Ramendra Nath Dutta vs Nalini Ranjan Das

R.N. Dutt, J.—This Rule is against an order of conviction and sentence u/s 44(d) of the Indian Electricity Act, 1910.

The prosecution case is as follows:

M/s. P. C. Roy Chowdhury and Sons are the proprietors of the Southern Market. The Petitioner is a tenant under them in respect of two stalls, namely, Nos. E3 and E4 at a daily rental of Rs. 3 each. He had his separate electric connection from the Calcutta Electric Supply Corporation and he had a separate electric meter for the same. But still he had committed theft of electricity from the main line of M/s. P. C. Roy Chowdhuay and Sons which supplies electricity to the Southern Market. This was detected sometime in July 1967 and thereafter the opposite party, who is the superintendent of the market under M/s. P. C. Roy Chowdhury and Sons, filed the instant petition of complaint.

On this allegation the Petitioner was charged u/s 44(d) of the Indian Electricity Act. The Petitioner pleaded not guilty. The learned Magistrate, however, convicted him and sentenced him to a fine of Rs. 200, in default, simple imprisonment for one month. The Petitioner preferred an appeal, but the appeal was dismissed.

The Petitioner has thereafter obtained this Rule against this order of conviction and sentence.

Both the Courts have found that the Petitioner was a tenant under M/s. P. C, Roy Chowdhury and Sons in respect of the two stalls Nos. E3 and E4. Both the Courts have also found that, though the Petitioner had separate electric connection and separate electric meter, he had committed theft of electricity from the main line of M/s. P. C. Roy Chowdhury and Sons which supplies electricity to the market. Mr. Ghosal contends that even then there is no offence u/s 44(d) of the Act because this was improper use of electricity of M/s. P. C. Roy Chowdhury and Sons and not of the. Electric Supply Corporation which is the ''licensee''. Section 44(d) of the Act uses the expression ''improperly uses the energy of a licensee''. Mr. Ghosal submits that the Petitioner has improperly used the energy of M/s. P. C Roy Chowdhury and Sons and not of the ''licensee'' the Calcutta Electric Supply Corporation. This argument cannot be accepted. The electricity supplied to all the consumers is the electricity of the Calcutta Electric Supply Corporation, but all consumers must make proper use of the electricity, and improper use of this electricity is made punishable u/s 44(d) of the Act. Using electricity for which M/s. P. C. Roy Chowdhury and Sons were paying to the Calcutta Electric Supply Corporation is an improper use of the electricity supplied by the Calcutta Electric Supply Corporation, and so, the facts proved do come u/s 44(d) of the Act. This argument of Mr. Ghosal, therefore, fails.

Mr. Ghosal then contends that cognizance taken has been bad in law as the complaint has not been filed by M/s. P. C. Roy Chowdhury and Sons who are the persons aggrieved. Section 50 of the Act states:

No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or an Electrical Inspector or of a'' person aggrieved by the same.

Here, the person aggrieved by the alleged theft is M/s. P. C. Roy Chowdhury and Sons and the complaint has been filed by one Nalini Ranjan Das. True, Nalini Ranjan Das states in the petition of complaint that he is the superintendent of the market under M/s. P. C, Roy Chowdhury and Sons, but nowhere in the petition of complaint or in the initial statement u/s 200 of the Code of Criminal Procedure or in the evidence at the trial has it been said that the complaint has been filed under the instruction of or with the consent of M/s. P. C. Roy Chowdhury and Sons. Mr. Ghosh submits that from what was stated in the petition of complaint it should be inferred that the complaint was made at the instance of M/s. P. C. Roy Chowdhury and Sons. At the instance of means ''at the motion or solicitation of or request of. But, as I have said, nowhere in the petition of complaint or the initial statement or the evidence it is said that the complaint was made at the motion or solicitation or at the request of M/s. P. C. Roy Chowdhury and Sons. No doubt, Nalini Ranjan Das was the superintendent of the market, no doubt he detected the theft and made enquiries; but all these may be consistent with his making the complaint without even referring the matter to M/s. P. C. Roy Chowdhury and Sons. So, from the facts alleged it cannot be said that the complaint must have been filed under instructions of or with the consent of M/s. P. C. Roy Chowdhury and Sons. Mr. Ghosh refers to the Madras High Court''s decision in The Public Prosecutor Vs. Abdul Wahab and Others, . The Madras High Court has said that the words ''at the instance of person aggrieved'' should be given a wider meaning, and in the facts of that case the complaint was held to have been made at the instance of the company which was the person aggrieved. From a consideration of the materials on record at the trial in this case, it is difficult to say that the complaint has been made at the instance of M/s. P. C. Roy Chowdhury and Sons. But, even then I do not think that I should interfere with the order of conviction in this case. Both the Courts have found that the Petitioner has committed theft as alleged. If the order of conviction is set aside, M/s. P. C. Roy Chowdhury and Sons may make a fresh complaint against the Petitioner and a fresh trial will ensue and the Petitioner will have to face the fresh trial. It would not be, therefore, in the interest of justice to interfere with the conviction in the instant case.

In the result, the Rule is discharged subject to this that the sentence is reduced to a fine of Rs. 50 (Rupees fifty), in default, simple imprisonment for a fortnight.