Delhi High Court
Ms. Kamna Prasad vs State (Nct Of Delhi) on 9 November, 1998
Equivalent citations: 77(1999)DLT456
Author: J.B. Goel
Bench: J.B. Goel
JUDGMENT J.B. Goel, J.
1. By this petition under Section 482 of the Code of Criminal Procedure (for short "the Code"), the petitioner challenges the legality, validity and propriety of the order dated 3.3.1997 passed by the learned Magistrate (MM) summoning the petitioner as an accused and of order dated 2.9.1997 passed by the learned Addl. Sessions Judge (ASJ) dismissing her revision petition against the said order of the learned MM.
2. Briefly, the facts are that a surprise inspection was conducted by a joint team of DESU and the local police about theft of electricity in the area of Police Station Gautam Nagar, Delhi on 22.3.1995 and it was found that electricity was used by Ms. Kamna Prasad (Radio Network (P) Ltd.) at 216A/l,GautamNagar, Delhi for office purposes to the extent of 4.95 KW. by taking electricity direct from DESU mains. After this inspection, a report was lodged by A.E. concerned at Police Station defense Colony where a case under Section 39/44 of the Indian Electricity Act and Section 379, IPC was registered. During inspection, wiring etc. used was seized. A lease deed dated 16.5.1994 entered into between one Smt. Usha Aggarwal as landlady in favour of M/s. Meka Communication (P) Ltd. through Mrs. Kamna Prasad as Managing Director thereby letting the aforesaid premises by the former to the latter was also seized. Statement of Smt. Kamna Prasad under Section 161 of the Code was also recorded who had sta ted that one Bacchu Prasad was Supervisor of the Company in the premises. After completion of investigation, challan under Section 173 of the Code was filed against Bacchu Prasad as Supervisor in the premises, apparently on the basis of statement of Smt. Kamna Prasad.
3. The learned MM took cognizance; summoned the accused Bacchu Prasad. It was contended on behalf of the said accused that he was working as a peon and was not aware if electricity was so used and it was the present petitioner Incharge of the said office. After hearing the parties, the learned MM came to the conclusion that there was no material against that accused and he was discharged. And, at the same time, it was held that there was sufficient material against Smt. Kamna Prasad being Director of M/s. Meka Communications (P) Ltd. She was accordingly summoned as an accused.
4. Smt. Kamna Prasad filed a criminal revision before the Court of Sessions but it was dismissed vide order dated 2.9.1997 by an ASJ. Petitioner has filed the present petition for quashing of the said orders under Section 482. State has not challenged the legality of the order of discharge. The question of legality or propriety of that order has not been convassed before me.
5. Learned Counsel for the petitioner has contended that there was material against Bacchu Prasad in the report submitted under Section 73 as appeared from the statement of the petitioner made under Section 161 of the Code which proves that he was the Supervisor and Incharge of the affairs of the company at the premises and in the circumstances he has been wrongly discharged. It is further contended that there is no material to proceed against the present petitioner, there is no material to show that the petitioner was incharge and was responsible to the company for the conduct of its business or that the offence had been committed with the consent or connivance of or was attributable to any neglect on the part of the petitioner and as such she should not be prosecuted. Reliance has been placed on Vikas Pahwa v. State, D.K. Rajdan v. The State, 1987 C.C. Cases 173 (Delhi).
6. Whereas learned Counsel for the respondent has contended that in the inspection report and the FIR, it is clearly mentioned that Mrs. Kamna Prasad was responsible for the theft of the electricity; the premises were taken on rent vide lease deed dated 16.5.1994 which was executed by the petitioner as Managing Director of M/s. Meka Communications (P) Ltd. and that in Clause 7 of this lease deed, it was agreed that the tenant will pay the charges for actual consumption of electricity which means tha t the unauthorised electricity connection had been obtained by the petitioner.
7. I have considered these contentions.
8. The question is whether there is material to proceed against the petitioner or not.
9. There is material on record to prove that electricity was being illegally consumed in the premises by taking supply direct from the mains. The other is a copy of the lease deed dated 16.5.1994 whereby the premises were taken on rent by M/s. Meka Communications (P) Ltd. through the present petitioner as its Managing Director. But no other witness has been examined or cited to prove its execution. Section 49-A of the Indian Electricity Act reads as under :
49-A. Offence 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:
Provided that nothing contained in this subsection shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in Subsection (1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director or manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
10. The petitioner will be liable to be proceeded, if the electricity connection was taken by her, or will be deemed to be guilty in case she was In charge of and was responsible to the company for the conduct of its business or the offence has been committed with her consent or connivance or is attributable to any neglect on her part in case the offence was committed by the company. (See Sham Sunder and Ors. v. State of Haryana, Municipal Corporation of Delhi v. Ram Kishan Rastogi and Ors., ). There is neither any averment made to that effect in the police report nor there is material to prove such facts.
11. In Krishan and Anr. v. Krishnaveni and Anr., 1997 1 SVLR (SC) (CR) 185=1 (1997) CCR 146 (SC), it has been held that the High Court has inherent powers under Section 482 of the Code to interfere even if revision petition under Section 397 or 401 of the Code may be barred as it is the paramount power of continuous superintendence of the High Court under Section 482 to interfere and set aside such order which would lead to miscarriage of justice. It is also well established that summoning order can be set aside if there is no material on the record to proceed against an accused person.
12. The impugned order is thus not sustainable and is liable to be set aside.
13. This petition is accordingly allowed and the impugned order dated 3.3.1997 of the MM and order dated 2.9.1997 of the learned ASJ are set aside.
14. However, it is apparent from the material on record that electricity was being consumed in the premises in question illegally and by stealing by taking direct connection from the mains. Public interest is involved. Public interest and revenues should not suffer due to inadvertence or omission or negligence on the part of the Investigating Agency. The prosecution to that extent cannot be said to be illegal or vexatious. For that it will be for the learned MM to take such further action or steps in the matter as he may deem fit and proper and in accordance with law.
15. Case is accordingly remitted to the learned MM concerned. Records of Trial Court be returned forthwith.