IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL REVISION APPLICATION NO. 240 OF 2000 CRIMINAL REVISION APPLICATION NO. 240 OF 2000 CRIMINAL REVISION APPLICATION NO. 240 OF 2000 1. Purushottam Mahaji Bhai Patel. 2. Baban Devram Patil. ... Applicants. V/s. The State of Maharashtra. ... Respondent. S.V.Kotwal i/b. M.S.Mohite for the applicants. S.S.Pednekar, A.P.P. for the State. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 10th April 2008. DATED: 10th April 2008. DATED: 10th April 2008. P.C.: P.C.: P.C.: ---- ---- ---- . Heard. . Perused revision application. 2. This revision application is directed against the order dated 25th July, 2000 passed by the Fifth Additional Sessions Judge, Thane dismissing the appeal being Criminal Appeal No.4/1998 and confirming the judgment and order dated 19th December, 1997 convicting the applicants for the offence punishable under section 44(c) of the Electricity Act, 1910 and sentencing them to suffer simple imprisonment for three years and pay fine of Rs.1,000/- each in default to undergo simple imprisonment for 15 days. 2. The brief facts of the prosecution, which are necessary for disposal of this revision, are as under: 3. That between 30th January, 1995 to 9th April, 1996, the applicants accused have committed an offence of changing C.T.P.T. unit’s secondary seal and have also changed the wires of three phase and thereby committed an offence of theft of electricity punishable under sections 37 and 44(c) of the Electricity Act. The complaint is lodged by the Electricity Officer and after investigation the offence is registered under section 379 of Indian Penal Code (I.P.C.) and sections 37 and 44(c) of the Electricity Act. 4. The prosecution has examined five witnesses on their behalf, one Assistant Engineer working in Maharashtra State Electricity Board (M.S.E.B.) (PW-1); panch witness to prove panchanama (PW-2); Assistant Engineer (PW-3) with other two witnesses (PW-4) and (PW-5) who registered the crime and went on spot and prepared panchanama dated 24th January, 1996. 5. The charges were framed against the applicants- accused that in between 30th January, 1995 and 9th April, 1996 the accused have changed the - 3 - secondary wires of C.T.P.T. unit and also changed wires of three phases and maliciously played with the meter to alter the - index of it and thereby committed an offence under section 44(c) and 37 the Electricity Act read with section 379 and 34 of I.P.C.. 6. Mr.Kotwal, learned counsel for the applicants- accused raised two legal contentions in defence. Firstly, he contended that there is no compliance of section 49-A(1) of the Electricity Act, which reads as under: "49-A. Offence by companies.- (1) If the person committing an offence under this Act is a company, every person who at the time of 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: . Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) ..... ..... ..... - 4 - 7. The contention raised on the basis of above section is that if a person committing an offence under this Act is a company, then every person who at the time of 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 shall shall be liable to be proceeded against and punished accordingly. 8. Relying on subsection (1) of section 49-A, Mr.Kotwal submits that no evidence is brought on record by the prosecution to show that the present applicants were the persons in charge of the company and have committed offence under section 43, 39 read with section 34 of the Electricity Act for which they are held to be guilty. He further submits that the company, namely, the consumer has not been joined as party to the complaint. Apart from this fact it is also not proved as to who was the consumer. . Mr.Kotwal has also raised one more contention that there is no compliance of section 50 of the Electricity Act, which reads as under: - 5 - "50. Institution of prosecution:- No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or a State Electricity Board or an Electrical Inspector, or of a person aggrieved by the same." 9. In his submission, no prosecution can be instituted against any person for any offence under this Act or any rule, licence or order thereunder, except at the instance of the Government or Electricity Board or a person aggrieved by the same. He, thus, submits that the person who has filed FIR is neither a State nor Electricity Board nor a person aggrieved as such complaint itself was not tenable. 10. Taking last ground first, there is no material on record to show that the person who has instituted prosecution is a person mentioned in section 50 of the Electricity Act. In absence of any such evidence on the part of Prosecution I find substance in the contention raised by learned counsel for the applicant. Hence the applicants are entitled to claim acquittal on this short count alone in view of the Apex Court Judgment in the case of Avtar Singh v. Avtar Singh v. Avtar Singh v. - 6 - State of Punjab State of Punjab State of Punjab, (1995) I SCR 103:1965) (I) Cri.L.J. 605 followed by Madras High Court in the case of Tamil Tamil Tamil Nadu Electricity Board v. D.K.Kanniappa Mudaliar Nadu Electricity Board v. D.K.Kanniappa Mudaliar Nadu Electricity Board v. D.K.Kanniappa Mudaliar, 1985 Cri.L.J. 561. In view of this finding, other submission made needs no consideration. 11. In the result, the impugned order is set aside. Revision application is allowed. The applicants are acquitted of offence punishable under section 44(c) of the Electricity Act. Bail bonds, if any, shall stand cancelled. JUDGE JUDGE JUDGE