I.D.SHARMA Vs. STATE OF H.P.

JUDGEMENT

(1.) The learned Special Judge, Simla, by his judgment dated June 5, 1985, convicted the accused for having committed offences under section 5(2) of the Prevention of Corruption Act and sections 409, 467, 465/471 and 477 -A of the Indian Penal Code. He sentenced the accused to undergo rigorous imprisonment for a period of one and a half years under various sections of the Penal Code and rigorous imprisonment for the same period and a fine of Rs 1000 under section 5(2) of the Prevention of Corruption Act In default of payment of fine the accused was directed to undergo further rigorous imprisonment for a period of three months. Aggrieved from the said judgment, the present appeal has been preferred by the accused.

(2.) Two modes are stated to have been resorted to by the accused in committing embezzlement. The first is that the amounts deposited with the accused in his capacity as Incharge of Extension Counter of the State Bank of India, Snow on Hospital, Simla, by various account holders were duly reflected in their Pass Books but these amounts were not accounted for and instead converted by him to his own personal use. However, he made bogus entries curtaining to the deposit of these very amounts on later dates. In this way, he misused the said amounts during the intervening period. According to the prosecution, the accused embezzled a total amount of Rs. 12,500 by taking recourse to this mode wherein eleven separate items are involved. However, evidence has been led with respect to 5 items only having an amount of Rs 6,900/ -. The second mode is that the accused withdrew certain amounts from various accounts by himself forging the withdrawal forms and making relevant entries in the record. These amounts were subsequently deposited by him in a similar manner by preparing fictitious Pay -in -slips. In this manner, he embezzled a total amount of Rs. 13,000 for various periods. The prosecution has, however, led evidence only with respect to 3 items having an amount of Rs. 12,500

(3.) At the very outset, Shri TV R. Chandel, learned Counsel for the appellant -accused, has raised a preliminary point urging that an employee of the State Bank of India is not covered by the definition of public servant as given in clause 12th (b) of section 21 of the Indian Penal Code, His contention is that the State Bank of India is neither a Corporation established by or under a Central Act nor a Government Company as defined in section 617 of the Companies Act. He has relied upon the provisions of section 3 (2) of the State Bank of India Act, 1955 and has argued that the State Bank of India is a Body Corporate as distinguished from a Corporation and further has drawn support from the provisions of section 46 -A of the Banking Regulation Act, 1949, wherein the Bank employees are to be deemed as public servants for the purposes of Chapter IX of the Indian Penal Code. The contention is that such employees expressly stand excluded from the definition of public servant as given in section 21 (12) (b), which is not a part of Chapter IX of the Penal Code. He has cited Oriental Bank of Commerce and another v, Delhi Development Authority and others, 1982 Cri LJ 2230 and N. Vaghul and others v State of Maharashtra and others 198/ Cri LJ 385, in support of his argument.