Employee of PSU exempt from examination u/s 200(a) CrPC in 138 NI Act case


In a complaint case filed before a Magistrate for which the magistrate is empowered to take cognizance under Section 190 of the Criminal Procedure Code, the magistrate while taking the cognizance of an offence shall examine the complainant and any witnesses present on oath. The reason for such examination is to see whether a prima facie case is made against the accused person and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person.[1]

However, the above provision is not valid in a case where the complaint is filed by a public servant who is acting or purporting to act in the discharge of his official duties and in the discharge of such duties, he has filed the said complaint.

According to Section 200 Cr.P.C.,

“200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or


Therefore, it is mandatory for the magistrate to examine the complainant and witnesses who are present on oath before taking the cognizance but there is an exemption given to the public servant who is performing his official duty. The reason of giving the exemption to the public servant is that it is presumed that the public servant will not institute a false case and go on with a malicious prosecution against someone.

But now the question arises is that who is a public servant? Public Servant is not defined in the Criminal Procedure Code, 1973 and as per Section 2(y) of the Cr.P.C., “words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that code.”

Thus, we have to look at the definition of a public servant in the Indian Penal Code, 1860. Section 21 of the IPC defines a public servant. There are twelve types of categories who are included as a public servant. We are concerned with whether an employee of a government company / Public Sector Undertaking is a public servant for the purposes of examination under Section 200 (a) Cr.P.C. or not.

The relevant portion of Section 21 of the Indian Penal Code is as follows:

“21. ‘Public servant’.—The words ‘public servant’ denote a person falling under any of the descriptions hereinafter following, namely:


Twelfth.—Every person—


(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).”

Therefore, according to Section 21 IPC which is applicable in the present case, the definition of public servant will include a person who is under the pay of a government company.

Furthermore, as per Section 142 of the Negotiable Instruments Act, the complaint should be made in the name of the payee of the cheque. The said section is silent in cases where the complainant/payee is a company. On this point the Supreme Court had observed in the case of Jalan Trading Co. (P) Ltd. And ors v. D.M. Aney and anr[2] that,

“In the instant case, the complaint having been given by Gopalakrishnan Trading Company, represented by its manager, it cannot be stated that the complaint had been preferred by any person other than the company, which is the payee and which is entitled to prosecute the drawer of the cheque for committing the alleged refraction or violation of the provisions of section 138 of the Act.”

Thus, the company in such a case becomes the de jure complainant and the employee of such company becomes the de facto complainant. So, the Supreme Court has observed in the case of National Small Industries Corporation Limited v. State (NCT of Delhi) and Others [3] that,

“16. …. Clause (a) of the proviso to Section 200 provides that where the complainant is a public servant, it will not be necessary to examine the complainant and his witnesses. Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant and in signing and presenting the complaint, he acts in the discharge of his official duties. Therefore, it follows that in such cases, the exemption under clause (a) of the first proviso to Section 200 of the Code will be available.”

The Supreme Court also observed in the above case that,

“19. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favour of a company or corporation, for the purpose of Section 142 of the NI Act, the company will be the complainant, and for purposes of Section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of the proviso to Section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation.

20. Thus, the answer to the question raised is: where an incorporeal body is the payee and the employee who represents such incorporeal body in the complaint is a public servant, he being the de facto complainant, clause (a) of the proviso to Section 200 of the Code will be attracted and consequently, the Magistrate need not examine the complainant and the witnesses.”

Thus, a person who is an employee of a government company and files a complaint under section 138 Negotiable Instruments Act, 1881 or any other complaint before a magistrate, the magistrate need not examine such complainant (employee of the government company) as such a case will fall under Section 200(a) and such employee / public servant is exempt from examination.


[1] Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753.

[2] AIR 1979 SC 233 : (1979) 3 SCC 220

[3] (2009) 1 SCC 407

About Alabhya Dhamija

AvatarAlabhya is an Advocate practicing at Delhi High Court and other courts in Delhi. Contact: alabhya@dhamija.com

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