SWAPAN MUKHERJEE Vs. VIGILENCE

JUDGEMENT

(1.) TWO Criminal Miscellaneous Applications and Criminal Writ application have prayed for quashing of the entire criminal proceeding including the First Information Report of Vigilance Police Station Case No. 67 of 2008 (Spl. Case No. 43 of 2008) registered on 16.9.2008 under Sections 166, 109, 119, 406, 420, 465, 467, 468, 120(B) of the Indian Penal Code, under Sections 135 and 138 of the Electricity Act, 2003 and under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and also for quashing of the entire criminal prosecution of Vigilance Police Station Case No. 34 of 2009 dated 3.4.2009 (Spl. Case No. 26 of 2009) registered under Sections 13(1) (d) of Prevention of Corruption Act,1988 and Section 120(B) of the Indian Penal Code.

(2.) IN Vigilance Police Station Case No. 67 of 2008 M/s. Dadiji Steels Ltd., and its members of the Board of Directors, namely, Binay Kumar Singh, Ramesh Chandra Gupta, Vijay Kumar Gupta, Shri Sachint Agrawal, all partners of M/s. Dadiji Steels Ltd., and all persons connected with the management of the company were made accused without specifically naming them.

(3.) TO consider the points of reference, it is desirable to have a look on the basic accusation of both the First Information Reports. Though the factual matrix of both the First Information Reports are almost the same but for the proper appreciation, separate accusations of both the First Information Reports are mentioned hereunder: VIGILANCE P.S. CASE NO. 67 OF 2008 (SPECIAL CASE No. 43 of 2008): The First Information Report was lodged on 16.09.2008 on the basis of the written report submitted by Yogendra Prasad Singh, Deputy Superintendent of Police (Vigilance Department), Electricity Cell, Vidhyut Bhawan, Patna, against M/s. Dadiji Steels Ltd., and its Directors under various provisions of the Indian Penal Code, Electricity Act, 2003 and Prevention of Corruption Act, 1988, as mentioned above, alleging interalia: (i) An Inspection team was constituted for making inspection of M/S. Dadiji Steels Ltd., Sabalpur, Patna, in view of the confidential report of electricity theft by conspiracy; (i) (ii) Consequently on 6.5.2008 at 19.14 hrs. the constituted team made a surprise inspection of meter bearing no. BEB 08091 and other appliances relating to supply of electricity in the premises of M/s. Dadiji Steels Ltd., in presence of Electrical Executive Engineer (Supply), Fatuha; Assistant Electrical Engineer, Deedarganj, Patna, representative of M/s. Secure Meter Ltd., and representatives of petitioner No. 1. (iii) During the course of inspection, Data of the meter was downloaded by common meter reading instrument(hereinafter referred to as CMRI), and thereafter the Meter Reading Instrument(hereinafter referred to as MRI) was sealed in presence of inspection team, officials of the Electricity Board and representative of the Company. (iv) On 07.05.2008 the seal of CMRI made on 06.05.2008 was removed and the MRI was downloaded in presence of Executive Engineer, representative of M/S. Secure Meter Ltd., and representative of the Company. (v) The downloaded data reflected 13 instances of C. T. Short between 2.3.2008 and 13.3.2008. 16 (ii) (vi) Downloaded data from MRI necessitated expert investigation and suggestion. Accordingly, FAX messages were sent to M/s. National Physical Laboratory, Delhi, but no response was received. Thereafter, reminder was also sent to the said laboratory. (iii) (vii) On 9.7.2008, Electrical Executive Engineer and R.D., Electricity Board, Patna, were directed to seize the meter and produce it to Electricity Vigilance, Patna. (iv) (viii) The Electrical Executive Engineer, on the basis of being the member of Inspection team on 6.5.2008 and on the basis of reproduced data of MRI, submitted a note to DG, Vigilance, suspecting some interference with the meter for committing theft of electricity. In such circumstances, it was decided to get the meter tested by an independent expert. Hence, the meter was sent to Central Power Research Institute (hereinafter referred to as CPRI), Bhopal. On 17.7.2008 CPRI, Bhopal, transmitted its report reflecting tampering of C.T. Shorting in March 2008. It is relevant to state here that the meter records the tampering if the meter has been by-passed from outside or inside. In view of the report of CPRI, Bhopal, it was suspected that the Electricity theft was committed by C.T. Shorting due to which the Electricity Board had suffered loss and the consumer got illegal gains. The MRI downloaded report dated 7.5.2008, which reflects theft of electricity, was handed over to the representative of M/S. Dadiji Steels Ltd., Thereafter, on 27.6.2008, the consumer made voluntary disclosure under clause 11.4 of Bihar State Electricity Supply Code, 2007. (ix) (ix) It is further alleged that in the agreement between M/s. Dadiji Steels Ltd., and the Electricity Board, the category of the Tariff is mentioned as HTSS-I, whereas in the Tariff notification of the Board issued between 1.11.2006 to 31.8.2008 there is no reference of HTSS-I Tariff. It is not clear as to from where HTSS-I Tariff figured in the agreement and whether such an error was under ignorance or deliberately. (v) It is also alleged that in the bill raised to the consumer, the category is mentioned as HTSS, which is valid for Induction Furnace, whereas in the premises of the consumer, apart from Induction Furnace, Rolling Mill is also situated and the readings of the consumption of electricity is jointly recorded by a single meter. Hence, the Electricity Board has been raising the bill on the basis of common consumption on a fixed rate applicable for Induction Furnace only. Thus, the consumer has been using energy at a lower rate by which huge economic loss has been suffered by Electricity Board and it is not clear as to why separate meter has not been installed by Electricity Board for Induction Furnace and for Rolling Mills separately. (xi) By allowing the consumer for availing common consumption on a fixed rate, it is not clear from the agreement that how much load is sanctioned separately for each Rolling Mill and Induction Furnace, out of total sanctioned load of 120.51 kVA. Further the sanctioned load of 120.51 kVA to the consumer, HTSS-I is not under any Tariff and yet how the load was sanctioned and how the bill is being raised is not clear, as even the HTSS category is only applicable for Induction Furnace whereas in agreement the object of supply is for production of MS Ingots and MS Rods. Thus, the authorities of the Electricity Board in an arbitrary manner, prima-facie, put the consumer in a wrong category of Tariff and sanctioned the load of 120.51 kVA, which does not fall under any Tariff category for the purpose of causing economic loss to the Electricity Board and gain to the consumer. (xii) It is also alleged that the Board ought to have raised the bill as stipulated in Annexure-7(B)(i) of Bihar State Supply Code 2007, which prescribes charging of double amount of consumption of the last 12 months, if it is found that the electrical energy supplied is used for such purpose for which higher Tariff is applicable. Hence, from April 2008, the bill ought to have been prepared @ Rs.4.20 per unit as against Rs.1.35 per unit because the consumer was running Rolling Mill along with Induction Furnace. Thus, it appears that for the purpose of providing illegal gain to the consumer such billing has been made. (xiii) It is also alleged that even when the consumer made a voluntary declaration under Clause 11.4 of Bihar State Electricity Supply Code, 2007 the bill was raised @ 1.35 per unit instead of Rs.4.20 per unit as a result of which the Board suffered a huge loss of Rs.3.41 crores. (xiv) It is further alleged that after the Vigilance inspected the premises of M/S. Dadiji Steels Ltd., several old matters of electricity theft were raked up and hurriedly five F. I. Rs., were lodged, which reflects the connivance of employees of Electricity Board. Hence, it was recommended for lodging of the case against the employees of the Board also, but the formal part of the F.I.R reflects that the F.I.R was lodged only against M/S. Dadiji Steels Ltd., its members of Board of Directors, partners and the managing employees and not against any officers of the Electricity Board but the F.I.R was registered under Sections 166, 109, 119, 406, 420, 465, 467, 468, 120(B) of the I.P.C and under Sections 135, 138 of the Electricity Act, 2003 and under Section 13(1)(d) of the Prevention of Corruption Act, 1988. VIGILANCE P.S. CASE NO. 34 OF 2009 (Special Case No. 26 of 2009)