Madras High Court
S. Muruganandan vs State By Inspector Of Police on 29 January, 1998
Equivalent citations: 1998CRILJ3722
ORDER A. Raman, J.
1. Since the parties are the same in both the applications and identical question of law is raised in both these matters, these two applications were taken up together, heard and a common order is rendered hereunder.
2. CC 331 of 1996 pending on the file of the Judicial Magistrate, Thirumangalam is with reference to the complaint dated 1-5-1994 by Asst. Executive Engineer, TNEB against Thavamani Ammal Prabakar, Rajendran and Md. Ismail. The allegation is that when a raid party of TNEB checked the High Tension Service Connection No. 01001 installed in Venkateswara Industries situate at Madurai Rajapalayam Road, it was found that the factory was running and all the lights were burning. But the meter was not running. On checking it was found that with a view to avoid the recording of the cosumption on the meter a line had been taken from the transformer by passing the meter and energy was drawn directly from the transformer and this has been done with a view to commit theft of electricity and that the accused have committed theft of electricity in a sum of Rs. 1,49,58,239/--and, therefore, they are liable to be punished under the relevanl sections of the Indian Electricity Act.
3. The gist of the complaint in CC. No. 332 is as follows :-
The complaint in CC No. 332 is Assistant Executive Engineer, TNEB, Kallipatti, Thavamani, Prabakar Soundararajan, Muthukurnaraswarny Mariyapalraj are shown as the accused. The allegation is that on 4-6-1994 the Executive Engineer Pasumalai inspected the Sri Venkateswara Industries of which the accused 2 to 4 are partners and during the inspection the sealing on the top of the transformer was found cut and opening the mouth and interchanging the connection the current going to the meter was restrained and it blocked the correct reading of the meter. On 3-5-1994 the electric connection was given to the Industry after initiating police action on 1-4-1994 for the earlier offence committed on 30-4-1994. As the accused failed to pay the electricity charges for April 1994 the connection was disconnected on 19-5-1994. But the accused obtained an order of injunction from civil Court whereupon the connection was again restored on 30-5-1994 and it is between this period when there was no current the accused had committed this offence and hence the accused are liable to be proceeded against under Sections 39 and 44 of the Indian Electricity Act. Thus CC 331 relates to the offence said to have been committed on 30-4-1994.
4. As regards CC 331 of 1996 the complaint is with reference to the offence alleged to have been committed during the period of disconnection of the service connection on 19-5-1994 and the restoration of the same on 30-5-1994. The petitioner is one of the accused by name Muruganandam. His contention is that the petitioner had already retired from the firm on 9-12-1993 itself and this has been also brought to the notice of the Electricity Board and the petitioner, therefore, cannot be proceeded with for the alleged offence which is said to have taken place on 30-4-1994 and between 19-5-1994 and 30-5-1994. The petitioner has produced before this Court certificates from the Registrar of Firms, letter from the Commercial Tax Officer, copy of the public notice given on retirement, the intimation sent to the Electricity Board, the Excise Department and the Bank about the retirement of the petitioner and the acknowledgment cards received from them. A public notice has been given in 'Malaimurasu, which is published in the issue dated 25-4-1994. On 9-12-1993, the petitioner has informed the Superintending Engineer, Madurai Electricity Distribution Circle about his retirement with effect from 9-12-1993 and also requesting the Superintending Engineer to transfer the security deposit which stands in the firms account in the name of K. Thavamani, Managing Partner, Sri Venkateswara Industries. The petitioner has on the same day addressed letters to the Superintending Engineer TNEB of the Thirumangalam office, the Manager of Indian Oversees Bank, T. Kallupatti, the Inspector of Factories, Southern Circle Madurai, the Commercial Tax Officer, Thirumangalam informing them all of his retirement. He has also produced the xerox copies of the acknowledgment for the receipt of the said letters by the concerned Departments. The reasons for implicating the petitioner is said to be that he signed the agreement with TNEB in August 1988; that he has also signed the scaling register in 1988. The petitioner does not dispute having signed these documents in the year 1988. But his contention is that he retired from the partnership on 9-12-1993. He has informed the authorities concerned about his retirement. Merely because he has signed certain documents in the year 1988, it cannot be cited as a ground to proceed against the petitioner for an offence which is alleged to have been committed subsequenttohisretirementfrom the partnership. Section 32 of the Partnership Act clearly sets out that on the giving of a public notice by a partner of his retirement, the partner will cease to be liable for any act of the partnership subsequent to his retirement. The intention of the public notice is to put on notice persons about the factum of a particular person having retired from the partnership. A concern or an industry while running, among others will have dealings, transactions and correspondence with persons such as Inspector of Factories, Electricity Department, Municipality or Panchayat, Excise Department, Income-tax Department and others. To those persons, the petitioner has given notices informing about his having retired from the partnership. In addition, he has also published a public notice informing of his retirement though it was done only in the month of April 1994. Therefore, in such circumstances one has to see whether the mere fact that at the time when the firm applied for high tension power connection, the relevant documents were signed by the petitioner then as the partner of the same, would make the petitioner liable for any offence committed by the firm after the retirement of the petitioner from the firm.
5. The complaint simply states that an inspection was made and certain features were noted which suggested tampering with the installation and drawing of energy in a stealthy manner, with a view to commit theft of electrical energy. Excepting to state that the petitioner is a partner, it is not specifically stated that the petitioner had in any mariner participated in the commission of the offence or that he was responsible for the running of the industry. It is in this connection to be pointed out that the Commercial Tax Officer had written a letter to the Deputy Superintendent of Police, Vigilance Cell, Tamil Nadu Electricity Board and the Executive Engineer,Vigilance Cell, TNEB, Madurai stating that as per the office records and reports only. Tmt. Thavakani and Prabakar are the partners of the firm on and from 9-12-1993 and, therefore, has requested that the report sent by the Commercial Tax Officer on 9-3-1995 may be treated as withdrawn and Thiru Muru- ganandam may be treated as ceased partner of the firm of Sri Venkateswara Industry with effect from 9-12-1993. When certain things are brought to the notice of the officials concerned it is their incumbent duty to apply their mind and take steps accordingly. In CC 331 the charge-sheet was laid in 2-11-1994. In CC 332 the charge-sheet has been laid on the same day viz., on 2-11-1994. Even in 1993 itself the petitioner has informed the Electricity Board about his retirement from the partnership with effect from 9-12-1993. Subsequently in April 1994, a public notice has also been given by the petitioner. It is not the allegation made in the complaint that the offence was one committed even prior to the retirement of the petitioner from partnership. There is also no allegation made as to how the petitioner is also liable to be proceeded against. In such circumstances, the learned counsel for the petitioner would contend that the authorities concerned have in a mechanical manner without caring to apply their mind have simply roped in the petitioner as well. A duty is cast upon the prosecuting agency to ascertain in such cases where offence is alleged to have been committed by a firm or a company or by an association of individuals to find out from the records as to who are all the persons concerned either as partners or directors. Therefore, it is imperative that they apply to the concerned authority viz., either the Regi strar of Fi rms or the Registrar of Companies or the authorised officials under the Societies Act to obtain particulars regarding the names of the persons who were connected with the firm or company or the society as the case may be on the date of the occurrence or immediately before the occurrence in the capacity as a partner or a director or a member as the case may be. It is not known why they have failed to observe such a basic precaution before ever thinking of proceeding against certain persons on the allegations that they are partners, directors, members of a firm, company, society as the case may be, at the relevant point of time when the offence is said to have been committed. The failure on the part of the authorities concerned i.e. the police and TNEB as well to adopt such a procedure is a callous one inciting stern reprimand. For, without ascertaining they have proceeded to lay the charge-sheet. The persons who were not connected with the firm (on) the date of the alleged occurrence are unceremoni ously roped in. Merely because they had something to do with the company, firm or society as the case may be, at some point of time long prior to the alleged occurrence the lasso is thrown at their necks. It is nothing but a harassment and humiliation. They are placed in an agonising situation. It could have been avoided by a forethought on the part of the above authorities concerned. They are not expected to act in a mechanical and wooden manner. They have to wake up to the ground realities of the situation. Because they have the power, they cannot drag in everyone into the court to answer a charge which on the face of it may not arise at all as far as those persons are concerned. This intemperate and indiscriminate user of the power abandoning the fundamental precaution of ascertaining the position on the date of the occurrence or immediately before results in great injustice to the persons affected. It may satisfy the (sic)satistic pleasure of the person concerned with the launching of prosecution. But the courts cannot be used as a tool by such persons to have their personal vengeance wreaked out in such a manner. The case on hand i n an emi nent example of careless abandonment of duty by persons who are bound under law to take pains to verify the particulars regarding the persons concerned in offences of such nature before proceeding further. What we come across is any impudent indifferent.The lower court has also chosen to frame charge against the petitioner, in the absence of materials merely because some six years prior to the alleged date of occurrence the petitioner had signed some documents. The act of framing of charge against the petitioner thus exposed to pathetic failure of duty on the part of the lower court. There is a thorough non-application of mind. Unless the material placed before court prima facie show the existence of (sic) to presume that the accused has committed the offence the court is not justified in framing charge against the person. Here, admittedly the check was made on 30-4-1994. Subsequently, there was another check which was on 4-6-1994. The petitioner had retired from the partnership in 1993. He has produced materials before court to establish the same. The complaint does not disclose any material or allegations as to how the petitioner is also liable for the alleged offence. But in a mechanical manner without taking pains to apply its mind citing a reason which cannot stand a minute's scrutiny the lower court has simply proceeded to frame charge against the petitioner herein. When in December 1993 he has retired from the partnership, how can documents signed by the petitioner for and on behalf of the firm in the year 1988 can be cited as a ground to proceed against the petitioner is really surprising. This orily indicates the sad failure of Judicial mechanism and the desultory discharge of his duty as a Magistrate. The act of framing charge cannot be taken as a routine ceremony. It is a judicial act. It has to be performed in the manner indicated by precedents and by the provisions of the Criminal Procedure Code. Any failure to apply one's mind in that regard would definitely render such a verdict a nullity in the eye of law.
6. Before ever a partner can be proceeded against it is necessary for the complainant to allege that the partner was in charge and was responsible for the conduct of business of partnership. Merely because he happended to be a partner he cannot be simply made liable as the Supreme Court has observed in AIR 1989 SC 1982 as follows at page 1984 :-
More often it is common that some of the partners of a firm may not even be known of what is going on day to day in the firm there may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be travesty of justice to prosecute all partners and ask them to prove under the proviso to Sub-section (i) of Section 10 that the offence. was committed without their knowledge...Thus when the documents produced by the prosecution do not indicate even remotely that all the partners were doing the business of the firm and there was no other evidence on record on this aspect, it could not be said that when the offence was committed all the partners were conducting the business of the firm and, therefore, they would not be liable for conviction.
7. Though the above ruling is one that arose under Section 10 of the Essential Commodities Act, relating to offences by firm or companies the observation of the Supreme Court in the above case would admirably fit in with the circumstances of this case. Here, unless it is shown that the partner had knowledge of the tampering of the meter or was party to the same and unless it is shown that the partner was conducting the business of the partnership it will not be proper to make the partner liable. For we are concerned with a criminal liability under penal provision and not a civil liability as observed by their Lordships of the Supreme Court in the decision referred to above. The penal provision must, therefore, be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Therefore, it is necessary for the complainant to allege that the petitioner was a partner at the relevant point of time and that he was in-charge and was responsible for the conduct of the business of the partnership and thai he had knowledge of theft of energy committed and was directly or indirectly involved in the commission of the offence. Therefore, unless these aspects of the case are properly set out the TNEB cannot claim to make a partner liable simply because he was a partner. Necessary allegations have to be made in the complaint and attempts must be made to show that at the relevant point of time the person was connected with the partnership. But here the very records produced by the petitioner would show that he is ceased to be a partner even in December 1993. The offence is alleged to have taken place on 30-4-94 and subsequently.
8. This court had an occasion to deal with such a case which arose under Electricity Act. In the ruling reported in 1989 LW Cri 227 it was held that the partners cannot be held liable in the absence of any allegation of any part played by them in the criminal adventure. The decision reported in 1990 Mad LW Cri 398 relates to a case where this court again had an occasion to deal with a similar question and his Lordship Justice Arunachalam held that the onus is on the prosecution to establish that at the time the offence was committed the person was in-charge of the conduct of the business. Once the initial burden is discharged then only it will be necessary to prove that the offence was committed without his knowledge.
9. To the same effect is the decision of this court reported in 1972 Mad LW (Cri) 133 (Madras) where it has been held that if there are more than one accused, it is the bounden duty of the prosecution by adducing independent evidence of the proof of some overt act cstabli- shing dishonest abstraction; the courts are not at liberty to draw the legal presumption against accused persons in the absence of a charge. I have already held that; the records produced in this case by the petitioner establish clearly that the petitioner ceased to be a partner on and from December 1993. The petitioner informed the Bank and other concerned authorities. The Tahsildar has also stated in his report addressed to the police that the petitioner was not the partner at the relevant point of time. Merely because certain agreements were executed when the petitioner was a partner and as the then partner he signed some test report, for an Fence that has happened subsequintly after the retirement of the said persson no proceedoding be initiated against the said person In the complaint it is not stated specificeally the dishonest abstraction of energy toocrvera period of several months or years and that back to the period when the petiner was partner. Unless a specific case forward it is not possible to presumethat because petitioner was once a partner he m must bo heldhave been responsible and guilty ofcomplicity in the offence. The approach by the Lower Court is a mechanical approach and I would even say that it is a wooden approach. The Court has to take into consideration the ground realises of a case. A certificate of extract from the Registrar of Firms has been produced by the petitioner before the lower court. That certificate is a publit Jucument. It is not only admissible in evidence but conclusive as regards the facts stated there. But the lower court has simply failed to consider that. The signing of a test report is only to show that the test was made in his presence. The test report is dated 19-12-1988. The agreement is dated 12-8-1988. That the lower Court can presume from this that a case is made out to proceed against die petitioner is surprising. Can one presume that the state-of affairs that was available on the date of the test report continued to be the same on the date of complaint. As the Supreme Court pointed out we are dealing with penal provisions and not with any civilliability. When the accused has produced ''materials such as the certificate fromthe Registrar of Firms to show that the peutioneer had retired from the partnership and if such material produced at the earliest stage by the accused would fatal affect the very maintainability of the case as against the petitioner. It is unjust an the part of the lower court to refuse to look into the same. The court cannot simply shut its eyes to the same and take a view that the accused can produce them at the time of trial when alone the court is bound to look into the same. This will result in the waste of time of the court. Moreover a person cannot be made to undergo the agony of trial as the Supreme Court held in the decision reported in 1996 (3) Crimes 85. The lower Court has omitted to consider the materials produced by the accused even at the stage of framing of charge. The materials fatally affect the very sustainability of the case. The court ought to have taken into consideration the materials and should not have closed its eyes to the same. For, the ordering of framing charge affects the person' s liberty substantially. The Court cannot, simply take an attitude that let the accused face trial. If the materials produced is inadequate to proceed against the accused it is not justified on the part of the court to turn Nelsons eyes to the same and adopts an attitude that: all those documents can well be gone into leisurely at the time of trial. As the Supreme Court observed in 1997 SCC (Cri) 404 (sic) the liberty of the individual cannot, be toyed with the adopting such an attitude. The court is bound to evaluate the materials placed before it and not to act as a post office. The Supreme Court has again pointed out in 1979 Cri LW 86: (1979 Cri LJ 154); 1990 SC 1962 : (1990 Cri LJ 1869), that the framing of charge is an important stage and the e v idence produced before the Court has to be properly assessed to see that the materials placed before coins docs not give rise to grave suspicion and it is the duty of the prosecution to show that the fast.: emerging from the materials produced would constitute an offence against the accused.The court is not bound to accept all that is placed by the prosecution at that time. In the Supreme Court has stated that a partner who was alone in overall control and of day today affairs can alone be.made liable for conviction. Therefore, on the basis of the materials placed the lower court, was not justified in framing charge against the accused-petitioner. The documents establish clearly that the petitioner had retired from the partnership four months prior to the date of alleged occurrence. The complai nant does not allege that the petitioner was in charge of the day to day affairs of the firm and that he was solely responsible for the conduct o!"the business. In such circumstances it will be travesty of justice to ask the petitioner to face trial. Even otherwise the ultimate outcome will not be what the prosecution expects. The chance of ultimate conviction in the circumstances has to be stated as bleak. Therefore, no useful purpose will be served in asking the petitioner to undergo a face of (sic) trial. Therefore, in this view of the matter also it is not advisable nor it is desirable the (to) allow the prosecution to proceed against the petitioner. In doing so as the Supreme Court observed in 1996 (3) Crimes 85 the valuable time of the court would be only wasted in holding a trial. Therefore, I am firmly of the opinion that the order passed by the Judicial Magistrate in ignoring the materials produced by the accused and in proceeding to frame charge against the accused-petitioner is neither a sustainable order nor a proper exercise of jurisdiction. The judicia; Magistrate had simply shut his eyes to the glaring facts which are placed before him. When materials are placed, the Judicial Magistrate ought to have taken into consideration the same. Even assuming he was of the opinion that he was not bound to look into that document nothing prevented the Magistrate from directing further investigation of the matter. The law invests the Magistrate with such power. The petitioner has produced certain materials to show that he was not a partner on the date of the complaint or on the date of the alleged offence. There is a letter by the Commercial Fax Officer addressed to the police. In such circumstances it is definitely well within the jurisdiction of the Magistrate to direct further investigation in the light of those materials. By doing so, the Magistrate will be only paving way for reai justice to be Jone. It is to be pointed out in this connection that the complaint is lodged by the Electricion Board. The investigation is taken up by the police the hand'ng over of the investigation and taking up of further investigation by the police in Electricity theft cases is perhaps the cause for such prosecutions. In the case of similar enactments i.e., Drugs and Cosmetics Act, Prevention of Food Adulteration Act, Factories Act, Companies Act, Foreign Exchange Regulation Act, Income-tax Act and Forest Act the investigation and prosecution is done by the Department itsell. But curiously enough in respect of cases of theft arising under Electricity Act no power has been given to the Department Officials as it is done in case of Drug Inspector, Food Inspector, lnspectoror of Pactories, Addl. Registrar of Companies, Asst. Director of Enforcement, Income-tax Officer, Forest Rangers as they are empowered in the above enactments. Perhaps if the department, ilseli is authorised to investigate and prosecute may be they would have attempted to find out as to wao arc the persons who were in charge of the firm and would have proceeded perhaps rightly against me concerned. We are in the arena of its and buts Whether or not the room for complaint of absence of co-ordination will not be there. It is a penuiy for thought. Anyhow it is for the Legislature and the concerned Government to look into the matter and see if really investigation and prosecution relating to a case of thief of energy or any other offences, committed cruder the Electricity Act shall be left to the Dpartment itself or should be entrusted to the regularspolice force.
10. This connection to be pointed out that the partners of the firm have filed a case against the TNEB whether the petitioner is not shawn as ;i partner. Therefore, taking into consultation the overall picture presented I am of the view that the proceedings against the petitioner are definitely not warranted. It cannot lie. it has to be quashed. The other O.P. relates to the subsequent period. It is staled that there has been theft of energy subsequent to disconnection from 19-5 4994. When it isclear that the petitioner cannot be proceeded for the alleged earlier offerce, viz., offence alleged in Crime No. 102 of 1994 which has been taken on file by the continued Magistrate in C.C. No. 33 i of 1996 the sao ground and logic would apply to hold that the petitioner cannot be proceeded against in Crime No. 332 of 1996 as well for the offince said t have been committed on 4-6-l994. Therefore, these two pryiyiond have to be accepted since the basis for proceeding against the petifem-v is not at all there. When there is no basis to proceed against the petitioner the framing of charge by the Judicial Magistrate is not at all valid in law. Hence these two applications viz., Crl. O,P. No. 7698 and 7699 of 1997 are hereby allowed. The proceedings pending against the petitioner in Nos. 332 and 332 of 1997 on the file of the adicial Magistrate, Thirumangalam are hereby quashed.