a flock, which differ widely from that of steward of a manor.' The first of these paragraphs implies that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercive powers or who is appointed to represent the State in its relations to individual subjects. This is the central idea; and applying it to the clause which we have to construe, we think that the word 'officer' there means some person employed to exercise, to some extent, and in a certain circumstances, a delegated function of Government. He is either himself armed with some authority of representative character, or his duties are immediately auxiliary to those of some one who is so armed.'

10. So, an office may be of dignity or importance, it may equally be humble. But whatever its nature, it is essential that the person holding the office should have in some degree delegated to him certain functions of Government : Ahmad Shah v. Emperor AIR 1918 Lah 152 (2). In State of Gujarat v. M. P. Dwivedi, : 1972CriLJ1247 , it was held that a person to be an officer must hold some office and the holding of office implies charge of duty attached to that office. The officers of the bank are not officers as they do not exercise any delegated functions of Government nor are their duties auxiliary to those of some one who enjoys such delegation. Apart from that, the officers of the bank do not act on behalf of the Government; they act on behalf of the bank. If any authority is needed for this proposition, one may usefully refer to Modun Mohun, In re [1879] 4 Cal 376. I, thereforee, reject the contention that the officers of the bank are public servants within the meaning of clause ninth of s. 21 IPC. Attempt of Shri Gupte fails.

11. Shri Gupte then urged that even if the officers of a nationalised bank are not public servants in general, they should otherwise be held to be public officers within s. 124 of the Evidence Act. A public officer is not equal to a Government servant and the meaning of the words 'public officer' will vary according to the statute in which they occur : Beeston and Stapleford Urban District Council v. Smith [1949] 1 KB 656, and in view of the provisions of the Bank Nationalisation Acts, the expression 'public officer' in s. 124 of the Evidence Act should be construed to cover the officers of the bank. In King v. Charles Hildyard Thornton Whitaker [1914] 1 KB 1283, the expression was construed with the aid of 7th Report of the Commission on Criminal Law, page 153, Ch. IV, and public officer was held to signify any person invested with authority to execute, and legally bound to execute, public duty. According to Henly v. Mayor of Lyme [1928] 5 Bing 91, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer. A public officer is and officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fraud provided by the public. The expression 'public officer' is not defined in the Evidence Act, 1872, though it has been defined in s. 2(17) of the CPC, 1908, but it was held in University of Punjab, Lahore v. Jaswant Rai AIR 1946 Lah 220, that it cannot be given the same meaning as in s. 2(17), CPC, and in the absence of a definition in the General Clauses Act, 1897, the term must receive its ordinary English meaning, that is, an officer with public, as opposed to private, duties. In that case, a question arose whether the Vice-Chancellor of the Punjab University was such a public officer. It was held that the activities of the University and the duties performed by the vice-chancellor were effectively controlled and supervised by the Central and Provincial Governments. The duties of the vice-chancellor were undoubtedly of a public character as they concern the regulation of educational activities in the province. The vice-chancellor when performing these public duties is acting as a public officer. The Lahore High Court relied upon In re G. A. Natesan AIR 1918 Mad 763. The Rajasthan High Court in Satish Chandra Sharma v. University of Rajasthan, , also relied upon this Madras decision and held that where a statute appoints a body of persons to carry out purposes of public benefit, the persons constituting such a body ipso facto become holders of a public officer within the meaning of s. 124. Consequently, it further held that the members of the University Syndicate are such officers. Shri Gupte, thereforee, contends that various provisions of the legislation respecting the nationalised banks to which a reference has already been made in some detail, show clearly that the activities of the bank and the duties performed by its officers are effectively controlled and supervised by the Central Govt. and their duties are undoubtedly of a public character as they concern the regulation of heights and developments of economy in conformity with national policy and objectives. He maintained that it cannot be said that merely because a person is employed in a commercial undertaking of the Government he cannot be regarded as a public officer : Ranjeet Singh v. State, : AIR1965All478 .

12. Shri Sethi pointed out that in Oriental Bank , this court has already held that banking is purely a commercial activity and that the officers of a nationalised bank cannot be considered to be holding a public office. I see no reason to depart from that general approach. The functions of a nationalised bank are not anything more than those of any other banking company which are also regulated by several relevant statutes. No doubt, the control of the Government on a nationalised bank is quite substantial and far greater and its capital assets and profits go to make up the coffers of the State, but all the same, it is not a public department, nor is it like a University engaged in any activity of general public character, such as education in which every man and woman, rich or poor, are interested. I think, it will not be appropriate to compare them with Universities and the observation made in relation to them by the Madras, Lahore and Rajasthan High Courts should be confined to Universities and should not be read to spread a bigger umbrella so as to cover nationalised banks. They do play a very important role in the national economic structure as the private sector in other commercial and industrial activities does. But they do not deal with public in general. The long title of the legislation only shows the purpose and policy of the legislation and other provisions of the statute provide for their structure but do not purport to convert the nationalised banks into institutions of general public character. I am, thereforee, of the view that the employees of the bank are not public officers and uphold the view of the court below.

13. The petition is dismissed.


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