TaxTMI 
TaxTMI 
TaxTMI 
2016 (2) TMI 1296
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....eferred to as 'the PC Act'), particularly, those contained in Section 2(c)(viii), which is extracted below. 2. Definitions.-In this Act, unless the context otherwise requires,- (c) "Public Servant" means,- (i) xxx (ii) xxx (iii) xxx (iv) xxx (v) xxx (vi) xxx (vii) xxx (viii) any person who holds an office by virtue of which he is authorized or required to perform any public duty; (ix) xxx (x) xxx (xi) xxx (xii) xxx 3. While understanding the true purport and effect of the aforesaid provision of the PC Act, the meaning of the expression "office" appearing therein as well as "public duty" which is defined by Section 2(b) has also to be understood. 4. A reference to Section 2(b) of the PC Act which defines "public duty" may at this stage be appropriate to be made. 2.(b) "public duty" means a duty in discharge of which the State, the public or the community at large has an interest. Explanation.-In this clause "State" includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 19....
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....vant" by reference to the office and the duties performed in connection therewith to be of a public character. 8. Coming to the next limb of the case, namely, the applicability of the provisions of Section 46A of the Banking Regulation Act, 1949 (hereinafter referred to as the 'BR Act') what is to be found is that a chairman appointed on a whole time basis, managing director, director, auditor, liquidator, manager and any other employee of a banking company is deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code. Section 46A, was amended by Act 20 of 1994 to bring within its fold a larger category of functionaries of a banking company. Earlier, only the chairman, director and auditor had come within the purview of the aforesaid Section 46A. 9. Sections 161 to 165A contained in Chapter IX of the Indian Penal Code have been repealed by Section 31 of the Prevention of Corruption Act, 1947 and the said offences have been engrafted in Sections 7, 8, 9, 10, 11 and 12 of the Prevention of Corruption Act, 1988. Section 166 (as originally enacted), Section 167 (with amendment), Sections 168, 169, 170 and 171 (as originally enacted) continue to rema....
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....itten word so as to give "force and life" to the intention of the legislature.....A judge should ask himself the question, how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases. In Magor and St. Mellons Rural District Council v. Newport Corporation (1950) 2 AllER 1226 the learned judge restated the above principles in a somewhat different form to the following effect: We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. 11. Though the above observations of Lord Denning had invited sharp criticism in his own country we find reference to the same and implicit approval thereof in the judicial quest to define the expression "industry" in Bangalore Water Supply and Sewerage Board v. A Rajappa and Ors. (1978) 2 SCC 213. Paragraphs 147 and 148 of the opinion of Chief Justice M.H. Beg in Bangalore Water Supply & S....
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....e decision of a Constitution Bench of this Court in Dadi Jagannadham v. Jammulu Ramulu and Ors. (2001) 7 SCC 71. Order XXI Rule 89 read with Rule 92(2) of the Code of Civil Procedure provided for filing of an application to set aside a sale. Such an application was required to be made after deposit of the amounts specified within 30 days from the date of the sale. While the said provision did not undergo any amendment, Article 127 of the Limitation Act, 1963 providing a time limit of 30 days for filing of the application to set aside the sale was amended and the time was extended from 30 days to 60 days. Taking note of the objects and reasons for the amendment of the Limitation Act, namely, that the period needed to be enlarged from 30 to 60 days as the period of 30 days was considered to be too short, a Constitution Bench of this Court in Dadi Jagannadham (supra) harmonised the situation by understanding Order XXI Rule 89 to be casting an obligation on the Court to set aside the sale if the application for setting aside along with deposit is made within 30 days. However, if such an application along with the deposit is made after 30 days but before the period of 60 days as contem....
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....ns Judge, Mumbai. The courts below have held that cognizance cannot be taken against the accused namely Ramesh Gelli Chairman and Managing Director, and Sridhar Subasri, Executive Director of Global Trust Bank, on the ground that they are not public servants. 16. Writ Petition (Criminal) No. 167 of 2015 has been filed before this Court by accused Ramesh Gelli praying quashing of charge sheet filed by CBI in connection with FIR No. RC BD.1/2005/E/0003 dated 31.03.2005 relating to offences punishable Under Section 120B read with Sections 420, 467, 468, 471 of Indian Penal Code (Indian Penal Code) and offence punishable Under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short "the P.C. Act, 1988"), pending before Special Judge, CBI, Patiala House Courts, New Delhi. 17. Briefly stated prosecution case is that the Global Trust Bank (hereinafter referred as "GTB") was incorporated on 29.10.1993 as banking company under Companies Act, 1956. Said Bank was issued licence dated 06.09.1994 under Banking Regulation Act, 1949 by Reserve Bank of India (for short "RBI"). Ramesh Gelli (writ Petitioner before this Court) was Chairman and Managing Directo....
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....3(1)(d) of the P.C. Act of 1988 was registered by C.B.I on the complaint made by the Chief Vigilance Officer, OBC, wherein the allegations were made that Ramesh Gelli and Ors., including Directors of M/s. World Tex Limited (for short "WTL") entered into a criminal conspiracy to cheat GTB causing wrongful loss to the tune of Rs. 17.46 crores, and thereby earned corresponding wrongful gain. After investigation, charge sheet was filed in said matter before the Special Judge, CBI, Patiala House Courts, New Delhi. 19. Another First Information Report No. RC.12(E)/2005/CBI/BS & FC/Mumbai was registered by C.B.I. on 09.08.2005 for offences punishable Under Section 120B read with Sections 409 and 420 Indian Penal Code, initially against two employees of GTB and two private persons Rajesh Mehta and Prashant Mehta on the complaint dated 26.07.2005 lodged by the Chief Vigilance Officer, OBC. It is relevant to mention here that GTB was a private sector bank, before its amalgamation in August 2004 with OBC, a public sector bank. In the FIR No. RC 12E/2005/CBI/B.S. & FC/Mumbai Dt. 09.08.2005, it was alleged that GTB sanctioned and disbursed loans by throwing all prudent banking norms to winds a....
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....e period between 1994 to 2001, i.e. prior to amalgamation with public sector bank (OBC). The dispute relates as to whether the then Chairman-cum-Managing Director and Executive Director of GTB come under definition of 'public servant' or not, for the purposes of the P.C. Act, 1988. 23. It is vehemently argued by Shri Mohan Parasaran and Shri Sidharth Luthra, senior advocates appearing for the accused that the accused are not public servants, and cognizance cannot be taken against the writ Petitioner Ramesh Gelli and accused/Respondent Sridhar Subasri, who were said to be the Chairman-cum-Managing Director and Executive Director respectively of GTB before its amalgamation. It is further argued that a person cannot be said to have been performing a public duty unless he holds some public office, and in this connection it is submitted that the accused did not hold any public office during the period offences said to have been committed. It is also contended that since Sections 161 to 165A in Chapter IX of Indian Penal Code are repealed by Section 31 of P.C. Act, 1988, Section 46A of Banking Regulation Act, 1949 is of little help to the prosecution. Mr. Luthra, learned Senior ....
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....combating corruption among public servants. 3. The bill, inter alia, envisages widening the scope of the definition of the expression 'public servant', incorporation of offences Under Sections 161 to 165A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision or interlocutory orders have also been included. 4. Since the provisions of Section 161A are incorporated in the proposed legislation with an enhanced punishment, it is not necessary to retain those sections in the Indian Penal Code. Consequently, it is proposed to delete those sections with the necessary saving provision. 5. The notes on clauses explain in detail the provisions of the Bill. (Emphasis supplied) From the Statement of Objects and Reasons of the P.C. Bill it is clear that the Act was intended to make the anti cor....
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....e Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956; (x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board; (xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations; (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public ....
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....ry or public duty. However, in said case the Court was examining as to whether writ can be issued Under Article 226 of the Constitution of India against a scheduled bank or not. There was no issue before the Court relating to deeming fiction contained in Section 46A of Banking Regulation Act, 1949 in respect of a chairman/managing director or director of a banking company against whom a crime relating to anti-corruption was registered. 33. In a recent case of State of Maharashtra and Ors. v. Brijlal Sadasukh, this Court has observed as under: 21. As we notice, the High Court has really been swayed by the concept of Article 12 of the Constitution, the provisions contained in the 1949 Act and in a mercurial manner taking note of the fact that the multi-state society is not controlled or aided by the Government has arrived at the conclusion. In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term 'aid' has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of '....
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....akes every Member to be public servant within the meaning of Section 21 of the Penal Code, 1860 and the same reads as follows: 87. Members, etc. to be deemed public servants.--(1) Every member, officer or servant, and every lessee of the levy of any municipal tax, and every servant or other employee of any such lessee shall be deemed to be a public servant within the meaning of Section 21 of the Penal Code, 1860 (Central Act 45 of 1860). (2) The word 'Government' in the definition of legal remuneration' in Section 161 of that Code shall, for the purposes of Sub-section (1) of this section, be deemed to include a Municipal Board. From a plain reading of the aforesaid provision it is evident that by the aforesaid section the legislature has created a fiction that every Member shall be deemed to be a public servant within the meaning of Section 21 of the Penal Code. It is well settled that the legislature is competent to create a legal fiction. A deeming provision is enacted for the purpose of assuming the existence of a fact which does not really exist. When the legislature creates a legal fiction, the court has to ascertain for what purpose the fiction is created a....
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....n we consider the case of the Appellant, we have no doubt that he is a public servant within the meaning of Section 2(c) of the Act. Clause (viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorised or required to perform any public duty, to be a public servant. The word "office" is of indefinite connotation and, in the present context, it would mean a position or place to which certain duties are attached and has an existence which is independent of the persons who fill it. Councillors and Members of the Board are positions which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above, it is evident that Appellant is a public servant within Section 2(c)(fm) of the Prevention of Corruption Act, 1988." (Emphasis supplied) 37. At the end it is relevant to mention that in the case of Govt. of A.P. and Ors. v. Venku Reddy (supra), in which while interpreting word 'public servant' this Court has made following observations: 12. In construing the definition of "public ....