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2000 DIGILAW 3 (PAT)

Om Prakash Gupta v. State Of Bihar

2000-01-05

CHOUDHARY, S.N.MISHRA

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Judgment 1. In these applications, the petitioners have prayed for quashing the criminal proceedings including the order dated 5-1-1996 passed by the Special Judge, Vigilance, whereby he has directed to frame charges against the accused persons including the petitioners in an offence punishable under Secs. 420, 201 read with Sec. 120-B of the Indian Penal Code as well as under Sec. 13(1) and 13(2) of the Prevention of Corruption Act. The petitioners are the proprietor of Ashiana Plaza and the Electrical Executive Engineer of the Electricity Board respectively. 2. One Ram Kripal Singh, Sub-Inspector, Vigilance Cell, Patna had filed a case before the Officer-in-Charge, Vigilance to the effect that Shri Ramghan Yadav, Member, Bihar State Electric Supply Workers Union has written a letter to Shri Bibhuti Kavi, Member,Bihar Legislative Council and on the basis of which an enquiry was instituted. It is alleged that Ashiana Plaza having Consumer No. 131068 provided a load of 10 K.W. It is alleged that on 15-3-1991, the Meter Reader, Shri Suresh Choudhary had recorded the consumption of 9,25,314 Units and information to that effect was communicated to Shri Purshottam Singh, Electrical Executive Engineer, Patna who had also made verification of the consumption of units. It is alleged that the bills were not raised on the basis of the said meter reading. It is further alleged that the Executive Engineer had directed the Assistant Electrical Engineer to test the meter of the consumer and accordingly, a test meter was installed on 25-3-1991 which remained till 23-5-1991 for 101 hours who had submitted his report to the Electrical Executive Engineer. It is alleged that that on the basis of the said report, the Electrical Executive Engineer had directed for raising bills on the basis of 2160 units. It is further alleged that the meter installed in the premises including the Test Meter, were not deposited in the office. It is further alleged that all the accused persons, in conspiracy, had raised bill on lesser units in order to deprive the Electricity Board of the huge revenue. Accordingly, a criminal case was instituted against the Electrical Executive Engineer, Shri Purshottam Singh and the Assistant Electrical Engineer under Sec. 13(1)(c)(d) read with Sec. 13(2) of the Prevention of Corruption Act as well as under Secs. 120-B, 420 and 201 of the Indian Penal Code. Accordingly, a criminal case was instituted against the Electrical Executive Engineer, Shri Purshottam Singh and the Assistant Electrical Engineer under Sec. 13(1)(c)(d) read with Sec. 13(2) of the Prevention of Corruption Act as well as under Secs. 120-B, 420 and 201 of the Indian Penal Code. The proprietor of Ashiana Plaza was also mentioned in the column of the accused in the First Information Report. 3. Learned counsel for the petitioners have challenged the very initiation of the criminal proceeding against the petitioners on the solitary ground that the allegations made in the First Information Report have already been enquired into by the High Level Committee constituted on the instructions of the Bihar Electricity Board headed by the Electrical Superintendent Engineer, PESU as the Chairman of the Committee. The same very allegations were the subject-matter of consideration before the Committee. The Committee after taking into consideration all aspects of the matter exonerated the accused persons of the charges levelled against them and as such, the petitioners cannot be prosecuted for the same charges particularly when the recommendation of the Committee had been accepted by the disciplinary authority viz. the Chairman of the Board. A copy of the Inquiry Report is made Annexure-18 of the supplementary affidavit. 4. the Chairman of the Board. A copy of the Inquiry Report is made Annexure-18 of the supplementary affidavit. 4. At the threshold of the commencement of the enquiry including the proceeding, the following five issues were framed on the basis of the pleadings of the parties :Issue No. 1 : Whether the Board had been deprived of its just revenue in not realising the charges according to the reading of 9,26,484 units taken by the Meter Reader on 15-3-1991 of the meter existing in the premises of the Ashiana Plaza on the recorded name of consumer Shri Suresh Chandra Gupta or not?Issue No. 2 : Whether the reading so recorded from the existing meter on 15-3-1991 attracted any attention with regard to its correctness which ganuinely required checking of the meter in existence by installing a check meter in its side and whether a proper checking could be exercised by the said check meter or not?Issue No. 3 : Whether the action of the Electrical Executive Engineer, Dakbungalow in not raising the charges as per the said reading of 9,26,483 units and raising demand otherwise was against the Boards tariffs and standing circulars and rules or not?Issue No. 4 : Fourthly, whether the meters in question (existing and check meters both) could be preserved safely for their future availability in case of necessity, by the concerned officers of the Division or not.Issue No. 5 : Fifthly, whether the complaint lodged by Shri Ramesh Jhunjhunwala dated 4-7-1992 addressed to the General Manager-cum-Chief Engineer, Central Bihar Area Electricity Board, Patna regarding the alleged adjustment and irregularity, is based on sound footing and carry satisfactory evidences in support of his contentions in that regard or not? 5. The findings of the Committee recorded on the issue in hand are as follows :- "In the situation the Committee on accounting all probabilities observed that the Board has sustained no loss in raising the bill by the office on 5-4-1991 and that the bill on this unit of 12960 amounting toRs. 13,530.13 p. for the period from 11/90 to 3/91 was not inconsistent with the Boards tarrif and Circulars. 13,530.13 p. for the period from 11/90 to 3/91 was not inconsistent with the Boards tarrif and Circulars. The meter of the installation has been reported replaced on 25-4-1991 by a new one, having meter No. 149022/3x10 AMP on installed I.R. 00021.The Committee after going through all connected papers/documents and facts constrained to hold a view that the units charged, to the consumer for the period November, 90 to 3/91 was consistent with the Boards tariff and circulars and it cannot be said an adjustment, since the bill was not raised on the basis of the reading taken by the Meter Reader and subsequently any claim was allowed to the consumer."As regards Issue No. 2, the Committee has observed that a deffective meter so removed should have been sent to the HRI Laboratory for its final checking and testing but the same has not been done in the instant case. It appears from the report that the Committee had further visited the office of the Assistant Electrical Engineer, Mourya Lok who produced records as required by the Committee which did find that all references of the old Meter No. 138370/3x30 Amp is entered at serial No. 32 of the list of the damaged and defective meters which was prepared in his office on 26-10-1991 and were sent to the MRT, but the reference of the meter in question removed on 25-4-1991 was not avilable. The reference of the meters at serial No. 32 of the list speaks of the meter which was removed on 7-7-1990 from the installation and replaced by Meter No. 2064388/3x50 Amp. 6 The Committee has come to the conclusion that the consumer has been charged for the consumption in accordance with the Boards Tariff and Circulars. The disputed meters in question, in spite of the efforts made by the Committee could not be traced. The individual service connections found to be given in the month of November, 1990 to January, 1991 amply classified that construction works must have been completed by that time and non-appearance of the complainant and return of unserved registered letter with postal remark no trace gives an impression that it may be a fake letter. In sum and substance, the accused persons were exonerated of the charges levelled against them. In sum and substance, the accused persons were exonerated of the charges levelled against them. It further appears that the Inquiry Report has been accepted by the disciplinary authorities as it is evident from Annexure-3 to the application. The Disciplinary Authority has further observed that the custody, movement and monitoring of the replacement of meters are the function and responsibility of the Junior Electrical Engineer who has not been made accused in this case. Ultimately, the findings of the disciplinary authority has been accepted by the Board. In this premises, it is submitted that once the accused persons have been exonerated from the departmental proceeding, they cannot be prosecuted criminally on the same cause of action and in support of his contention, learned counsel has relied upon a decision in the case of P.S. Rajya V/s. State of Bihar, reported in (1996) 9 SCC 1 . 7. In opposition, Mr. B. P. Pandey, learned counsel appearing for the Vigilance, however, submits that one of the charges against the accused persons is that they have concealed the original as well as the parallel check meters in order to cause monitary loss to the department and the said charge was not the subject-matter of adjudication in the departmental proceeding and as such, the decision relied upon by the petitioners, will not in any way, help them, in the facts and circumstances of the case. 8. In reply to the submissions aforesaid, Mr. Ajay Kumar Thakur, learned counsel representing the Executive Engineer in Cr. Misc. No. 30329 of 1999, has referred to the Inquiry Report including the order of the Disciplinary Authority and submits that non-production of the meters was also the subject-matter of considerations by the Committee. It is furher submitted that the replacement, maintenance and removal of the meter is the sole functions of the Junior Engineer and the accused persons have nothing to do in the matter. The submission of Mr. Thakur seems to be well founded. One of the issues framed was regarding the preservation and safety of the meters. The Committee has examined the issue in detail which is apparent from the findings recorded by the Committee. Admittedly, in the instant case, the electrical meter was replaced by the authority and the presumption would be that the old meter must have been taken possession of as usual by the Junior Engineer. The Committee has examined the issue in detail which is apparent from the findings recorded by the Committee. Admittedly, in the instant case, the electrical meter was replaced by the authority and the presumption would be that the old meter must have been taken possession of as usual by the Junior Engineer. As has been stated above, the Committee has inquired into the matter in detail as mentioned above and in spite of the best efforts, the defective meter was notmade available to the Committee. The Committee after having examining the registers and documents maintained in the office, has come to the conclusion that though the details of the defective meters are maintained by the officer, yet the meters in question are not mentioned in the register. The Committee has also come to the conclusion as stated above, that the payment was made strictly in accordance with the Boards Tariff and no loss was caused to the department. In that view of the matter, the submissions of Mr. Pandey, cannot be accepted in the facts and circumstances of this case. 9. Admittedly, the accused persons have been exonerated of the charges in the departmental proceeding and for the same cause of action, he cannot be prosecuted in a criminal offence having regard to the law laid down by the Apex Court in the aforesaid decision. 10. Accordingly, the very initiation of the proceeding including the order taking cognizance dated 5-1-1996 and also the order dated 19-7-1997 refusing to discharge the petitioners, are hereby quashed. In the result, these Miscellaneous Applications are allowed.Petitions allowed.