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Judgment
A. Raman, J.—Since the parties are the same in both the applications and identical question of law is raised is both these matters, these two
applications were taken up together heard and a common order is rendered hereunder.
C.C. 331 of 1996 pending on the file of the Judicial Magistrate, Thirumangalam, is with reference to the complaint dated 1/5/1994 by Asst.
Executive Engineer, TNEB against Thavamani Animal Prabakar, Rajendran and Md. Ismail. The allegation is that when a raid party of TNEB
checked the High Tension Service Connection No. 01001 installed in Venkateswara Industries situate at Madurai Rajapalayam Road, it was
found that the factory was running and all the lights were burning. But the meter was not running. On checking it was found that with a view to
avoid the recording of the consumption on the meter, a line had been taken from the transformer by-passing the meter and energy was drawn-
directly from the transformer and this has been done with a view to commit theft of electricity and that the accused have committed theft of
electricity in a sum of Rs. 1,49,58,239/- and therefore they are liable to be punished under the relevant section of the Indian Electricity Act.
The gist of the complaint in C.C. No. 332 is as follows:
The complainant in C.C. No. 332 is Assistant Executive Engineer, TNEB, Kallipatli. Thavamani, Prabakar Soundararajan, Muthukumaraswamy
Mariyapalraj are shown as the accused. The allegation is that on 4/6/1994 the Executive Engineer Pasumalai inspected the Sri Venkateswara
Industries of which the accused 2 to 4 are partners and during the inspection the sealing on the top of the transformer was found cut and opening
the mouth and interchanging the connection the current going to the meter was restrained and it blocked the correct reading of the meter. On
3/5/1994 the electric connection was given to the Industry after initiating police action on 1/4/1994 for the earlier offence committed on 30/4/1994.
As the accused failed to pay the electricity charges for April 1994 the connection was disconnected on 19/5/1994. But the accused obtained an
order of injunction from Civil Court where upon the connection was again restored on 30/05/1994 and it is between this period when there was no
current the accused had committed this offence and hence the accused are liable to be proceeded against under Ss. 39 and 44 of the Indian
Electricity Act. Thus C.C. 331 relates to the offence said to have been committed on 30/04/1994.
As regards C.C. 331 of 1996 the complaint is with reference to the offence alleged to have been committed during the period of disconnection
of the service connection on 19/5/1994 and the restoration of the same on 30/5/1994. The petitioner is one of the accused by name
Muruganandam. His contention is that the petitioner had already retired from the firm on 9/12/1993 itself and this has been also brought to the
notice of the Electricity Board and the petitioner therefore cannot be proceeded with for the alleged offence which is said to have taken place on
30/4/1994 and between 19.5.1994 and 30.5.1994. The petitioner has produced before this Court certificates from the Registrar of firms, letter
from the Commercial Tax Officer, copy of the public notice given on retirement, the intimation sent to the Electricity Board, the Excise department
and the Bank about the retirement of the petitioner and the acknowledgement cards received from them. A public notice has been given in Malai
Murasu, which is published in the issue dated 25/4/1994. On 9/12/1993, the petitioner has informed the Superintending Engineer, Madurai
Electricity Distribution Circle about his retirement with effect from 9/12/1993 and also requesting the Superintending Engineer to transfer the
security deposit which stands in the firms account in the name of K. Thavamani, Managing Partner, Sri Venkateswara Industries. The petitioner has
on the same day addressed letters to the Superintending Engineer TNEB of the Thirumangalam office, the Manager of Indian Overseas Bank, T.
Kallupatti, the Inspector of Factories, Southern Circle Madurai, the Commercial Tax Officer, Thirumangalam informing them all of his retirement.
He has also produced the xerox copies of the acknowledgement for the receipt of the said letters by the concerned Departments. The reason for
implicating the petition is said to be that he signed the agreement with TNEB in August 1988; that he has also signed the Sealing Register in 1988.
The petitioner does not dispute having signed these documents in the year 1988. But his contention is mat he retired from the Partnership on
9/12/1993. He has informed the authorities concerned about his retirement. Merely because he has signed certain documents in the year 1988, it
cannot be cited as a ground to proceed against the petitioner for an offence which is alleged to have been committed subsequent to his retirement
from the partnership. S. 32 of the Partnership Act clearly sets out mat on the giving of a public notice by a partner of his retirement, the partner will
cease to be liable for any act of the partnership subsequent to his retirement. The intention of the public notice is to put on notice persons about the
factum of a particular person having retired from the partnership. A concern or an industry while running, among others will have dealings,
transactions and correspondence with persons such as Inspector of Factories, Electricity Department, Municipality or Panchayat, Excise
Department Income Tax Department and others. To those persons, the petitioner has given notices informing about his having retired from the
partnership. In addition, he has also published a public notice informing of his retirement though it was done only in the month of April 1994.
Therefore in such circumstances one has to see whether the mere fact that at the time when the firm applied for high tension power connection, the
relevant documents were signed by the petitioner then the partner of the same, would make the petitioner liable for any offence committed by the
firm after the retirement of the petitioner from the firm.
The complaint simply states that as inspection was made and certain features were noted which suggested tampering with the installation and
drawing of energy in a stealthy manner, with a view, to commit theft of electrical energy. Excepting to state mat the petitioner is a partner, it is not
specifically stated that the petitioner had in any manner participated in the commission of the offence or mat he was responsible for the running of
the industry. It is in this connection to be pointed out that the Commercial Tax Officer had written a letter to the Deputy Superintendent of Police,
Vigilance Cell, Tamil Nadu Electricity Board and the Executive Engineer, Vigilance Cell, TNEB, Madurai stating that as per the office records and
reports only Tmt. Thavamani and Prabakar are the partners of the firm on and from 9/12/1993 and therefore has requested mat me report sent by
the Commercial Tax Officer on 9/3/1995 may be treated as withdrawn and Thiru Muruganandam may be treated as ceased partner of me firm of
Sri Venkateswara Industry with effect from 9/12/1993. When certain things are brought to the notice of the officials concerned it is their incumbent
duty to apply their mind and take steps accordingly. In C.C. 331 the charge-sheet was laid in 2/11/1994. In CC. 332 the charge-sheet has been
laid on the same day viz, on 2/11/1994. Even in 1993 itself the petitioner has informed the Electricity Board about his retirement from the
partnership with effect from 9/12/1993. Subsequently in April 1994, a public notice has also been given by the petitioner. It is not me allegation
made in the complaint that the offence was one committed even prior to me retirement of the petitioner from partnership. There is also no allegation
made as to how the petitioner is also liable to be proceeded against. In such circumstances, the Learned Counsel for the petitioner would contend
mat the authorities concerned have in a mechanical manner without caring to apply their mind have simply roped in the petitioner as well. A duty is
cast upon the prosecuting agency to ascertain in such cases where often is alleged to have been committed by a firm or a company or by an
association of individuals to find out from the records as to who are all the persons concerned either as partners or directors. Therefore it is
imperative that they apply to the concerned authority viz., either the Registrar of Firms or the Registrar of Companies or the authorised officials
under the Societies Act to obtain particulars regarding the names of the persons who were connected with the firm or company or the society as
the case may be on the date of the occurrence or immediately before the occurrence in the capacity as a partner or a director or a member as the
case may be. It is not known why they have failed to observe such a basic precaution before ever thinking of proceedings against certain persons
on the allegation mat they are partners, directors, members of a firm, company, society as the case may be at the relevant point of time when the
offence is said to have been committed. The failure on the part of the authorities concerned i.e. the police and TNEB as well to adopt such a
procedure is a callous one inciting stern reprimand. For without ascertaining them, they have proceeded to lay the charge-sheet. The persons who
were not connected with the firm on the date of the alleged occurrence are unceremoniously hoped in. Merely because they had something to do
with the company, firm or society as me case may be at some point or time long prior to the alleged occurrence the lasso is drown at their necks. It
is nothing but a harassment and humiliation. They are placed in an agonising situation. It could have been avoided by a forethought on the part of
the above authorities concerned. They are not expected to act in a mechanical and wooden manner. They have to wake up to the ground realities
of the situation. Because they have the power, they cannot drag in everyone into the court to answer a charge which, on the face of it may not arise
at all as far as those persons are concerned. This intemperate and indiscriminate user of the power abandoning the fundamental precaution of
ascertaining the position on the date of the occurrence or immediately before, results in great injustice to the persons affected. It may satisfy the
sadistic pleasure of the person concerned with the launching of prosecutions. But the courts cannot be used by such persons to have their personal
vengeance wreaked out in such a manner. The case on hand is an eminent example of careless abandonment of duty by persons who are bound
under law to take pains to verify the particulars regarding the persons concerned in offences of such nature before proceeding further. What we
come across is only impudence and indifference. The lower Court has also chosen to frame charge against the petitioner, in the absence of
materials merely because some six years prior to the alleged date of occurrence the petitioner had signed some documents. The act of framing of
charge against the petitioner thus espoused to pathetic failure of duty on the part of the lower court. There is a through non-application of mind.
Unless the materials placed before Court prima facie show the existence of materials to presume that the accused has committed the offence the
court is not justified in framing charge against the person. Here, admittedly the check was made on 30/4/1994. Subsequently, there was another
check which was on 4/6/1994. The petitioner had retired from the partnership in 1993. He has produced materials before Court to establish the
same. The complaint does riot disclose any material or allegation as to how the petitioner is also liable for the alleged offence. But in a mechanical
manner without taking pains to apply its mind citing a reason which cannot stand a minute''s scrutiny the lower Court has simply proceeded to
frame charge against the petitioner herein. When in December 1993 he has retired from the partnership, how can documents signed by the
petitioner for and on behalf of the firm in the year 1988 be cited as a ground to proceed against the petitioner is really surprising. This only indicates
the sad failure of judicial mechanism and the desultory discharge of his duty as a Magistrate. The act of framing charge cannot be taken as a routine
ceremony. It is a judicial act. It has to be performed in the manner indicated by precedents and by the provisions of the Criminal Procedure Code.
Any failure to apply one''s mind in that regard would definitely render such a verdict a nullity in the eye of law.
Before ever a partner can be proceeded against it is necessary for the complainant to allege that the partner was in charge and was responsible
for the conduct of business of partnership. Merely because he happened to be a partner he cannot be simply made liable as the Supreme Court
has observed on in Sham Sunder and Others Vs. State of Haryana, as follows:
More often it is common that some of the partners of a firm may not even be known of what is going on day to day in the firm. There may be
partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who
were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be travesty of justice to
prosecute all partners and ask them to prove under the proviso to sub S. (i) of S. 10 that the offence was committed without their knowledge.
Thus when the documents produced by the prosecution do not indicate even remotely that all the partners were doing the business of the firm and
mere was no other evidence on record on this aspect, it could not be said what when the offence was committed all the partners were conducting
the business of the firm and therefore they would not be liable for conviction.
Though the above ruling is one that arose under S. 10 of the Essential Commodities Act, relating to offences by Firm or companies the
observation of the Supreme Court in the above case would admirably fit in with the circumstances of this case. Here, unless it is shown that the
partner had knowledge of the tampering of the meter or was party to the same and unless it shows that the partner was conducting the business of
the partnership it will not be proper to make the partner liable. For, we are concerned with a criminal liability under penal provision and not a civil
liability as observed by their Lordships of the Supreme Court in the decision referred to above. The penal provision must therefore be strictly
constructed in the first place secondly, mere is no vicarious liability in criminal law unless the statute takes that also within its fold. Therefore it is
necessary for the complaint to allege that the petitioner was a partner at the relevant point of time and mat he was incharge and was responsible for
the conduct of the business of the partnership and'' that he had knowledge of theft of energy committed and was directly or indirectly involved in
the commission of the offence. Therefore unless these aspects of the case are properly set out, the TNEB cannot claim to make a partner liable
simply because he was a partner. Necessary allegations have to be made in the complaint and attempt must be made to show that at the relevant
point of time me person was connected with the partnership. But here the very records produced by the petitioner would show mat he ceased to
be a partner in December 1993. The offence is alleged to have taken place on 30/4/94 and subsequently.
this Court had an occasion to deal with such a case which arose under Electricity Act. In the ruling reported in 1989 L.W (Crl.) 227 it was held
mat the partners cannot be held liable in the absence of any allegation of any part played by them in the criminal adventure. The decision reported
in 1990 L.W. Crl. 308 relates to a case where this Court again had an occasion to deal with a similar question and his Lordship Justice
Arunachalain held mat the onus is on me prosecution to establish mat at the time of the offence was committed the person was in charge of the
conduct of the business. Once me initial burden is discharged, men only it will be necessary to prove that the offence was committed without his
knowledge.
To the same effect is the decision of this Court reported in 1972 L.W.(Crl) 133 (Madras) where it has been held that if there are more than one
accused, it is the bounden duty of the prosecution, by adducing independent evidence of the proof of some overt act establishing dishonest
abstraction; the courts are not at liberty to draw the legal presumption against accused persons in the absence of a charge. I have already held that
the records produced in this case by the petitioner establish clearly that the petitioner ceased to be a partner on and from December 1993. The
petitioner informed the Bank and other concerned authorities. The Tahsildar has also stated in his report addressed to the police mat the petitioner
was not the partner at the relevant point of time. Merely because certain agreements were executed when the petitioner was a partner and as the
then partner he signed some test report, for an offence that has happened subsequently after the retirement of the said person, no proceedings can
be initiated against the said person. In the complaint it is not stated specifically that the dishonest abstraction of energy took place over a period of
several months or years and that went back to the period when the petitioner was a partner. Unless a specific case is put forward it is not possible
to presume that because the petitioner was once a partner he must be held to have been responsible and guilty of complicity in the offence. The
approach by the lower court is a mechanical approach and I would even say mat it is a wooden approach. The court has to take into consideration
the ground realities of a case. A certificate of extract from me Registrar of Firms has been produced by the petitioner before the lower court. That
certificate is a public document. It is not only admissible in evidence but conclusive as regards the facts stated there. But me lower court has simply
failed to consider that. The signing of a test report is only to show that the test was made in his presence. The test report is dated 19/12/1988. The
agreement is dated 12/8/1988. That the lower court can presume from this that a case is made out to proceed against the petitioner is surprising.
Can one presume that the state of affairs that was available on the date of the test report continued to be the same on the date of complaint. As the
Supreme Court pointed out we are dealing with penal provisions and not with any civil liability. When the accused has produced materials such as
the certificate from the Registrar of firms to show mat the petitioner had retired from the partnership and if such material produced at the earliest
stage by the accused would fatally affect the very maintainability of the case as against the petitioner. It is unjust on the part of the lower court to
refuse to look into the same. The court cannot simply shut its eyes to the same and take a view that the accused can produce them at the time of
trial when alone the court is bound to look into the same. This will result in the waste of time of me court. Moreover a person cannot be made to
undergo the agony of trial as me Supreme Court held in the decision reported in 1996 Crimes (3) 85 . The lower court has omitted to consider the
materials produced by the accused even at the stage of framing of charge. The materials fatally affect the very sustainability of the case. The court
ought to have taken into consideration the materials and should not have closed its eyes to the same. For, the ordering of framing charge affects the
person''s liberty substantially. The court cannot simply take an attitude that let the accused face trial. If the materials produced is inadequate to
proceed against the accused it is not justified on the part of the court to turn Nelsons eyes to the same and adopts an attitude that all those
documents can well be gone in to leisurely at the time of trial. As the Supreme Court observed in 1997 SCC (Criminal) 404 the liberty of the
individual cannot be toyed with the adopting such an attitude. The court is bound to evaluate the materials placed before it and not to act as a post
office.
The Supreme Court has again pointed out in 1979 L.W.(Crl.) 86 , 1990 S.C.C 1962 , that the framing of charge is an important stage and the
evidence produced before Court has to be properly assessed to see that the materials placed before court does not give rise to grave suspicion
and it is the duty of the prosecution to show that the facts emerging from the materials produced would constitute an offence against the accused.
The court is not bound to accept all that is placed by the prosecution at that time. In State of Karnataka Vs. Pratap Chand and Others, the
Supreme Court has stated that a partner who was alone in over all control and of day to day affairs can alone be made liable for conviction.
Therefore on the basis of the materials placed the lower Court was not justified in framing charge against the accused petitioner. The documents
establish clearly that the petitioner had retired from the partnership from months prior to the date of alleged occurrence. The complaint does not
allege that the petitioner was in charge of the day to day affairs of the firm and that he was solely responsible for the conduct of the business. In
such circumstances it will be travesty of justice to ask the petitioner to face trial. Even otherwise the ultimate outcome will not be what the
prosecution expects. The chance of ultimate conviction in the circumstances has to be stated as bleak. Therefore no useful purpose will be served
in asking the petitioner to undergo a face of trial. Therefore in this view of the matter also it is not advisable nor it is desirable to allow the
prosecution to proceed against the petitioner. In doing so as the Supreme Court observed in Satish Mehra Vs. Delhi Administration and Another,
the valuable time of the court would be only wasted in holding a trial. Therefore I am firmly of the opinion that the order passed by the Judicial
Magistrate in ignoring the materials produced by the accused and in proceeding to frame charge against the accused petitioner is neither a
sustainable order nor a proper exercise of jurisdiction. The judicial Magistrate had simply shut his eyes to the glaring facts which are placed before
him. When materials are placed, the Judicial Magistrate ought to have taken into consideration the same. Even assuming he was of the opinion that
he was not bound to look into that documents nothing prevented the Magistrate from directing further investigation of the matter. The law invests
the Magistrate with such power. The petitioner has produced certain materials to show that he was not a partner on the date of the complaint or on
the date of the alleged offence. There is a letter by the Commercial Tax Officer addressed to the police. In such circumstances it is definitely well
within the jurisdiction of the Magistrate to direct further investigation in the light of those materials. By doing so, the Magistrate will be only paving
way for real justice to be done. It is to be pointed out in this connection that the complaint is lodged by the Electricity Board. The investigation is
taken up by the police. The handing over of the investigation and taking up of further investigation by the police in Electricity Theft cases is perhaps
the cause for such prosecutions. In the case of similar enactments i.e. Drugs and Cosmetics Act, Prevention of Food Adulteration Act. Factories
Act, Companies Act, Foreign Exchange Regulation Act, income tax Act and Forest Act the investigation and prosecution is done by the
Department itself. But curiously enough in respect of cases of theft arising under Electricity Act no power has been given to the Department
Officials as it is done in case of Drug Inspector, Food Inspector, Inspector of Factories, Addl. Registrar of Companies, Asst. Director of
Enforcement, Income Tax Officer, Forest Rangers as they are empowered in the above enactments. Perhaps if the Department itself is authorized
to investigate and prosecute may be they would have attempted to find out as who are the persons who were in charge of the firm and would have
proceeded perhaps rightly against the concerned. We are in the arena of ifs and buts. Whether or not the room for complaint of absence of co-
ordination will not be there. It is a penury for thought. Anyhow it is for the Legislature and the concerned Government to look into the matter and
see if really investigation and prosecution relating to a case of theft of energy or any other offences, committed under the Electricity Act shall be left
to the Department itself or should be entrusted to the regular police force.
It is in this connection to be pointed out that the present partners of the firm have filed a case against the TNEB whether the petitioner is not
shown as a partner. Therefore taking into consideration the over all picture presented I am of the view that the proceedings against the petitioner
are definitely not warranted. It cannot lie. It has to be quashed. The other O.P., relates to the subsequent period. It is stated that there has been
theft of energy subsequent to disconnection from 19/5/1994. When it is clear that the petitioner cannot be proceeded for the alleged-earlier offence
viz., for the offence alleged in Crime No. 102 of 1994 which has been taken on file by the concerned Magistrate in C.C. No. 331 of 1996 the
same ground and logic would apply to hold that the petitioner cannot be proceeded against in Crime No. 332 of 1996 as well for the offence said
to have been committed on 4/6/1994. Therefore these two petitions have to be accepted since the basis for proceeding against the petitioner is not
at all there. When there is no basis to proceed against the petitioner, the framing of charge by the Judicial Magistrate is not at all valid in law. Hence
these two applications viz., Crl.O.P. No. 7698 and 7699 of 1997 are hereby allowed. The proceedings pending against the petitioner in C.C. No.
331 and 332 of 1997 on the file of the Judicial Magistrate, Thirumangalam are hereby quashed.