Venkatachalapathy vs State

The petitioner herein is the accused No. 5 in C.C. No. 20 of 1996 on the file of the Judicial Magistrate No. 1. Salem and he seeks to quash the

proceedings in the case insofar he is concerned.

Briefly, the facts stated in the petition are as follows, The petitioner along with others is proceeded against for offences under Sections 39(1)

read with 44(1)(c) of the Indian Electricity Act in C.C. No. 20 of 1996. According to the complaint, on 11-5-1995, the officials of the Tamil

Nadu Electricity Board inspected the High Tension Service Connection in M/s. Annamalai Cotton Mills (P) Limited, Gajjanaickenpatty, Salem and

it was found that two copper bit wires were inserted on the ''R'' and ''D'' phase incoming and outgoing Jumpers of the metering set diverting the

power supply direct to the Mill without going through the current transformer of the metering set by way of short circuit and thus. Illegally

abstracted and consumed energy. The accused No. 1 is the Mill and accused Nos. 2 and 3 are Managing Directors and accused Nos. 4 and 5 are

Directors and accused Nos. 6 and 7 are the Manager and Electrician of the accused No. 1, Mill. According to the complaint, accused Nos. 1 to 7

committed the theft of electricity, punishable under Sections 39(1) read with 44(1)(c) of the Indian Electricity Act. The final report, including the

statements of witnesses and the documents filed in support of the case, does not connect the petitioner with the crime. As per Section 49A of the

Indian Electricity Act, unless the allegations are made to the effect that the petitioner was in charge of and was responsible to the Company for the

conduct of the business of the Company, the petitioner cannot be proceeded against and punished for the offence. The prosecution, in the present

case, has not made such allegation against the petitioner and hence the proceedings are liable to be quashed.

In fact, the accused No. 4 viz,, Subramani, who was also a Director, had filed a petition for quashing the proceedings in the same case in Crl.O.P.

No. 16901 of 1998 and the proceeding against him was quashed by Order dated 25.10.2000. The continuation of the proceedings against the

petitioner, in the circumstances, is an abuse of process of the Court resulting in failure of justice and hence the proceedings are liable to be

quashed.

The learned counsel for the petitioner contends that the petitioner is only a Director of the Mill and the prosecution has not alleged that the

petitioner was in charge of and was responsible to the accused No. 1-Mill for the conduct of the business of the Mill and the records of

Investigation also did not show that the petitioner was or had been participating in the day to day affairs of the Mill and the mere fact that the

petitioner was the Director of the accused No. 1-Mill would not be sufficient to fasten criminal liability on him and he relies on the decision of this

Court in P. Jeyanthi v. State, rep, by Sub Inspector of Police (crimes), Maduravoyal Police station, Chingleput District, 1990 L.W. Cri. 398. u/s

49A of the Act, the onus is on the prosecution to establish that every person, who at the time of the offence was committed, wan in charge of and

was responsible to the Company for the conduct of the business of the Company, before liability could be fastened. Once the initial onus of the

prosecution is discharged, then the burden shifts to the other person to prove that the offence was committed without his knowledge or that he had

exercised due diligence for prevention of commission of the offence.

It is apparent from the allegations in the First Information Report that the petitioner was not present during the inspection. The F.I.R. reads as

follows.

The service connection stands in the names of the Managing Director viz., accused No. 2. Mr. P. Sundaram and the Joint Managing Director viz.,

accused No. 3, Mr. P. Viswanathan. In the final report, it has been stated that the petitioner herein is one of the Directors of the accused No. 1-

Mill. The facts stated earlier clearly show that as far an the petitioner in concerned, there is not even a whisper nor any shred of evidence nor

anything to show that there was any act committed by the petitioner, from which, a reasonable inference can be drawn that he could also be

vicariously liable.

In the absence of any allegation or material in the records to disclose that the petitioner was participating in the day to day affairs of the Mill, the

prosecution cannot be allowed to continue insofar as the petitioner is concerned. It is also brought to my notice that this Court in Crl.O.P. No.

16901 of 1998 has quashed the proceedings with regard to the other Director viz., Subramani, who was accused No.3 in the case.

In the result, the petition is allowed and the proceeding in C.C.No.20 of 1996 on the file of the Judicial Magistrate No. 1, Salem, insofar as the

petitioner is concerned, is quashed, connected Crl.M.P. No. 1751 of 2001 is closed.