Criminal Miscellaneous No.20778 of 1997 With Criminal Miscellaneous No. 30329 of 1999 *** In the matter of applications under section 482 of the Code of Criminal Procedure *** In Cr. Misc. No. 20778 of 1997 : Om Prakash Gupta son of Sri B. P. Gupta, resident of 237, Patliputra Colony, Patna at present resident of New Delhi ...Petitioner Versus 1. The State of Bihar. 2. The Bihar State Electricity Board through its Secretary, Bailey Road, Patna-1 …Opposite Parties In Cr. Misc. No.30329 of 1999: Purushottam Singh son of late Sri Ram Janam Singh, resident of North S. K. Puri, P.S. Srikrishnapuri, District-Patna ...Petitioner Versus The State of Bihar …Opposite Party *** For the Petitioners : Mr. Y. V. Giri, Sr. Advocate with Mr. Tej Bahadur Roy, Advocates (Cr. Misc. No.20778 of 1997) & Mr. A. K. Thakur and Mr. Bipin Bihari Singh, Advocates (Cr. Misc. No. 30329 of 1999) For the Electricity Board: Mr. Vinay Kirti Singh, Advocate (In both cases) For the Vigilance : Mr. C. M. Chaurasia, Special PP (In both cases) For the State of Bihar : Mr. B. N. Pandey, A.P.P. (In both cases) *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The petitioners seek quashing of the order dated 19.07.1997 passed by the Special Judge, Vigilance South Bihar, Patna in Special Case No. 53 of 1993 by which he has refused to discharge the present petitioners, - 2 - Purushottam Singh, Executive Engineer, Bihar State Electricity Board and Om Prakash Gupta, a consumer of the charges for the offences punishable under sections 420, 201, 120B of the Indian Penal Code as well as section 13 (2) read with sections 13(i) (c) (d) of the Prevention of Corruption Act. 2. Petitioners Purushottam Singh and Om Prakash Gupta had sought quashing of the order impugned vide the present applications which was finally heard and allowed on 05.01.2000 by a detailed judgment. However, the State of Bihar filed an appeal before the Hon’ble Supreme Court vide Criminal Appeal No. 992 of 2000 and the Hon’ble Supreme Court was pleased to remand the matter setting aside the judgment of this Court vide order dated 17.11.2000. The matter was then placed before this Court on the orders of Hon’ble the Chief Justice. 3. The prosecution case, according to the Sub-Inspector, CID, Vigilance Cell, Electricity Board, is that the DIG Cabinet (Vigilance) received a letter from a member of Vidhan Parishad with regard to certain allegations made in the complaint by one Ramdhan Yadav, Member, Bihar State Electric Supply Workers’ Union, upon which an enquiry was done and it transpired that Meter No. 2064388 stood in the name of M/S Aashiana Plaza since 07.07.1990. The first reading of the Meter till October, 1990, demonstrated that 1163 unit has been consumed in the said period. However, on 15.03.1991 the Meter reading shows unit of 9,25,314 with 10 K.W. electrical load. A report about the same was made by Sri Suresh Choudhary to the Electrical Executive Engineer, petitioner, Purushottam Singh, who ordered for testing of the said Meter and on the basis of the test reports ordered for replacement of the same and that the consumer was charged with of 30% load factor calculated between October, 1990 to March, 1991. The informant alleged that, in fact, the Officers of the Electricity Board in - 3 - connivance with each other caused pecuniary loss to the department and pecuniary advantage to other four co-accused by reducing the units actually consumed by the consumer. 4. After investigation charge-sheet was submitted against two accused persons being the Electrical Executive Engineer and Assistant Electrical Engineer and Om Prakash Gupta, the Managing Director of M/S Aashiana Housing Finance India Ltd. 5. It is undisputed that the charges against the present petitioners are firstly that the consumer was allowed concession causing loss to the Board by not charging him on the bill raised on 15.03.1991 instead ordering a parallel meter reading. The next charge is that the accused persons in connivance with each other had concealed the meter preventing scrutiny of the same which would reveal the true state of affairs. 6. The argument on behalf of Purushottam Singh, the Electrical Executive Engineer, is that he in the capacity of his post that he was holding, it was well within his powers to order a parallel meter on a complaint from the consumer and there was no ulterior motive for having ordered the same. Moreover, after the parallel reading was recorded he had ordered 30% load factor to be calculated on the consumer and had thus caused no pecuniary loss to the Board, since the consumer had paid the said amount. 7. The next argument of the petitioner is that by virtue of the office that he was holding he was not the person who was required to physically keep the meter in his custody after he had ordered the same to be done. It was the responsibility of the other lower officers who were especially assigned this work. Counsel for the petitioner further submitted that it was still open to this court to consider the report of the Three Man High Power Technical Committee which had exonerated the petitioner on - 4 - 16.02.1999 of all the charges after having technically examined the matter from all aspects since the same has now been accepted by the department on 27.05.2004. The first judgment dated 05.01.2000 of this court by which the impugned order was quashed had considered only a part of the aspect and, therefore, the Hon’ble Supreme Court in absence of the final adjudication on the matter by the department had set aside the first judgment and remanded the matter on 17.11.2000 for further consideration. 8. Counsel for the Vigilance, however, disputes the contention and stressed that since there is an allegation against the petitioner of having connived with other accused persons for causing pecuniary loss to the Board corresponding pecuniary advantage to the other accused, it was sufficient for the petitioners to be put on trial. His further argument is that the petitioner, being the Executive Engineer, should have ensured that the replaced meter was kept in safe custody to be produced at a future point of time. Further submission of the counsel for the Vigilance is that from the perusal of the enquiry report it appears that despite repeated requests for production of the Meter the petitioner failed to produce the same and, therefore, presumption should be drawn against him that he with a view to screen the offence had not produced the alleged defective Meter. 9. The argument on behalf of Om Prakash Gupta, petitioner of Cr. Misc. No. 20778 of 1997 is that Aashiana Plaza is a group having 126 shops and flats and, therefore, he could not be independently responsible for pecuniary loss caused to the Electricity Board. His further argument is that admittedly one Dinesh Chandra Gupta was the consumer of the Meter concerned and the Meter was installed in his name and the bill was also prepared in his name and, therefore, putting the petitioner on trial is a complete abuse of the process of the court. - 5 - 10. The counsel for the Vigilance submits that since the petitioner, Om Prakash Gupta, was the Managing Director of M/S Aashiana Housing Finance India Ltd., which is one of the groups of Construction Company which had constructed the Aashiana Plaza, he was liable to be put on trial. 11. From the rival contentions the admitted position which emerges from the same are as follows:- (i) Meter number 131068/ 17606900 stands in the name of Dinesh Chandra Gupta which was burnt on 25.6.90 and a new meter of capacity 10 KW was installed. (ii) The reading till October, 1990 which was read in November, 1990 was 1163 units, (iii) An application was given on 20.3.1991 to petitioner Purushottam Singh by Dinesh Chandra Gupta through Suresh Chandra complaining that the new Meter was defective showing reading even without any load connected to it. (iv) The petitioner Purushottam Singh ordered that the meter be tested at the site on the same day, and a parallel meter was installed for 101 hrs between 11.00 hrs on 21.3.91 to 4.00 PM on 25.3.1991. (v) When the matter came up before him once again after the parallel meter reading the petitioner, Purushottam Singh ordered 30% connected load from the date of installation of the meter deducting the units for which the consumer had been already charged. He also requested the Assistant Electrical Engineer (Supply) to change the meter and keep the meter duly sealed in safe custody on 27.03.1991. 12. After having considered the admitted facts emerging in the case, this court would have to consider whether Purshottam Singh had acted within his powers in ordering a parallel Meter and thereafter charging 30% of the load factor. Counsel for the Board supporting the contention of the petitioner has brought to the notice of the court the STANDING ORDER NO. REV/02-M-400/75-465 DATED 1.8.75 with regard to the duties and functions of the officers in the Electricity Board. He brings to the notice of the Court Clause 2 (p) which is to the effect “To review revenue ledgers - 6 - from time to time and take remedial action in respect of disproportionate consumption. Meter readings not taken, meter defective or stopped cases, where premises are reported to be closed and meter readings not taken etc. This review should be done every month and action taken for setting right the defects noticed.” and also (q) is as follows: “To settle disputes raised by the consumers and to enquire into cases for setting disputes of consumers”. He also asserts that it was the Sub-Divisional Officer as per this rule who was to deal with all connected problems relating to realization of dues of the Board for energy consumption. The fact that the High Power Technical Committee after consideration of the witnesses exonerated the petitioner Purushottam Singh of all the charges vide Resolution No.677 dated 27.5.2004 holding that the department had not been caused any loss and there had been no violation of tariff rules by the petitioner which is annexed as Annxure-17 to the supplementary affidavit is also a relevant and unimpeachable document. Therefore, there is no dispute that technically the petitioner Purushottam Singh has been exonerated. As against this, the prosecution has no reliable data to substantiate the charge of loss having incurred on account of action of the petitioner and the allegation is merely oral based on a speculation. 13. In view of such, after having considered all aspects of the matter, this court is of the view that when it was within the powers of the petitioner Purushottam Singh to order for installation of a parallel Meter and had he not done so he would have committed a dereliction of duty, to raise a presumption against him for doing so, without any further material appearing against him the said charge is totally baseless. As for not producing the defective meter, since he was not the actual custodian of the same, he should not be held responsible for the same. Moreover, it is admitted that there has - 7 - been a final determination by a Technical Committee, equipped to deal with such matters, that no loss has been caused to the Electricity Board by the action of the petitioner. The fact that the petitioner Purushottam Singh had been exonerated by the department may not be sole basis for arriving at this conclusion but it most certainly will have a persuasive value especially in view of the latest decision of the Hon’ble Supreme Court reported in AIR 2009 SC 1013(Rukmini Narvekar Vs. Vijaya Satardekar), wherein, the Court’s bar under section 482 Cr. P. C. was considered at the stage of framing of charge and it was held that if un-rebutted documents were placed before the High court by the accused persons, the same could be looked into. Para 9 of the judgment is as follows: “In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227, Cr. P.C. can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482, Cr. P. C. the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wordings Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi’s case (supra) by the larger bench to which the very same question has been referred.” Under the circumstances, no offence punishable under sections 420, 201, 120-B Indian Penal Code as well as section 13(2) read with 13 (i) (c) (d) of the Prevention of Corruption Act would be made out against the petitioner. 14. As far as petitioner Om Prakash Gupta is concerned, since the petitioner is not the Proprietor of Ashiana Plaza and the electrical connection - 8 - did not stand in his name framing of charge against him is also totally unwarranted. 15. In view of such, these applications are allowed and the entire proceeding including the order dated 19.07.1997, refusing to discharge the petitioners in Special Case No.53 of 1993, is hereby quashed. 16. In the result, these applications are allowed. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 1st September, 2010 NAFR / B Tiwary & JA/-