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Madhya Pradesh High Court · body

2008 DIGILAW 182 (MP)

Subhash Chandra Jain v. State of M. P.

2008-02-04

B.M.GUPTA

body2008
Judgment ( 1. ) THE instant petition is for setting aside the order dated 9th of December, 2004 passed by Additional Sessions judge, Gohad, District Bhind in criminal revision No. 177/02 whereby the learned judge has affirmed two orders dated 1. 1. 1999 and 19th September, 2002, passed by Additional Chief Judicial Magistrate gohad, District Bhind in criminal case no. 385/1997 by which learned Magistrate has taken cognizance against petitioner with the aid of Section 319 of Cr. P. C. for the offence under Section 379 of IPC read with Section 39 and 44 of Indian Electricity act, 1910 (hereinafter referred to as the act ). ( 2. ) 2 (A ). The facts in brief are, that on 24th september, 1996, a team headed by one R. S. Kushwah, Executive- Engineer assisted by executive Engineer Ram Singh and Assis-tant Engineer Vinod Bhadoria and four other officers of the Electricity Board (Board in brief) inspected the premises of M/s Jain ferro Alloys Pvt. Ltd. (Company in brief)and detected theft of electricity. Panchnama was prepared. On the same day, a written report was lodged by Shri R. S. Kushwah, at Police Station, Malanpur, District Bhind against the petitioner mentioning therein that, he being the Managing Director of the company was committing theft. On this report, FIR Crime No. 165/96 was registered against him for the offence punishable under Section 379 IPC along with Section 39 and 44 of Indian Electricity Act. During investigation, vide letter dated 28th September, 1996 enclosing resolution dated 15th february, 1996 of the Company, petitioner informed the in-charge Police Station malanpur, that he has already resigned from the post of Managing Director and in place of him, one Gya Prasad Rathore has been appointed as Managing Director. It was further mentioned in the letter that this fact has also been communicated to the board vide letter dated 16th February, 1996. Upon receiving this letter, one letter dated 18th February, 1997 was written by the police to Registrar of Companies for seeking information. In reply thereof, vide letter No. 3671-1/1866 dated 25th February, 1997, one Dayaram Chatuvedi, Assistant registrar of Companies, National Capital region, Delhi and Haryana informed that as per the record of the Registrar of Companies, petitioner is not a Director of the company since 15th February, 1996 and since 18th January, 1996. Shri Gya Prasad rathore is working as Director of the Company. Shri Gya Prasad rathore is working as Director of the Company. Upon this letter, the name of the petitioner was dropped from the report and charge-sheet was filed against Gya Prasad rathore. Admittedly, now he has been tried and convicted for this offence vide judgment dated 7th December, 2005 passed by j. M. F. C. Gohad, District Bhind in Criminal case No. 385/97 imposing 3 years rigorous imprisonment and fine Rs. 5,000. 2 (B ). In aforementioned case, witnesses vinod Bhadoria (PW1), Ram Singh (PW2), umesh Dutt (PW3) and Ranveer Singh kushwah (PW 4) were examined. After their examination on 20th December, 1998, one application was moved before the trial Court by the prosecution under Section 319 of cr. P. C. for taking cognizance against the petitioner. Vide order dated 1st January, 1999, the learned Judge allowed the application and took cognizance against the petitioner for the aforementioned offences and directed issuance of warrant of arrest against him. Thereafter, petitioner gave appearance in the Court and filed an application dated 27th August, 2002 for reviewing the aforementioned order, but vide order dated 19th September, 2002 passed by additional Chief Judicial Magistrate, Bhind, in this Criminal Case No. 385/97, rejected this application vide order dated 19th September, 2002. Again feeling aggrieved, the petitioner filed Criminal Revision No. 177/ 02. Vide order dated 9th December, 2004, passed by Additional Sessions Judge, gohad, District Bhind, this revision has also been dismissed. Hence, this petition has been filed by the petitioner. On perusal of the aforementioned orders taking cognizance and affirming thereof, it appears that on the basis of the allegation in the FIR and the statements of the aforementioned witnesses, the cognizance has been taken against the petitioner. ( 3. ) MUCH stress has been placed by Shri kalla, the learned Senior Advocate appearing for the petitioner on aforementioned letter dated 25th February, 1997 received from assistant Registrar of Companies and has submitted that this document. s a part of the charge-sheet. Vide paragraph 19 of aforementioned judgment dated 7-th Decem-ber, 2005, the learned Judge has observed that it is a public document. Hence, the same has been taken on record as Ex. Plo and acted upon by the learned Judge. In his written submission, Shri Kalla has also submitted that under Section 610 (3) of the Companies Act, 1956, this document is a public document and admissible in evidence. Hence, the same has been taken on record as Ex. Plo and acted upon by the learned Judge. In his written submission, Shri Kalla has also submitted that under Section 610 (3) of the Companies Act, 1956, this document is a public document and admissible in evidence. On these three counts, his contention is, that being a document of the prosecution and a public document, at this stage, it can safely be acted upon. Nothing has been countered on behalf of the State during the arguments with regard to these contentions of Shri kalla. In my opinion, as admittedly it is a document filed by the prosecution along with the charge-sheet after acting upon the same and dropping the name of the petitioner while filing of the charge-sheet, it can very well be considered as an undisputed document on the record. This document shows that since 15th February, 1996, the petitioner is not a Director of the Company i. e. much before the incident which has happened on 24th September, 1996. On perusal of the FIR, it appears that only on a presumption of his being a Managing Director and perhaps as he had signed the agreement with the Board on behalf of the company in the year 1991, his name has been mentioned in the FIR. As submitted by Shri Kalla, this fact gets support from the statement dated 21st March, 1996 of the complainant R. S. Kushwah, Executive Engineer, recorded during investigation as a supplementary evidence. Statement, in which he has stated thus: (Matter in other language)With regard to this statement of this complainant and responsible officer of the Board, nothing has been countered on behalf of the State during the argument. This statement is also a document of the prosecution and forming a part of the charge-sheet. The cumula-tive effect of the aforementioned letter dated 25th February, 1997 received from the Registrar of Companies and the statement of this witness, the allegation in the FIR against the petitioner ought not to have been used against him as a basis of the impugned order. ( 4. ) WITH regard to the statements of aforementioned four witnesses recorded during trial, it appears that out of them, Umesh dutt does not speak anything against the petitioner. ( 4. ) WITH regard to the statements of aforementioned four witnesses recorded during trial, it appears that out of them, Umesh dutt does not speak anything against the petitioner. Witness Vinod Bhadoria (PW10)in paragraph 2 of his statement, after narrating the incident, has stated that the theft was being committed by the owner of the jain Fero Alloys Pvt. Ltd Subhash Jain. Witness Ram Singh (PW2) in paragraph 1, has stated that Managing Director of Jain fero Alloys Pvt. Ltd. Subhash Jain has thus committed A theft of electricity of rupees ten crores and panchnama of which was prepared by R. S. Kushwah. Witness Ramveer kushwah (R. S. Kushwah), who is the complainant and was the leader of the team has stated in his paragraph 1, that at Police Station, he lodged the report against the owner of Jain Fero Alloys Shri Subhash Jain. In his statement, he has admitted that subhash Jain is living at Delhi. Copy of panchnama (Ex. P1) does not show the presence of the petitioner at the time of incident. Neither his presence has been mentioned in the FIR, nor any of these witnesses have stated about the presence of the petitioner at the place of incident. It appears that only because of the fact, that the petitioner was the Managing Director in the opinion of these witnesses who was committing the theft, his name has been mentioned by them. In view of this, these statements also does not carry weight against the petitioner in the light of the aforementioned letter dated 25th February, 1997. It is only contended by Shri B. D. Mahore, on behalf of the State, that as the name of the petitioner is appearing in the FIR and in the statements, hence the orders passed by the courts below are justified and ought to be sustained. ( 5. ) IT is also submitted by Shri Kalla that during the tenure of the petitioner in the capacity of Managing Director upto 15th february,1996, the establishment of the company was inspected by the authorities of the Board with regard to the same purpose and metering system was found working properly. Upon a representation, vide his letter dated 23rd January, 1998, the chief Executive (Commercial) replied thus in para (III ). Upon a representation, vide his letter dated 23rd January, 1998, the chief Executive (Commercial) replied thus in para (III ). It has been found that the meter and metering equipments were checked thoroughly on 20th March, 1996 and 13th January, 1995 when the metering system was found working properly. This letter of the Chief Engineer is indicating that during his tenure and even just after of his resignation of 20th March, 1996, the metering system of the company was working properly. The text of this letter also shows that petitioner was not involved in any theft of electricity in the company. Although, this letter does not form part of the charge-sheet papers, but the same has not been countered on behalf of the State during arguments. ( 6. ) IT is further argued by Shri Kalla, that the provisions of Section 141 of the Negotiable Instruments Act, 1881 and the provisions of Section 49a of the Act are peri ma-teria. Hence the observation of the Apex court in the case of S. M. S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another is equally applicable to the present case. The provisions of Section 49a goes as under: "49a. 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 and punished accordingly. . . . . . . . . . . " It is submitted by Shri Kalla that as provided by this provision, it is not mentioned in the report that the petitioner was in-charge of and was responsible to the company for the conduct of its business at the relevant time, hence he cannot be prosecuted. It is true that no such specific averments appear in the fir. But as observed by the Apex court in para 20 (c) of aforementioned case, a Managing director of a company would be admittedly in-charge and responsible to the company for conduct of its business. As he holds such position in a company he becomes liable for prosecution, even without such specific averments. But as observed by the Apex court in para 20 (c) of aforementioned case, a Managing director of a company would be admittedly in-charge and responsible to the company for conduct of its business. As he holds such position in a company he becomes liable for prosecution, even without such specific averments. About the petitioner it has been mentioned that he was managing Director of the company just before few days of the incident. In view of this, considering his position in the company as managing Director, the contention of Shri Kalla cannot be sustained so far as this point is concerned. ( 7. ) IT is settled and as observed by the apex Court in various pronouncements, earlier in the case of Michael Machado and another v. Central Bureau of Investigation and another and presently in Mohd. Shafi v. Mohd. Rafiq and another that unless the court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, the Court should refrain from taking cognizance against new person. In view of all, as discussed herein above, no such prospect of the case as against the petitioner appears that he would be convicted in this case. On this ground, the orders of the Courts below affirming the orders of cognizance appear erroneous and are abuse of the process of the Court against the petitioner. In view of this, the contention of Shri mahore, for the State cannot be sustained that as the name of the petitioner is appearing in the FIR and in the statements, the orders passed by the Courts below are to be affirmed. ( 8. ) CONSEQUENTLY the petition is allowed. The impugned order dated 9th December, 2004 is set aside. The petitioner is discharged from the offence punishable under section 379 IPC and 39/44 of Indian Electricity Act. Petition allowed.