SUBHASH CHANDRA JAIN Vs. STATE OF M P

JUDGEMENT

(1.) THE instant petition is for setting aside the order dated 9th of December, 2004 passed by Additional Sessions judge, Gohad, District Bhind in criminal revision No. 177/02 whereby the learned judge has affirmed two orders dated 1. 1. 1999 and 19th September, 2002, passed by Additional Chief Judicial Magistrate gohad, District Bhind in criminal case no. 385/1997 by which learned Magistrate has taken cognizance against petitioner with the aid of Section 319 of Cr. P. C. for the offence under Section 379 of IPC read with Section 39 and 44 of Indian Electricity act, 1910 (hereinafter referred to as the act ).

(2.) 2 (A ). The facts in brief are, that on 24th september, 1996, a team headed by one R. S. Kushwah, Executive- Engineer assisted by executive Engineer Ram Singh and Assis-tant Engineer Vinod Bhadoria and four other officers of the Electricity Board (Board in brief) inspected the premises of M/s Jain ferro Alloys Pvt. Ltd. (Company in brief)and detected theft of electricity. Panchnama was prepared. On the same day, a written report was lodged by Shri R. S. Kushwah, at Police Station, Malanpur, District Bhind against the petitioner mentioning therein that, he being the Managing Director of the company was committing theft. On this report, FIR Crime No. 165/96 was registered against him for the offence punishable under Section 379 IPC along with Section 39 and 44 of Indian Electricity Act. During investigation, vide letter dated 28th September, 1996 enclosing resolution dated 15th february, 1996 of the Company, petitioner informed the in-charge Police Station malanpur, that he has already resigned from the post of Managing Director and in place of him, one Gya Prasad Rathore has been appointed as Managing Director. It was further mentioned in the letter that this fact has also been communicated to the board vide letter dated 16th February, 1996. Upon receiving this letter, one letter dated 18th February, 1997 was written by the police to Registrar of Companies for seeking information. In reply thereof, vide letter No. 3671-1/1866 dated 25th February, 1997, one Dayaram Chatuvedi, Assistant registrar of Companies, National Capital region, Delhi and Haryana informed that as per the record of the Registrar of Companies, petitioner is not a Director of the company since 15th February, 1996 and since 18th January, 1996. Shri Gya Prasad rathore is working as Director of the Company. Upon this letter, the name of the petitioner was dropped from the report and charge-sheet was filed against Gya Prasad rathore. Admittedly, now he has been tried and convicted for this offence vide judgment dated 7th December, 2005 passed by j. M. F. C. Gohad, District Bhind in Criminal case No. 385/97 imposing 3 years rigorous imprisonment and fine Rs. 5,000.

(3.) MUCH stress has been placed by Shri kalla, the learned Senior Advocate appearing for the petitioner on aforementioned letter dated 25th February, 1997 received from assistant Registrar of Companies and has submitted that this document. s a part of the charge-sheet. Vide paragraph 19 of aforementioned judgment dated 7-th Decem-ber, 2005, the learned Judge has observed that it is a public document. Hence, the same has been taken on record as Ex. Plo and acted upon by the learned Judge. In his written submission, Shri Kalla has also submitted that under Section 610 (3) of the Companies Act, 1956, this document is a public document and admissible in evidence. On these three counts, his contention is, that being a document of the prosecution and a public document, at this stage, it can safely be acted upon. Nothing has been countered on behalf of the State during the arguments with regard to these contentions of Shri kalla. In my opinion, as admittedly it is a document filed by the prosecution along with the charge-sheet after acting upon the same and dropping the name of the petitioner while filing of the charge-sheet, it can very well be considered as an undisputed document on the record. This document shows that since 15th February, 1996, the petitioner is not a Director of the Company i. e. much before the incident which has happened on 24th September, 1996. On perusal of the FIR, it appears that only on a presumption of his being a Managing Director and perhaps as he had signed the agreement with the Board on behalf of the company in the year 1991, his name has been mentioned in the FIR. As submitted by Shri Kalla, this fact gets support from the statement dated 21st March, 1996 of the complainant R. S. Kushwah, Executive Engineer, recorded during investigation as a supplementary evidence. Statement, in which he has stated thus: (Matter in other language)With regard to this statement of this complainant and responsible officer of the Board, nothing has been countered on behalf of the State during the argument. This statement is also a document of the prosecution and forming a part of the charge-sheet. The cumula-tive effect of the aforementioned letter dated 25th February, 1997 received from the Registrar of Companies and the statement of this witness, the allegation in the FIR against the petitioner ought not to have been used against him as a basis of the impugned order.