IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.6415 of 2009 1. M/S S.M.INTERNATIONAL LTD., Asoka Farms, 36th Mile Stone, Delhi – Jaipur Highway, Vill. – Naharpur Roopa, P.O. – Khasanda Roopa, Gurgaon, Haryana. 2. Arun Kumar Govil, Son of Late K.P. Govil, Managing Director, M/S. S. M. International Ltd., Asoka Farms, 36th Mile Stone, Delhi – Jaipur Highway, Vill – Naharpur Roopa, P.O. – Khasanda Roopa, Gurgaon, Haryana. ................. Petitioners. Versus 1. THE STATE OF BIHAR 2. Rajendra Singh, Son of non known to the petitioner, Asstt. Secretary Bihar State Credit & Investment Corporation Ltd. Having its registered office at 4th Floor, Indira Bhawan, R.C. Path, P.S. – Srikrishnapuri, District – Patna. .................. Opp. Parties. ----------- For the Petitioners :- Mr. Rana Pratap Singh, Sr. Advocate. For the State :- Mr. Parmeshwar Mehta, A.P.P. For the O.P. No. 2 :- Mr. Nirmal Kumar, Advocate. 04/ 02.02.2011 This is a petition for quashing the order dated 23.06.2006 passed by the C.J.M., Patna in Complaint Case No. 1728(M) of 2006 by which summon has been ordered to be issued after taking cognizance for offence under Sections 420, 409 and 406 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act. 2. The prosecution case as alleged that the petitioners took loan and even enter into an agreement for repayment of loan in one time settlement scheme to pay the dues and in consequence paid the dues, however, one 2 of his cheque dated 31.03.2006 of Corporation Bank, Gurgow Branch, Hariyana for a sum of Rs.12,43,000/- bounced and returned with a comment of insufficient fund on 13.04.2006 and notice was sent on 17.04.2006 but the dues were not cleared and hence a complaint petition filed by Bihar State Credit and Investment Corporation Limited through Sri Rajendra Singh, Assistant Secretary and on the basis of said complaint a cognizance was taken without examining the complainant on solemn affirmation for offence under Section 420, 406 and 409 of the Indian Penal Code and summon was ordered to be issued by the said order taking cognizance. 3. The learned counsel for the petitioners has challenged the order on two scores. It has been asserted that one time settlement was settled for Rs.33,00000/-. However, Rs.21,00000/- was paid by D.D./cheque and the last cheque was Rs.12.43 lacks given by cheque no. 932610 dated 31.03.2006 to be encashed by BICICO. Petitioners requested the BICICO not to present to said cheque as the petitioners could not arrange for fund due to sickness and hospitalization of his wife and sought time but in spite of request the cheque has been presented was 3 dishonoured. However, the petitioners when learnt came to BICICO with two demand draft of Rs.9,00000/- and 3.43 lacks dated 08.05.2006 in lieu of the bounce cheque with a request to accept the same and issue no dues certificate but in vain and it is alleged that the BICICO with mala fide intention filed the complaint before the C.J.M on 23.06.2006 and the learned C.J.M took cognizance. 4. The learned counsel for the petitioners further submits that the cognizance has been taken on a complaint which has not been signed by any of the Officer of the Company and hence order taking cognizance on the said complaint without the examination of the complainant is bad and submitted that the BICICO with ulterior motive has not stated above fact regarding the two demand draft of Rs.9,00000/- and Rs.3.34 lacks and has relied upon unreported decision dated 09.06.2007 passed in Cr. Misc. No. 41677 of 2005 for the propagation that BICICO is not entitled to benefit under proviso to Section 200 of the Cr.P.C for being exempted as in case of public servant and it has further been contended that since the complainant has not been examined on solemn affirmation. The cognizance on the basis of the complaint is not 4 sustainable. It has further been contended that further the complaint has not been signed by any Officer of the Company or the person through whom represented and hence the cognizance on the said complaint without a signature is also illegal. 5. Learned counsel for the BICICO, however, submitted that the BICICO is a Government Company within the meaning of expression under Section 617 of the Companies Act and its object is to extend financial and other assistance to Small Scale Industries and hence complaint filed by the Officer on behalf of the Government Company in discharge of his official duty as public servant and hence liable to be exempted from being remand under proviso to Section 200 of the Cr.P.C and has placed reliance upon a decision reported in AIR 2009 (1) SCC 407 (National Small Industries Corporation Ltd. Vs. State (NCTOF Delhi) & Ors.). 6. Hence, on the respective submissions of the parties whether the order taking cognizance is suffered from any defects for non-examination of the complainant and its witnesses and whether suffered from the defect that the complaint has not been signed by the public servant. 5 However, so far the first point is concerned the complainant is Bihar State Credit and Investment Corporation Ltd. henceforth referred as BICICO through Sri Rajendra Singh, Assistant Secretary. 7. However, the learned counsel for the petitioners has relied upon unreported decision dated 16.10.2006 passed in Cr. Misc. No. 41677 of 2005 by which the order taking cognizance was quashed as the complainant was not examined and benefit was given by the Magistrate for exemption as a public servant on a complaint filed by the Officer of the Corporation, BICICO for the complaint filed by the Officer of BICICO. However, in decision reported in AIR 2009 (1) SCC 407 (Supra) it has been held that when an employee of the Company or statutory Corporation who is a public servant acts or purports to act in discharge of his official duty it necessarily refers to doing an act done in discharge of his duty by such public servant and on behalf of his employer, namely, the Government Company. Any Government Company run by a public servant if he happens to be an employee of a Government Company acting or purporting to act in the discharge of his official duty. It has held that 6 the company becomes a de jure complainant and its employee or other representative representing it in the criminal proceeding becomes the de facto complainant. Thus in every complaint where the complainant is an incorporeal body there is a complainant can de jure and a complainant can de facto. Where the complainant is a corporeal body represented by one of its employee, the employee who is a public servant is the de facto complainant and is signing and representing the complaint, he acts in the discharge of his official duty and therefore, it follows that in such cases the exemption under Clause (a) of the first proviso to Section 200 of the Cr.P.C will be available and further the Company or Corporeal Corporation will remain the same but a de facto complainant representing such de jure complaint can change from time to time and if the de facto complainant is a public servant the benefit of exemption under Clause (a) of proviso to Section 200 of the Cr.P.C will be available even though the complaint is made in the name of a Company or Corporation. 8. Hence, in view of this observation it is apparent that the officer of a Government Company is a 7 public servant and the complaint made by them requires exemption under proviso to Section 200 of the Cr.P.C and hence unreported decision dated 16.10.2006 passed in Cr. Misc. No. 41677 of 2005 referred by the learned counsel for the petitioners stands overruled in view of decision reported in 2009(1) SCC 407 (Supra). 9. However, the next point raised that the complaint has been filed but has not been signed or represented by an Officer of the Company and it has been asserted that the complaint has not been signed by the complainant then order taking cognizance is bad. 10. However, having regard to the fact that the complainant is the BICICO and presented and BICICO is a complainant de jure. However, the Corporation a Government Company and is not a public servant and the complaint is required to be filed by a public servant to claim exemption. However, since the complaint petition has not been signed by the public servant in discharge of his public duty and then the complaint itself is not maintainable and even the benefit of exemption under proviso to Clause (a) of Section 200 of the Cr.P.C can be provided till it is signed by a public servant in discharge of 8 his official duty. 11. However, having regard to the fact and assertion that the complaint has not been signed by the public servant and a certified copy of the complaint has been annexed as Annexure-I. A certified copy of the complaint petition has been filed which does not bear the signature of the Officer of BICICO and the BICICO has also not controverted this fact hence, the order taking cognizance on the basis of a complaint by BICICO not signed by the Officer is suffered from illegality. However, a second complaint is not barred the order taking cognizance on the basis of the complaint without the signature of the complainant is not sustainable and hence the impugned order is set aside and the petition is allowed. Kundan (Gopal Prasad, J.)