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2008 DIGILAW 982 (DEL)

BSES Rajdhani Power Ltd. v. Shiv Lal

2008-10-20

KAILASH GAMBHIR

body2008
KAILASH GAMBHIR, J. By way of this common order Criminal Appeal Nos. 500/2008, 501/2008, 512/2008 and 612/2008 are being disposed of. The aforesaid appeals have been filed by the company M/s. BSES Rajdhani Power Ltd. under Section 341 read with Section 482 of Code of Criminal Procedure assailing the order dated 28/05/2008 in Crl. A No. 500/2008; order dated 28/05/2008 in Crl. A No. 501/2008; order dated 31/05/2008 in Crl. A No. 512/2008 and order dated 14/07/2008 in Crl. A No. 612/2008 passed by the court of Sh. D.C. Anand, Special Electricity Court, Malviya Nagar, New Delhi, whereby the Ld. Trial Court made a complaint under S. 195 Cr.PC read with S.340 CrPC for the offence punishable under S. 193 IPC before the Court of ACMM, Patiala House Courts, New Delhi against the appellants, herein, which order, as per the appellants is wholly unjustified and unwarranted both in law as well as facts applicable to the instant case. Before dealing with the contentions of the parties, it would be worthwhile to give brief conspectus of one of the case as facts of other cases are also identical. The facts of Crl. Appeal No. 500/2008 are as under: A statutory inspection/raid was conducted by the appellant no. 1 company in exercise of its powers under S. 135 (2) of the Electricity Act, 2003 and Reg. 25 of the Delhi electricity Regulatory Commission (Performance standards, Metering and Billing Regulation), 2002 on the premises of the respondent. During the course of inspection/raid at the said premises the members of the raiding team were told that the premises were occupied by the respondent who according to the official records available to the Appellant no. 1 Company was the Registered Consumer of electricity supplied by the said company in the said premises. The duly authorized raiding team of the company made inquiries about the said premises, the owner of the said premises and the user of the said electricity connection and in this regard the people present at the time of raid informed the said raiding team that the premises as well as the electricity connection belonged to the respondent. The raiding team of the company detected theft/unauthorized use of electricity in the said premises, which is an offence under Section 135, Electricity Act, 2003. The raiding team prepared the necessary documents/ videography at the said site. The raiding team of the company detected theft/unauthorized use of electricity in the said premises, which is an offence under Section 135, Electricity Act, 2003. The raiding team prepared the necessary documents/ videography at the said site. Later, on verification of the records maintained at the office of the appellant no.1 company it was found that the said respondent was indeed the registered consumer of electricity connection installed at the aforementioned premises. Accordingly, a supplementary theft bill was raised on the registered consumer for the amount payable. The said theft bill was duly served on the said premises but despite the receipt of the said theft bill, no intimation or reply informing the demise of the respondent was given to the appellant no. 1 company. The appellant no. 1 company did not receive any payment against the said theft bill and thus it was constrained to file Criminal Complaint before the Special Electricity Court, under the bonafide belief that the said respondent was alive and was willfully neglecting to pay the amount of theft bill to the appellant no. 1 company. Mr. Ashok Bhasin, Senior Advocate with Sunil Fernandes, counsel for the petitioners raised the contention that the trial court committed a grave error in issuing a show cause notice under S. 340 Cr.P.C. against the dictum of Supreme Court reported in Chajoo Ram vs. Radhey Shyam- AIR 1971 SC 1367 and Iqbal Singh Marwah vs. Meenakshi Marwah- (2005) 4 SCC 370 . The counsel also contended that the trial court failed to appreciate that it is a well settled law that before resorting to the provisions of S. 340 CrPC the court must be satisfied that it appears that an offence under Section 195 (1) (b) has been committed and it is expedient in the interest of justice that an enquiry be made, but contrary to this, the learned trial court mechanically and without application of mind initiated proceedings under S. 340 CrPC. The counsel submitted that the tribunal erred in initiating suo motu proceedings under S. 340 Cr.P.C against the respondents herein without there being a prima facie case of deliberate falsehood in the facts and circumstances of the case. The counsel submitted that the tribunal erred in initiating suo motu proceedings under S. 340 Cr.P.C against the respondents herein without there being a prima facie case of deliberate falsehood in the facts and circumstances of the case. The counsel urged that the tribunal failed to appreciate that S. 340 does not give inherent powers to the Court and only in a glaring case of deliberate falsehood or abuse of administration of justice, the proceedings under S. 340 CrPC can be initiated by the Court suo motu. The counsel also averred that the tribunal erred in not appreciating that it is the responsibility of the survivors/ legal heirs of the deceased to bring the fact of demise of the registered consumer to the knowledge of the appellant no.1 company and change in the name of the registered consumer in the record of the company and since no application under Reg. 7 of Delhi Regulatory Commission (Performance standards, Metering and Billing Regulation), 2002 was made by the respondent and even on the date of filing of the complaint the appellant no. 1 company had no knowledge of demise of the respondent, thus, as per the records of the complainant a prima facie case was made out against the respondent and under this bonafide belief the complaint cases were registered against the respective respondents. The counsel submitted that the tribunal erred in not comprehending that it was due to some unscrupulous people who were present at the time of inspection, the appellant no. 1 company was misled and also it failed to appreciate that at the time of filing affidavits they did not have the knowledge of death of the registered consumer and also, no conceivable gain would accrue to the appellants by filing false affidavits against a dead man, therefore, proceedings under Ss.191 and 192 IPC against the appellants are not attracted, thus the trial court erred in making complaint of perjury against the appellants. The counsel relied on following judgments in support of his contentions: 1. Chajoo Ram vs. Radhey Shyam- AIR 1971 SC 1367 ; 2. Iqbal Singh Marwah vs. Meenakshi Marwah- (2005) 4 SCC 370 . Per contra, Mr. P.K. Sharma, counsel for respondent no. 2 refuted the aforesaid contentions of the counsel for the petitioners and asserted that the complaint cases filed by the respondent no. Chajoo Ram vs. Radhey Shyam- AIR 1971 SC 1367 ; 2. Iqbal Singh Marwah vs. Meenakshi Marwah- (2005) 4 SCC 370 . Per contra, Mr. P.K. Sharma, counsel for respondent no. 2 refuted the aforesaid contentions of the counsel for the petitioners and asserted that the complaint cases filed by the respondent no. 2 are within time and the present petitions filed by the appellants are gross abuse of the process of the court and same should be dismissed. I have heard learned counsel for the parties at considerable length and perused the record. At this stage it would be worthwhile to reproduce Section 340 CrPC and Sections 191 and 192 IPC, which are as under: “ “340. Procedure in cases mentioned in section 195. (1) When upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) Record a finding to that effect; (b) Make a complaint thereof in writing; (c) Send it to a Magistrate of the first class having jurisdiction; (d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and (e) Bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed, - (a) Where the court making the complaint is a High Court, by such officer of the court as the court may appoint; (b) In any other case, by the presiding officer of the court. (4) In this section, ``court` has the same meaning as in section 195. Section 191. Giving false evidence Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Explanation 1-A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2-A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know. Section 192. Fabricating false evidence Whoever causes any circumstance to exist or 1[makes any false entry in any book or record or Electronic Record, or makes any document or Electronic Record containing a false statement], intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said ``to fabricate false evidence`.” It is evident from bare reading of S.191 IPC that to bring home the offence under the said provision: (1) A person must be legally bound (a) either by an oath or by an express provision of law to state the truth, or (b) by law to make a declaration upon any subject (2) such person makes any statement which is false, and (3) He must either know or believe it to be false or must not believe it to be true. Clearly, intention to make a false statement is an essential ingredient, herein. The section clearly postulates that the matter sworn must be either false in fact, or, if true, then the accused must not have known it to be so. Same is the case with S. 192,IPC as is evident from the observation of the Apex Court in Dr. S. Dutt vs. State of U.P. - AIR 1966 SC 523 as reproduced below: “12. The offence of intentionally giving false evidence described in s. 191 or of fabricating false evidence described in s. 192 is punishable under s. 193 with imprisonment which may extend to seven years and fine, if the evidence is given or fabricated to be sued in any stage of judicial proceeding, Section 196 next provides: ``196. Whoever corruptly or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated shall be punished in the same manner as if he gave or fabricated false evidence.” All lies and falsehoods are not taken cognizance of as is evident from the following observations of the Hon”ble Apex Court in K. Karunakaran Vs.T.V. Eachara Warrier and Anr. - (1978)1 SCC 18 : “15. Lie tends to become almost a style of life. Lies are resorted to by the high and the low being faced with inconvenient situations which require a Mahatma Gandhi to own up Himalayan blunders and unfold unpleasant truths truthfully. But when principles are sacrificed at the altar of individuals, selfishness of man, desire to continue in position and power, lining up with the high and mighty, lead to lies, euphemistically prevarication. But all lies made, here and there, ignored by the people or exposed on their own to nudity, are not subject matters for the Court to take action. When the Court takes action it is a species of falsehood clearly defined under Section 191 IPC and punishable under Section 193 IPC.” Nobody can be allowed to file a false affidavit as filing of false affidavit that too by the government or instrumentality of the State has to be viewed seriously and in the given facts of a case such falsehood can lead to an act of perjury. However, the intendment behind filing such a false affidavit can also not be ignored or overlooked. However, the intendment behind filing such a false affidavit can also not be ignored or overlooked. If filing of such affidavit is due to some carelessness or an act of an error or bonafide mistake, then the same cannot be treated at the same footing to a case where a false affidavit is filed to mislead the Court or to take some undue or illegal advantage over the other party or has the propensity to cause serious interference in the administration of justice. A man cannot be convicted of perjury for having acted rashly or negligently or for having failed to make a reasonable inquiry with regard to the facts alleged by him to be true. It is necessary to prove that he made some statement which he knew to be false or which he did not believe to be true in order to bring home the offence of perjury. In the case at hand, the appellants had no intention to file false affidavits or to bring on record anything which was false. At the time of filing affidavits they did not have the knowledge of death of the registered consumer as it was on the basis of inspection that the entry was made in the record and affidavits were filed based on such record. Also, I do not see that any conceivable gain or advantage would be derived by the appellants by filing false affidavits against a dead man. In any case to prevent such malady to happen again, vide order dated 18/8/2008 this court directed the appellant to issue guidelines so that criminal prosecution against a dead man is not initiated. Pursuant to the said direction, the guidelines in this regard have been framed vide office order dated 30/08/2008 bearing ref. No. BSES/RPL/HOD/001 and is placed on record by the appellant. In the aforesaid guidelines the HOD (Enforcement) of the Corporate Legal and Enforcement Cell has given directions to the raiding team to take all possible steps expected of a prudent man to verify the identity of the accused persons while booking cases under S. 135 of the Electricity Act, 2003 and also to avoid instances where people with dishonest intention mislead the raiding party. It also directed raiding team to videograph the persons who disclose name of the accused in cases where there is no electricity meter at the site. It also directed raiding team to videograph the persons who disclose name of the accused in cases where there is no electricity meter at the site. Also, where the name of the accused is obtained from signboard of a house, shop etc. then the same should also be videographed. As regards videography the guidelines specifically mention that it should have accurate date, time and place settings. Further, as regards I.R., it should specifically state the details of place /person from where information about accused is obtained in place of the name of the accused “as stated”. The said guidelines also mention that in case of sole proprietorship, partnership firms and companies endeavour should be made to find out the names of the sole proprietors, partners and directors, respectively. Furthermore, guidelines mention of taking police assistance whenever required by the raiding party in case any person threatens or prevents them from raiding. Also, guidelines direct raiding team to accurately note down the address and nearby landmarks for better identification of the address of the accused. It is no more res integra that there are two conditions on fulfillment of which a complaint under S.340 CrPC can be filed against a person who has given a false affidavit or evidence in a proceeding before a court. The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence committed by him. It is a settled legal proposition that prosecution for false affidavit should be sanctioned by courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is a settled legal proposition that prosecution for false affidavit should be sanctioned by courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. Further, it is no doubt true that the sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy but it is equally well settled, as discussed above, that until and unless ingredients of Sections 191/192/193, IPC are satisfied no offence is committed and thus court cannot file a complaint invoking provision of S.340, IPC, meaning thereby that there must be a prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge to proceed under S. 340 CrPC. In this regard the Hon”ble Apex Court in Shabir Hussain Bholu v. State of Maharashtra,1963 Supp (1) SCR 501, while discussing S. 476 of CrPC, 1898, which is S. 340 in CrPC, 1973, observed as under: “Under Section 476 the action may proceed suo motu or on application while under Section 479-A no application seems to be contemplated. But there is nothing in this provision which makes a distinction between flagrant offences and offences which are not flagrant or between serious offences and offences which are not serious. For exercising the powers conferred by this section the court has in the first instance, to form an opinion that the person against whom complaint is to be lodged has committed one of the two categories of offences referred to therein. The second condition is that the court has come to the conclusion that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it is expedient that a witness should be prosecuted for an offence which appears to have been committed by him. Having laid down these conditions, Section 479-A prescribes the procedure to be followed by the court. If the court does not form an opinion that the witness has given intentionally false evidence or intentionally fabricated false evidence no question of making a complaint can properly arise. Having laid down these conditions, Section 479-A prescribes the procedure to be followed by the court. If the court does not form an opinion that the witness has given intentionally false evidence or intentionally fabricated false evidence no question of making a complaint can properly arise. Similarly where the court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interests of justice to make a complaint, it has a discretion not to make a complaint.” On the basis of the foregoing discussion, it is manifest that intention is the essential ingredient in the constitution of the offences U/Ss. 191/192/193 and since no intention can be imputed upon the appellant as well as its officers, the appeals are allowed and the impugned order dated 28/5/2008 passed by the learned trial court in complaint case no. 159/2007 in Crl. A No. 500/2008; dated 28/5/2008 passed by the learned trial court in complaint case no. 867/2007 in Crl. A No. 501/2008; dated 31/5/2008 passed by the learned trial court in complaint case no. 601/2007 in Crl. A No. 512/2008 and dated 14/7/2008 passed by the learned trial court in complaint case no. 911/2007 in Crl. A No. 612/2008 are set aside. With the above directions, the appeals are allowed. It is made clear that the appellant shall scrupulously follow the above guidelines formulated by them pursuant to the directions of this court.