Madras High Court
D.Thillairaj vs The State on 8 June, 2010
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/06/2010 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH CRL.O.P.(MD)NO.3321 OF 2010 CRL.O.P.(MD)NO.8554 OF 2009 AND CRL.O.P.(MD)NO.2591 OF 2010 CRL.O.P.(MD)NO.3321 OF 2010 1.D.Thillairaj 2.D.Thangaraj .. Petitioners Versus The State, rep.by The Sub Inspector of Police Thirumangalam Town Police Station Madurai. .. Respondent PRAYER Petition filed Under Section 438 Cr.P.C. to grant bail to the petitioners herein in the event of their arrest in Crime No.10 of 2010 on the file of Sub Inspector of Police, Thirumangalam Town Police Station, Madurai, pending investigation. CRL.O.P.(MD)NO.8554 OF 2009 1.D.Thillairaj 2.D.Madhavi 3.K.Sabitha .. Petitioners Versus S.Pandian Umapathy Assistant Executive Engineer/Distribution Tamil Nadu Electricity Board Thirupalai, Madurai. .. Respondent PRAYER Petition filed Under Section 482 Cr.P.C. to call for the records relating to complaint in C.C.No.1 of 2009 on the file of the Principal District Sessions Judge, Madurai and quash the same. CRL.O.P.(MD)NO.2591 OF 2010 1.D.Thillairaj 2.D.Thangaraj .. Petitioners Versus State rep.by its Inspector of Police Town Thirumangalam Police Station Thirumangalam, Madurai. .. Respondent PRAYER Petition filed Under Section 482 Cr.P.C. to call for the records relating to Crime No.10 of 2010 dated 04.01.2010 on the file of the Inspector of Police Town, Thirumangalam Police Station, Thirumangalam, Madurai and quash the same. !For Petitioners ... Mr.A.R.L.Sundaresan Senior Counsel for M/s.AL.Ganthimathi ^For Respondents ... Mr.M.Patturajan Special Public Prosecutor for TNEB * * * * * :COMMON ORDER
In view of the fact that some of the petitioners are the common in all the three cases and the facts involved in all the cases are more or less identical coupled with the further fact that common arguments have been made by both sides, all the cases have been taken up together and a common order is passed.
2.The respondent in Crl.O.P.No.8554 of 2009 is the complainant in C.C.No.1 of 2009 on the file of the Principal District Sessions Court, Madurai for the alleged offence under Sections 135(1)(b) and 135(1)(c) of the Electricity Act, 2003 read with Sections 379, 484, 487 and 488 IPC. The allegation in the said complaint which is in the nature of a private complaint is to be effect that the petitioners have committed an offence by alleging the theft of electricity by tampering with the meter to the tune of Rs.5,59,28,416/- . Challenging the above said complaint, the petitioners have filed the above Crl.O.P.No.8554 of 2009.
3.The respondent in Crl.O.P.No.2591 of 2010 has registered a complaint in Crime No.10 of 2010 for the alleged offence under Sections 135(1)(a), 135(1)(b), 135(1)(c) and 135(1)(d) and 138 of the Electricity Act, 2003, stating that the petitioners therein have committed the alleged offence by tampering with the meter causing a loss to the tune of Rs.7,55,37,423/-. Challenging the above said registration of the case by the respondent police Crl.O.P.No.2591 of 2010 has been filed. The petitioners in Crl.O.P.No.2591 of 2010 are brothers and the 2nd respondent in Crl.O.P.No.8554 of 2009 is the sister-in-law of the 1st petitioner and the 3rd petitioner therein is the Managing Director of M/s.Vaibhav Corporation.
4.Crl.O.P.No.3321 of 2010 has been filed seeking anticipatory bail in Crime No.10 of 2010 which is the subject matter of Crl.O.P.No.2591 of 2010. It is an admitted fact that the earlier anticipatory bail filed by the petitioners has been dismissed in Crl.O.P.Nos.264 and 266 of 2010 by the Hon'ble High Court on 10.02.2010. Hence by way of a second petition the petitioners have filed the second anticipatory bail application.
5.The brief facts of the case are as follows:
5.1.It is not in dispute that the number of cases have been filed against the petitioners covering different periods. The following details of the cases filed against the petitioners and others are given herein:
Sl.No. Name of the Concern FIR Quantum/Value Accused in FIR Details of Power theft 1 Sri Radhakrishna Multiple FIR No. 81,889 Units of D.Thillairaj Industries P. Ltd., 298/2005 value Rs.6lakhs (Director) Door No.30A, SIDCO dated Seenivasan Industrial 02.03.2005 (Supervisor) Estate, Kappalur, Tirumangalam Taluk, Madurai District.
Service No.B-164 2 Sri Radhakrishna Multiple FIR No. 12,82,594 Units D.Thillairaj Industries P. Ltd., 516/2006 of value (Director) Shed Nos.179 & 186, SIDCO dated Rs.107.09 lakhs I.Ranjithkumar Industrial Estate, 17.07.2006 (Lessee) Kappalur, Tirumangalam Taluk, Madurai District.
HT SC No.182
3 Sri Radhakrishna Multiple FIR No. 9,97,486 Units D.Thillairaj
Industries P. Ltd., 49/2007 of value D.Thangaraj Kangaraj
Shed Nos.179 & 186, SIDCO dated Rs.86.26lakhs (Directors)
Industrial Estate, 10.02.2007
Kappalur, Tirumangalam
Taluk, Madurai District.
4 Kumaran Chemicals Pvt.Ltd. FIR No. Around 20 lakh Management of Kumaran
North Vanjure, T.R.Pattinam, 132/2006, units of value Chemical (P) Ltd.
Karaikal, Union dated Rs.110lakhs HT SC No.182
Territory of Pondicherry 08.08.2006
5 Kumaran Chemicals Pvt.Ltd. FIR No. Estimated theft D.Thillairaj (Owner),
North Vanjure, T.R.Pattinam, 11232 of power theft Uma Sankar,
Karaikal, Union dated after filing (Plant Incharge),
Territory of Pondicherry 24.02.2007 FIR is Selvaraj (Clerk)
around
Rs.1crore value
6 Vaibhav Corporation, FIR No. 65,90,720 D.Thillairaj Partner,
No.1, Thatchanenthal Road, 557/2006 Units of T.Mathavi Partner,
Uranganpatti Post, dated value K.Sabitha Kanagaraj
Varichiyur, Madurai 25.07.2006 Rs.559.28 Partner P.Selvam
District.HT SC No.168 lakhs Lessee
7 Vaibhav Corporation, FIR No. 48,20,616 D.Thillairaj Partner,
No.1, Thatchanenthal Road, 309/2008 Units of T.Mathavi Partner,
Uranganpatti dated value K.Sabitha Kanagaraj
Post, Varichiyur, 11.11.2008 Rs.450.87 lakhs Partner
Madurai District.
HT SC No.168
8 Tower Steel Ltd. C-19 to FIR No. Theft of D.Thillairaj Partner
C-21, Kappalur, SIDCO 10/2010 electricity D.Thangaraj Partner,
Industrial Estate, dated of value Thangamani (Lessee).
Thirumangalam. 04.01.2010 Rs.7,55,37,428/-
HT SC No.112
Total value of electricity stolen Rs.2174.87 lakhs
9 Vaibhav Corporation, Theft of Railway Theft of D.Thillairaj Partner
No.1, Thatchanenthal property railway T.Mathavi Partner,
Road, Uranganpatti registered rails K.Sabitha
Post, Varichiyur, in Crime No. Kanagaraj
Madurai District. 24/2008 RPF, Partner
Madurai.
5.2.However the cases filed in Crime No.557 of 2006, 516 of 2006, 132 of 2006, 49 of 2007, 32 of 2007 have been quashed by this Hon'ble Court on 24.10.2007, 14.12.2007, 22.03.2010, 14.12.2007, 22.03.2010 respectively on the ground that in view of the coming into force of the Indian Electricity Act, 2003, the respondent police did not have any authority to register the case and therefore liberty has been given to file a private complaint before the appropriate Court under the Act. The said order has been passed on the ground that at the time of registration of the case the respondent police did not have any authority to register the case on their own except upon a complaint made by the appropriate officer. Therefore the said orders have been passed that in the absence of any complaint in writing by the appropriate authority no case can be registered by the concerned police who registered those cases. However in all those cases liberty has been given to the respondent Electricity Board either to make the complaint to the concerned police for registration of the complaint or a private complaint in accordance with Section 151 of the Electricity Act, 2003.
5.3.The above facts clearly show that there is no doubt on facts that number of cases have been registered against the petitioners. It is also seen from the records that the petitioners are partners of one firm or another. The concerns are situated in different places but the allegations are similar in nature to the effect that there has been continuous theft of electricity running to several crores at various places in the names of various concerns but more or less with the same persons either by themselves or through their agents or family members. The Hon'ble High Court having noted all those factors has rejected the anticipatory bail application on an earlier occasion on 10.02.2010.
6.Submissions of the learned senior counsel appearing for the petitioners:
6.1.Mr.A.R.L.Sundaresan, learned senior counsel appearing for the petitioners in all the three cases submitted that the petitioners are no way involved in the alleged offences. The learned senior counsel strenuously contended that under Section 135 of the Electricity Act, 2003 a complaint can be filed and proceeded against the person who dishonestly tampered with the meter.
Therefore the learned senior counsel submitted that inasmuch as the premises in question along with the service connection having been leased out to the other accused who is not a party to the proceedings, the present complaint against the petitioners are not maintainable.
6.2.The learned senior counsel further submitted that as per the terms and conditions and on a reading of Section 126 of the Act it is the lessee who has to pay the amount. Hence the learned senior counsel submitted that inasmuch as the lessee is being a party the proceedings against the petitioners will have to be quashed. The learned senior counsel further submitted that even a perusal of the complaint would show that the lessees are incharge and in any case in the absence of any specific allegations against the petitioners about their involvement in the alleged occurrence they cannot be made as accused.
6.3.The further arguments of the learned senior counsel is that in so far as in Crl.O.P.8554 of 2009 is concerned the proceedings are liable to be set aside, since the complaint has been filed by an officer who is not a competent to do so. In support of the above said contention, the learned senior counsel has relied upon the notification of the Government of Tamil Nadu dated 27.11.2006 wherein it has been stated that the power under Section 135 (2) of the Electricity Act, 2003 can only be exercised by an officer not below the rank of the Executive Engineer and hence the complaint is one without jurisdiction inasmuch as it has been given by the Assistant Executive Engineer. The learned senior counsel has relied upon the judgments rendered in (2008) 3 MLJ (CRL)1409 [ANBALAZHAGAN vs. STATE BY INSPECTOR OF POLICE] and (2008) 3 MLJ (Crl) 761 [P.YAMUNA v. STATE] in support of his contention that in the absence of any specific allegation the partners cannot be made liable for the offence committed by the firm.
6.4.In so far as Crl.O.P.No.2591 of 2010 is concerned, it is submitted by the learned senior counsel that number of complaints filed against the petitioners have been quashed by the Hon'ble High Court and therefore in the absence of the said complaint anticipatory bail will have to be granted. The learned senior counsel also submitted that as per the Regulation 23 of the Tamil Nadu Electricity Supply Code, 2004 it is the responsibility of the authorised tenant to pay any amount due to the respondent electricity board. Therefore the learned senior counsel further submitted that what is required is an intimation to the respondent Board about the tenancy and hence it is a fit case where anticipatory bail will have to be granted.
7.Per contra, Mr.M.Patturajan, learned Special Public Prosecutor for TNHB appearing for the respondent Board submitted that the petitioners in all the cases are habitual offenders and they are doing it either by themselves or through others. The learned Special Public Prosecutor also submitted that all the concerns of the petitioners are bogus ones with a sole view to commit the offence of the theft of electricity and that is the reason why number of cases have been filed running to several crores. It is further submitted that the earlier complaints have been quashed with liberty to proceed either by way of complaint with the competent police authority or by way of a private complaint. Accordingly, the complaints are being filed before the concerned Court in those other cases apart from the one complaint which is the subject matter of Crl.O.P.No.3321 of 2010.
8.According to the learned Special Public Prosecutor Section 151 of the Electricity Act, 2003 provides for a private complaint and the Assistant Executive Engineer is the competent authority to make the complaint as per the proceedings of the Tamil Nadu Electricity Board dated 25.08.2005 in Board Proceedings (CH) No.362 wherein specific authorisation has been given to the Assistant Executive Engineer of the Tamil Nadu Electricity Board to make the complaint before the police having jurisdiction and also to the jurisdiction of the Special Court. The learned Special Public Prosecutor submitted that the said proceedings have been made in pursuant to the Notification from the Ministry of Power, New Delhi, dated 08.06.2005.
9.The learned Special Public Prosecutor further submitted that there is a presumption about the offence under Section 149 of the Electricity Act, 2003 against the petitioners and the question is whether the petitioners are liable or not will have to be decided only at the time of trial. The learned Special Public Prosecutor further submitted that Section 135 of the Act will have to be read to mean all persons who are responsible for the Electricity and in the absence of any authorisation obtained by the petitioners for the induction of the tenant the petitioners contention cannot be accepted.
10.The learned Special Public Prosecutor also submitted that the entire lease entered into by the petitioners with the alleged lessees are bogus with the sole intention of cheating the electricity board. The learned Special Public Prosecutor further relied upon Section 138 of the Electricity Act and submitted that in a case of interference with the meter it shall be presumed and until the contrary is proved such connection or improper use, as the case may be, has been knowingly and willfully caused by the consumer. According to the learned Special Public Prosecutor Section 2(15) of the Electricity Act, 2003 which defines the consumer who only mean a person who is supplied with the electricity, therefore the contention of the petitioners that the lessee alone to be proceeded with cannot be accepted.
11.The learned Special Public Prosecutor appearing for the respondent submitted that in so far as Crl.O.P.No.3321 of 2010 is concerned there is no change in the circumstances and materials have been placed before this Hon'ble High Court on an earlier occasion and therefore the second anticipatory bail is not maintainable in law and facts and hence liable to the rejected. It is further submitted that some of the earlier proceedings have been quashed only on the technical ground which would not absolve the liability of the petitioners. In support of the said contention the learned Special Public Prosecutor has relied upon the judgment reported in 2003 CRI.L.J.1 [MAYA RANI GUIN AND STATE OF WEST BENGAL] wherein a Full Bench of the Calcutta High Court has held that even if new circumstances develop after rejection of a second application, the second application cannot be maintainable. Hence the learned Special Public Prosecutor prays for the dismissal of all these petitions.
12.Heard Mr.A.R.L.Sundaresan, learned senior counsel appearing for the petitioners and Mr.M.Patturajan, learned Special Public Prosecutor for TNHB appearing for the respondent Electricity Board as well as the learned Public Prosecutor appearing for the respondent police.
13.It is not in dispute in the present case on hand that there are number of cases registered against the petitioners. It is also not in dispute that the petitioners are the consumers. It is also to be seen that the cases have been registered at different places against the different concerns in which the petitioners are partners. It is not the case of the petitioners that the respondent Electricity Board is acting deliberately with the malafide intention of harrassing the petitioners. While quashing some of the complaints the Hon'ble High Court has given liberty to the respondent Electricity Board to file complaints either through the police or before the competent Special Court in accordance with the Electricity Act, 2003.
14.The allegations made out against the petitioners run over several years at different places covering several crores. The question as to whether the petitioners are liable or not can only be decided at the time of trial, since admittedly in the present case on hand several disputed questions of facts will have to be gone into. It is a well settled principal of law that when there are disputed questions of facts, this Court cannot exercise under Section 482 of the Criminal Procedure Code by conducting a roving enquiry and take the role of the Trial Court.
15.A consumer has been defined under Section 2(15) of the Electricity Act, 2003, the said definition are extracted hereunder:
"2(15)."consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be."
16.Admittedly in the present case on hand, the petitioners are the consumers. The contention of the petitioners that in view of the lease agreement entered into between the petitioners and lessee they are not liable cannot be accepted for the simple reason that the petitioners have not obtained the permission as required under the terms and conditions. Admittedly the petitioners concern is not a public company. It is the petitioners who are the partners of the firm. They are also family members. As per the terms and conditions of supply of electricity the intending consumer who is not the owner of the premises should proceed with a consent letter in the Form prescribed by the Board from the owner of the premises by the available supply. As per Regulations 5(7) of the Regulations in Tamil Nadu Electricity Supply Code only a legal heir or a genuine purchaser can apply for name transfer.
17.The contention of the learned senior counsel that inasmuch as the alleged lessees are also parties in the complaints and their presence were noted at the time of inspection and the petitioners cannot be made liable cannot be accepted for the reasons stated above. The de facto complainant being a public authority cannot be expected to know all the facts in which the petitioners alone are aware of. The questions as to whether the lease agreement is true or not, the lease is approved by the Electricity Board, the lessee is an authorised tenant or not are all disputed questions of facts which cannot be decided in the petition for quash under Section 482 of the Criminal Procedure Code.
18.A counter affidavit has been filed by the respondent Electricity Board questioning the very lease itself and the relationship between the petitioners and the lessee as the landlord and tenant. It is the case of the respondent that the lease is created and everything is a bogus transaction. Therefore this Court is not willing to go into disputed questions of facts.
19.In so far as the contention of the learned senior counsel that the complaints are not maintainable in view of the fact that they have been given by the Assistant Executive Engineer of the Tamil Nadu Electricity Board the said contention is also liable to be rejected. A reading of the section 135(2) would clearly show that a procedure has been contemplated in so far as the entering, inspecting, break open and search of any place which has been used unauthorisedly. The said power has been given to the Executive Engineer. It is not the case of the petitioners that the Assistant Executive Engineer has done the above said Acts.
20.Further a perusal of the Board proceedings (CH)No.362 dated 25.08.2005 would make it clear that under Rule 12 of the Electricity Rules, 2005, the Assistant Executive Engineers of the Tamil Nadu Electricity Board is authorised to make complaint to the police having jurisdiction and also to the jurisdiction of the Special Court. Therefore the said contention of the learned senior counsel for the petitioners that the complaints are one without the jurisdiction cannot be countenanced and hence the same is rejected. In so far as the submissions of the learned senior counsel that in the absence of any material to show that the petitioners being the partners of the firm are also responsible for the alleged offence they cannot be made liable also cannot be countenanced.
21.A perusal of Section 149 of the Electricity Act, 2003 would clearly show that offence has been committed with the consent or connivance of any Director, Manager, Secretary or any other officer then such a person is also liable. The question is to whether the petitioners are liable or not will have to be decided only at the time of trial. The case of the respondent is that the petitioners have been indulging in such activities over the years in one name or another. The de facto complainant being an officer of the Electricity Board cannot be expected to collect all the materials in a private complaint or in his report to the jurisdictional police specifying the exact involvement of all the persons concerned. Further onus is also on the petitioners to prove their case of not tampering with the meters under Section 138 of the Act.
22.The judgment relied upon by the learned senior counsel for the petitioners reported in (2008) 3 MLJ (CRL)1409 [ANBALAZHAGAN vs. STATE BY INSPECTOR OF POLICE] is not applicable to the present case on hand. The learned single judge has relied upon the judgment of the Apex Court in 2007 (1) CTC 529 [SAROJ KUMAR PODDAR v. STATE (N.C.T. OF DELHI)] which relates to the case under the Negotiable Instruments Act. The proceedings under the Negotiable Instruments Act is totally different than in a proceedings before the Special Court. In a proceedings under the Negotiable Instruments Act the facts are known to each other and it emanates in a transaction between the parties which involves consideration and issuance of a cheque. Whereas in the present case the complaint has been given by the public servant who has been authorised to the effect that a consumer has committed the offence under the Electricity Act, 2003 as well as under Indian Penal Code. Therefore such an officer is not expected to know the factors which the petitioners alone are aware of.
23.In other words, the de facto complainant cannot be expected to produce the particulars about the specific nature of the involvement of the petitioners and their rules in the affairs of the firm. Moreover, the case involved in the present case would clearly indicate that the number of cases have been filed against the petitioners involving the same nature of offence. Admittedly the de facto complainant is a public authority. No materials have been produced to show that the action of the de facto complainant is malafide. The other judgment relied upon by the learned senior counsel reported in (2008) 3 MLJ (Crl) 761 [P.YAMUNA v. STATE] also does not apply to the present case on hand. In the said judgment the Hon'ble Apex Court was dealing with the case in which after the trial the finding has been recorded on facts that some of the Directors are not involved in the alleged offence. In fact the said case cannot be made applicable to the petitioners and it would go against the petitioners inasmuch as it was decided in the said case after the trial based on the available materials and not before the starting of the trial.
24.The purpose of the Constitution of the Special Court under Section 151 of the Electricity Act, 2003 is the speedy disposal of the case involving the theft of electricity. Therefore considering the above said object, this Court while exercising under Section 482 of the Criminal Procedure Code cannot interfere with the powers of the Special Court. Section 154 of the Act prescribe the procedure and power of the Special Court. The Special Court has also has the power under Section 154(5) to determine the civil liability against a consumer or a person in terms of money for theft of electricity. The said section also provides that the said amount shall be recovered as if it were decree of the Civil Court.
25.Therefore a reading of the above said provision would make it clear that the power conferred under the Special Court is both criminal and civil in nature. Hence the Special Court has got ample power to order the recovering of the amount from the consumer or any other person who is liable. Therefore this Court is of the opinion that under those circumstances considering the complicated facts involved and also on a consideration of the huge amount coupled with the nature of allegation the petitions filed by the petitioners in Crl.O.P.No.8554 of 2009 and Crl.O.P.No.2591 of 2010 are liable to be dismissed and accordingly they are dismissed.
26.In so far as the consideration of the anticipatory bail petition filed in Crl.O.P.No.3321 of 2010 is concerned, this Court is also not inclined to exercise its discretion in favour of the petitioners. It is also a well settled principal of law that granting of anticipatory bail is a discretionary relief and a person seeking anticipatory bail will have to make a case for anticipatory bail. There is a difference between anticipatory bail and the regular bail. Mere quashing of some of the complaints against the petitioners on technical ground with a liberty to approach the Special Court cannot be a ground to grant anticipatory bail. This Hon'ble Court on an earlier occasion has considered the entire materials on record and rejected the anticipatory bail. As observed earlier there is no change in circumstances and there are number of complaints against the petitioners.
27.In this connection it is useful to refer the judgment of the Apex Court reported in (1980) 2 SCC 565 [SHRI GURBAKSH SINGH SIBBIA v. STATE OF PUNJAB] wherein it has been observed as follows:
"35....Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely."
28.On a consideration of the above said judgment and applying the same to the facts of the present case, this Court is of the considered view that the anticipatory bail petition is liable to be dismissed.
29.Hence considering the gravity of offence and the nature of investigation required this Court is not inclined to grant anticipatory bail and accordingly Crl.O.P.No.3321 of 2010 is also dismissed.
30.In fine all the Criminal Original Petitions are hereby dismissed. The Special Court is directed to proceed with the case expeditiously. Consequently, connected miscellaneous petitions are closed.
sri To
1.The Sub Inspector of Police State of Tamil Nadu Thirumangalam Town Police Station Madurai.
2.Assistant Executive Engineer/Distribution Tamil Nadu Electricity Board Thirupalai, Madurai.
3 .The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.