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Delhi High Court

Bses Rajdhani Power Ltd. vs Mahesh And Anr. on 27 January, 2011

Author: Ajit Bharihoke

Bench: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment delivered on: January 27, 2011

+      CRL.M.C. NO. 3537/2008

       BSES RAJDHANI POWER LTD.             ....PETITIONER
                   Through: Mr. Sunil Fernandes, Advocate with
                            Mr. Deepak Pathak, Advocate.

                       Versus

       MAHESH AND ANR.                           ....RESPONDENTS
                  Through:         None.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. BSES Rajdhani Power Limited, the petitioner herein is seeking following prayer:-

"(i) allow the instant petition and quash/set aside the order dated 3rd November, 208 in criminal complaint Case No. 1065 of 2007 passed by Special Electricity Court, Malviya Nagar, New Delhi and;

(ii) to pass/make any other such other appropriate orders/directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

2. Briefly stated, facts relevant for disposal of this petition are that on 12th July, 2007, an Authorized Officer of the petitioner company conducted raid at House No. 22, Molarband, Badarpur, New Delhi. During inspection/raid, it was found that the respondents were indulging in direct theft of electricity, an offence punishable under Section 135 of the Electricity Act, 2003. Necessary documentation as well as photography was done. Consequent to the raid, a supplementary theft bill of ` 75,744/- was raised on the respondents No. 2 & 3, which was not paid. This led to filing of a criminal complaint under Section 135 of the Electricity Act against the respondents. Learned Additional Sessions Judge, Special Electricity Court took cognizance of the complaint and issued processes against the respondents. When the respondents failed to put in appearance despite service of summons, NBWs against them were issued.

3. In October, 2008, respondents (accused) approached the petitioner company for settlement and requested for reduction in bill. The bill amount, after discussions, was reduced to ` 49,300/-, which was paid by the accused respondents on 24th October, 2008 and a No-Dues Certificate was issued by the petitioner company.

4. On 03rd November, 2008, respondent No. 1 submitted the No- Dues Certificate issued by the petitioner company in the court and a Crl.M.C.3537/2008 Page 2 of 5 request was made by the petitioner company for withdrawal of the complaint in view of the aforesaid settlement. The learned Additional Sessions Judge took offence to this settlement and treated it as playing with the majesty of the court and ordered issue of show cause notice under Section 345 Cr.P.C. as to why the petitioner company be not prosecuted for an offence presumably under Section 228 IPC. Pursuant to that order, show cause notice was served. Feeling aggrieved by the aforesaid action of the learned Additional Sessions Judge, the petitioner has filed instant petition for quashing of the impugned order.

5. Before adverting to the submissions made by the learned counsel for the petitioner company, it is necessary to have a look on the relevant portion of the impugned order, which is reproduced thus:

"Heard the settlement has been arrived between the parties against the bill Ex. CW1/25 which has for ` 75,774/- without any permission or indulgence of this court on 24.10.08 itself whereas warrants issued against the accused for arrest on 22.10.08. The practice is being followed by the complainant despite directions and observations by this court in so many cases of such nature not to go for compromise with the accused persons as it may be a case of coercion and influence settlement of the matter in complaint filed by the complainant under pressure of pendency of the case or warrants issued against the persons. Again it has been done by the complainant who has undermined the proceedings pending before the court as well as majesty/authority of court to deal with such matter besides causing hurt and insult to the judicial system.

In fact such practice by the complainant is derogatory to the court system as they are running parallel court and proceedings while keeping the case pending in the court of law, especially when the subject matter of the complainant is not compoundable".

6. On reading of the above order, it is evident that learned Additional Sessions Judge took offence to the out of court settlement arrived at between the petitioner company and the accused respondents and he took the view that entering into out of court settlement during the pendency of complaint and making a request to withdraw the complaint amounted to insult of the court as also interruption in the court proceedings.

7. Learned counsel for the petitioner company submits that the view taken by the learned Additional Sessions Judge is erroneous for the reason that petitioner has not made any derogatory remarks against the court nor he had interrupted any proceedings going on in the court. He only informed the court that he had arrived at a settlement with the accused and wanted to withdraw the complaint. If at all the learned Additional Sessions Judge was of the view that compounding of offence was not permissible, he could have rejected the request instead of issuing show cause notice under Section 345 Cr.P.C. to the petitioner for an offence which was not committed by the petitioner.

Crl.M.C.3537/2008 Page 4 of 5

8. I have perused the record. There is nothing on the record to suggest that the petitioner, except for informing the court about out of court settlement and requesting for withdrawal of the complaint, did any act which could be termed as insult to the court or could be interpreted as interruption in judicial proceedings. The Trial Court, if it was not satisfied with the settlement and was of the view that compounding of offence under Section 135 of the Electricity Act was not permissible, could have dismissed the request for withdrawal of the complaint. There was no occasion for issuing notice under Section 345 Cr.P.C. when prima facie, no offence whatsoever was committed. Thus, it is difficult to sustain the impugned order.

9. In view of the above, I hereby allow the petition and set aside the impugned order of learned Additional Sessions Judge dated 03.11.2008 as well as the notice under Section 345 Cr.P.C. issued pursuant to that order.

10. Petition is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE JANUARY 27, 2011 akb Crl.M.C.3537/2008 Page 5 of 5