TMI Blog2003 (2) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... tricity any illegal gratification was given to the appellants or any illegal means was employed by M/s.GIL. The two appellants for the aforesaid conviction have been sentenced to simple imprisonment for a period of one year and a fine of ₹ 10,000/- each, in default, to undergo simple imprisonment for a further period of two months. The conviction and sentence as recorded by the Trial Court has been maintained by the High Court in appeal. The appellant in Criminal Appeal No.372 of 2001 Balakrishna Pillai is to be referred hereinafter as 'A-1' and the appellant in Criminal Appeal No.373 of 2001 P.Kesava Pillai as 'A-2'. So far the appellant in Criminal Appeals No.725-727 of 2002 Gopalakrishna Pillai is concerned, he has been examined as PW 45 in the case and is aggrieved by adverse comments made against him in the judgment of the High Court. The main question which falls for our consideration in these appeals is as to whether the appellants A1 and A2 have illegally sold electricity to M/s.GIL by abusing their official position which amounted to causing to obtain valuable thing to M/s.GIL resulting in pecuniary advantage as well to M/s.GIL. During the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as possible. So far the question of rate of electricity is concerned KEB fixed the rate of high cost energy (Kerala electricity) @ 80 paise per unit and for M/s.GIL at 64 paise per unit. The State of Kerala or KSEB had no concern whatsoever with fixation of rate of electricity supplied by KEB to its consumers including M/s.GIL. KSEB supplied the electricity to KEB/State of Karnataka at the rate of 42 paise per unit which was the highest rate ever charged before. There is no charge, allegation much less any evidence or finding of any kind of pecuniary or other benefit accruing to the appellants. Rather it is not the case of the prosecution that the appellants were benefitted by the transaction in any manner. It has also been the case of the appellants that no provision of law has been violated in making the supplies of energy to the State of Karnataka. As a matter of fact the supplies were being made since before and they have only been continued at a revised price. The supplies were made to the State of Karnataka/KEB and not to any particular industry or M/s.GIL. It was for the KEB to distribute the energy to its consumers according to its own policy and priorities. Lastly the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed by this Court due to lack of sanction(Crl.A.No.1742/95 dt.5.12.1995, 1996(1) SCC 478). Thus, it is only the second charge which remained against the appellants and according to the same A-1 and A- 2 (i) abused their official position as public servants (ii) they conspired and illegally sold 12241400 units of Kerala Electricity to M/s.GIL (iii)caused the said company (M/s.GIL) to obtain valuable thing namely electricity and pecuniary advantage (iv) hence committed offence punishable under Section 5(2) read with Section 5(1)(d) of the Act. Thus, according to the charge also there is no accusation against the appellants for having obtained any advantage pecuniary or otherwise for themselves by causing the company (M/s.GIL) to obtain valuable thing namely, electricity. It may be relevant to mention here that amongst others M/s.GIL, and Wheel Axle Plant (for short 'WAP') , an undertaking of the Indian Railways, seem to be quite important industries from the point of view of Karnataka State. It is said that M/s.GIL manufactures electrodes and such other items which are used by other industries in Karnataka and other neighbouring States including the State of Kerala. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meeting with him on 28.9.1984 for supplying electricity to Graphite India Ltd. Then why he had agreed to supply energy to Graphite India Ltd.? Inference is irresistible that he had agreed to supply electricity to Graphite India Ltd. at the instance of PW.47 who met him on the same day. (emphasis supplied by us) The High Court has also found as follows : From Section 43 it is crystal clear that the Board can enter into an arrangement with any government or persons for the purchase or sale of electricity to be generated or used outside the state only if the sanctioned scheme provides for such sale or purchase. The proviso to Section 43 says that for entering into an arrangement for sale of electricity to a person or Government outside the State, consent of the State Government is necessary. It further provides that for entering into an arrangement with any person other than any Government, the sanction of the Government of the State within which the electricity is to be used is to be obtained. It has also been held that A2 had no authority to agree or direct to supply energy to M/s.GIL without sanction of Government of Kerala. In paragraph 224 in the end it is observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated that he had faithfully and diligently performed his duty. There is no evidence to show that for obtaining Kerala energy during the relevant period, any illegal gratification was given to A1 or A2 by Graphite India Ltd. through PW 47 or any illegal means was employed by PW 47 or Graphite India Ltd. to obtain energy during the relevant period. It was for A1 and A2 to protect the interest of Kerala State and when there was scarcity of energy, they should not have agreed to supply energy to Graphite India Ltd.. To a straight question put to the learned counsel for the respondent as to the evidence indicating scarcity of electricity in the State of Kerala during the relevant period he categorically replied that virtually there was no such evidence available on the record. In the background of the prosecution case it may have to be seen as to whether it was supply/sale of electricity by K.S.E.B. to M/s.GIL or it was supply of electricity by State of Kerala to State of Karnataka through their respective electricity boards, namely, K.S.E.B. and K.E.B. It may also have to be seen in what circumstances arrangement of supply of electricity came about between KEB and K.S.E.B. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to supply electricity to M/s.GIL. The text of the letter is quoted as below : As you are kindly aware of the fact that the Hon'ble Minister for Power and myself had been to Kerala to explore the possibility of getting some assistance. We met the Minister on the evening of 28th instant and the discussions were cordial. The Minister for Power in Kerala said that Kerala is still interested to assist Karnataka to the maximum extent possible. He also mentioned that due to poor rain-fall in the recent weeks, the assistance to Tamil Nadu has been scaled down considerably. He said that if the North East monsoon improves, it may be possible to give some assistance and this will be known only by the end of October 1984. When we raised the issue of Kerala share of 58 MWs from Ramagundam Thermal Project being passed on to Karnataka, he said, he has an open mind on this subject. He wanted the discussions to be continued at Bangalore with our Hon'ble Chief Minister to discuss this issue as well as of Mananthvady project. He pointed out that if this project came through, the beneficiary would be, Karnataka itself, as most of this energy will have to be utilised in Karnataka as M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess for M/s.GIL particularly. This letter hardly shows any interest on the part of A1 or A2 to take into account the requirement of M/s.GIL. The emphasis seems to be on the part of the State of Karnataka to stress upon the requirement of M/s.GIL. There seem to be representatives of the two States and their Electricity Boards. No other party seems to be there in the meeting. The other relevant document upon which great emphasis has been made is Ext.P-22(a). It is a letter dated January 24, 1985 written by the Chief Minister of State of Karnataka to A1. It will again be beneficial to quote the letter written by the Chief Minister. It is as follows: The power position in Karnataka is very acute due to several reasons including the poor monsoons in Sharavathi basin. I am thankful to you for having agreed to supply power for two specific industries situated in Karnataka. Three or four industries which are critical in importance and from the State point of view are suffering from the crippling shortage of power. These are M/s.Dandeli Ferro Alloys, Calcium Carbide at Bellary (M/s.Panyam) and one or two others. I understand the Speaker of Karnataka Legislature had a talk with you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntaining the statement of supply of electricity to Wheel and Axle plant and M/s.GIL, Bangalore during the period from October, 1984 to January, 1985. From the said document it was sought to be shown that major part of the electricity supplied by Kerala State was consumed by Wheel and Axle and M/s.GIL but it is to be noted that it is not the total supply which has gone to M/s.GIL. A note contained on the foot of one of the pages of the said exhibit indicates that only 34% of the energy supplied to Karnataka by Kerala was utilised by M/s.GIL and 66% was utilised by other consumers. There is no dispute about the fact that electric energy was imported by the State of Karnataka from the State of Kerala out of which the State of Karnataka had made energy available to M/s.GIL and Wheel and Axle plant amongst its other consumers. M/s.GIL and Wheel and Axle plant seem to be heavy industries catering to the needs of the Indian Railways and to other industries in general including industries in the neighbouring States. Their consumption of electricity and requirement may be heavy. Therefore, the State of Karnataka seemed to be quite anxious for supply of energy keeping in view their requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-56(e) is also sheet-anchor of the prosecution case. We find that non-reply to the said letter is hardly of any consequence. On the contrary, the letter demonstrates that the KSEB/State of Kerala was not supplying the alleged assured electrical energy, how it can then be inferred that A1 or KSEB was interested or keen to supply energy to any one particular industry. Supply for Kasargod area is also demanded. Non- reply to the letter only shows disinterestedness of the KSEB, A1 and A2 to any such kind of demand raised on behalf of KEB. It seems to be in conformity with the response of A1 given in the meeting held on 28.9.1984 with his counterpart of the State of Karnataka. The assistance was assured only to the extent possible and it was not for any particular industry. In our view Ext.P-56(e) also fails to lead to any inference that A1 or A2 had assured or promised or had earmarked any amount of quantity of electrical energy to be supplied to the State of Karnataka much less to M/s.GIL. We also find that in Exh.P-57 which contains the Minutes of the Meeting and the Resolutions of the KEB, at one place it is indicated KSEB agreeing to supply certain quantity of energy for M/s.G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goes against A1 and A2. During the discussion on the question of supply of energy by Kerala State to Karnataka it is quite possible and natural as well, that Karnataka Minister may have mentioned the names of its big consumers of energy to emphasise the gravity of shortage situation and huge requirement of electricity. On such stray reference during the talks it cannot be concluded that the supply was made to GIL. On such an analogy to whomsoever imported energy was disbursed or allocated or supplied by KEB or State of Karnataka, it could be said that electricity was supplied to each of them by Kerala State/KSEB, A1 or A2. Nothing has been indicated in the statements of PWs 23 and 45 to reach to a conclusion that the supplies were not made to the State of Karnataka on its request but to GIL. On the other hand, we find that PW-23 has stated that the total current received from Kerala was taken to the general pool and was then allotted and distributed according to the instructions of the Chief Minister. He further stated that M/s.GIL was one amongst the eight industries to which Karantaka Governemnt allotted and earmarked energy. PW-14 who is an officer of M/s.GIL stated in his state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of supply of power to M/s.GIL was not told. Again in regard to another meeting stated to be held on 9.2.85, the witness stated that main topic of discussion was Mananthavady project and among other things discussed, Karnataka government had made a request for supply of electricity for some industries in Karnataka which included M/s.GIL also , but no decision was taken. The witness also stated that Minutes of the Meeting held on 28.9.84 were not prepared but he specifically denied the suggestion that any instructions were given by A1 not to prepare the Minutes. The fact needs no mention that a Minister is not supposed to prepare the minutes of the meetings. PW 45 also stated that Karnataka as deficit State had been taking power from Kerala based on agreement entered into sometime in 1979- 80. At yet another place the witness has stated that sometime in 1984 there was an agreement to supply power to Wheel and Axle plant, Bangalore at the instance of the Minister for Railways. PW 45 has also made a statement to the effect it has not come to my notice that any condition was attached with respect to the current that was supplied by Kerala to Karnataka . He further stated that en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er rate and in that connection it referred to the rate charged in the year 1980. That part of the letter may be extracted as follows : During 1980 second quarter we have received 27 lakh units of power per month from Kerala (Ref.T/COM/EC/55/5054 dt.7.6.80). We were charged on no loss no profit basis that is 37 paise per unit inclusive of taxes when the Kerala rate was 28 paise on Karnataka. Due to two tier system of pricing for our normal allocation of power at the normal rate of 28 paise plus taxes and duties for 60% and 78 paise plus taxes and duties for 40% our average energy cost at present is 48 paise plus taxes and demand charges. Now if we are charged 80 paise plus extras for the additional 40 lacs, our cost of energy will go up beyond our capacity to pay which will cripple our unit to further sickness. It has also been mentioned in the letter that M/s.GIL had also played some role in negotiating earmarked power on barter basis from Kerala for their industry as per the advise of the government and that fact should not be overlooked. It was also emphasised that being situated in Karnataka the industry was contributing to the industrial infrastructure of the State and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Electricity (Supply) Act, 1948. Section 43 reads as under : 43. Power of Board to enter into arrangements for purchase or sale of electricity under certain conditions.- (1)The Board may enter into arrangements with any person producing electricity within the State for the purchase by the Board, on such terms as may be agreed, of any surplus electricity which that person may be able to dispose of. (2) Where a sanctioned scheme so provides, the Board may, on such terms as may be agreed upon, enter into arrangements with any Government or person for the purchase or sale of electricity to be generated or used outside the State: Provided that the Board may not enter into such arrangements with any such Government or person without the consent of the State Government, or into arrangements with any such person without the consent of the Government of the State within which the electricity is to be generated or used. The other provision which has been pressed into service, to make out a case of violation of rules, Rule 68 of Kerala State Electricity Board Rules, 1957 has been referred to which provides sale of electricity outside the State shall be with the prior conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the Department specified in the First Schedule, and shall be classified and distributed between those departments as laid down therein. 5. The Governor shall, on the advice of the Chief Minister, allot the business of the Government among the Ministers by assigning one or more departments to the charge of a Minister : Provided that nothing in this rule shall prevent the assigning of one department to the charge of more than one Minister. 9. Without prejudice to the provisions of Rule 7, the Minister in charge of a Department shall be primarily responsible for the disposal of the business appertaining to that Department. First Schedule referrable to Rule 4 quoted above contains the Department of Power at Serial No.23 of the List. The Minister in charge of the Department is primarily responsible for disposal of business pertaining to that department as provided under Rule 9 of the Rules of Business. In this background it is submitted that none else but A1 as Minister, Power would be competent to give consent of any such arrangement. Learned counsel for A1 has referred to certain decisions on the point of Rules of Business, viz. M/s.Bijoya Lakshmi Cotton Mills Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Karnataka/KEB and the decision had been taken at the higher level namely, at the level of the government itself. Therefore, it is not correct to say that there was violation of Rule 43(2) of the Electricity (Supply) Act, 1948 or Rule 68 of the Rules. The supply of electricity made under the arrangement arrived at on negotitions entered into between two States does not need any prior consent u/s 43 of Electricity (Supply) Act, 1948 or under Rule 68 of the Rules. These provisions are not attracted. Hypothetically even it is assumed that prior consent of Government was required in the facts and circumsances of the case in hand, it would be irresistably taken to be implied. The other aspect of the matter which has been emphasised on behalf of the prosecution is that the appellants did not enter into any written agreement and that no memo of meetings was prepared. There is no denial of the fact on behalf of the appellants that no formal agreement was drawn or entered into nor the fact that no minutes of the meetings were prepared. Undoubtedly, it would have been only proper way to enter into such an arrangement and to act upon the same thereafter. But the fact is that no wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the supplies have been illegally made with dishonest intention. There is nothing to indicate that Karnataka State/KEB could not make available electricity to M/s.GIL like it did to its other consumers. As a matter of fact electrical energy was only continued to be supplied to Karnataka/KEB during the relevant period as well with upward revised rates to the advantage of the State of Kerala. We are not undermining the requirement or necessity to execute an agreement in writing for any contract entered into for and on behalf of State or such bodies like KSEB but such omission, in the facts and circumstances of the case, would not lead to any inference of commission of any offence. It is though always necessary that an act must be performed in a manner it ought to be under the law. The State Government may of course take steps as may be necessary to see that such omissions may not occur and such transactions may take place by means of a written agreement. Otherwise, there always remains a risk of the other party resiling from the contract or may raise disputes about the terms and conditions of the agreement. A written instrument avoids the scope of uncertainty and leaves no room fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricity was earmarked for supply to M/s.GIL by Kerala/KSEB. Learned counsel for the respondent has particularly relied upon the statement of PW 22 which reads: Whether any energy was spared as agreed to by A1 as stated in P.56(a) letter to be supplied to M/s.GIL (Q)? I cannot recollect definitely. But some additional energy was given to M/s.GIL by KEB (A) . That energy was supplied on KSEB account. By KSEB account I mean from current supplied by Kerala to Karnataka . It only confirms the fact that Kerala/KSEB supplied energy to Karnataka/KEB alone. The above statement negatives the allegation of earmarking of any definite quantity of electrical energy to M/s.GIL by KSEB, the additional energy was given to M/s.GIL by KEB. Right from the very beginning as indicated earlier, the State of Karnataka was quite anxious to make available the electricity to its heavy industries including M/s.GIL and Wheel and Axle plant. It is not understandable how it leads to inference or to the conclusion that Kerala State/KSEB sold energy to M/s.GIL. Therefore, to fasten the responsibility or coming to any conclusion that any amount of energy was earmarked and sold in definite quantity to M/s.GIL by K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take decisions under the Rules of Business of the State of Kerala, there was no occasion for taking any consent from the government. Provisions of Section 43 of the Electricity (Supply) Act, 1948 or Rule 68 are not attracted. There is no violation of the said provisions. 10. That the fact that arrangement entered into was not reduced into an agreement in writing, lost relevance for the purposes of this case since the same having been acted upon and the electricity having been supplied to the State of Karnataka/KEB for which there is no complaint that State of Kerala/KSEB has not received the agreed price. In any case, no inference of criminal liability could be drawn. 11. There is no evidence to support the conclusion of the High Court that during the relevant period there was scarcity of electricity in the State of Kerala. 12. That according to the prosecution as well as the findings of the Courts, the appellants have not benefited monetarily or otherwise as a result of arrangement or by M/s.GIL. In the light of the above conclusions, it may now be examined as to what offence if at all, has been made out against the appellants. The charge and the conviction of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical to be appreciated. If a person obtains any valuable thing or pecuniary advantage for any other person can well be said to be causing to obtain to any particular person any benefit or advantage. Such an act may be covered by the concept of 'actus reus' that is to say an act of accessory, aiding, abetting, counselling and procuring an offence. But in comparison to mens rea, actus reus i.e. mental element is considerably narrower and more demanding than that required for the principal offender. The distinction between mens rea and actus reus is indicated in Blackstone's Criminal Practice . In the case in hand however, obtaining any valuable thing or pecuniary advantage for any other person has also been brought within the definition of the offence. Therefore, it will have to be examined as to whether there has been obtainment of a valuable thing or pecuniary advantage by the appellants for M/s.GIL. In this connection, learned counsel for the appellants have placed reliance upon a decision of this Court in the case of Subash Parbat Sonvane . The facts of the case were different as the court was considering a case of bribery under Section 13(1)(d)(i) of the Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellants by reason of which it could be said that electricity was caused to be obtained by them to M/s.GIL that too on a lower rate causing pecuniary advantage to M/s.GIL. The position of the appellants has to be considered as that of a receiver or one who illegally obtained valuable thing. The documentary evidence as well as the oral evidence as referred to in the earlier part of this judgment clearly establishes that the State of Karnataka/KEB contacted the Minister of Power State of Kerala (A1) for assistance in the matter of supply of electricity due to grim situation of shortage of energy in their State. Times and again in different meetings and otherwise the State of Karnataka/KEB had been emphasising their requirement of electricity and supply of more energy stressing upon the need for their industry some of which were named including M/s.GIL and Wheel and Axle Plant, so much so that they had even advised M/s.GIL also to make effort and use their good offices with Kerala Authorities for supply of more electricity. So far the response of the appellants is concerned it is clear that they had only told that they would look into their demands and would like to assist t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n instances of supply of imported energy at a lower rate to M/s.GIL and Wheel and Axle Plant by KEB. In any case it was a matter between the State of Karnataka/KEB and M/s.GIL or other industries. Therefore, it is also incorrect to say that the appellants caused any profit to occur to M/s.GIL. We have already recorded a finding that in the facts and circumstances of the case the provisions of Section 43 of the Electricity (Supply) Act, 1948 or Rule 68 of the Rules were not attracted. It cannot be said factually, that electricity was sold by State of Kerala/KSEB, A1 or A2 to M/s.GIL nothing to say of illegally, nor it can be said that there was any abuse of their position by A1 and A2 in supply of energy to Karnataka/KEB. Once the supplies were made to the State of Karnataka to help out during the period of scarcity of energy, as requested, it is not understandable how only a part of supply which the State of Karnataka/KEB, amongst others allocated to M/s.GIL that alone could be said to be illegal or that the appellants caused to be obtained valuable thing to M/s GIL illegally by abuse of their official position. KSEB did not sell energy to M/s GIL, all supplies were made to KEB. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the mens rea, some require only recklessness or some other state of mind and some are even satisfied by negligence. The variety in fact goes considerably further than this in that not only do different offences make use of different types of mental element, but also they utilise those elements in different ways. It is clear thus that the accused must have the mental state or degree of fault at the relevant time. It may of course differ from crime to crime according to the definition thereof. The matter of degrees may also differ. That is to say generally the mental state and the criminal act must coincide. The criminal act may be one which may be intended by the wrong doer. It is as well known mere intention is not punishable except when it is accompanied by an act or conduct of commission or omission on the part of the accused. As indicated earlier, situation varies in respect of different kinds of crimes as in some of them even negligence or careless act may constitute an offence or there may be cases of presumptions and putting the accused to proof to the contrary. In the case in hand we have found that there is no sale of energy to M/s GIL by KSEB nor the appellants had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o compass the King's death, but the law requires an overt act manifesting the intention; and this act must be something more than a confession of the intention. It must be an act intended to further the intention; perhaps, too, it must actually do so Thus, looking to the definition of the crime in the case in hand namely, clause (d) of sub-section (1) of Section 5 of the Act, according to the principle indicated above it is necessary that the act must have been done illegally abusing his position as public servant for obtaining benefit pecuniary or otherwise for himself or for someone else. This is an offence which would require an intention to accompany the act. The element of mental state would be necessary to do a concious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else, then too element of mental state must be there at the relevant time. In view of the facts and circumstances indicated in the discussion held earlier in this judgment, and findings recorded on facts, we firstly hold that facts leading to charges are not proved and we also find that the element of mens rea and intention is totally lackin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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