Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1382 OF 2020
Anand Prakash Mittal, Age 65 years, Occ. Retired, residing at House No.708, PLA Hisar, HARYANA – 125001 .. Petitioner
2 Central Bureau of Investigation
Economic Offences Wing (EOW)
11th
Floor, CBI Building, Bandra Kurla Complex, Mumbai. .. Respondents
…
Mr. Kamlesh Ghumre with Mr.P.B. Pawar for the petitioner.
Mr.H.S.S. Venegavkar with Ms.Priya Dubey for respondent no.2.
Mr.S.S. Hulke, APP for the State.
JUDGMENT
1 The Central Vigilance Commissioner (CVC), New Delhi, vide it’s letter dated 18/1/2016, directed the CBI, EOW to register a case against Dr.Anand Prakash Mittal, the then Deputy General Manager, New India Assurance Co. Ltd (hereinafter referred to as “NIACL”), Mumbai, for criminal breach of trust and misconduct committed by him while he was on deputation with 2/25 WP 1382-20 J M/s.Prestige Assurance PLC, (M/s.Prestige) Lagos, Nigeria, a subsidiary company of NIACL. In furtherance thereof, Mr.Segar Sampath Kumar, General Manager, NIACL as preferred a written complaint on 14/9/2016 with CBI, EOW, Mumbai. This is the fore ground of the case registered against Dr.Anand P. Mittal, the petitioner before the Court for the offence punishable u/s. 409, 471 of IPC and Section 13(2) r/w Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 (for short ‘P.C. Act’).
2 The FIR registered on 14/9/2016 allege that the petitioner, the Dy. General Manager of NIACL, while functioning as Managing Director of M/s.Prestige Assurance (PLC), on deputation, abused his official position and by corrupt and illegal means had drawn a total amount of US$ 263,462.82 under the head “Parting Gift” and “Pension” from the account of M/s. Prestige Assurance, Nigeria, without any approval of the competent authority i.e. the Board of M/s. Prestige Assurance PLC and dishonestly misappropriated the same. It is also alleged that on 5/6/2015, the petitioner made the part payment of US$ 49990 to M/s. Prestige, but failed to refund the remaining amount, causing wrongful loss of US$ 2,13,472.82 equivalent to Indian currency of Rs. 1,43,45,373.50 to M/s.Prestige Assurance and corresponding wrongful gain to himself. 3/25 WP 1382-20 J 3 M/s.Prestige Assurance PLC, Lagos, Nigeria is a subsidiary company of New India Assurance Co. Ltd which hold stake of 67.64% in Prestige which is listed on Nigerian stock exchange. The authorized share capital of the Company is 2,000,000,000 and M/s.NIACL is holding 24,994 shares of the Company. M/s.Prestige is run by Board of Directors constituted with the representatives of New India Assurance, Leadway Assurance Co. Nigeria, representative of minor shareholders and independent Directors. The policy decision of the Company is taken by the Board and executed by the Managing Director and the structure of the Company would reveal that the Board is assisted by three Committees viz. Establishment Committee, Finance and General Purpose Committee and Audit Committee. The top level post of the Companies such as the Managing Director, General Manager, etc. are occupied by the officials from NIACL, India, on deputation basis, and the remuneration as well as financial facilities are discussed and disbursed after being discussed by the Establishment Committee, which thereafter recommend it’s decision to the Board for approval. It is only upon the approval from the Board the decision shall be implemented by the Managing Director. The Board of Directors is the final and competent authority to take decision on financial matters, involving the Company. 4/25 WP 1382-20 J
4 The petitioner was recruited in NIACL as Administrative Officer in the year 1978, and he held various positions till he was promoted to the post of Deputy General Manager and posted in Regional Office, Mumbai. He was selected for various posts and placed on deputation with M/s. Prestige for initial period of two years. The terms and conditions of the deputation stipulated that the subsidiary Company shall decide the salary package including the perks and other service conditions and he shall be governed by the Rules and Regulations of M/s.Prestige. The appointment and posting order with reference to his nomination as Managing Director with Prestige Assurance fixed his pay scale and other perks, which provided for profit incentive as applicable and to be decided by the Board from time to time. Admittedly, the order of appointment did not make any reference to his entitlement of any pension/parting gift.
5 In furtherance of his deputation, he assumed the charge of Managing Director of M/s.Prestige on 3/3/2010 and his initial deputation period of two years, is extended by further period of two years from 4/3/2012 to 3/3/2014. He came to be repatriated to NIACL on 5/1/2015 after availing the permissible joining period. 5/25 WP 1382-20 J The accusation faced by the petitioner is about receipt of a parting gift, which is a form of Gift determined by the Board of Directors to the expatriate, in form of cash at the time of retirement or leaving the organization. The Establishment Committee of M/s.Prestige who is in-charge of welfare of the staff members is authorised to recommend the Parting Gift in the Establishment Committee meeting and such recommendations are to be placed before the Board of Directors for its approval and upon such approval, the parting gift is permitted to be disbursed, through the normal processing channel. The deputation period of the petitioner came to an end on 3/3/2014, but he was not relieved from duty as he was engaged in the regulatory process in the matter of right issues declared by the Board of Directors, and he continued as Managing Director till 24/12/2014. The petitioner face an accusation that while he continued as the Managing Director, the Establishment Committee meeting was held on 2/9/2014 in the presence of the Chairman, two Directors and the petitioner participating therein as Managing Director. The Establishment Committee discussed various issues including the Parting Gift for the Managing Director and the Committee agreed to confer gift of N 15 million and also resolved that the Official car may be permitted to be purchased by him for N 9.[5] million, and in furtherance of the said decision, he was permitted to avail the gift and pension and it is the case of the petitioner that it was 6/25 WP 1382-20 J approved in the meeting of the Board of Directors held on 29/10/2014, and as per the petitioner, false accusations are levelled against him of forging and fabricating the documents which include the minutes of the Board Meeting.
6 Alleging that the benefits were wrongly conferred upon the petitioner in the meeting of the Board of Directors of M/s.Prestige held on 19/5/2015, it was resolved to rescind the benefits in form of Gift, as it was alleged that they were availed by misusing his position. It is the petitioner’s contention that this resolution itself would lead to an inference that the parting gifts and pension were approved in the meeting of Board of Directors held on 29/10/2014 and hence, the accusations are malicious and intended to harass and falsely implicate him in a false case by misusing the process of law.
7 In short, the charge faced by the petitioner is that he created a forged and fabricated extract form of the minutes of meeting of the Board of Establishment Committee meeting held on 7/11/2014 and certified the same in his capacity as Managing Director of the Company. As per the charge-sheet, the investigation has led to false and fabricated extract of the minutes of the Establishment Committee and the Disbursement voucher towards pension payment, which were prepared and placed before the petitioner and he, by abusing his official position as Managing Director, 7/25 WP 1382-20 J approved the said voucher dated 25/11/2014, for US$ 166,862.82, knowing well that (i) he was not member of the contributory pension scheme at any point of time, (ii) he did not maintain any pension account with pension fund Administrator,
(iii) the Board of Director did not approve the pension and (iv)
M/s.Prestige Assurance did not contribute any money towards pension contributory scheme in his name. The charge-sheet compile the material in form of statements of the witnesses, supported by pay slips, salary statement of the petitioner as well as the extract of minutes of meeting of the Board of Establishment.
8 The material collated in the charge-sheet, charge the petitioner for causing wrongful loss to M/s.Prestige Assurance, PLC Lagos, a subsidiary unit of M/s.New India Assurance Co. Ltd. It is also pertinent to note that the petitioner was dismissed from service on 15/12/2016 and the process was initiated to obtain sanction for his prosecution.
9 Upon the charge-sheet being filed, the petitioner filed an application seeking discharge, primarily on three primary grounds; that the offence is committed in Nigeria, so the Court in India has no jurisdiction to entertain or try the present case and if at all, any offence is alleged to have been committed, he shall be tried by Nigerian law. The second ground on which the discharge 8/25 WP 1382-20 J was sought is, the accused is not a public servant and the third ground invoked was, since the loss was caused to M/s.Prestige, the NIACL, Mumbai had no locus to lodge a complaint and prosecute the petitioner. The Special Judge CBI, did not find merit in the said submission and rejected the discharge application on 15/1/2020. As far as the first objection is concerned, the Court recorded that in pursuance to Section 4 of IPC r/w Section 188 of IPC, though the alleged offence is committed outside India i.e. in Nigeria, but the accused was found in India, so the Court in India had jurisdiction to try the offence and further a requisite sanction as contemplated u/s.188 of Cr.P.C was also placed on record and therefore, there was no legal infirmity in prosecuting him in India.
10 Dealing with the other contentions about he not being a public servant and NIACL not being entitled to file a complaint against him, the Special Judge, in great detail, discussed the status of M/s.Prestige, which is a separate entity registered as per the Company law governed in Nigeria but considered it to be a subsidiary company of NIACL having 67% shares in M/s.Prestige. The impugned order concluded that the petitioner being a public servant working in NIACL, was sent on deputation to M/s.Prestige and though his services were to be at disposal of M/s.Prestige in Nigeria, he continued to be the employee of NIACL and in fact, he was repatriated back to NIACL, which 9/25 WP 1382-20 J itself established that he continued to be a public servant and since loss of the subsidiary company was loss of NIACL, the discharge sought deserved a rejection. Apart from this, by referring to several documents which formed part of the chargesheet, the learned Judge concluded that for the purpose of grant of pension or parting gift, approval of the Board of Directors is required and merely because the members of the establishment committee had recommended the same, it did not amount to approval and final decision from the Board of Directors. Holding that an offence is prima facie made out u/s.409 of IPC, coupled with the provisions of the Prevention of Corruption Act, and on finding that there is no ground to discharge the accused, the application came to be rejected.
11 I have heard Advocate Kamlesh Ghumare along with Advocate P.B. Pawar for the petitioner, MMr.Hiten Venegavkar for the CBI and Mr.S.S. Hulke, APP for the State. It is not in dispute that Prestige Assurance, PLC Lagos, is a subsidiary company of NIACL, holding 51% of equity shares. M/s.Prestige is a Public Limited Company incorporated and listed on Nigerian Stock Exchange and managed by the Officials deputed by New India Assurance in the capacity as Managing Director. Apart from this, there are two officials in the capacity of General Manager/Deputy General Manager on deputation, and as per the statement of Shri C.R. Kale, the Senior Divisional Manager, working with NIACL, who was selected to 10/25 WP 1382-20 J serve M/s.Prestige and send on deputation, the Company is run by the Board constituted with the representatives of New India Assurance and the functioning of the Company is decided by the Board and executed by the Managing Director. As per Shri Kale, the officials who are deputed from India are designated as ‘Expatriates’ and the Establishment Committee decided their remuneration and other facilities and upon its recommendation, the Board is empowered to take a decision upon the same. The expatriate officials are entitled to receive facilities like local allowance, ex-gratia payments, furnished accommodation, annual leave, group life insurance, gratuity, medical reimbursement, profit incentive etc, as decided by the Board from time to time. Shri C.R. Kale, working as Ex-Director who was sent on deputation at the time of repatriation was conferred with gratuity and Parting gift of 20 lakhs Naira. The process of conferring such gift is highlighted in detail by the said witness, by stating that the parting gift is a decision of Board of Director and the Chairman, and is to be recorded in the Minutes of Meeting of the Board. The Company Secretary provides the Board decision in form of Board extract to the Chief Financial Officer (CFO) as well as personnel officer for processing and disbursing the same and based on the extracts of the Board Minutes, a note is prepared by the Finance Department, by incorporating the amount to be disbursed and then forwarded to the Managing Director for 11/25 WP 1382-20 J approval and if duly approved by him, the disbursement shall be done by the Department, by preparing voucher as well as cheque, which shall be signed by two authorized signatories, out of three i.e. The General Manager (Operation) CFO and Managing Director and if any one signatory is the beneficiary, then the cheque shall be signed by other two signatories. As far as the pension drawn by the petitioner is concerned, the statement of Mr. Kale clearly disclose that after the Pension Regulation Act, 2004, the foreign employees working in Nigeria, were entitled to draw pension, provided the particular officer contributed in the pension scheme maintained by the Pension Regulatory Authority and even he was not given the benefit of Pension on repatriation, as he was not member of the Pension Scheme.
12 The statement of the Director of the Board of M/s.Prestige Assurance Mr.Sanad Kumar has specifically recorded as under:- “On perusal of the Minutes of Meeting of Establishment Committee held on 7/11/2014 and 2/9/2014, where it is mentioned that the Managing Director parting gift of N 15 million, an official car for N 9.[5] millions has been agreed vide para 2(b) was not approved or ratified by the Board”. It is not out of place to mention that in minutes of meeting of the Establishment Committee dated 7/11/2014, it is mentioned that expatriate should be given pension at 18%, in line with existing policy of the Company. It is also noted that the 12/25 WP 1382-20 J purported extract of this meeting shows different version as it clearly says that the pension is given to Managing Director also. Thus, it is clear that the extract as well as the minutes of the meeting having clause 3(a)(b)(c) are forged and fabricated.
13 Mr.Ramakant Agarwal, Chief Manager of NIACL has categorically stated in his statement recorded during investigation that Mr. Mittal did not contribute any amount to the pension scheme, nor did Prestige Assurance contribute on his behalf and there was no contribution deducted from his salary during his service tenure nor the pension account was opened, while he was in service of Prestige Assurance. A detail statement of Mr.Balla Swamy, who was deputed to Philippines as Manager of New India (Operation) is insightful and on confronted with the Board Establishment Meeting held on 29/10/2014, where it was recorded that the Managing Director be paid pension of 18%, in tune with the Company policy, he specifically state that the Company did not make any comments or endorsement regarding pension in the said meeting and the extract was fabricated by the petitioner. On perusal of the copy of minutes of meeting of the Establishment Committee held on 29/10/2014, which was recovered from the house of the petitioner, he noticed the endorsement about the pension and ex-gratia, and he categorically state that the endorsement is not matching with the 13/25 WP 1382-20 J extract of minutes of the meeting. He also state that the acts of Shri A.P. Mittal has caused loss to Ms.Prestige Assurance which will ultimately cause loss to NIACL. A supplementary statement of Shri Balla Swamy as regards the pension Reform Act is also compiled in the chargesheet.
14 On perusal of the material in the charge-sheet prima facie, a case is made out for the petitioner, being tried for the offense of criminal breach of trust being entrusted with the property or with dominion over the property in his capacity as a public servant as well as forging the document fraudulently and dishonestly and using the same as genuine, and thus committing an offence u/s.409 and 471 of the IPC, apart from the criminal misconduct as contemplated u/s.13(1)(d) r/w Section 13(2) of the P.C. Act, 1988.
15 The learned counsel for the petitioner Mr.Ghumre would assertively submit that the petitioner is not a public servant, as he ceased to be in the employment of NIACL, when his services were placed at the disposal of M/s.Prestige Assurance. He would heavily fall back upon the decision of the Apex Court in case of S.S. Dhanoa Vs. Municipal Corporation, Delhi, to submit that he was issued with an appointment order by M/s.Prestige and thereafter, the terms and conditions of his service were governed and controlled by the said company and 14/25 WP 1382-20 J hence, NIACL ceased to exercise any control over him, as there was severance of relationship as employer and employee. He would submit that the petitioner, an employee of NIACL was nominated to M/s.Prestige and not deputed and in fact, he also submitted an indemnity bond as he never intended to return back to the original company. Apart from this, the argument advanced is, the petitioner was repatriated to NIACL and after 9 months of this event, the action is taken, though he was not ever prosecuted by M/s. Prestige. It is thus contended that NIACL has no authority to prosecute the Petitions, as he was no longer their employee and under its control. This contention is contested by Mr.Venegavkar by submitting that the petitioner continued to remain in the services of NIACL and he was send on deputation to M/s.Prestige and hence, the umbilical cord is not severed. According to him, the petitioner would be covered by sub-clauses (iii) and (viii) of clause (c) of Section 2, which define ‘public servant’. Considering the relationship between the NIACL and M/s.Prestige Assurance as the holding and subsidiary Company, he would also place reliance upon the decision of this Court in case of Anup Kumar Vs. CBI (Writ Petition No. 4306/2014 decided on 8/7/2019).
16 The material in the charge-sheet clearly reflect that M/s.Prestige Assurance, PLC is a 64 year old Company having legacy of being managed by the New India Assurance Co., and is recognized as it’s subsidiary. The Company is managed at Apex 15/25 WP 1382-20 J level by the Board constituted by the Board of Directors, and though it operates as a separate entity distinct from its parent/holding company and its obligations are typically it’s own and not usually a liability of its holding company, as a ‘Subsidiary Company’, it is controlled by the ‘Holding company’ which hold majority of its’ shares. Normally, a company looking for expansion across regions and sections will resort to formation of subsidiary companies and a subsidiary company is recognised u/s.2(87) of the Companies Act, as the Company whose interest are held and controlled by other company. As per the Company Law, a ‘subsidiary Company’ or ‘subsidiary’ in relation to any other Company i.e. to say holding company means a company which
(i) controls the composition of the Board of Directors; or (ii) to exercises or controls more than one half of the total voting power either at its own or together with one or more of its subsidiary companies. Applying the above test, it is evident from the material in the charge-sheet that M/s.Prestige Assurance is a subsidiary company of NIACL.
17 Coming to the engagement of the petitioner with M/s.Prestige, a subsidiary of NIACL, the services of the petitioner were deputed to the former and the communication addressed to him by the latter i.e. NIACL on 3/11/2009 clearly read thus:- 16/25 WP 1382-20 J “We are pleased to inform you that the competent authority has decided to depute services to Prestige Assurance, PLC, our subsidiary company at Lagos, Nigeria, our subsidiary Company will decide the terms and conditions at your service and an appropriate designation to commensurate your duties”.
18 The letter informing him about his posting in the subsidiary company, clearly contemplated that while his services were at the disposal of the subsidiary company, he shall be governed by their rules and regulations and the communication contemplated that his privilege leave, sick leave and Provident Fund, shall stand frozen from the date of his departure from India. While deputing his services, NIACL reserved the right to extend the period of deputation or to recall him to India or transfer him to any foreign station as it may consider expedient.
19 The appointment and posting order issued in favour of the petitioner by M/s. Prestige Assurance referred to his nomination as Managing Director and with the approval of the Board of Directors, the terms of his service came to be determined. It is an admitted fact that upon completing his extended period of deputation, the petitioner was repatriated to NIACL, clearly indicating that he was send to the subsidiary company on temporary basis and during his deputation period, 17/25 WP 1382-20 J he was governed by the service conditions of the subsidiary company, but upon the deputation period being over, as he continued to hold his lien, he came back to his parent company i.e. NIACL. Hence, in this peculiar fact, though he continued to be governed by Rules and Regulations of Prestige Assurance, an independent entity, he did not ceased to be a public servant as he continued to be in the services of NIACL.
NIACL is an Independent Public Sector, General Insurance Company, a Nationalized Company and being a Government Company and since the petitioner held the office of the Deputy Managing Director/Managing Director and was required to perform a public duty, he would clearly fall within the purview of ‘public servant’ within the meaning of Section 2(c) of the P.C. Act. The objection that is raised by the learned counsel for the petitioner that the services of the petitioner being kept at the disposal of a subsidiary company located in Nigeria, would necessarily denude him of his status as a public servant, do not hold any water, as the parent company which engaged the petitioner is a State Authority and since the petitioner continued to discharge public function, he is covered within the purview of sub-clause (3) of clause (c) of Section 2 of the Prevention of Corruption Act, 1988. While he was sent on deputation to a Company which acts as a subsidiary of his principal employer and since it is alleged that he committed an offence of unduly 18/25 WP 1382-20 J benefiting him at the time of being repatriated to his parent company, he cannot be said to have ceased to be a public servant.
20 Section 2(c) of the Prevention of Corruption Act, define the term ‘public servant’ as under:- “2(c) “public servant” means,—
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of 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, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other officebearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having 19/25 WP 1382-20 J received any financial aid from the 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 (1 of 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 authority. Explanation 1 - Persons falling under any of the above subclauses are not public servants, whether appointed by the Government or not. Explanation 2 - Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there might be in his right to hold that situation” Section 2(b) of the Act defines ‘public duty’ as follows:- “2(b) “public duty” means a duty in the 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 20/25 WP 1382-20 J 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, 1956 (1 of 1956)
21 This Court, through Justice Prakash Naik in case of Anup Kumar Gond Vs. CBI and Anr (WP No.5306.2014 and ors) dated 8/7/2019 in dealing with a question whether the appellant, who was an employee of Indian Railway and sent on deputation as Seaman’s Provident Fund (SPF) Commissioner is a public servant, with the decision of the Apex Court in case of S.S. Dhanoa (supra) in the background when an argument was advanced that he is not a public servant, has held as under:- “29 From the statement of objects and reasons of the PC Bill it is clear that the Act was intended to mark the anticorruption law more effective by widening its coverage. It is also clear that the Bill was introduced to widen the scope of definition of Public Servant. Before the PC Act 1988, it was the Prevention of Corruption Act 1947 and Section 161 to 105-A in Chapter IX IPC which were governing the files of law relating to Prevention of Corruption. Parliament repealed P.C. Act 1947 and omitted Section 161 to 165-A IPC as provided under Section 30 & 31 of IPC Act 1988. In the decision of Apex Court in State of A.P. Vs. Venku Reddy 2(2002) 7 SCC 631, while interpreting words Public Servant, following observation were made in paragraph 12.
22 While drawing parity with the principle laid down in Dhanoa, (supra) Justice Naik, in the above decision clearly concluded that considering the scheme of the Seamen's Provident Fund (SPF) Act, the provisions under the Provident Fund Scheme and the provisions of the P.C. Act concluded that the accused are public servants and the judgment in S.S. Dhanoa is not applicable as it was delivered in different context. The learned Judge discerned the facts in Dhanoa and held it to be not applicable. 23 S.S. Dhanoa (supra) was a case, where the appellant was a Member of Indian Administrative Service whose services were placed at the disposal of the Co-operative Store Limited, a Society registered under the Co-operative Societies Act, and he was appointed as General Manager, Super Bazaar, Connaught place, New Delhi. While he discharged his duty in the said capacity, prosecution was initiated by the Food and Drugs 22/25 WP 1382-20 J department on the basis of a report of public analyst, referring to adulteration in a sealed bottle of honey purchased from Super Bazaar. In this background, a question arose whether the Member of Indian Administrative Services whose services were placed at the disposal of an organization which is neither a local authority nor a Corporation established by, or under the Central, Provincial or State Act, nor a Government Company, or the Government of State can be treated as public servant within meaning of clause (12) of Section 21 of IPC for the purpose of Section 197 of Cr.P.C. It was held that the appellant while being sent on deputation, was not an Officer in the service of a local authority, or the State, as Super Bazaar was not considered to be an instrumentality of State, and it is in this background, the Apex Court held that the appellant did not answer any of the descriptions in clause twelfth, of Section 21 which protect two classes of public servants viz. (a) every person in service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government and (b) every person in the service or pay of a local authority, a Corporation established by or under a Central, Provincial or State Act or a Government Company. It was held that during his period of deputation, he was not an Officer in the service of pay of the Government, nor was he in the service of the local authority, a 23/25 WP 1382-20 J Corporation established by or under Act, or a Government Company, and hence, he was not employed in connection with affairs of the Union within the meaning of Section 197.
24 In contrast to the said facts, the petitioner continued to be an employee of NIACL, an instrumentality of State and when he was sent on deputation to a subsidiary Company, in Nigeria, on his repatriation, he resumed the services with the New India Assurance Company, leaves no doubt that he is a public servant, as his dismissal was by NIACL, since he was found guilty of availing benefits for himself by using his official position and held himself entitled for a parting gift, as found guilty of criminal misconduct. The petitioner face an accusation that knowing very well that an amount of ‘N’ 15 Million was not approved by the competent authority i.e. by the Board of Directors, he himself approved the internal memo and the Minutes of Meeting of the Board of Directors clearly record that the recommendation of the Establishment Committee required it to have Board approval for its execution. Thereafter, the petitioner along with Smt. Kola Fasanu, jointly sent a communication to the head of the financial institution Sterling Bank, Lagos, and requested the Bank to debit a sum of US$ 96,600 from domiciliary account of M/s.Prestige and to remit the same in favour of Anand Prakash Mittal in his account with the Corporation Bank Hisar, Haryana, India. The directions were immediately implemented and the amount was 24/25 WP 1382-20 J credited into the account of the petitioner on 10/11/2014 at the exchange rate of Rs.61.300, its valuation in Indian currency being estimated to be Rs.59,26,608/-. Subsequently, on 11/11/2014, the credited amount was converted into four term deposits in the name of the petitioner which were seized during house search.
25 The petitioner who was serving as Managing Director thus misused his position in availing the said benefit and the petitioner face serious charge of fabricating the minutes of the Establishment Committee as he approved the miscellaneous voucher for US$ 166,862.82, knowing very well that he was not entitled for the pension and he was not a member of the contributory pension scheme at any point of time. There is no deduction made from his salary towards pension contribution and the material in the charge-sheet is sufficient to take him for a trial, and since it is not open for the Court at the stage of discharge to weigh the probative value of evidence/material in charge-sheet and since the material brought on record by the prosecution, has to be accepted as true, the petitioner do not deserve a discharge. Admittedly, the defence of the accused is not to be looked into at the stage when the accused seeks his discharge u/s.227 of the Cr.P.C, as the Code do not give him any right to produce any document at the stage of framing of any charge and it will have to be necessarily confined to the material collected and compiled in the charge-sheet. If it is found that there is sufficient ground to proceed, then necessarily, the charge shall be 25/25 WP 1382-20 J framed u/s.228 and determination of the pros and cons of the matter by weighing and balancing the evidence and probabilities shall take a back seat to be left for the trial Court, as at this stage, no mini trial is permissible. In the wake of the above, the impugned order has rightly refused discharge to the petitioner and by upholding the same, Petition is dismissed. (SMT.
BHARATI DANGRE, J)