BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04/09/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Revision Case No.442 of 2007 Criminal Revision Case No.443 of 2007 and M.P.(MD).Nos.1 and 2 of 2007 S.J.Gayes ... Petitioner in both the cases Vs The State represented by The Inspector of Police, Kulasekarapattinam, Tuticorin District. ... Respondent in both the cases Prayer Revisions filed under section 397 and 401 of the Code of Criminal Procedure, to set aside the order passed by the learned Principal District Munsif cum Judicial Magistrate, Tiruchendur, in Crl.M.P.Nos.5081 of 2003 and 5082 of 2003 in C.C.Nos.169 of 2003 and 170 of 2003 dated 09.04.2007 respectively. !For Petitioner ... Mr.C.S.Krishnamurthy for Mr.C.S.Lenin ^For Respondent ... Mr.Siva.Ayyappan Government Advocate (Crl. Side) :ORDER
These Criminal Revision Cases are focussed to get set aside the orders
passed by the learned Principal District Munsif cum Judicial Magistrate,
Tiruchendur, in Crl.M.P.Nos.5081 of 2003 and 5082 of 2003 in C.C.Nos.169 of 2003
and 170 of 2003 dated 09.04.2007 respectively.
2. Heard both sides.
3. Today, the affidavit of G.Jeyaprakash, son of the petitioner herein,
who happens to be the second accused in this case, has been filed by the learned
Counsel for the petitioner.
4. The facts giving rise to the filing of these criminal revision cases as
found set out in the records produced by the petitioner, would run thus:
The petitioner herein happened to be the owner of the factory namely Joice
Ice Factory which enjoys the facility of two electric service connections
bearing Nos.163 and 81 respectively. It so happened that the petitioner herein
settled the said factory along with those two service connections in favour of
his son namely G.Jeyaprakash vide registered Gift Deed dated 18.02.2002. The
Electricity Department who was in receipt of the requisition concerned, after
complying with the formalities effected name transfer and thereby Jeyaprakash,
became the service holder relating to the Service connection No.81. However,
for the reasons best known to the Electricity Board, such similar name transfer
relating to service connection No.163 did not take place.
5. Per contra, the case of the prosecution is that during surprise
inspection, the officials unearthed the fact that there was theft of electricity
by making use of the aforesaid two service connections in that factory and
accordingly, they filed the aforesaid two cases arraying the father and the son
as accused in both the cases.
6. Being aggrieved by and dissatisfied with, the method and manner in
which the petitioner has been roped in this case, he filed the petitions for
discharge on the main ground that after the execution of the aforesaid
settlement deed and even before that, his son Jeyaprakash was alone having the
effective possession, management and control over the Ice factory and the
service connections. At the time of effecting name transfer also, the officials
looked into that and found that there was no theft of electricity. However,
subsequently, the Electricity Department turned turtle and had a volte face and
they came forward with two cases as though there were theft of electricity.
Putting forth the aforesaid contentions, the petitioner filed Crl.M.P.Nos.5081
of 2003 and 5082 of 2003 respectively, in those respective cases praying for
discharge. But, the learned Magistrate concerned in his separate orders,
discussed the points and arrived at the conclusion that the petitioner cannot be
discharged as only during the trial, the facts could be gone into and ultimate
decision could be arrived at.
7. Being aggrieved by, such orders of the learned Magistrate, these
criminal revision cases are focussed.
8. At the hearing, this Court raised a query as to what would be the
position if the prosecution would be able to prove that there was theft of
electricity spreading over a period even anterior to the settlement deed, for
which the learned Counsel for the petitioner would submit that on the
prosecution side, they had not set out any such details relating to the period
during which theft occurred.
9. Be that as it may, the prosecution should not be made to fall between
the stools. If at all, any such theft is proved in the normal course either the
petitioner or his son Jeyaprakash or both must be held responsible. Jeyaprakash
is not before this Court in his very name, but on the other hand, Gayes is the
petitioner in both the Criminal Revision Cases. If Gayes by merely contending
that he had not been under the control of the factory as well as the service
connections, gets exoneration, then naturally he cannot be convicted for the
theft of electricity at the later stage by the trial Court. If Jeyaprakash
contends that he had nothing to do with the factory at any time and the
settlement is not acted upon either wholly or partly and ultimately, if it is
found that it was only Gayes, who is responsible either partly or fully, then
the Criminal Court will not be able to convict Gayes, as he might not be before
it in view of getting exoneration as per this order. In order to avert the
impasse, Jeyaprakash is called upon to file such affidavit detailing and
delineating, expressing and expatiating that relating to the factory management
as well as the control over the electricity connections, he is solely
responsible and in paragraph No.3 of his affidavit, he candidly averred thus:
“3.I state that my father is the President of the “Tuticorin District
Country Boat Fishermen Community Association” from the year 2001. Since he is
busy with the association activities and welfare of the members of the above
association, he has no time to look after the Ice factory business. Hence, he
has settled the property in favour of me. I state that even before the above
settlement I have been in management looking after the affairs of the factory.
In the event of theft is proved in service connection No.81 and 163, I shall
take the responsibility on behalf of my father and he is no way connected with
the affairs of the Ice factory.”
10. In the wake of categorical undertaking given by Jeyaprakash before
this Court, I am of the considered opinion that Gayes could be exonerated for
the following reasons:
The settlement deed is dated 18.02.2002 and the name transfer was effected
as aforesaid vide order dated 15.03.2002 by the Executive Engineer,
Tiruchendure, after necessary inspection and scrutiny relating to service
connection No.81. As such, it is crystal clear that relating to service
connection No.81, Jeyaprakash is squarely responsible even if any theft of
electricity is proved. However, it appears, relating to service connection
No.163, no such name transfer was effected. I could see no rhyme or reason on
the part of the Electricity Department in contending that such name transfer was
left out. While effecting the name transfer relating to service connection
No.81, they ought to have effected such name transfer also relating to service
connection No.163. Furthermore, the facts remain that Jeyaprakash happened to
be the son of Gayes and he comes forward with the categorical stand that it is
he who has been in-charge of the factory and the electricity connections both
before and after the emergence of settlement deed and in such a case, the
prosecution would not be the loser. In the event of proving that there was
theft of electricity, the criminal court will be able to convict Jeyaprakash for
the theft of electricity.
11. The learned Counsel for the petitioner cited the decision of this
Court in Saifee Golden Jubilee Rolling Mills, M/s. v. State by Inspector of
Police reported in 1989 L.W.(Crl.) 228. An excerpt from it, would run thus:
“5.It is then contended that the accused 5 to 7 who are the partners of
the fourth accused-firm, M/s.Usha Agarwal are not also liable since there is no
allegation that these partners were in actual management of the affairs of the
fourth accused-firm. In the statement recorded from Ramalingam, there is a
reference to Mr.M.K.Agarwal, the fifth accused being the partner in management
of the affairs of the factory. But, there is nothing to show the actual part
played by him, in the pilfering of electric energy. His very statement
disclosed that one Selvaraj, who is arraigned as the 8th accused, who was the
supervisor of the company, is responsible for the inter-changing of C.T.Terminal
connections detected at the time of the inspection, and that the partners are
the beneficiaries of the criminal act done by the said Selvaraj. It is obvious,
therefore, that the mischief has been done by the said Selvaraj. The partners
cannot be held liable in the absence of any allegation of any part played by
them in this criminal adventure. The prosecution cannot, therefore, proceed
against the accused 5 to 7.
6. In the result, the petition is allowed in part, the proceedings in
C.C.No.543 of 1984 on the file of the Sub-Divisional Judicial Magistrate,
Ponneri, is quashed so far as the accused 2, 3 and 5 to 7 are concerned.”
12. The aforesaid decision of this Court suits the facts and circumstances
highlighted in this case and accordingly, the same should be adhered to.
13. Hence, in these circumstances, discharging Gayes would not in any way
affect the prosecution and in the meantime, it would augment the dispensation of
justice and accordingly, the order in Crl.M.P.Nos.5081 of 2003 and 5082 of 2003
in C.C.Nos.169 of 2003 and 170 of 2003 dated 09.04.2007, passed by the learned
Principal District Munsif cum Judicial Magistrate, Tiruchendur, are set aside
and the Gayes is discharged from both the cases and the affidavit of Jeyaprakash
shall form part and parcel of the records and a copy of it or similar affidavit
shall also be filed before the learned Magistrate by Jeyaprakash. Accordingly,
both the criminal Revision Cases are allowed. Consequently, connected
Miscellaneous Petitions are closed.
rsb
To
1.The Inspector of Police,
Kulasekarapattinam,
Tuticorin District.
2.The Principal District Munsif cum
Judicial Magistrate,
Tiruchendur.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.