Public Servant; Tukaram Babulal Ninave Vs. State of Madhya Pradesh [06-06-2016]

Criminal P.C. 1973 – S. 482 & 197 – Public Servant – Prosecution of – Branch Manager of a nationalized Bank – Whether an officer of public sector Bank is entitled to the protection of Section 197 of the Cr.P.C.


HIGH COURT OF MADHYA PRADESH : AT JABALPUR

Present:- Hon’ble Shri Justice C.V. Sirpurkar

(06-06-2016)

M.Cr.C.No.2023/2012

Tukaram Ninave Vs. State of M.P.

Shri A.P. Wacha Sunder, counsel for the petitioner. Shri S.K. Kashyup, Special Public Prosecutor for the respodent/State.

ORDER

1. This Miscellaneous Criminal Case has been instituted on an application under

Section 482 of the Code of Criminal Procedure

filed on behalf of the petitioner/accused Tukaram Ninave. It is directed against order dated 22.9.2011 passed by the 4th Additional Sessions Judge, Sagar in Session Trial no.65/2010, whereby the application under section 197 of Cr.P.C. filed by the accused was dismissed.

2. The case of the prosecution before the trial Court may be summarized as hereunder: Petitioner/accused Tukaram Ninave was Chief Manager of the Gujrati Bazar Branch of State Bank in Indore between June, 2001 to May, 2004. During aforesaid period, he conspired with his Deputy Manager Shrikant Mehta, Assistant Manager Ashok Maheshkar and Owners/Directors/Partners of 10 named tractor agencies of District Sagar. Under aforesaid criminal conspiracy, 142 farmers agriculturists were induced to obtain loans for purchase of tractors along with agricultural accessories/equipment like trolley, cultivator, plough, bony machine, leveler, thrasher etc., as per bills and quotations. Even before the loans were sanctioned, the Director of the Tractor Agencies got blank application forms for agricultural credits, short term and medium term loan applications, security acceptance letters, quotation bills, recovery forms of the bank, satisfaction letters, local inspection reports, forms no. II (10), mortgage deeds etc. signed by respective agriculturists. Thereafter, aforesaid blank papers were forged by making entries therein, behind the back of the agriculturists. Though, the agriculturists did not receive any agricultural equipment or accessories, yet additional amounts ranging between Rs.50,000/- to 1,28,000/- were entered into the loan accounts of aforesaid agriculturists. No spot inspections were carried out and forged local inspection reports were prepared on aforesaid blank papers and kept in the loan files. The agriculturists were taken into confidence and induced to affix their thumb impressions upon the documents and under the name of margin money, cash amounts and amounts from farmer credit cards were withdrawn and misappropriated. Thus, an amount of Rs. 5,06,32,103/- was transferred to the accounts of the Directors of the Tractor Agencies.

3. After the investigation, a charge-sheet under Sections 120- B, 409, 420, 467, 468, 471 of the I.P.C. was filed against officers of the Bank and Directors/partners of the tractor agencies.

4. The petitioner/accused Tukaram Ninave moved an application under Section 197 of the Cr.P.C. pleading absence of sanction for prosecution under Section 197 of the Code of Criminal Procedure. However, the application was dismissed by the trial Court on 22.9.2011. As many as 23 witnesses have already been examined during the trial.

5. The impugned order has been challenged on behalf of petitioner Tukaram Ninave mainly on the grounds that petitioner, being Branch Manager of a nationalized Bank, was public servant during the relevant period and no cognizance of any offence could have been taken against him save with the sanction of government as the offence alleged to have been committed by him was committed while he was acting or purporting to act in the discharge of his official duties. Another argument that has been advanced on behalf of the petitioner is that even on merits, the criminal proceedings are liable to be quashed as the documents filed along with charge-sheet do not disclose any case against the petitioner. Petitioner being the Branch Manager, acted as per rules. The loan amounts were disbursed on the basis of satisfaction letters which were deposited by the farmers in the tractor agencies; thus, the petitioner cannot be held responsible if the letters of satisfaction were forged. In support of his contentions learned counsel for the petitioner has invited attention of the Court to the judgments rendered by the supreme Court in the cases of

M. Kochu Dewassy Vs State of Kerala, (1979) 2 SCC 117

State through CBI Vs. K.K. Anand, (1985) 4 SCC 320

UOI Vs. Ashok Kumar Mitra, (1995) 2 SCC 768

State through CBI Vs. B.L. Verma, (1997) 10 SCC 772

State of Karnataka Vs. M. Devendrappa, (2002) 3 SCC 89

Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology, (2002) 5 SCC 111

State of H.P. Vs. M.P. Gupta, (2004) 2 SCC 349

S.K. Zutshi Vs Bimal Bebnath (2004) 8 SCC 31

State of Orissa Vs Ganesh Chandra, AIR 2004 SC 2179

Zandu Pharmacutical Works Ltd. Vs. Mohd. Sharaful Haque, (2005) 1 SCC 122

Omprakash Vs. State of Jharkhand, (2012) 12 SCC 72

and

Rishipal Singh Vs State of UP, (2014) 7 SCC 215

6. Learned panel lawyer for the respondent/State on the other hand has supported the impugned order.

7. The Court shall first consider whether the bar as engrafted in Section 197 of the Cr.P.C., shall be applicable to the petitioner, who at the relevant time was, admittedly, Branch Manager of a public sector Bank. In this regard, learned counsel for the petitioner has invited attention of the Court to the judgments rendered by the Supreme Court in the cases of

M.K. Kochu Devassy Vs. State of Kerala (1979) 2 SCC 117

Union of India and Another Vs. Ashok Kumar Mitra (1995) 2 SCC768

and

Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others (2002) 5 SCC 111

8. The relevant part of section 197 of Cr.P.C. reads as hereunder:

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]

(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

(Emphasis supplied)

9. In the case of M.K. Kochu Devassy (supra) the Supreme Court has held that a member of executive committee or servant of cooperative society is a public servant; therefore, a Special Judge under Criminal Law Amendment Act (46 of 1952) has jurisdiction to try his case for offences punishable under Prevention of Corruption Act, 1947.

10. In the case of Pradeep Kumar Biswas (supra) a 7 Judge Bench of Supreme Court has held that Council of Scientific and Industrial research, is a State within the meaning of Art. 12 of the Constitution of India.

11. Another authority which has been relied upon by the learned counsel for the petitioner is State through