TMI Blog2008 (11) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to under Section 39(1) and 44(1)(c) of the Indian Electricity Act, 1910. 3. Learned trial Judge, recorded a judgment of conviction against the accused. So far as the Directors of the Company are concerned, the learned trial Judge convicted despite noticing the provisions contained in Section 49A of the Indian Electricity Act, 1910, observing: From the above, it is clear that, all the persons responsible for the administration of a company are liable for the offence committed by the Company. If anybody disowns the liability and claims it has happened without his knowledge or despite the sincere efforts the offence has been committed, then it is for the concerned accused to prove the same. On this basis, the Managing Director and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, before liability could be fastened. Once the initial onus of the prosecution is discharged, then the burden shifts to the other person to prove that the offence was committed without his knowledge or that he had exercised due diligence for prevention of commission of the offence. 14. The service connection 89 stands in the name of the Managing Director Ninamalai. In the final report it has been stated that 2 to 8 accused are directors of the No.1 Mill. The facts stated earlier clearly show that as far as accused is concerned, there is no even a whisper nor any shred of evidence nor anything to show that there was any act committed by the accused, from which a reasonable inference can be drawn that they should also be vicariously l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment. 10. Indian Electricity Act, 1910 was enacted to amend the law relating to the supply and use of electrical energy. Section 39 of the Act provides for penalty if an offence of theft of energy is committed. Section 44 provides for penalty for interference with meters or licensee's works and for improper use of energy. 11. The said provisions read thus: 39. Theft of energy:- Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years or with fine which shall not be less than one thousand rupees, or with both: and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction consumption or use o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mproperly uses the energy of a licensee. [shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both], and , in the case of a continuing offence, with a daily fine which may extend to [fifty] rupees and[ if it is proved that any artificial means exists] for making such connection as is referred to in clause(a) (or such re-connection as is referred to in clause(aa)] or such communication as is referred to in clause(b) or for causing such alteration or prevention as is referred to in clause (c) or for facilitating such improper use as is referred to in clause (d) (and that) the meter, indicator or apparatus is under the custody or control of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses of this section- (a) company means anybody corporate and includes a firm or other association of individuals; and (b) director in relation to a firm, means a partner in the firm. 13. In terms of the aforesaid provision, therefore, it was obligatory on the part of the complainant not only to make requisite averments in the complaint petition but also to prove that any of the Directors who had been prosecuted for alleged commission of the aforementioned offence was incharge of and was otherwise responsible for the conduct or the affairs of the Company. 14. We have noticed hereinbefore that how the learned trial Judge has dealt with the entire aspect. Learned trial Judge has misconstrued and misinterpreted the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 4. It is not in dispute that for showing a vicarious liability of a Director of a company upon the complaint it is incumbent to plead that the accused was responsible to the company for the conduct of the business of the company. No such allegation having been made in the complaint petition, in our opinion, the High Court was not correct in passing the impugned judgment. The allegation contained in the complaint petition was that all the accused Directors, participated in the negotiations for obtaining financial help for Accused 1, which in our opinion, would not give rise to an inference that the appellant was responsible for day-today affairs of the company..... See: Saroj Kumar Poddar Vs.State(NCT of Delhi)- (2007) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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