D. Biswas, J.
1. A number of complaint cases under Section 138 of the Negotiable Instruments Act, 1881 have been instituted by the respondent M/s. Arihant Hire Purchase Co. Ltd., against the revision petitioners before the court of Additional Chief Judicial Magistrate, Kamrup at Guwahati. The complaint cases have been numbered as Complaint Case Nos. 21c/ 2002, 44c/2002, 2814c/2001, 2808c/2001, 1655c/2001, 11c/2002, 10c/ 2002, 322c/2002, 1242c/2002, 98c/2002 and 1240c/2002. The learned Magistrate, by the orders dated 30.1.2002 in Complaint Case No. 21c/ 2002 ; dated 2.2.2002 in Complaint Case No. 44c/2002 ; dated 19.12.2001 in. Complaint Case No. 2814c/2002 ; dated 19.12.2001 in complaint Case No. 2808c/2002 ; dated 4.6.2002 and 7.6.2002 sin Complaint Case No. 1655c/2002 ; dated 7.1.2002, 26.2.2002,10.4.2002 and 3.6.2002, in Complaint Case No. 11c/2002 ; dated 7.1.2002, 26.2.2002, 10.4.2002 and 3.6.2002 in Complaint Case No. 10c/2002 ; dated 22.2.2002,11.4.2002 and 4.6.2002 in Complaint Case No. 322c/ 2002 ; dated 3.4.2002 ; 10.5.2002, 6.6.2002 and 1.7.2002 in Complaint Case No. 1242c/2002 ; dated 8.2.2002, 1.4.2002, 30.4.2002, 3.6.2002 and 27.6.2002 in Complaint Case No. 98c/2002 and dated 3.4.2002, 10.5.2002 and 6.6.2002 in Complaint Case No. 1240c/2002 after examining the complainant under Section 200 Cr.P.C. took cognizance and summoned the revision petitioners to appear and face trial. All these orders have been challenged in these revision petitions.
2. The revision petitions were heard by a learned Single Judge of this court. The learned Single Judge referred the matter for consideration by a larger Bench the question whether the provisions of Section 197 of the Code of Criminal procedure are attracted in launching criminal proceedings for an offence under Section 138 of the Negotiable Instruments Act against the Directors, officers and employees of a Corporation mentioned in Section 43 of the Road Transport Corporation Act, 1950.
3. We have heard Mr. P.C. Deka, learned senior counsel assisted by Mr. S.K. Medhi, learned Counsel for the revision petitioners and also Mr. G.N. Sahewalla, learned senior counsel for the respondent.
4. Section 3 of the Road Transport Corporation Act, 1950 empowers a State Government to establish a Road Transport Corporation for the whole or any part of the State by notification in the Official Gazette. In exercise of such powers, the Government of Madhya Pradesh established Madhya Pradesh State Transport Corporation. The revision petitioners are directors/officers of the Madhya Pradesh State Transport Corporation. The Corporation was on the verge of collapse because of the losses suffered. To revive the Corporation, the Directors decided to purchase new buses on hire-purchase. They entered into two agreements with the respondent firm which agreed to finance the purchase. The agreements were executed in the month of August 2000 and February 2001. Due to adverse financial position, the monthly installments could not be deposited with the specified Banks. In course of transaction, three cheques drawn on the State Bank of Indore, Ratlam were issued on 1.7.2001, 1.9.2001 and on 1.10.2001 in favour of the respondent firm. The said cheques were dishonoured by the Bank for insufficient fund. This prompted the respondent firm to launch prosecution against the revision petitioners under Section 138 of the Negotiable Instruments Act, 1881. The learned Magistrate summoned the revision petitioners to appear and face trial. Being aggrieved, the petitioners filed revision petitions which were heard by the learned Single Judge. The learned Single Judge 'referred the matter for consideration and answering the question reflected in para 2 of this judgment by a larger Bench.
5. At this stage, we may refer to the provisions of Section 43 of the Act of 1950 quoted below:
43. Directors, officers and other employees of a Corporation to be public servants. - All Directors of a Corporation and all officers and other employees of a Corporation, whether appointed by the State Government of the Corporation, shall be deemed, when acting or purporting to act in pursuance of any of the provisions of the Act or of any other law, to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of 1860).
6. It would appear from above provisions that all Directors, Officers and other employees of the Corporation established under Section 3 shall, be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code only when acting or purporting to act in pursuance of any of the provisions of the Act and/or any other law. In view of this statutory provision, the Directors, officers and other employees of the Corporation being public servant are entitled to the protection of Section 197 of the Code of Criminal Procedure for an offence committed when acting or purporting to act in pursuance of any of the provisions of the Act of 1950 and/or any other law. This protection will be available only when an offence is committed during the discharge of official duties, within the purview of the Act and not otherwise.
7. Mr. Sahewalla, learned senior counsel for the respondent relied upon a judgment of the hon'ble Supreme Court in Mohd. Hadi Raja v. State of Bihar and Anr. reported in : 1998CriLJ2826 . In para 27 of the said Judgment, the hon'ble Supreme Court held that the protection under Section 197 of the Code of Criminal Procedure is not applicable to the officers of government companies or the public undertakings even when such public undertakings are 'State' within the meaning of Article 12 of the Constitution on account, of deep and pervasive control of the Government. The ratio available in this judgment has omnibus application. In the case at hand, the question of protection under Section 197 Cr.P.C. is confined to the Directors, Officers and other employees of a Corporation established under the Act of 1950. In view of the specific provision in Section 43 declaring the Directors, Officers and other employees of a Corporation established under the provisions of Section 3 of the Act of 1950 as public servants, they would certainly be entitled to such protection only when their actions are withih the bounds of the Act. Such protection will not be available to them for anything done beyond the scope of the Act.
8. The hon'ble Supreme Court had the occasion to deal with this question in an earlier judgment of 1964. In the State of Maharastra v. Jagatsing Charansingh Arora and Anr. reported in : [1964]4SCR299 , the question for consideration before the hon'ble Supreme Court was whether by virtue of the provisions of Section 43, the director/officers were entitled to such protection from prosecution. The observation of the hon'ble Supreme Court in para-12 of the judgment clarify the position. Para-12 reads as follows:
12. Similar considerations would apply when one has to decide whether an officer or servant of a corporation was acting or purporting to act in pursuance of any of the provisions of the Transport Act or of any other law, for it is only if he is so acting that he can be said to be a public servant within the meaning of Section 43. Now so far as the receiving of a bribe is concerned, it cannot in our opinion be brought within the scope of acting or purporting to act in pursuance of any of the provisions of the Transport Act or of any other law. It cannot be the case of the prosecution that Jagatsing while acting or purporting to act in pursuance of any of the provisions of the Transport Act or of any other law would take this money. Therefore when he took this money from Dongarsing he could not be said to be acting or purporting to act in pursuance of any of the provisions of the Transport Act or of any other law. Therefore he could not be a public servant within the language of Section 43 which requires that an officer or servant of a corporation should be acting or purporting to act in pursuance of any of the provisions of the Transport Act or of any other law in order that he may be a public servant within the meaning of Section 21 of the Indian Penal Code.
9. In the above judgment, a line of demarcation has been drawn between the acts done under the provisions of the Transport Act and the acts done beyond the provisions of the said Act. The act of taking bribe cannot be construed to be an fact done pursuant to the provisions of the Act. Therefore, in that contest, the hon'ble Supreme Court held that sanction under Section 197 would be necessary. Similar view is also available in the judgment of the hon'ble Supreme Court in Sankaran Moitra v. Sadhna Das and Anr. Criminal Appeal No. 330 of 2006, decided on March 24, 2006, arising out of SLP (Crl.) No. 3347 of 2003.
10. Section 26 of the Act of 1950 empowers the Corporation to borrow money, from open market for raising it's working capital or meeting any expenditure of capital nature. The background of the case amply demonstrate that the decision taken by the revision petitioners, and the purchase of vehicles in pursuance of this decision with financial aid from the complainant firm, are acts within the meaning of the provisions of Section 26 of the Act of 1950. The raising of the working capital from the complainant firm is well covered by the phrase in the open market' occurring in Section 26. The Directors, Officers and the employees of the Corporation will be entitled to the protection of Section 197 Cr.P.C. for any offence committed during the course of above transactions. In the case at hand, the revision petitioners issued three cheques in the capacity of Directors, officers and employees of the Corporation. They have prima facie committed an offence for omission, on their part, to ensure adequate balance in the specified bank account. But the issuance of cheques by the revision petitioners was at worst, an act purportedly done in the discharge of their official duties for the purpose of liquidating the debt. For this omission, they may be liable to be prosecuted under Section 138 of the Negotiable Instruments Act, 1881. However, since the offence, if any, has been committed by the revision petitioners, while purporting to act in discharge of their official duties in the capacity of Directors/Officers of the Corporation, they would be entitled to the protection under Section 197 Cr. P.C. The question raised in the revision petitions is answered accordingly.
11. The Registry to proceed accordingly.