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2011 DIGILAW 497 (JHR)

Ram Pravesh Agarwal v. The State of Jharkhand

2011-06-14

JAYA ROY

body2011
ORDER Heard the learned counsel for the petitioner, the counsel for the Jharkhand State Electricity Board and the counsel for the State. 2. The petitioner has filed the instant criminal revision for setting aside the order dated 5.2.2010 passed by Shri Rakesh Kumar Mishra, Judicial Magistrte, 1st Class, Hazaribagh in connection with G.R. No.2037 of 2008 (arising out of Mandu (Kuju) P.S. Case No.222 of 2008), whereby and whereunder the said learned court has rejected the petitioner’s application for discharge under Section 239 of the Criminal Procedure Code. 3. The counsel for the petitioner submits that the prosecution story based on a written report of the informant, in brief is that, on inspection of the premises of M/s Rishi Cement Company, Consumer No.K.G. 6383, Bharechnagar (Sandi) Ramgarh, the Seal of Secondary Terminal Cover of the C.T.P.T. Meter Unit was found duplicate. It has been further alleged that the unauthorized used of electricity was being done after removing the insulation of P.V.C. wire and as such, the Jharkhand State Electricity Board had suffered a loss of Rs.41,82,384/- approximately and on the basis of the aforesaid written report, the case has been registered under Section 379 of the Indian Penal Code and also under Section 135 of the Electricity Act, 2003, against the petitioner i.e. Mandu (Kuju) P.S.Case No.222 of 2008. The counsel for the petitioner submits that the petitioner has been implicated in this case at the instance of the opposite party No.2 and the Board authority. It is further contended that the inspection report dated 9.6.2008, which has been prepared by the inspecting team on the date of inspection, has been prepared behind the back of the petitioner, even without the presence of any independent witnesses or any representative of the petitioner, which is very clear from the inspection report as there is no signature either of the petitioner or his representative or any of the independent witnesses. Therefore, the said report is not of evidentiary value in the eye of law. He further submitted that according to Section of 135 of the Electricity Act, which clearly says that the concerned officer who made inspection, must have been authorized by the State Government, but no paper has been filed that the informant has been authorized by the State Government to make inspection under Section 135 of the Electricity Act. He further submitted that according to Section of 135 of the Electricity Act, which clearly says that the concerned officer who made inspection, must have been authorized by the State Government, but no paper has been filed that the informant has been authorized by the State Government to make inspection under Section 135 of the Electricity Act. Therefore, the F.I.R. with its Seizure List is not at all sustainable in the eye of law. 4. The counsel appearing for the petitioner has also submitted that the provision under Chapter -14 of the Electricity Supply Code Regulation, 2005, where the different procedure prescribed, has not been followed by the Opposite Parties. Furthermore, it is submitted that the petitioner has been ceased to be the Director of the Company in question since 10.2.2006. Therefore, according to Section 149 of the Electricity Act, the petitioner cannot be held responsible for the conduct or the business of the company. It is also contended that the company in question had approached this Court in W.P.(C) No. 3048 of 2008, and this Court vide its order dated 3.7.2008, directed the Board to restore the electric connection on the condition that if the company deposits a sum of Rs.10 Lacs, the line will be restored within 48 Hrs and such deposit will be subject to final assessment. 5. It is further submitted by the counsel for the petitioner that it cannot be said that though the petitioner had resigned from the post of Director on 10.2.2006 but he was in some manner or in some other capacity involved in the affairs of the Company. The investigation stage is already over and there is no material on record to prove the same. In this regard the counsel for the petitioner has cited a decision reported in (2009) 10 SCC 48 and (2008) 17 SCC 285, in which the Apex Court has categorically stated that “the persons/officers who were in charge of and also responsible for the conduct of business of the company are vicariously liable for the offences of the Company”. 6. Lastly, the petitioner has submitted that the learned court below ought to have applied the judicial mind while deciding the discharge application of the petitioner as the Apex Court in the case of P. Vijayan Vr. 6. Lastly, the petitioner has submitted that the learned court below ought to have applied the judicial mind while deciding the discharge application of the petitioner as the Apex Court in the case of P. Vijayan Vr. State of Kerala & Anr., reported in (2010) 2 SCC 398 , has held that “ the judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution”. 7. The counsel for the Opposite Party No.2 and 3 has submitted that the electric connection of M/s Rishi Cement Company was given by the Electricity Board on the basis of agreement executed by said Mr. Ram Pravesh Agarwal (the petitioner) “as Director” of M/s Rishi Cement Company. The petitioner has merely stated that he is no more the Director of the Company. The petitioner has not given any information or any intimation to the Electricity Board that he has resigned from the Directorship of the Company. It is contended that the provisions relating to the offence by the Company is also enumerated under Section 149 of the Electricity Act., 2003 which is applicable in the instant case. The relevant extract of Section 149 of the Electricity Act, 2003 reads as follows: “149- Offence by Companies –(1) Where an offence under this Act has been committed by 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 having committed the offence and shall be liable to be proceeded against and punished accordingly. 8. It is further contended that as per Section 149 of the Electricity Act, that not only the Director, Manager or the Secretary or Officer of the Company is liable under the Section, rather every person, who are at the time when the offence was committed was in charge, was responsible to the Company for the conduct or business of the Company as well as the Company, shall be deemed to be guilty to have committed offence and shall be liable to be proceeded against and punished accordingly. Therefore, in the instant case, though the petitioner has stated that he has been ceased to be a Director of the Company, but he has not stated that he had none of the above capacity or position at the time of the occurrence. On the other hand, it has come in the investigation that the petitioner was indeed one of the Directors of the Company in question at the relevant period. 9. Mr. V.P.Singh, learned Sr. Counsel appearing for the Opposite Party submitted that the cases cited by the counsel for the petitioner are all based on complaint filed directly in the court, whereas the present case is based on the police investigation. There is difference in the procedure in police case and in the complaint case. The case lodged with the police is investigated as provided in Chapter -12 of the Criminal Procedure Code and thereafter the report is submitted under Section 173 of the Criminal Procedure Code, and thereafter, Chapter -14 comes into play. Whereas, in the matter of complaint, Chapter -14 directly comes into play, unless the court refers the complaint for investigation under Section 156 (3) of the Criminal Procedure Code. Mr. Singh has further contended that even if the Company having paid the entire liability after its determination under Section 126 of the Electricity Act, 2010, in view of Section 135 (1A) of the Electricity Act, 2003, merely on deposit of the assessed loss by the consumer, he cannot be exonerated. Therefore, the present revision petition has no merit and is fit to be rejected. 10. After considering the arguments made by the parties, and considering the materials on record and after perusing the impugned order, I find that after the investigation, the Investigating Officer has submitted the charge sheet finding the offence to be true having sufficient materials against the petitioner. Furthermore, the trial court, after considering the materials available on record and also considering the provisions of Electricity Act, rejected the petitioner’s application for discharge, therefore, it cannot be said that he has not applied his judicial mind. Hence, in my opinion, there is no reason to interfere with the order impugned. Accordingly, the revision application is hereby dismissed.