IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 Crl.MC.No. 580 of 2005() ------------------------ .................... CRIME NO.245/04 OF SHORANUR POLICE STATION PETITIONER(S): --------------- 1. M/S. SREENARAYANA ENGINEERING INDUSTRIES (P) LTD., REPRESENTED BY MANAGING DIRECTOR FOR THE TIME BEING THE MANAGING DIRECTOR IS SMT.M.O.NALINI, AGED 63 YEARS, D/O.MELEPPUR UNNERI RESIDING AT SRI.NARAYANA PRABHALAYAM, KULAPPULLY, SHORNUR. 2. M.K.ASOKAN, MANAGER, M/S. SREENARAYANA ENGINEERING INDUSTRIES (PVT) LTD., SHORNUR. BY ADV. SRI.K.L.NARASIMHAN RESPONDENT(S): --------------- 1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA , ERNAKULAM. ADDL.R2: 2. ASSISTANT ENGINEER, K.S.E.B.(ELECTRICAL SECTION), SHORNUR. ADDL.R2 IMPLEADED VIDE ORDER DATED 23.11.07 ON CRL.M.A.NO. 6150/07 PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKKEN FOR R1 SRI. ASOK M.CHERIAN, SC, KSEB FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON 18/03/2009 PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.1573/05 IN CRL.M.C.NO.580/05 //DISMISSED// 18.3.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.580 OF 2005 ----------------------------------------------------- DATED THIS THE 18th DAY OF MARCH, 2009 O R D E R First petitioner is the Managing Director of the Company M/s Sreenarayana Engineering Industries (Private) Ltd.and the second petitioner is the Manager and implicated as accused Nos.1 and 2 respectively in Crime No.245/04 registered on 20.10.2004 by the Sub Inspector of Police, Shoranur Police Station, for the offence under Sections 135 and 138 of Indian Electricity Act, 2003. The allegation against the petitioners is that they have committed theft of electrical energy which was found out by the Anti Power Theft Squad, on 19.10.2004 during their inspection of the factory of the petitioners. True copy of the site mahazar prepared by the inspection squad is produced as Annexure A. Based on the report of the Anti Power Theft Squad, the Assistant Engineer, Electrical Section, Kerala State Electricity Board, Shoranur filed a complaint before the Sub Inspector of Police, Shoranur Police Station on 20.10.2004. The Sub Inspector of Police registered a case against the petitioners under CRL.M.C.No.580/05 -2- sections 135 and 138 of Indian Electricity Act, 2003. The FIR No.245/04 dated 20.10.2004 was filed before the Court of J.F.C.M., Ottappalam. Copy of the first information report is produced as Annexure B. In the complaint, it is alleged that the petitioners, in order to reduce the use of current bye-passed the transformer thereby did not fully record the current used and thereby caused a loss of Rs.15 lakhs to the Electricity Board. The mahazar, Annexure A would not support such allegation. The petitioners have not committed the offence as alleged. There is no justification or basis for filing FIR before the J.F.C.M.s Court, Ottappalam against the petitioners. Therefore, this petition is filed before this Court under Section 482 of Cr.P.C. to quash Annexure B FIR. 2. Heard the learned counsel appearing for the petitioners, the learned counsel for the 2nd respondent-Electricity Board and also the learned Public Prosecutor. 3. It is submitted by the learned counsel appearing for the petitioners that the FIR is filed by the Sub Inspector of Police, Shoranur Police Station on 20.10.2004 as revealed from Annexure B on the basis of the complaint filed by the Assistant Engineer, Electrical Section, K.S.E.B., Shoranur and the same was received by the learned CRL.M.C.No.580/05 -3- Magistrate, Ottappalam on 20.10.2004. Thus, it is revealed that the FIR was registered by the Sub Inspector of Police on the complaint allegedly received from the Assistant Engineer of K.S.E.B.. According to the learned counsel for the petitioner, the filing of the FIR by the Sub Inspector of Police before the Court of J.F.C.M., Ottappalam as revealed from Annexure B against the petitioners is clearly barred in view of the provisions of Section 151 of the Indian Electricity Act, 2003. The said Section reads as follows: S.151. Cognizance of offences.- No court shall take cognizance of an offence punishable under this act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.” 4. As per Section 151 of the Indian Electricity Act, no court is entitled to take cognizance of an offence punishable under the Indian Electricity Act except upon a complaint in writing by appropriate Government or appropriate commission or any other officer authorised by them or a Chief Electrical Inspector or Electrical Inspector or licensee or the generating company, as the case may be. In this case, CRL.M.C.No.580/05 -4- admittedly, the FIR is filed before the Court of J.F.C.M., Ottappalam by the Sub Inspector of Police, Shoranur Police Station on the basis of the report submitted by the Anti Power Theft Squad, who inspected the factory of the petitioners on 19.10.2004 and prepared the site mahazar produced as Annexure A. No complaint has been made by any one of the persons in the enumerated category under Section 151 of the Act. Therefore, the FIR is liable to be set aside, submits the learned counsel for the petitioners. 5. The learned counsel for the petitioners has relied on a decision on the very same incident came up for consideration before another learned Judge of this Court in Paramasivam v. Union of India and others (2006(4) ILR Kerala 874) Paragraph 19 of the said judgment reads as follows: “19. The third point to be decided is whether on the facts of the present case, the Magistrate can proceed with the trial of the case. In view of the legal principles, which have been considered while considering the validity of Rule 12, the answer can only be an emphatic “No”. In this case, as the licensee has not filed any complaint in writing before the court, the court below shall stop the trial of the case in view of the embargo under Section 151. The CRL.M.C.No.580/05 -5- K.S.E.B. can file a complaint before the court below, based on the facts and the materials disclosed by the police report and make a prayer to the learned Magistrate to take cognizance of the offence alleged against the petitioner. It will be permissible for any officer of the K.S.E.B., who is authorised by it under Rule 12(4) of the Electricity Rules, 2005 (Ext.P2), to file the complaint. The K.S.E.B. being a legal person, even in the absence of Rule 12(4), it may be permissible for it to file a complaint through its authorised officers. This view has been taken by the Apex Court in State of Karnataka v. Adimurthy, while interpreting Section 50 of the Indian Electricity Act, 1910, which is, to certain extent, similar to Section 151 of the Electricity Act, 2003. It was held that an authorised officer of the Electricity Board can move the police on behalf of the Board. Upon receipt of such a complaint, the trial court shall proceed with the case in accordance with law.” 6. The learned Judge has found that no cognizance can be taken and proceedings cannot be continued which is not legal or valid. I totally concur with the decision taken by the learned Judge. In the light of the specific observations in paragraph 19 referred above, the learned Public Prosecutor and also the learned counsel for the 2nd respondent conceded that cognizance cannot be taken on the basis of CRL.M.C.No.580/05 -6- Annexure-B FIR, which is not valid and legal. 7. In the result, the Crl.M.C. is allowed. Cognizance cannot be taken against the petitioners on the basis of the FIR registered against them as Crime No.245/04 dated 20.10.2004 filed before the Court of J.F.C.M., Ottappalam, which is hereby quashed and the same is in violation of the mandate of Section 151 of the Indian Electricity Act. If appropriate complaint is filed as envisaged under Section 151 of the Indian Electricity Act, the learned Magistrate shall consider the matter afresh and the setting aside of the FIR as per this order will not in any way stand against such course available in law to the K.S.E.B. or its officials and the learned Magistrate. The Crl.M.C. is allowed. M.C.HARI RANI, JUDGE. dsn