The Public Prosecutor vs Abdul Wahab and Others

P.S. Kailasam, J.—This appeal is remanded by the Supreme Court for determination of the question whether the appellant (before the

Supreme Court) is guilty of an offence u/s 39 of the Indian Electricity Act, 1910, as the question whether the Chief Engineer, Kumbakonam

Electric Supply Corporation was the ""person aggrieved"" had, not been determined by this Court.

Six persons were tried by the Sub-Magistrate of Papanasam for an offence, u/s 379, Indian Penal Code read with Section 39 of the Indian

Electricity Act, 1910 and Section 44(c) and (d) of the said Act. All the accused were acquitted by the Sub-Magistrate and the State filed an

appeal against the order of acquittal. During the hearing of the appeal in this Court, it was submitted, that the prosecution of an offence alleged to

have been committed by the accused u/s 39 of the Indian Electricity Act could not be institued except at the instance of an ""aggrieved person"". The

question whether dishonest abstraction, consumption or use of electrical energy which was deemed to be theft by virtue of Section 39 of the Indian

Electricity Act, 1910, will amount to an officer against that Act, or one u/s 379 of the Indian Penal Code, was referred to a Full Bench. The Full

Bench (1965) M.L.J.51 : ILR (1964) Mad. 653 answered the reference as follows:

The offence of dishonest abstraction, consumption or user of electricity will not be one coming within the mischief of Section 50 of the Indian

Electricity Act, but one u/s 379 of the Indian Penal Code read with Section 39 of that Act.

After the expression of this opinion by the Full Bench, viz., the offence was one under the Indian Penal Code and hence Section 50 of the Indian

Electricity Act, 1910, had no application, the preliminary objection that ""the person aggrieved"" had not launched the prosecution did not arise. On

the facts, this Court allowed the appeal against the first accused alone holding him guilty u/s 379, Indian Penal Code, read with Section 39 of the

Indian Electricity Act, 1910. On appeal, the Supreme Court, in view of its decision in Avtar Singh Vs. State of Punjab, , holding that ""dishonest

abstraction of the electricity mentioned in Section 39 of the Act cannot be an offence under the Indian. Penal Code"", set aside the conviction of the

appellant u/s 379, Indian Penal Code. But as the petitioner was also charged u/s 39 of the Indian Electricity Act and as the questions whether the

accused was guilty or not u/s 39 of the Indian Electricity Act, 1910 and whether the Chief Engineer, on the facts of the case, may be regarded as

the ""person aggrieved"" to enable him to institute the proceeding, were not considered by this Court, the Supreme Court remanded the case with a

direction that the question whether the appellant was guilty of an offence u/s 39 of the Indian Electricity Act, 1910 may be determined. In

pursuance of this remand, the matter comes up before this Court for disposal.

The learned Public Prosecutor at the time of the hearing of the appeal, requested that he may be permitted to adduce additional evidence and

mark certain documents. That petition was ordered, as it was felt that in the circumstances of the case, the material documents should be permitted

to be marked inevidence and that the Chief Engineer, Kumbakonam Electric Supply Corporation should be examined. The Chief Engineer was

accordingly examined by this Court, and Exhibits P-16 and P-17 were filed.

Section 50 of the Indian Electricity Act, 1910, provides as follows:

No prosecution shall be institued against any person for any offence against this Act or any rule, license or order, thereunder, except at the instance

of the Government or an Electrical Inspector, or of a person aggrieved by the same.

In this case, the licensee is the Kumbakonam Electric Supply Corporation and the question is whether the prosecution is instituted by"" a person

aggrieved"".

The accused applied for a temporary connection by Exhibit P-2 to the Kumbakonam Electric Supply Corporation for the purpose of illuminating

a marriage pandal. Under Exhibit P-3, dated 1st September, 1960, the Kumbakonam Electric Supply Corporation permitted a temporary

connection to the accused''s house. In this communication, P.W. 1, the Chief Engineer had signed ""for the Kumbakonam Electric Supply

Corporation"". In the complaint, Exhibit P-4, P.W. 1 did not state that he was signing on behalf of the Kumbakonam Electric Supply Corporation,

though he has signed the complaint. Exhibit P-4, however, states that the complainant is the Chief Engineer of the Kumbakonam Electric Supply

Corporation.

The agreement for the temporary service connection was signed by the first accused and P.W. 1, K.S. Seshadri, Chief Engineer, for

Kumabakonam Electric Supply Corporation. The Memorandum and Articles of Association of the Kumbakonam Electric Supply Corporation,

Ltd., is marked as Exhibt P-16. Provision is made for the appointment of Managing Agents by Articles 83 to 88. Article 84 provides that the India

Company (Private) Ltd. the first Managing Agents of the Company and who have been re-appointed Managing Agents of the Company for a

further period often years on and from 1st January, 1950, shall continue and be the Managing Agents of the Company. Under Article 85, the

Managing Agents have been given full power and authority to appoint all or any attorneys and managers, engineers, officers, fitters, servants, or

agents for the services of, and on behalf of the company. Under Exhibit P-1, P.W. 1, was appointed as the general power-of-attorney agent. On

25th April, 1960, Kumbakonam Electric Supply. Corporation Ltd., and the India Company (Private) Ltd. entered into an agreement by which

India Company (P.) Ltd. was appointed, as Managing Agents. It is recited that notwithstanding the appointment of India Company (P.) Ltd., as

the Managing Agents till 14th April, 1961, the said appointment became terminated by virtue of Section 330 of the Companies Act, 1956, on the

15th of August, 1960. Kumbakonam Electric Supply Corporation and India Company (P.) Ltd. mutually agreed, that India Company (P.) Ltd., be

appointed as Managing Agents from 15th August, 1960 to 15th August, 1965. It was during this period that the offence was committed, and the

complaint was given by P.W. 1.

It will be seen that under the Article of Association, the Managing Agents have the power and authority to appoint attorneys and managers,

engineers, officers, etc., for the services of and on behalf of the Company. When an attorney, manager or officer is appointed by the Managing

Agents, his services are for and on behalf of the company. By the appointment under Exhibit P-1, P.W. 1 is entitled to act as an attorney or agent

for and on behalf of the company.

The contention of the learned Counsel for the accused is that by Exhibit P-1, the Managing Agents appointed P.W. 1, as the power-of-attorney

of India Company(P.) Ltd., and not on behalf of Kumbakonam Electric Supply Corporation. In support of this contention, the learned Counsel

referred to certain passages in Exhibit P-1 and submitted that the appointments could not be on behalf of Kumbakonam Electric Supply

Corporation. He also submitted that as the power-of-attorney was executed in the year 1955 and as the Managing Agents were re-appointed, in

1960, the power-of-attorney executed in the year 1955 would not be valid. It was contended on behalf of the accused that the person aggrieved is

the Kumbakonam Electric Supply Corporation and a complaint should have been filed by the Company itself by passing a special resolution

authorising any person to do so, and in the. absence of a specific authorisation, P.W. 1, the Chief Engineer, cannot be said to be acting at the

instance of the Company. The learned Counsel referred to the general power-of-attorney Exhibit P-1, and submitted that the appointment of P.W.

1, was as the attorney for the Managing Agents. He relied on the phrase ""to be our attorney in our name and on our behalf"". The mention of the

word ""company"" in the document, it was submitted, would, refer to India Company (P.) Ltd. and not the Kumbakonam Electric Supply

Corporation. On a careful examination of the general power-of-attorney, I am unable to accept this contention. It may be seen that under Article

85 of the Articles of Association, the Managing Agents have been empowered to appoint attorneys and managers, engineers, or officers, to act for

and on behalf of the company. The Articles of Association and the Agreement between the Kumbakonam Electric Supply Corporation and India

Company (P.) Ltd., referred Kumbakonam Electric Supply Corporation, as the Company and India Company (P.) Ltd., as the Managing Agents.

In Exhibit P-1, the power-of-attorney, the words ""a company registered under the Indian Companies Act, 1913, and having its registered office at

Oriental Building, Armenian Street, Madras,"" would refer to the Kumbakonam Electric Supply Corporation. This is made clear by the recital to be

our attorney in our name and on our behalf to do all or any of the following acts or things to the intent that the powers conferred shall extend to all

matters in which the Company is now or may hereafter become interested"". The phrase ""to be our attorney in our name and on our behalf"" would

certainly refer to India Company (P.), Ltd. But the phrase ""the powers conferred shall extend to all matters in which the company is now or may

hereafter become interested"" would refer to the Kumbakonam Electric Supply Corporation. Under Clause (1) of the power-of-attorney, P.W. 1 is

authorised to give a discharge in respect of any property to which the company may be entitled to and to effect a compromise or release of any

claim in respect of all property, money, securities and rights. A distinction between a claim of the company and. a claim against ""us"" (The India

Company (P.) Ltd.) is discernible. Clause (5) of the powers-of-attorney makes the position clear, for it empowers P.W. 1 to present for

registration on behalf of the company any document executed by Sri C.R. Ramaswamy signing on behalf of India Company (P.) Ltd., as managing

agents of the Kumbakonam Electric Supply Corporation, and to admit execution thereof, etc. A distinction is, therefore, maintained between the

company and the Managing Agents, and P.W. 1, is authorised to present for registration any instrument or deed on behalf of the Company

executed by Sri C.R. Ramaswamy signing on behalf of the India Company (P.) Ltd.

It is clear that the power-of-attorney was executed by the Managing Agents empowering P.W. 1 to act on behalf of Kumbakonam Electric

Supply Corporation. The power-of-attorney is in accordance with the powers conferred on the Managing Agents under Article 85 of the Articles

of Association. No doubt, after the execution of the power-of-attorney on 25th April, 1960 the managing agency agreement was renewed, as the

agency was terminated by virtue of Section 330 of the Companies Act, 1956. This re-appointment will not in any way affect the validity of the

power-of-attorney. In view of the fact that there has been no break in the managing agency of the company and that the power-of-attorney

executed by the Managing Agency in 1955 would continue to be in operation till it is revoked, it will have to beheld that the appointment of P.W. 1

as the power-of-attorney agent of the Managing Agents would empower him to act on behalf of the Company also. On a reading of Exhibits P-16

and P-17 and also Exhibit P-1, I am satisfied that P.W. 1 was acting as the power-of-attorney agent of the Kumbakonam Electric Supply

Corporation and the prosecution is at the instance of the aggrieved person.

It is admitted that the company did not file any complaint or pass any resolution authorising any person to file a complaint. But in the

circumstances stated above, I find that the absence of such complaint or resolution will not invalidate the proceedings.

The learned Counsel for the accused submitted that P.W. 1 in his cross-examination in the trial Court admitted that he gave the complaint as

the Chief Engineer and not as the power-of-attorney agent. This admission is relied on for submitting that the complaint was not giver as the

power-of-attorney agent. When his attention was drawn to this statement in his cross-examination in this Court, P.W. 1 replied that the power-of-

attorney was already there and it could speak for itself. He wanted to impress by saying that he signed the complaint as Chief Engineer because he

was responsible for any loss to the company. What P.W. 1 had stated in the evidence would not in any way affect the legal position. The mere fact

that P.W. 1 stated that he gave the complaint as the Chief Engineer and not as the power-of-attorney agent would not alter the position. If the

power-of-attorney was in force, as it had been found to be, he would be acting on behalf of the company and would be a person competent to

institute the complaint.

Even assuming, that P.W. 1, was not a power-of-attorney agent, in the circumstances of the case, it can be found that P.W. 1 was acting at the

instance of Kumbakonam Electric Supply Corporation. That P.W. 1 was acting on behalf of the Kumbakonam Electric Supply Corporation is

clear from Exhibit P-3, the temporary permit granted to the accused. Though Exhibit P-4 was signed by P.W. 1 without specifically stating that it

was on behalf of the company, it was given by P.W. 1 as the Chief Engineer of the Kumbakonam Electric Supply Corporation. Exhibit P-12, the

agreement between the Kumbakonam Electric Supply Corporation and the accused, is signed by P.W. 1 for the Kumbakonam Electric Supply

Corporation as its Chief Electrical Engineer. The documents referred to above clearly show that P.W. 1 as Chief Engineer of the Corporation, was

acting on its behalf.

The meaning of the phrase ""at the instance of"" is given in the Chambers Dictionary as ""at the motion or solicitation of"". In P. Ramanatha Iyer''s

Law Lexicon, the same meaning is given. In Vishwanath Vs. Emperor, , a bench of the Court stated that the phrase ""at the instance of"" means

merely ""at the solicitation of or at the request of"", that it had been introduced so as to make the provision a general one and that if it had been the

intention of the legislature that no case should be instituted in Court except by the Electrical Company itself or other persons mentioned in Section

50 of the Act, the Legislature would have used the ordinary phrase ""on the complaint of"" and the section would have been on the lines that no

Magistrate should take cognizance of any offence referred to in Section 50 of the Act, except upon the complaint of certain persons. The Court

further held that the prosecution should not be instituted by some independent busy-body who had nothing to do with the matter. The officers of

the company discovered the theft and reported it to the police to make an investigation. In the circumstances, the Court held that the officers

intended that prosecution should follow according to the result of the investigation and concluded that the prosecution was at the instance of the

Electric Company. This decision would support the view that the phrase ""at the instance of"" should be given a wider meaning and it was intended

for the purpose of excluding independent persons who had nothing to do with the company from giving a complaint. A complaint by reasonable

officers of the company, even though there is no specific authorisation, would be ""at the instance of"" the company. In Bhagalpur Electricity Supply

Co. Ltd. Vs. Hari Prasad Saha and Others, , following the decision in Vishwanath Vs. Emperor, , the Court expressed it opinion that when a

responsible officer of a company reports an offence to the police and a prosecution is therefore set on foot, that will be considered to be a

prosecution instituted ""at the instance of"" the company. It is no doubt true that in the case cited, the complaint was presented by the residential

engineer after obtaining an authorisation from the Managing Agents, and therefore the observations will be in the nature of an obiter dicta. In AIR

1944 330 (Nagpur) , a Bench of the Court was of the view that the expression ""at the instance of"" does not mean ""on the complaint of"" or ""with

the sanction of"" but only means ""at the asking ""or ""the suggestion of"" and the object of using that phrase was only to prevent indiscriminate

prosecutions by persons without any expert knowledge of the working of electricity. In State Vs. Maganlal Chunilal Bogawat, , a Bench of the

Bombay High Court was of the view that the object of the legislature was that only persons aggrieved may set the law in motion, and in the case

before the Court one Mr. Gore, the officer who acted for and on behalf of the Company having set the law in motion, the prosecution must be

regarded as having been instituted at the instance of the Company. In this case also, sanction was obtained from the head office to lodge a

complaint and therefore the observations are in the nature of an obiter dicta. In the four cases cited above, the Courts have taken the view that

when the law is set in motion by a responsible officer for and on behalf of the company, the prosecution should be regarded as having been

instituted at the instance of the company.

The learned Counsel for the accused relied on the decision in Dhoolckand v. State (1957) 58 Cri. L.J. 233, wherein it was held by the

Rajasthan High Court that the Superintendent, Electrical and Mechanical Department of the Government does not come within the meaning of the

words ""Government"" or ""Electric Inspector"", as he is only a paid servant of the Government and he cannot be said to have been aggrieved at the

offence. The case can be distinguished on the facts, in that, the officer did not verify the truth of the complaint and left it to the police to check up

and do the needful. Further, there is nothing in the evidence to show that the officer was acting on behalf of the Government. On a consideration of

the authorities cited before me, I am of the view that when a prosecution is instituted by a responsible officer of the company, the requirement of

Section 50 of the Indian Electricity Act, 1910, that the institution of the prosecution should be at the instance of the aggrieved person is satisfied.

In this case, P.W. 1, the Chief Engineer has stated that he was in entire charge of the administration of the Corporation including the Accounts

Department. It is also clear that he was acting on behalf of the Corporation by signing agreement forms for giving connections to applicants. I

accept the testimony of P.W. 1 and find that he was acting on behalf of the company, and as a responsible officer, he instituted the prosecution

before the police. The signing of the complaint by P.W. 1 as K.S. Sheshadri without mentioning that he did so on behalf of the Corporation would

not make any difference, because, in the complaint itself he had stated that he was the Chief Engineer of the Corporation. I am satisfied that in the

circumstances of the case, the requirement that the institution of the prosecution should be at the instance of the aggrieved person had been

satisfied. There can therefore be no impediment in holding that the accused is guilty of an offence u/s 39 of the Indian Electricity Act, 1910, and the

order of remand is answered accordingly.

Mr. V.T. Rangaswamy Iyengar requested the Court to go into the facts and consider the question whether an offence u/s 39 of the Indian

Electricity Act, 1910 had been made out. This request is beyond the scope of the remand, for, what is directed to be decided is the question

whether the Chief Engineer of the Corporation may, on the facts of the case, be regarded as the person aggrieved, as the said question had not

been determined by the High Court.

On a consideration of the facts before the remand by the Supreme Court, this Court allowed the appeal of the State in so far as the first

accused is concerned and held that he was guilty of dishonest consumption of electrical energy. This is an offence u/s 39 of the Indian Electricity

Act, 1910. A finding is therefore recorded that the accused is guilty of an offence u/s 39 of the Indian Electricity Act, 1910.