- (1.) Leave granted. Heard the Counsel for the parties. The following question of law arises for consideration in these appeals : Where a complaint in regard to dishonour of a cheque is made by a Government company, represented by its officer who is a public servant, whether the exemption made under Clause (a) of the proviso to section 200 of Code of Criminal Procedure, ('Code' for short) is available
(2.) The National Small Industries Corporation Limited ('NSIC' for short)- the appellant herein, is a 'Government company' within the meaning of that expression under section 617 of the Companies Act, 1956. Its object is to extend financial and other assistance to small scale industries. The appellant lodged a complaint in the Court of the Metropolitan Magistrate, Delhi, alleging that the second respondent company had issued a cheque drawn in favour of the appellant towards discharge of its liability, and the said cheque was dishonoured when presented for payment. The appellant therefore prayed for summoning and punishing the second respondent and its Directors (respondents 3 and 4).
(3.) On 4.2.2002, the learned Magistrate took cognizance and summoned the accused. He did not examine the complainant and its witnesses, under section 200 of the Code. He recorded the following reasons in that behalf: "Complaint has been filed by a public servant in discharge of his public duties. Hence his examination is dispensed with. I have perused die record and considered the submission. 1 have also perused the original documents also. I consider that prima facie case under sections 138/142 of Negotiable Instruments Act is made out." Respondents 2 to 4 filed a petition under section 482 of the Code challenging the summoning order. They contended that as the complainant was a Government company and not a public servant, the exemption under Clause (a) of the proviso to section 200 of the Code was not available; and that the learned Magistrate could not have dispensed with the mandatory requirement of examining the complainant on oath, under section 200 of the Code. The High Court accepted the said contention on the following reasoning : "Public servant is defined in section 21 of the IPC and a Government company would not fall under any of the descriptions mentioned in the said section. Once it is held that NSIC is not a public servant, mandate of section 200 Cri.PC was to be followed by the learned MM, which provides compulsory examination of the complainant and the witnesses present, if any, on oath and on the basis of such pre-summoning evidence, the Magistrate is to decide as to whether cognizance of the offence is to be taken and summons are to be issued to the accused persons or not. This is the unambiguous mandatory procedure prescribed under section 200 Cri.P.C." Consequently, by order dated 1.2007, the High Court allowed the petition and quashed the summoning order. It however made it clear that the learned Magistrate would be at liberty to record the statement of the complainant and the witnesses and thereafter take appropriate decision in the matter in accordance with section 200 of the Code. The said order is challenged in this appeal. Contentions :;