Decided on September 04,1972

Naoroze Dorabji Baria Appellant
Labhshankar Hariram Mehta Respondents


J.R. Vimadalal, J. - (1.) This is a revision application filed by accused No, 1 against the order passed by Mr. S. V. Gokarn, Presidency Magistrate, 23rd Court, Bombay, on June 30, 1972 dismissing the application filed by accused No. 1 on May 5, 1972 whereby it was contended that the Court was precluded from taking cognizance of the offences in respect of which process was issued against him without obtaining the previous sanction of the Central Government under section 197 (1) of the Code of Criminal Procedure, and the complaint filed by the present respondent No. 1 was, therefore, not maintainable and should be dismissed and accused No. 1 discharged.
(2.) The facts necessary for the purpose of disposing of this revision application are that, on September 3, 1954, the petitioner was appointed as Estate Manager by the Central Government as the head of the Estate Department of the Bombay Port Trust on a starting salary of Rs. 1,300 per month, pursuant to the provisions of section 23 (3) of the Bombay Port Trust Act, 1879, (hereinafter referred to as ''the Act"). It may be mentioned that by virtue of the provisions of sub-section (1) of section 24 the petitioner would be removable by the Board of Trustees constituted under section 4 of the Act, as a body corporate, subject to the sanction of the Central Government. Respondent No. 1 (original complainant) was, at the material time, employed on a salary of Rs. 214 per month, as a clerk in the Estate Department of the Bombay Port Trust of which the petitioner was, as already stated above, the head. Under sub-section (2) of section 23 of the Act, the Chairman of the Board, on June 18, 1970 delegated his powers of appointment, removal etc. of employees of the Estate Department whose salary did not exceed Rs. 350 per month to the petitioner.
(3.) The petitioner's case is that respondent No. 1 handed over to him personally, on the evening of March 20, 1972, a letter of resignation dated March 17, 1972 bearing respondent No. 1 's own signature, and the same was accepted by the petitioner's letter dated March 21, 1972, with effect from March 20, 1972 after office hours. Respondent No. 1 case, on the other hand, is that no such letter of resignation was written or signed or handed over by him to the petitioner, and that the alleged letter of resignation dated March 17, 1972 is a forged letter to the knowledge of the petitioner. Respondent No 1, therefore, filed a complaint dated April 18, 1972 in a Presidency Magistrate's Court in which he stated that, on the morning of March 21, 1972, he had gone to his office to sign the muster roll, as usual, but was prevented from doing so by the office superintendent under orders of the petitioner, and that when he thereafter went to his own table to work, he was stopped from doing so by the head clerk, also under orders of the petitioner. It is further stated in the said complaint that respondent No 1 was called by the petitioner into his chamber and was asked to go out with the peon to whom the petitioner delivered a letter for being entered by the outward clerk and delivered to respondent No 1. Respondent No. 1 has stated in his complaint that when he received that letter and read its contents he found that the petitioner had purported to accept, with effect from March 20, 1972, the letter of resignation dated March 17, 1972 alleged to have been handed over by him personally to the petitioner. According to respondent No. 1, he thereupon addressed a letter the same afternoon to the petitioner setting out that no letter of resignation dated March 17, 1972 had ever been given by him It is further stated in the said complaint that when respondent No. 1 met the petitioner again that afternoon, the petitioner shouted at him and told him that the letter of resignation had been handed over by him personally to the petitioner and had been accepted by the petitioner, and respondent No. 1 should, therefore, get out of the office, Paragraph 24 of the complaint is important for the purpose of this judgment and must be set out verbatim. It is as follows:- "24. I say that no steps appear to have been taken by the Police so far and therefore I am forced to move this Honourable Court with my complaint. I submit the Accused No 1 had hatched the plan with Accused No. 2 and some other unknown persons to throw me out of the office by getting some got-up resignation letter dated 17th March 1972 with intention to throw me out of my service. The Accused Nos. 1 and 2 hive tried to achieve from round about what they could not achieve from the swings, I say that Accused No. 1 had fraudulently and dishonestly used as genuine the resignation letter dated 17-3-1972, got forged by him with full knowledge that it was forged document. Hence I charge the accused as above. I submit that the Accused No. 2 and other unknown accused have aided and abetted the accused No. 1, in his above acts. Accused No. 2, it may be stated, was one of the clerks in the petitioner's department. On the said complaint, the learned Magistrate issued, on April 22, 1972, a bailable warrant of arrest against the petitioner under sections 465, 471 and 341 of the Indian Penal Code. On May 5, 1972 the present petitioner (accused No. 1), filed an application in the Court of the trial Magistrate praying that the complaint should be dismissed and the petitioner discharged, as already stated in the beginning of this judgment. That application was dismissed by the learned Magistrate on June 30, 1972, and it is from that order of dismissal that the petitioner has approached this Court in Revision. The learned Magistrate took the view that the facts set out in the complaint filed by respondent No. 1 spell out the offence of forgery against the petitioner, that the affairs "carried out" by the Board of Trustees of the Bombay Port Trust were not affairs of the Central Government, but were affairs of a trust created by the Act, and that for the offence of forgery as well as for the offence of using a forged document as genuine knowing it to be forged, the sanction of the Central Government under section 197 (1) of the Code of Criminal Procedure was not required as, on the facts stated in the complaint, it could not be said that the petitioner was acting or purporting to act in the discharge of his duties.;

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