Judgment : ARUNACHALAM, J. ( 1 ) THIS petition coming on for hearing upon perusing the petition and upon hearing the arguments of Mr. N. T. Vanamamalai for M/s S. Ashok Kumar and S. Shanmughavelayutham, Advocates for the petitioner and of Mrs. Kalaiselvi for the Public Prosecutor on behalf of the respondent, the court made the following order:the petitioner is the fourth accused in C. C. No. 327 of 1985, pending on the file of the sub Divisional Judicial Magistrate, Poonamallee. It is now represented that on transfer on administrative grounds, the said calendar case has been renumbered as C. C. No. 945 of 1989 on the file of Judicial Magistrate No. 2, Poonamallee. The petitioner, along With the Company, Messrs, Rohini Ice and Cold Storage (first accused), R. Panneerselvam (second accused), S. Y. Ramavelu Chettiar (third accused) and S. Mahalingam (fifth accused), is being prosecuted by the respondent before the trial court for the Commission of offences punishable under Sections 44 (c) and 39 of the Indian Electricity Act and Section 484 of the Indian Penal Code. ( 2 ) THE petitioner seeks to invoke the inherent powers of this court to quash the proceedings in the above said case as against her, on the ground that the prosecution is not maintainable, since the records in their entirety do not disclose commission of any offence by her. The only allegation as far as me petitioner is concerned, according to the charge-sheet is that she was a partner of the first accused and was enjoying the benefit of the theft committed. ( 3 ) MR. N. T. Vanamamalai, learned senior counsel appearing on behalf of the petitioner, contended that except stating that the petitioner is the wife of the second accused and a partner in the first accused company, no other allegations have been made, even to remotely show that she had anything to do with the actual management of the affairs of the company (first accused ). The records of investigation further did pot show that the petitioner was or had been participating in the day-today affairs of the company. It was strenuously urged that the mere fact that the petitioner, was a partner of the first accused company would not be sufficient to mulct her with criminal - liability. ( 4 ) I have heard the learned Government Advocate, appearing on behalf of the respondent. It was strenuously urged that the mere fact that the petitioner, was a partner of the first accused company would not be sufficient to mulct her with criminal - liability. ( 4 ) I have heard the learned Government Advocate, appearing on behalf of the respondent. ( 5 ) A perusal of the first information report shows that on 16-9-1983 at 11. 30 A. M. , the Assistant Divisional Engineer, M. E. S. , District North, Villivakkam, inspected the premises of the first accused company along with his squad, after giving advance intimation to the fifth accused who was in charge of the factory. During the inspection, it was noticed that two M. R. T. Seals provided in the meter had been removed and substituted with unauthorised and bogus seals. It was presumed that the meter had been opened by removing the original seals and unscrewing the meter cover screws. On the opening of the meter cover, it was possible to manipulate the reading of the meter to whatever value. The disc can also be made to rotate in the reverse direction so as to record lesser readings of current consumption that actually utilised. On these allegations, stating that the consumer had maliciously and dishonestly tampered with the meter and had interfered with the recording mechanism, the Assistant Divisional Engineer preferred a complaint to the Maduravoyal Police Station against accused 2 and 5. After investigation, the respondent filed a final report including the other accused now facing prosecution before the trial Magistrate. ( 6 ) IT is apparent from the allegations in the first information report that the petitioner was not present during the inspection. In the [mal report, in the, first paragraph it has been stated that the petitioner, wife of R. Panneerselvam, 43, Sarangapani Street, R. Nagar, Madras-17, was one of the partners of Messrs. Rohini Ice and Cold Storage, along with others. In the penultimate paragraph of the final report, it has been stated:accused 2 to 4 being the partners of the said factory enjoying the benefits of the thefts and accused- 5 who is the cashier and managing the affairs of the company, are also equally liable for the commission of the offence. Rohini Ice and Cold Storage, along with others. In the penultimate paragraph of the final report, it has been stated:accused 2 to 4 being the partners of the said factory enjoying the benefits of the thefts and accused- 5 who is the cashier and managing the affairs of the company, are also equally liable for the commission of the offence. Except the statement of Thiru T. K. Purushothaman, the Commercial Tax Officer, Madras-108, who has stated that the first accused was situated within his Assessment Circle and the partners of the first accused as on 16-9-1983, included the petitioner, no other witness has spoken connecting the petitioner with the crime, during investigation. ( 7 ) SECTION 49-A of the Indian Electricity Act, reads as follows:sec. 49-A: Offences by Companies: (1) If the person committing an offence under this Act is a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against the punished accordingly. Provided that nothing contained in this sub-section shall render any such Person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any Director or Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. (Explanation omitted.)This section throws the onus on the Prosecution to establish that every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, before liability could be fastened. (Explanation omitted.)This section throws the onus on the Prosecution to establish that every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, before liability could be fastened. Once the initial onus of the Prosecution is discharged, then it will be necessary for such person to prove that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of the offence, if he desired to get himself exonerated. ( 8 ) WHILE considering similar provisions in the Indian Explosives Act, I have observed as follows in Rathinaswamy Nadra S. V. K. M. v. Inspector of Police. A mere description of the petitioners as partners of the firm without anything more and in the absence of an averment that these persons, at the time of the contravention, were in charge of, and were responsible for, the conduct of the business of the company, the prosecution against them will not be maintainable. Allegations will have to be made with basic materials, which can, of course, be later proved during the course of the trial. The proviso can spring into operation only basically if there is satisfactory material placed by the prosecution that the petitioners were in charge of, and were responsible for, the day-to-day conduct of the business of the company. Sec. 9-C (2) cannot operate at this stage since the onus is cast on the Prosecution to establish that the offence had been committed with the consent or connivance of the petitioners or attributable to any neglect on their part. The Supreme Court in Sham Sundra v. State of Harana, while considering a similar provision in the Essential commodities Act, has stated as hereunder; More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the fine. There may be ladies and minors t who were admitted for the benefit of partnership. They may not know any thing about the business of the fine. There may be partners, better known as sleeping partners who are not required to take part in the business of the fine. There may be ladies and minors t who were admitted for the benefit of partnership. They may not know any thing about the business of the fine. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) of Sec. 10 that the offence was committed without their knowledge. The obligation for the accused to prove under the proviso that} the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was, during the relevant time, in charge of the business. In the absence of any such proof, no partner could be convicted. Thus, where the documents produced by the prosecution do not indicate even remotely that all the partners were doing the business of the fine and there was no other evidence on record on this aspect, it could not be said that when the offence was committed all the partners were conducting the business of the firm. ( 9 ) SA Kader, J. , had occasion to consider a similar question in M. K. Saifee Golden Jubilee Rolling Mills. v. State Dy Inspector of Police. Madhavaram Police Station. The learned Judge held that the partners cannot be held liable in the absence of any allegations of any part played by them in the criminal offence. It was also found that there was no allegation that the partners were in actual management of the affairs of the firm. ( 10 ) INTERPRETING a similar provision in the Prevention of Food Adulteration Act, the Supreme Court in Delhi Municipality v. Ramkishna observed that when no case against the Directors (accused 4 to 7) had been made out exercise on the allegation made in the complaint, the proceedings against them were rightly quashed by the High Court, with which it was in complete agreement. ( 11 ) FACTS stated earlier clearly show that as far as the petitioner is concerned, there is not even a whisper nor any shred of evidence, nor anything, to show, apart from the presumption drawn by the respondent, that there was any act committed by the petitioner from which a reasonable inference can be drawn that she could also be vicariously liable. On facts, it can be safely held that no case against the petitioner had been made out ex facie on the allegations made in the records forwarded to the court and therefore her prayer to quash the proceeding as against her will have to be upheld. ( 12 ) APPLYING the law laid down in the above mentioned cases to the facts of this case, I have no hesitation in holding, that the prosecution against the petitioner pending before the lower court cannot be allowed to survive. ( 13 ) IN the result, this petition is allowed and the proceedings in C. C. No. 945 of 1989 (on theme of Judicial Magistrate No. II, Poonamallee (Old C. C. No. 327 of 1985 on the me of the Sub Divisional Judicial Magistrate, Poonamallee) in far as they concern the petitioner; are quashed.