Calcutta Electric Supply Corporation vs Arun Kumar Dhar

Manoj Kumar Mukherjee, J.—In this revisional application the four Petitioners pray for quashing the proceeding of case No. C/337 of 1975 pending against them in the Court of the learned Metropolitan Magistrate, Eleventh Court, Calcutta, u/s 42(b) read with Section 22 of the Indian Electricity Act, 1910.

The facts leading to the filing of the instant revisional application may be stated as follows:

On February 12, 1973, the complainant opposite party filed a petition of complaint in the Court of the Chief Metropolitan Magistrate, Calcutta, against the four accused Petitioners for having committed offence punishable u/s 42(b) of the Indian Electricity Act (hereinafter referred to as the Act) read with Section 22 of the Act. The allegations made in the said complaint were that the, complainant was inducted as a tenant in premises No. 32B Brindaban Basak Street, Calcutta-5, in the month of August 1972, in respect of one ground-floor room. The complainant intended to open a plastic manufacturing business in the said room and purchased the requisite machineries, furniture and fixtures for starting the said business and invested a considerable amount for the same. On August 21, 1972, the complainant applied for electric supply in the said premises from the Calcutta Electric Supply Corporation Ltd. (hereinafter referred to as the Corporation), the Petitioner No. 1 herein, in his own name and in the prescribed form of the Corporation. The accused No. 2, the District Engineer of the Corporation, by his letter dated September 8, 1972, intimated the complainant that supply to the previous consumer of the said premises was cut off for non-payment of outstanding dues and directed the complainant to contact the Senior Revenue Officer of the Corporation, North Regional Office. By the said letter it was further intimated to the complainant that before clearance to proceed was received from the Revenue Department of the Corporation, further correspondence could not be entertained. The complainant was surprised to receive such a letter as he felt that he could not be made liable or electricity supply could be withheld for non-payment of electricity bills by others of the said address. Accordingly, the complainant addressed a letter to the District Engineer on September 16, 1972, with a copy to the Senior Revenue Officer, the Petitioner No. 3, requesting him to reply to the same, but the accused No. 3 did not even care to reply to the said letter of the complainant. By a letter dated October 4, 1972, the Acting District Engineer requested the complainant to get in touch with the Revenue Department relating to outstanding dues and clearly mentioned that they were not in a position to proceed further unless clearance to proceed was received from the Revenue Department. On receipt of the said letter, the complainant again wrote a letter to the District Engineer on October 7, 1972, with a copy to the Petitioner No. 3 and the Chairman of the Corporation. In the said letter the complainant wrote to the department concerned that there could not be any outstanding dues as suggested in the letter dated October 4, 1972, of the Petitioner No. 2 as because the Corporation had already given a new A.C. electricity supply connection at the said address in the month of May 1972 to a tenant Sri Panchu Gopal Dey, who runs a hosiery business there. According to the complainant, he did not receive any reply to his letter from the Petitioner No. 3, but the Petitioner No. 2 by a letter dated October 24, 1972, assured the complainant that his letter was referred to the Revenue Officer who should communicate to him in due course. Unfortunately, however, the Revenue Officer made no communication in spite of repeated requests of the complainant and due to non-supply of electricity the complainant could not start his business and had to suffer huge loss after laying out a considerable sum of money in his plastic goods manufacturing business. On November 15, 1972, the complainant wrote a letter to the Acting District Engineer and he was advised to meet the Senior Revenue Officer. As per the said advice the complainant met the officer concerned when he was told that no electricity connection could be given to the premises of the complainant unless a sum of Rs. 3,000 approximately was deposited being the amount due on account of electric consumption by other persons of the said premises which was lying unpaid. The complainant was further told that the said money was to be paid in the name of those persons who actually consumed the electricity and not in the name of the complainant. Finding no other alternative, the complainant on December 15, 1972, wrote a letter to the Commercial Manager, the Petitioner No. 4 herein, intimating him of the entire facts and requested him to give the electricity supply, but no reply was given to the said letter. The complainant being convinced that the Petitioner No. 1 through its officers, the Petitioners Nos. 2 to 4, were putting illegal pressure on the complainant for payment of dues of others, sent a lawyer''s notice dated January 22, 1973, under registered post to the Petitioner No. 4 for giving electric connection to the complainant, but he did not arrange for the electric supply to the premises of the complainant nor did he even care to reply to the lawyer''s letter. On the above allegations the complainant averred in the petition of complaint that as he was a resident within the area of supply of the Corporation he was entitled to have supply of electric energy and the Petitioner No. 1 being the licensee and the other accused persons being the officers of the Petitioner No. 1 were bound to supply electric energy to the complainant, but they having illegally and wrongfully refused to supply electricity to the complainant, committed offence punishable u/s 42 of the Act.

On the basis of the said complaint, summons were issued against the lour Petitioners and alter they entered appearance, the case was transferred to the Court of the learned Fourth Metropolitan Magistrate, Calcutta, for disposal. Alter some witnesses on behalf of the complainant were examined and cross-examined, an application was filed on April 18, 1975, on behalf of the Petitioners, inter alia, submitting that the provisions of Section 200 of the Code of Criminal Procedure, 1898, having not been complied with there was a lacuna in taking cognizance of the offence and as such, the entire proceeding against them was void ab initio, the learned Magistrate on a consideration of the materials on record and in view of * decision of this Court held that the cognizance taken was bad in law and accordingly, discharged the accused persons from their bail bonds.

The complainant, thereafter, on April 22, 1975, filed a fresh petition of complaint on self-same allegations before the learned Chief Metropolitan Magistrate, Calcutta, against the four Petitioners. The learned Magistrate perused the complaint and called for the records of the previous case from the Court of the learned Metropolitan Magistrate, Fourth Court. On perusal of the complaint the records of the previous case and the correspondences that passed on between the parties, the learned Chief Metropolitan Magistrate by his order dated April 23, 1975, issued process against the Petitioners to stand their trial u/s 42(b) read with Section 22 of the Act. The Petitioners entered appearance in connection with the case and on July 5, 1975, a petition was filed on behalf of the Petitioner No. 1 praying for dismissal of the complaint on the ground that the same was barred by limitation u/s 468 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code). This application was heard in presence of the parties and by his order dated April 5, 1976, the learned Chief Metropolitan Magistrate, Calcutta, dismissed the application of the Petitioner No. 1 and transferred the case to the file of the Metropolitan Magistrate, Eleventh Court, Calcutta, for disposal. The Petitioners, thereafter, moved this Court and obtained the present Rule. For reasons given in my order dated October 4, 1977, the Rule in respect of the Petitioner No. 3, however, stands discharged.

Mr. Sudhir Kumar Basu, the learned Advocate appearing for the accused Petitioners firstly contended that, as the present complaint is barred by limitation u/s 468 of the new Code, the learned Magistrate could not have taken cognizance of the complaint and as such, the entire proceeding is void ab initio and liable to be quashed. According to Mr. Basu, the offence u/s 42 of the Act being punishable with fine only, the period of limitation for filing such complaint is six months and as the present complaint had been filed long after the said period, the learned Magistrate was not entitled to take cognizance of the same. Mr. Basu submitted that in rejecting the prayer of the Petitioner No. 1 for dismissal of the complaint on this ground the learned Magistrate has taken recourse to Section 470(1) of the new Code by excluding the time during which the complainant was prosecuting the earlier complaint but, according to Mr. Basu, the said section has no application to the facts of the instant case. There is, however, no controversy that if the period during which the complainant had been prosecuting the earlier complaint is excluded u/s 470(1) of the new Code for computing the period of limitation, the present complaint is not barred by limitation. The point, therefore, for consideration is whether Section 470(1) of the new Code is applicable to the facts of the instant case. Section 470(1) of the new Code reads as follows:

In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded:

Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it.

According to Mr. Basu, the earlier complaint in the instant case was not dismissed on the ground that the Court from defect of jurisdiction or other cause of a like nature was unable to entertain it. The words ''other cause of a like nature'', according to Mr. Basu, has to be read ejusdem generis and it can only be applicable in respect of a proceeding where the Court suffered from initial lack of jurisdiction and not in a case where the Court had jurisdiction, but there was improper or illegal exercise of such jurisdiction. To appreciate this contention of Mr. Basu, it has to be borne in mind that the earlier complaint was dismissed on the ground that the cognizance was bad as there was a noncompliance with the provisions of Section 200 of the Code of Criminal Procedure, 1898. In a decision of this Court in Brahmananda Goyal and Anr. v. N.C. Chakraborty and Ors. 79 C.W.N. 60 it was held that the learned Magistrate at the stage of examination of the complainant u/s 200 of the said Code was obligated to record in the order-sheet whether his witnesses were present or not. Non-recording of such fact, according to the decision of this Court, made the cognizance bad. It is in the context of the said decision of this Court that the learned Magistrate at a subsequent stage of the proceeding discharged the accused due to non-compliance with the said provisions of Section 200.

In my considered view the circumstances which weighed with the learned Magistrate in dismissing the earlier complaint comes within the purview of ''other cause of a like nature''. The words ''other cause of a like nature'' referred to cases where the action of a Court is prevented by some unavoidable circumstances over which no one has any control or was something incidental to the Court itself and not due to any negligence on the part of the prosecution. The defect must be of such a character so as to make it impossible for the Court to entertain the complaint and to decide it on its merits. The proviso to Section 470(1) of the new Code would apply where the Court in which the previous proceeding was instituted was unable to entertain it on account of the Court''s defect of jurisdiction or some causes of like nature, that is, on some technical ground and therefore, rejected it but would not apply where the previous proceeding was dismissed after adjudication on its merits. There is no doubt that in the instant case the earlier com plaint was dismissed on some technical grounds and therefore, such a ground falls squarely within the meaning of ''other cause of a like nature''.

With reference to the self-same proviso, another point that has been raised by Mr. Basu, is that in the instant case the Court before which the earlier complaint was filed was able to entertain it and in fact, entertained it and therefore, it does not come within the words ''unable to entertain it'' appearing in the said proviso. According to Mr. Basu, the said proviso can only be applicable in a case where the Court due to some reason or other is unable to entertain the complaint, like sanction etc., but is not applicable to a case where the Court could entertain the same but for some reason or other subsequently failed to exercise its jurisdiction in connection with the said case. In this connection, Mr. Basu has referred to a decision in Kashiram Vs. Santokhbai, . Their Lordships of the Madhya Pradesh High Court in that decision was considering the provisions of Section 14(2) of the Limitation Act, 1908, the language of which is almost identical with that of the proviso to Section 470(1) of the new Code. In construing the provisions of Section 14(2) of the Limitation Act their Lordships held:

In our opinion, when a suit is dismissed not because the Court has no jurisdiction to entertain it, or for any other cause of a like nature, but because it was misconceived or because the proceeding or the suit was not recognised by law as legal in its initiation then clearly Section 14 of the Act is not attracted to such a suit.

Then again in the self-same judgment their Lordships held:

Section 14 of the Limitation Act speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds, which are of a formal nature and inability to entertain a suit means not inability to grant relief to the Plaintiff but inability to give him a trial at all. For arriving at such decision their Lordships relied upon a decision of this Court reported in Nakul Chandra Ghose and Others Vs. Shyamapada Ghose, where the meaning of the word ''entertain'' u/s 14 of the Limitation Act, 1908, also came up for consideration.

Mukherjea J. (as his Lordship then was) while delivering the judgment observed as follows:

The inability to entertain a suit means not inability to grant relief to the Plaintiff but inability to give him a trial at all and as Section 14, Limitation Act, can be invoked only in cases where the previous suit or proceeding has not been heard on its merits, the word ''entertain'' seems to have been deliberately'' used by the Legislature. Because the section speaks of the inability of the Court to entertain a suit or proceeding on certain specific grounds only, which are of a formal nature, it cannot be argued that by implication the Legislature concedes that the Court might be regarded as not entertaining a suit even when the suit fails on its merits.... We adhere to the view which we have taken in the cases referred to above and hold that a suit is to be regarded as not ''entertained'' by the Court only if it is thrown out at its inception and the Court does not decide it on its merits.... It is true that the mere fact that a suit or application is entered in the register of the Court is not conclusive to show that it was entertained. The question whether it is entertainable or not might be raised at a later stage and the Court might then decide not to entertain the case. It is not necessary for us to formulate exhaustively the different grounds upon which a Court might refuse * to entertain a suit or proceeding. They may include grounds of jurisdiction and of procedure as well and in each case the point for determination would be whether the Court did entertain the suit or application and then decided that the Plaintiff was not entitled to any relief or it declined to embark upon the case at all.

It would thus appear from the above observations in the said two decisions that the entire question boils down to the meaning of the word ''entertain'' as appearing in the proviso to Section 470(1) of the new Code.

Mr. Manash Ranjan Chakraborty, learned Advocate appearing for the State opposite party, has referred to a decision of the Supreme Court reported in Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another, . In this decision their Lordships relying on the dictionary meaning of the word ''entertain'' and a number of decisions of the Allahabad High Court expressed the view that the word ''entertain'' means ''admit to consideration'' and quoted with approval the view of the Allahabad High Court that the word ''entertain'' meant not ''receive'' or ''accept'' but ''proceed to consider on merits'' or ''adjudicate upon''.

Keeping in view the above meaning of the word ''entertain'' as interpreted by the Supreme Court let us now see whether in the facts of the instant case the Court was unable to entertain the previous complaint. As I have already indicated, the Court discharged the accused persons as it was of the view that the cognizance was bad ab initio. It is now a settled law, that ''cognizance'' means ''become aware of and when used with a reference to a Court or Judge, ''to take notice of judicially'' or in other words when the Court takes a matter for judicial consideration to further proceed into the matter that means taking cognizance. In my view, receiving a complaint and taking cognizance thereon are two distinct things and stages of a criminal proceeding. After receiving a complaint when the Court decides to take notice of it judicially then only comes the stage of cognizance and such taking of cognizance is the same as admitting for judicial consideration and amounts to ''entertainment of the complaint''. In other words, only when the Court decides to take cognizance it entertains the complaint and not before it. That being the position, in my considered view having regard to the facts and circumstances of the instant case the learned Magistrate was unable to entertain the complaint. It necessarily follows, therefore, that the proviso to Section 470(1) is squarely attracted to the facts of the instant case. This contention of Mr. Basu must, therefore, be overruled.

The next branch of Mr. Basil''s argument is that the proviso to Section 22 of the Indian Electricity Act is applicable to the facts of the instant case and therefore, the instant prosecution against the Petitioners is premature. According to Mr. Basu, on the face of the allegations made in the complaint there is a dispute between the Corporation and the complainant as to the amount to be paid for supply of electric energy and such dispute is required to be decided by arbitration in view of the proviso to Section 22 and before the matter is decided in such arbitration the instant complaint could not have been filed. I am, however, unable to accept this contention. The proviso to Section 22 of the Indian Electricity Act, in my view, has no application to the instant case. The said proviso reads as follows:

Provided that no person shall be entitled to demand, or to continue to receive from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capital expenditure and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration.

A plain reading of the above proviso would unmistakably show that this has nothing to do with payments to be made for arrear electricity charges for others as claimed by the Corporation from the complainant. Then, again, here the quantum of amount is not in dispute. What is disputed, as appears from the complaint itself, is the purported right of the Corporation to claim for arrears receivable from other tenants. In that view of the matter, therefore, this proviso has no application to the facts of the instant case.

Mr. Basu has lastly argued that the complaint does not disclose any offence in respect of the Petitioners Nos. 2 and 4 and as such the proceeding is liable to be quashed at least so far as they are concerned. To appreciate the argument of Mr. Basu, let me refer to the relevant portion of Section 49A of the Act which provides:

If the person committing an offence under this Act 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.

According to Mr. Basu, in absence of any allegation in the complaint that the Petitioners Nos. 2 and 4 were in charge of and were responsible to the company for the conduct of the business they cannot be made liable for any action of the accused No. 1. I have already detailed the allegations made in the complaint against the Petitioners Nos. 2 and 4. The petition of complaint prima facie shows that the accused No. 2 was dealing with the affairs of the Corporation in respect of the application of the complainant for electric supply. These averments made in the petition of complaint are, in my view, sufficient to make out a prima facie case against the accused No. 2. As regards the Petitioner No. 4, however, I find that the only allegation that has been made in the petition of complaint is that he did not reply to certain letters written by or at the instance of the complainant. Merely because the Petitioner No. 4 refused to reply to certain letters it does not indicate that he was a person responsible to the company for the conduct of the business of the Corporation in relation to supply of electric energy to different Applicants, including the complainant. The allegations made in the petition of complaint so far as the Petitioner No. 4 is concerned do not make out even any prima facie case against the Petitioner No. 4.

In view of the above discussions I dismiss the prayer of the Petitioners Nos. 1, 2 and 3 for quashing of the proceeding, but I allow the prayer of Petitioner of No. 4 and quash the proceeding pending against him. The Rule is disposed of accordingly.