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2000 DIGILAW 749 (PAT)

Ram Pravesh Agrawal v. State Of Bihar

2000-05-28

D.N.PRASAD

body2000
Judgment D.N.Prasad, J. 1. This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioner (Ram Pravesh Agrawal) for quashing of the First Information Report (Annexure-3) in Mandu PS Case No. 172/99 dated 21.7.1999 corresponding to G.R. Case No. 1207/99 under Secs. 39/44 of the Indian Electricity Act, 1910 and under Sec. 379 of the Indian Penal Code including the entire prosecution launched against the petitioner, pending in the Court of the Chief Judicial Magistrate, Hazaribagh. 2. Brief case of the prosecution leading to this application is that on 21.7.1999 a raiding party was organised for the purpose of detecting of energy theft and during the course of raid, it was found that M/s Rishi Cement Company Ltd. was showing 94887 units for the monthly consumption instead of 2,15,000.00 unit and as such Company of which the petitioner is the Managing Director was committing theft of energy of about 1,20,000 units per month and causing loss to the Electricity Board amounting to Rs. 45 lakhs per year. It was also detected in course of raid that M/s Rishi Cement Company Ltd. was using about 5 k.w. of energy in the premises of M/s New Bharat Refractories Ltd. having Consumer No. KJ 677 HT whose electric connection was disconnected on account of non-payment of electric dues amounting to Rs. 1,57,791.00 . It was found that the electric line was extended from M/s Rishi Cement Company to M/s New Bharat Refractories Ltd. and the energy was supplied stealthily and. illegally. The raiding party also seized wires, bulbs, cables, etc. from the premises at the relevant time and for which the seizure-list was also prepared and as such, the F.I.R. was lodged against the petitioner and others of Which the investigation was started. 3. One supplementary affidavit has also been filed from the side of the petitioner stating therein that petitioner had filed another Writ petition on 20.8.1999 under Civil Writ jurisdiction being CWJC No. 2472 of 1999 (R) for quashing of the supplementary bill dated 24.7.1999 for Rs. 89,87,759.00 raised by the Electricity Board and the said Writ petition was disposed of by order dated 27.1.2000 with an observation that the petitioner would deposit a sum of Rs. 10 lakhs in cash and Bank guarantee of Rs. 35 lakh from a nationalised Bank. 89,87,759.00 raised by the Electricity Board and the said Writ petition was disposed of by order dated 27.1.2000 with an observation that the petitioner would deposit a sum of Rs. 10 lakhs in cash and Bank guarantee of Rs. 35 lakh from a nationalised Bank. There was also direction to restore the electric line of the petitioner, subject to the condition of the deposit of the amount. The petitioner again preferred Letters Patent Appeal No. 38 of 2000 (R) in which the said order passed in CWRJ No. 2472 of 1999 (R) was modified to the extent that the petitioner would deposit Rs. 10 lakh in two instalments of Rs. 5 lakh each and electrical connection of the petitioner was directed to be restored within two days of the deposit of the first instalment. Further, the relevant part of the order dated 27.1.2000 directing the petitioner to furnish Bank guarantee of Rs. 35 lakh was deleted from the order. The petitioner already deposited Rs. 10 lakh in two instalments and subsequently the electric line of the petitioner has been restored and there is no fresh bill in existence. 4. Heard the learned Counsel for the petitioner, State as well as Electricity Board. 5. The learned Counsel appearing on behalf of the petitioner, at the very outset, submitted that the said raid was conducted in absence of the petitioner which has been admitted by the informant in the FIR and there is nothing specific or direct allegation or evidence against the petitioner that he had committed theft of electricity rather the allegation of theft of electricity is on the basis of presumption on hypothetical conclusion. It is also argued that there is no allegation that the meter was tempered, rather the protective seals pertaining to the meter were found intact and in order and so the question of electric theft does not arise. It is also argued that the Company of which the petitioner is the Managing Director is a bona fide consumer and has already deposited the amount as per direction in the LPA No. 38 of 2000 (R) and the supplementary bill raised by the Board for alleged pilferage of energy has already been quashed and as such, the whole allegation is false and has got no substance. It is also argued that there is no ingredient constituting the offence of theft of electricity under Secs. It is also argued that there is no ingredient constituting the offence of theft of electricity under Secs. 39/44 of the Indian Electricity Act against the petitioner as well as the seizure-list is not sustainable in law as it was prepared in the absence of the petitioner. It is further argued that the petitioner cannot be prosecuted simply because he is the Managing Director of the Company as there is no allegation to indicate that he is the Incharge of the Company and also responsible to the Company in the conduct of its business. The learned Counsel also relied upon the case of State of Haryana V/s. Brij Lal Mittal and Ors. 5. On the other hand, the learned Counsel for the respondents submitted that there is a specific and direct allegation against the petitioner, who is admittedly the Managing Director of M/s Rishi Cement Company and he cannot escape from the responsibility as only 94,887 units per month was being shown instead of consumption of about 2,15,000 units and the theft of electricity was being done within his knowledge and it was deliberate for which there was a huge loss caused to the Board. It is further argued that apart from above misappropriation, the electric line from Rishi Cement Company was extending to M/s New Bharat Refractories premises of which admittedly there was disconnection of electricity for non-payment of dues and some materials including wires, cable, plug, bulb, etc. were recovered and seized from the premises at the relevant time. It is also submitted that the petitioner admittedly deposited a sum of Rs. 10,000.00 as per order of this Court, which also reveals about the admission of the petitioner for committing theft of electricity since long. 6. It is an admitted position that the petitioner is the Managing Director of M/s Rishi Cement Company, the premises where the raid was conducted by the official of the Electricity Board. There is also specific and direct allegation about committing theft of electricity by extending the wire from his Company to M/s New Bharat Refractories, whose electrical connection was already disconnected by the Board due to nonpayment of the dues and several articles including electric wires have been recovered and seized at the spot. There appears that all the employees of M/s New Bharat Refractories already fled away seeing the raid conducted at the relevant time. 7. There appears that all the employees of M/s New Bharat Refractories already fled away seeing the raid conducted at the relevant time. 7. In the case of State of T.N. Tirkukkuural Perumal -- , the apex Court held as under: The power of quashing an FIR and criminal proceeding should be exercised sparingly by the Courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the FIR and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments reference in this connection may be made with advantage to State of Haryana. V/s. Bhajan Lal but the same has to be done with circumspections. The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court is not justified in embarking upon an inquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Sec. 482, Cr. P.C. seeking the quashing of FIR and criminal proceedings. In the case of State of H.P. V/s. Pirthi Chand and Anr. -- , a similar question arose before the apex Court in which it was held as follow: It is this settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitutes the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted and the charge-sheet is read, the prosecution produces the statements of the witnesses recorded under Sec. 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecute case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non compliance. It would be done after the trial is concluded. At that stage it is not the function of the Court to weigh the pros and cons of the prosecute case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of the mala fide initiation of the proceedings to wreck private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence the Court may embark upon the consideration thereof and exercise the power. It was again held in the case of Trisuns Chemical Industry V/s. Rajesh Agarwal and Ors. -- as under: Criminal proceedings cannot be thwarted merely because civil proceedings are also maintainable, existence of an arbitration Clause in the contract for supply of goods not a sufficient ground for quashing the complaint. Again, it has been held by the apex Court in the case of Rajesh Bajaj V/s. State Act of Delhi and Ors. -- as under: It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the Complaint/FIR, the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. 8. The law is well settled that extraordinary power under Article 226 of the Constitution of India or the inherent power for quashing of criminal proceeding should be exercised sparingly and with circumspection. 9. 8. The law is well settled that extraordinary power under Article 226 of the Constitution of India or the inherent power for quashing of criminal proceeding should be exercised sparingly and with circumspection. 9. From the decisions referred above what emerges is that in rarest of rare cases, the extraordinary jurisdiction and the power under Article 226 of the Constitution should be invoked and exercised. 10. The facts of the case of State of Haryana V/s. Brij Lal Wittal and Ors. -- is quite distinguishable to the instant case as in case of Brij Lal Mittal (supra) the respondents were directors and it was observed as under: Simply because a person is Director of the Company, he does not vicariously become liable for offence committed by the Company. It must be that he was Incharge of the Company and also responsible to the Company for the conduct of its business. But in the case at hand, the petitioner is the Managing Director of the Company who was Incharge of the Company (M/s Rishi Cement Company). 11. In the instant case, it is obvious that there is a specific and definite allegation about committing theft of electric energy by extending wire from M/s Rishi Cement Company to M/s New Bharat Refractories and some articles such as wire, cable, etc. have also been recovered and seized at the spot. Apart from this, there is also specific allegation for committing of theft of electricity by showing the less unit in the consumption of the factory in question for a long period. The investigation in the instant case is also going on. The allegation made out in the First Information Report prima facie constitute the offence as alleged. There is no material to show about any animosity or malicious motive on the part of the respondents. 12. From the allegations made in the F.I.R., in my view, a prima facie case is made out. Thus, this Court should be very loath to quash the entire proceeding. This Court is also not justified in weighing the probabilities, reliabilities or genuineness of the allegations made in the F.I.R. at this stage, when the investigation is going on. 13. Having considered the whole facts and circumstances of the case coupled with the discussions made above, I do not find any merit in this application, which is accordingly dismissed. This Court is also not justified in weighing the probabilities, reliabilities or genuineness of the allegations made in the F.I.R. at this stage, when the investigation is going on. 13. Having considered the whole facts and circumstances of the case coupled with the discussions made above, I do not find any merit in this application, which is accordingly dismissed. However, the petitioner may raise all the points at the time of framing of charge or at any appropriate stage of the case, if he so likes.