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Complainant was a businessman trading in the name and style of M/s. Navinchandra & Co. In his capacity as a businessman, he and his concerns were dealing with the processing of industrial diamonds, export of cut and polished diamonds, building construction, transport and quarrying. Despite these extensive and varied interests, complainant and his concerns were ignorant of the export business and never had anything to do with letters of Credit, hereinafter to be describes as "L/Cs." Complainant's concerns had accounts with the Bank of India's branch at Khand Bazar. In fact, that branch's premises were located in a building constructed by Somaiya Construction Co. The branch at Khand Bazar knew of complainant never being involved in transactions involving L/Cs. Accused 1 to 6 were high officials of the Bank of India. Accused No. 7 succeeded accused No. 8 as the Manager of the Khand Bazar branch. At the period figuring in this complaint, accused 8 and 7 were the Managers of the Khand Bazar branch with which complainant had dealings. Accused 9 and 10 were partners of a firm doing business in the name and style of Parikh Brothers. This firm was in the Export-Import business. Mayur Exports of India had entered into a contract with Kuwait Supply Co. of Kuwait to sell to the latter 8,000 metric tonnes of barley. Mayur Exports assigned the contract undertaken by it to M/s. Parikh Brothers with the concurrence of Kuwait Supply Co. To facilitate the execution of the contract, Kuwait Supply Co. had to open a L/C and for that purpose utilised the services of a banking house doing business in the style of M/s. Kuwait Finance House. For the opening of the L/C through their bankers, the Kuwait Supply Co. wanted Parikh Brothers to furnish a 5% performance guarantee. The total value of the consignment was placed in the neighbourhood of Rs. 1,60,00,000/-. The 5% performance guarantee sought covered a total sum of about Rs. 8,00,000/-. Parikh Brothers approached the Khand Bazar branch to provide the 5% guarantee on their behalf. The said branch was willing, but only if the suppliers could find a guarantor to cover the risk which the branch was to face. At that time, accused 8 was the Manager of the Khand Bazar branch. This gentleman was known to the complainant since January 1981. On February 1, 1982 accused 8 called the complainant to the bank's premises with an offer to put some business his way. Complainant responded and reached the office of accused 8. Accused 8 introduced him to the Parikh Brothers, viz., accused 9 and 10. Prior to this date, complainant was not acquainted with Parikh Brothers, though in the year 1972 they had acquired some office premises in Navjivan Building from his construction company. Complainant was informed that Parikh Brothers had entered into a big deal for supply of barley to Kuwait Supply Co.; that this was a profitable transaction; that the Khand Bazar branch was willing to furnish the 5% performance guarantee, provided complainant guaranteed performance on behalf of Parikh Brothers, that Parikh Brothers had a highly rated credit-worthiness; that the contract was to be performed shortly and swiftly, that for a small risk of Rs. 8,00,000/-, complainant would be getting commission at rate 2% covering the value of the entire consignment thus fetching him an attractive profit of Rs. 3,20,000/-. In other words the transaction was "100% safe". Complainant made it clear to accused 8 that he could not understand much of the nature of the business he was being invited to participate in. However, so great was his faith in accused 8, that if that person recommended the transaction, complainant would blindly go through with it. On more meeting took place in the office of M/s. Parikh Brothers, accused 8 again being in attendance. The commission promised to him was paid in two installments of Rs. 30,000/- and Rs. 2,00,000/- respectively on 8-3-1982 and 27-4-1982. On 4-2-1982, in pursuance of the inducement offered by accused 8 to 10, complainant executed a document titled "General Counter Guarantee". This document recorded complainant's undertaking to indemnify the Bank of India against loss incurred by the neglect or failure of the Parikh Brothers to perform the contract. The indemnity was however not to exceed a sum of Rs. 8,00,000.00 Pursuant to the execution of the counter-guarantee, the Kuwait Finance House communicated the terms of the L/C to Parikh Brothers as also the complainant. Later on, it transpired that Parikh Brothers were not as credit-worthy as touted to be. This however was a later discovery for complainant. On about 9-2-1982, accused 8 to 10 visited the complainant and explained that Parikh Brothers were encountering some difficulty in financing the purchase and despatch of some part of the barley. To allay his fears, it was made clear to complainant that the money would eventually come from Kuwait, but that the shipment was likely to be delayed because of the paucity of ready cash with the Parikh Brothers. He was asked to aid Parikh Brothers with a short term advance and it was pointed out that this was necessary to guarantee some part of the commission still due to him. Complainant was made aware that getting of finance would not be difficult for him. He was entitled to receive Rs. 27,00,000/- vis-a-vis the Andheri properly leased out and delivered to the Bank of India in January 1982. The sum had been withheld because a "No Objection Certificate" had not been tendered by the complainant. Accused 8 gave an assurance that the inability to tender the NOC would no longer be a real hurdle as he would see to it that the bank released the amount advanced. Accused 8 had a letter drafted which he got typed on the letterhead of the complaint. This letter purported to show a request made by complainant for the advance of a sum of Rs. 15,00,000/- to him, the money being urgently required by him as he was executing an export order. The truth was that this was done to facilitate the advance of money by the complainant to the Parikh Brothers, at the behest and insistence of Officers of the bank. Taking advantage of the letter addressed by him, a sum of Rs. 13,50,000/- credited to his account was made available to the Parikh Brothers. The credit in favour of Parikh Brothers was made even before the final sanction of the advance to complainant. 6,000 metric tonnes of barley were shipped by Parikh Brothers to the Kuwait Supply Co. and disbursements under the L/C, were made to Parikh Brothers. The suppliers also received the money meant for the remaining shipment of the remaining 2,000 metric tonnes of barley. But the documents in respect of the remaining consignment were found to be defective. As a result of this flaw, the Kuwait Finance House rejected the said documents and initiated the rejection to the Khand Bazar branch. This branch for the first time on 2-7-1982, called upon the complainant to pay the amount advanced against the negotiation of documents together with interest. In this manner, complainant was called upon to make good a sum of Rs. 41,00,000/-. This was unwarranted, for the guarantee given by him did not make him liable for any sum in excess of Rs. 8,00,000/-. Complainant pointed out the true position to the Officers of the bank, but to no avail. At the end of August 1982, accused 5 to 8 made an attempt to get three documents signed by the complainant and his father. They refused to comply as by this time their suspicions of the motivations and bona fides of the bank's Officers had been thoroughly roused. With a view to get a loan against the lease of Andheri premises, complainant at the insistence of accused 5 and 6, handed over four letters of appropriation signed by him and three of his relations. It was understood that the letters gave the Khand Bazar branch a lien on the fixed deposits made by the executants of the letters. In some vital parts, the four letters were left blank. These four letters had nothing to do with the transaction between Parikh Brothers and the complainant or there and the back, etc. Therefore, it was a great surprise for the complainant to be informed in the first 10 days of October 1982, that the fixed deposits would be appropriated against the sum of Rs. 41,00,000/- which the Parikh Brothers had failed to pay the bank to reimburse it for the loss pursuant to the non-shipment of the last consignment of barley to Kuwait. Complainant's advocates in a letter addressed to accused 7 made it clear that the appropriation of the fixed deposits by the bank was wrongful, illegal and mala fide. The bank did not pay heed to the protest and appropriated Rs. 38,00,000/- belonging to the complainant and his relations which monies were subject to the control of the bank. When an attempt was made to seek redress, accused 4 declined to come to the aid of the complainant, making it clear that he would not do so as the bank was well protected with the appropriations aforementioned. A request to meet accused 3 was turned down by that Officer, the rejection being conveyed through accused 4. It was complainant's case that all the accused had perpetrated a serious fraud upon him so as to deprive him of a sum of Rs. 38,00,000/- by the commission of serious offences such as cheating, criminal breach of trust and forgeries of valuable securities and documents. At a later stage, a document bearing the tile OD174 was sought to be made the king-pin of the liability fastened upon him. As the document stood, it gave the impression of having been executed by the complainant and his father on 17-2-1982. As a matter of fact, OD174 was not executed on 17-2-1984 and came into existence quite some time after December 1982. The document relied upon had been touched up to support a fraudulent claim. Accused 1 to 8 were guilty of the offence of forgery with intention to cheat, the document being OD174. 17 reasons were given in support of the contention that OD174 was a forgery. The circumstances in which the signed OD174 came to be in possession of the bank were explained in para 25 of the complaint. The blank, but signed paper, had been furnished to the bank by the complainant and his father as guarantors M/s. Navinchandra & Co. It had nothing to do with the advances made or transactions in which the Parikh Brothers were interested. For the reasons mentioned in para 24 and the circumstances set out in para 25 (being paras of the complaint), it was averred that accused 1 to 8 were patently guilty of an offence of forgery with intention to cheat under Section 468, I.P.C. Next, accused 1 to 8 were seeking to utilise OD174 to fasten upon the complaint the liability to pay Rs. 41,00,000/-. OD174 had been dishonestly converted and the fixed deposits had been misappropriated. This rendered accused 1 to 8 liable for the commission of an offence punishable under Section 406, I.P.C. The advance of Rs. 13,50,000/- by the complainant to Parikh Brothers was at the instance of the accused 8. It was aided by deception practised upon him by accused 5 to 8. Six reasons have been cited to bear out this contention. Accused 1 to 8 with knowledge of the true position had been parties to the forgery and misuse of the documents. This was done with a view to benefit accused 9 and 10. An overall view of the transaction, indicated that accused 1 to 10 had acted in concert and conspiracy with each other. They had by their gross fraud cause serious loss to the Bank of India. To cover up this loss they had sought to pass on the liability to complainant and his father.

10. Accused 1 is the Managing Director/Chairman, and, as such, the senior-most Officer of the Bank of India. In the complaint, he has been described as "senior-most Officer attached to Bank of India and in charge of its banking operations". If the idea is to point accused 1 as some sort of a master Don, the depiction fails to carry conviction. A person may be in over-all charge of an institution. That does not render him liable for all the misdemeanours and crimes committed by every employee of the organisation. Complainant's advocates wrote a number of letters to accused 1 complaining of the conduct of accused 3 to 5. On 2-2-1983, complainant had an interview with him and gave a full picture of the true position. On that occasion, accused 1 is said to have given an assurance that he would take a proper decision after going through the entire papers which were in a mess. Letter dated 9-2-1983 was addressed to accused 1 by complainant's advocates wherein a detailed picture of the forging of OD174 was set out and there was a definite allegation that the forgery was the work of bank Officers at all levels. Another letter sent by the complainant's advocates to accused 1 was that dated 16-5-1983. It is said that in reply to that letter, despite knowledge, the bank continued to maintain that OD174 and the appropriation letters which were alleged to be forgeries were genuine. There is a recital in the complainant about all accused, inclusive of accused 1, having perpetrated a serious fraud upon the complainant with the object of depriving him of Rs. 38,00,000/- and forging and making use of forged documents. Para 24 of the complaint contained a number of grounds designed to show that OD174 was a forgery. These grounds are argumentative and inferential. How OD174 must have been fabricated is explained in para 25 of the complaint. Para 26 suddenly avers that for the reasons stated in paras 24 and 25, accused 1 to 8 are patently guilty of forgery, etc. The conclusion does not follow from what precedes it. The preceding paragraph is argumentative and inferential. It does not specify facts indicating the place, manner and mode of committing the offences ascribed to various offenders. In effect, complainant jumps from a conclusion to the reasoning and not vice versa. The allegation is that because OD174 and the appropriation letters had been forged, it followed that accused 1 along with others, was guilty of the forgery, of making use of forged documents and breach of trust, etc., etc. Para 29 of the complaint is another attempt to fasten guilt upon the accused persons. The accused mentioned in this para are accused 5 to 10. Para 30 of the complaint is a summary of what has been set out in the preceding para vis-a-vis accused 5 to 8. This does not restrain the complainant from reciting in para 31 that all the accused, inclusive of accused 1, were therefore parties to forgery and misuse of documents. Para 32 contains a recital that the guilt of accused 1 to 10 is obvious and that they had acted in conspiracy with each other to commit offences of cheating, forgery, breach of trust, etc., etc. At the end it is said that accused 1 to 8 parted with Rs. 41,00,000/- long before the completion of the shipment and thereby caused a serious loss to the Bank of India. To cover up their culpability, they had forged documents and tried to get the bank reimbursed at the cost of the complainant.

OD174 though it bore the signature of complainant and his father, was not signed by them on 17-2-1982 as the document purported to show on the face thereof. In this connection, complainant relied upon the CVO's report. That report made no reference to OD174 or the appropriation letters. In other words, and that is a conclusion of the complainant, these documents in a fabricated state, came into existence after December 1982 when the report of the CVO was drawn up and circulated. Presently, I shall not refer to the allegations against accused 8 in the verification. All that is said against accused 5 and 6 is an assurance on the part of accused 8 that he would see to it that they sanctioned at an early date the loan of Rs. 13,50,000/- which was required to finance purchase of barley by Parikh Brothers. Complainant refers to the patently bogus character of the bills of lading and mentions, that despite this, a sum of Rs. 41,00,000/- was released to finance Parikh Brothers. The appropriation letters were taken from him on the understanding that they would be used to give him a sum of Rs. 27,00,000/- against the Andheri property. This sum was not to be utilised for the purpose of Parikh Brothers. Yet, the appropriation letters were later utilised to reimburse the bank for advances made to Parikh Brothers. Complainant makes a reference to the insistence of the petitioners upon using forged documents to recover Rs. 41,00,000/-. At the end, complainant says that the reliance placed on the documents by accused 1 to 7, is despite full knowledge of the true position. The true position, according to him, is that OD174 and the appropriation letters were forged and could not have been used to advance his monies to the Parikh Brothers or to reimburse the bank for the defaults committed by Parikh Brothers in respect of monies granted to them. In fact, at the very inception Parikh Brothers had undertaken not to seek any finance except the Counter Performance Guarantee from the bank. As to the documents, these consist of the alleged forgeries, correspondence exchanged between parties, extracts from accounts, etc., etc. It is on the above material that the existence or otherwise of sufficient ground has to be tested.

"The words "public servant" denote a person falling under ..... Every person -
(a) .......
(b) in the service or pay of ..... a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in S. 617, Companies Act, 1956 (1 of 1956)."

It was further argued that the acts allegedly amounting to an offence ascribed to accused 1 and 2 would attract the words "acting or purporting to act in the discharge of official duty" occurring in S. 197 of the Code of 1973. To this, the complainant's reply is that accused 1 and 2 are not public servants vis-a-vis S. 21, Penal Code. This is deduced from the relevant provisions of the Banking Regulation Act, 1949, the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (see Sections 46A, 14 and 14 respectively of the three Acts). The submission is that accused 1 and 2 according to the above provisions are "public servants" for the limited purpose of Chap. IX, Penal Code. This chapter covers Sections 161 to 171 of the said Code. For all other purposes, they are excluded from the description of "public servant". Having regard to the specific words used by the Banking Acts aforementioned, reliance cannot be placed upon Clause 12 of S. 21, Penal Code. At any rate, it cannot be said that what is ascribed to accused 1 and 2, viz., commission of forgery, dishonest use of a forged document and criminal breach of trust constitute acts done "in the discharge or purported discharge of official duty". At third alternative put forth on behalf of the complainant is that further evidence is necessary to rule upon the submission, for that alone would show whether accused 1 and 2 merely used their office to commit the offences ascribed to them or whether the discharge of their duties was so interwoven with the acts constituting the offence, that it became impossible to sever the two. A very interesting and erudite argument has been advanced by Counsel on both the sides. In view of my finding on the first point, it is not really necessary to give a considered finding on the tenability or otherwise of the special defence raised on behalf of accused 1 and 2. But it is necessary that 1 take note of some of the submissions made by Counsel.