Madras High Court
Muppasani Krishna vs State: Rep. By Its
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.Nos.9611 & 9785 of 2019
& Crl.M.P.Nos.5028 & 5116 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 09.09.2022 Pronounced on: 14 .09.2022
CORAM:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.Nos.9611 & 9785 of 2019
& Crl.M.P.Nos.5028 & 5116 of 2019
Crl.O.P.No.9611 of 2019
Muppasani Krishna, ... Petitioner/Accused – 4.
-vs-
1. STATE: rep. by its,
The Inspector of Police,
'O' Circle, Yanam,
Union Territory of Puducherry,
(Crime No.48 of 2012).
2. Md.Hyder Syed,
S/o.S.M.Rashid,
Assistant Engineer (O&M),
Electricity Department,
Yanam, Union Territory of Puducherry. ... Respondents/
defacto Complainant
PRAYER : Criminal Original Petition is filed under Section 482 of Cr.P.C., to
call for the records relating to the impugned Charge Sheet in Special C.C.No.2 of
2015 on the file of Special Judge (Under Electricity Act, 2003)/Principal District
Judge, Puducherry and quash the same as against the petitioner/A4.
_____________
Page No.1/16
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9611 & 9785 of 2019
& Crl.M.P.Nos.5028 & 5116 of 2019
For Petitioner : Mr.B.Kumar, Senior Counsel, for
Mr.K.Prem Kumar.
For R1 : Mr.V.Balamurugane
Public Prosecutor, Pondy (Crl.Side)
For R2 : No appearance
Crl.O.P.No.9785 of 2019
Mr.M.Rangadhama Chowdary, ... Petitioner/Accused-3
-vs-
1. STATE: rep. by its,
The Inspector of Police,
'O' Circle, Yanam,
Union Territory of Puducherry,
(Crime No.48 of 2012).
2. Md.Hyder Syed,
S/o.S.M.Rashid,
Assistant Engineer (O&M),
Electricity Department,
Yanam, Union Territory of Puducherry. ... Respondents/
defacto Complainant
PRAYER : Criminal Original Petition is filed under Section 482 of Cr.P.C., to
call for the records relating to the impugned Charge Sheet in Special C.C.No.2 of
2015 on the file of Special Judge (Under Electricity Act, 2003)/Principal District
Judge, Puducherry and quash the same as against the petitioner/A3.
For Petitioner : Mr.B.Kumar, Senior Counsel, for
Mr.K.Prem Kumar.
_____________
Page No.2/16
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9611 & 9785 of 2019
& Crl.M.P.Nos.5028 & 5116 of 2019
For R1 : Mr.V.Balamurugane
Public Prosecutor (Crl.Side)
For R2 : No appearance
COMMON ORDER
These two petitioners are filed by 3rd and 4th accused to quash the criminal complaint filed against them in Special C.C.No.2 of 2015 on the file of Special Judge (Electricity Act, 2003)/Principal District Judge, Puducherry. The charge against these petitioners based on the final report reads as below:-
“Firstly, that prior to 28.03.2012 at the premises of M/s Kanaka Durga Castings (Pvt.) Ltd., Industrial Road, Adavipolam, Dariyalathippa, Yanam, you A1 to A4, all representing M/s Kanaga Durka Castings Pvt.Ltd., Yanam had joined together and in furtherance of common intention, provided additional circuit in the secondary winding of current transformers in the by tampering CT-PT meter of HT service connection of M/s.Kanaga Durga Castings (Pvt.) Ltd. (M) 3500 KVA Adavipolam, Dariyalathippa, Yanam and thereby the said usage of the additional circuit prevented the meter from proper registration of actual energy consumed and stolen the electricity and thereby dishonestly abstracted _____________ Page No.3/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 the energy by tampering the metering (CT-PT) and thereby committed energy theft by causing wrongful loss to the total tune of Rs.28,54,63,320/- to the Electricity Department, Yanam thereby, you A1 to A4 have committed an offence punishable under Section 135(1)(b) of Electricity Act, 2003 and within my cognizance.
Secondly, that you A1 to A4, on the same date, time and place of occurrence, and in the course of the same transaction, and also in furtherance of such common intention, and provision of additional circuit in the secondary winding of current transformers by tampering CT-PT meter of HT service connection of M/s.Kanaga Durga Castings (Pvt) Ltd. (M) 3500 KVA Adavipolam, Dariyalathippa, Yanam and thereby the said usage of the additional circuit prevented the meter from proper registration of actual energy consumed and thereby used electricity through the said tampered CT-PT meter and thereby committed energy theft by causing wrongful loss to the said total tune of Rs.28,54,63,320/- to the Electricity Department, Yanam thereby, you A1 to A4 have committed an offence punishable under Section 135(1)(d) of Electricity Act, 2003 and within my cognizance.”
2. The Learned Senior Counsel appearing for these petitioners _____________ Page No.4/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 submitted that final report filed after investigation and statement of witnesses by the prosecution does not indicate that these petitioners were in active participation in the affairs of the Company or they are privy to the alleged theft of energy.
3. The Learned Senior Counsel for the petitioners submitted that, the brief facts of the case as narrated in the final report also does not disclose any overt act of these petitioners or material to indicate that they are responsible for the affairs of the Company. The brief facts stated in the final report reads as below:-
“Prior to 28.03.2012 at the premises of M/s. Kanaka Durga Castings (Pvt.) Ltd., Industrial road, Adavipolam, Dariyalathippa, Yanam, the accused persons (A-1 to A-4) - all representing M/s. Kanaka Durga Castings Pvt. Ltd., Yanam noted in the column No -11 of this Charge Sheet had in furtherance of common intention, provided additional circuit in the secondary winding of current transformers in the metering CT-PT of HT service connection of of actual energy consumed and thereby dishonestly abstracted the energy by tampering the metering (CT-PT) to the total value of Rs.28,54,63,320/-, (Rupees Twenty Eight Crores, Fifty Your Lakhs, sixty three thousand and three hundred and _____________ Page No.5/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 twenty only) to the Electricity M/s.Kanaka Durga Castings (Pvt) Ltd., (M) 3500 KVA Adavipolam, Dariyalathippa Yanam and thereby the said usage of the additional circuit prevented the meter from proper registration Thus, the accused persons (A1 to A4) appears to have committed an offence punishable U/s 135 (1)(b) and (d) of the Electricity Act 2003.”
4. The case of the complainant is that, during the surprise inspection held on 27.03.2012 by the Anti-theft Squad, the meter provided in the factory premises not functioning and only the standby meter i.e., check meter installed outside the premises was functioning. The additional circuit was installed to prevent the meter from proper registration of energy. The theft of energy esteemed to tune of Rs.28,54,63,320/-.
5. Based on the complaint given by the Assistant Engineer (O&M), Electricity Department, the complaint was lodged on 29.03.2012 who is not competent to set law in motion. As far as the 3rd accused M.Rangadhama _____________ Page No.6/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 Chowdary, he was a Managing Director from 17.11.1999 to 03.03.2012. He did not participate in the affairs of the Company and conduct of business of the Company. As far as 4th accused Muppasani Krishnan is concerned, was inducted as Director w.e.f 08.09.2005. He is only a Director without any power of authorisation to deal with the conduct of the business of the said Company.
6. According to the petitioners, the meter installed inside the premises was found defective and the Company intimated the Electricity Board about it and they came and installed check meter outside the factory premises in the year 2007. It was installed for verification of billing pattern. The non-functioning of the energy meter was repeatedly informed to the Electricity Board but they did not care to install proper meter inside the premises. But, falsely allege that monthly consumption for the period March 2009 to February 2012 at consumer end is not matching with the consumption recorded at the Sub-Station end.
7. The prime contention of the petitioner is that the allegation as per the above charges is M/s.Kanaga Durga Castings Private Limited had provided additional circuit in the second winding of current transformers by tampering CT- _____________ Page No.7/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 PT meter of HT service connection and thereby, prevented the meter from proper registration of actual energy consumed. It is specifically alleged by the said act of tampering the meter and theft of energy has caused loss to the total value of Rs.28,54,63,320/- to the Electricity Department, Yanam. Therefore, the case is not sustainable for the following reasons:-
(i). According to the complainant, M/s.Kanaga Durga Casting Pvt.
Ltd., is the consumer. The Electricity Service stands in the name of M/s.Kanaga Durga Castings Pvt Ltd. The allegation is that, there was theft of energy by M/s.Kanaga Durga Casting Pvt Ltd. The accused 1 to 4 are its representatives. But the said Company is not an accused.
(ii). How the petitioners represent M/s.Kanaga Durga Castings Private Limited not mentioned in the complaint that the petitioners were not in active participation of the affairs of the company.
(iii). There was no theft of energy as alleged.
(iv). The complaint is barred by limitation.
8. The Section 135(1) (b) and (d) of Electricity Act, 2003, under _____________ Page No.8/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 which the petitioners charged which reads as below:-
Section 135. (Theft of Electricity):-- [(1) Whoever, dishonestly, --
(a).
(b). tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c).
(d) uses electricity through a tampered meter; or
(e).....
9. Section 149 of Electricity Act, 2003, deals with Offences by Companies and it reads as below:-
“Section 149. (Offences 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:
_____________ Page No.9/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of having committed such offence and shall be liable to be proceeded against and punished accordingly.
Explanation. - For the purposes of this section,-
(a) "company" means a body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.”
10. The Constitution Bench of the Apex Court in Aneeta Hada -vs- _____________ Page No.10/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 Godfather Travels and Tours Private Limited reported in (2012) 5 SCC 661, has interpreted the expression “as well as the Company” employed in Section 141 of Negotiable Instruments Act. According to the Constitution Bench, the vicarious liability of the Directors/Managers will arise under the circumstances stated below:-
“58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted.”
11. Thus, while comparing Section 149 of the Electricity Act and we _____________ Page No.11/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 find they are in pari materia. For easy reference Section 141 of N.I Act is extracted below:-
Section 141 of Negotiable Instruments Act, 1881 “141 Offences by companies. — (1) If the person committing an offence under section 138 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 sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been _____________ Page No.12/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, 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.
Explanation.— For the purposes of this section,—
(a) “company” means any body corporate and includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.”
12. Reading of Section 149 of Electricity Act, 2003, in the light of the interpretation given by Constitution Bench of Hon'ble Supreme Court in Aneeta Hada case cited supra, if the offence is committed by a Company, every person who, at the time when the offence committed, was in-charge of, and was responsible to the Company and for the conduct of the business of the Company, will be vicariously liable for prosecution. For the said purpose, the prosecution has to prima facie established that a person against whom the prosecution launched was in-charge of and responsible to the Company for the conduct of the _____________ Page No.13/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 business of the said Company. That apart, the Company being a juristic body and the Principal Offender ought to be prosecuted.
13. On perusing the complaint as well as the final report and the statement of witnesses along with the documents, they do not disclose any fact to prima facie conclude that these two petitioners were in-charge of and was responsible to the Company for the conduct of the business of the Company. Except to say, “A1 to A4, all represents M/s.Kanaga Durga Castings Private Limited, Yanam, in furtherance of common intention provided additional circuit in the secondary winding of current transformers in the by tampering CT-PT meter of HT service connection.” How and in what way they represent M/s.Kanaga Durga Castings Private Limited not disclosed in the complaint or in the charge. Furthermore, the Company which they represent also not arrayed as accused.
14. The complaint is for offence which is punishable upto three years and fine. In this case, First Information Report registered on 29.03.2012. Final report filed on 03.08.2015 i.e., after expiry of three years. On that score, the complaint is barred by limitation.
_____________ Page No.14/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019
15. For the above said circumstances and reasons, the petition to quash the complaint in C.C.No.2 of 2015 on the file of Special Judge/Principal District Judge, Puducherry, against these petitioners A3 and A4 are allowed. Accordingly, C.C.No.2 of 2015 against these petitioners are quashed.
16. In the result, these Criminal Original Petitions are Allowed. Consequently, connected Miscellaneous Petitions are closed.
14.09.2022
Index :Yes/No.
Internet :Yes/No.
Speaking order/Non-speaking order
bsm
To,
1. The Special Judge/Principal District Judge, Puducherry.
2. The Inspector of Police, 'O' Circle, Yanam, Union Territory of Puducherry.
3. The Assistant Engineer (O&M), Electricity Department, Yanam, Union Territory of Puducherry.
4. The Public Prosecutor (Puducherry), High Court, Madras.
Dr. G.JAYACHANDRAN. J, _____________ Page No.15/16 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.9611 & 9785 of 2019 & Crl.M.P.Nos.5028 & 5116 of 2019 bsm Delivery Common Order made in Crl.O.P.Nos. 9611 & 9785 of 2019 14.09.2022 _____________ Page No.16/16 https://www.mhc.tn.gov.in/judis