Holding

In the absence of an averment in the complaint and evidence proving a director was in charge of or responsible for the company's affairs, Section 49A does not attach and the directors cannot be convicted.

Summary

The Tamil Nadu Electricity Board inspected Rasipuram Textile Mills and discovered alleged theft of electrical energy. Under Sections 39(1) and 44(1)(c) of the Electricity Act, 1910, the Board prosecuted the company and its directors. The trial court convicted the directors, but the appellate court set aside those convictions, holding that Section 49A requires a specific allegation that a director was in charge of or responsible for the company's affairs and that evidence must support this. The High Court dismissed the Board's revision petition, and the Supreme Court affirmed that without such averment and proof, the directors cannot be held liable. Consequently, the appeal was dismissed.

Issues considered

Whether directors of a company can be held liable under Section 49A of the Electricity Act, 1910 for theft of electricity committed by the company without a specific allegation of being in charge or responsible.
Whether the burden of proof shifts to the directors under the proviso of Section 49A once the prosecution establishes the initial allegation.
Whether the conviction of the directors was sustainable in the absence of such allegation and supporting evidence.

Legislation cited

Electricity Act, 1910s. 39(1), s. 44(1)(c), s. 49A(1), s. 49A(2)

Subjects

Theft of electricityCorporate liabilityDirector liabilitySection 49ABurden of proofVicarious liabilityIndian Electricity Act 1910Criminal conviction

Judgment

[2008] 17 S.C.R. 11

TAMIL NADU ELECTRICITY BOARD A
II.
M/S RASIPURAM TEXTILE (P) LTD. & ORS.
(Criminal Appeal No. 1962 of 2008)

NOVEMBER 25, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

ELECTRICITY ACT, 1910:
·i-

ss. 39(1) and 44(1)(c) rlw s.49-A(1) - Theft of energy- c
Prosecution of Company and its Directors - Conviction of
Directors by trial court - Set aside by appellate court -
" Revision petition of complainant dismissed by High Court """
HELD: It is only if an averment is made in the complaint that
accused Director was in-charge and/or responsible for D
conduct of affairs o{ the Company when offence was
committed, and sufficient and cogent evidence is brought on
record to prove the said a/legation, that proviso to s. 49-A
would be attracted and burden would shift on the accused-
Director to establish that offence was committed without his
E
knowledge or that he exercised all due diligence to prevent
commission of such offence - In the instant case, there being
neither any averment made in the complaint nor any
evidence brought on record by complainant to satisfy the
requirement of s.49-A, the appellate court and the High Court
in revision petition rightly held that the Directors could not F
-''f·
have been convicted - Order of acquittal not interfered with
- Criminal Law - Burden of proof.

S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr.
(2005) 8 SCC 89; K. Srikanth Singh Vs. North East G
Securities Ltd. and Anr. (2007) 12 SCC 788; Saroj Kumar
Poddar Vs. State(NCT of Delhi) (2007)3 SCC 693 and
'r Average Advertising Pvt. Ltd. Vs. State, Govt. of N.C. T. & Ors.
(2007) 5 sec 54, relied on.
11 H
12 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
A Case Law Reference
(2005) 8 sec 89 relied on para 17
(2001) 12 sec 788 relied on para 17
(2001). 3 sec 693 relied on para 17
B
(2007) s ·sec 54 relied on para 17

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1962 of 2008:
c From the final Judgment and Order dated 6.4.2004 of the
High Court of Judicature at Madras in Crl. R.C. No. 691 of
2003.

R. Nedumaran and T. Harish Kumar for the Appellant.
D
Jayant Muthraj, C.K. Sasi and Aribam Guneshwar Sharma
for the Respondents.

The following Order of the Court was delivered:

E ORDER

Leave granted.

1. One Executive Engineer of the Tamil Nadu State
Electricity Board made a surprise inspection of the premises
F of first respondent -Rasipuram Textile Mills. Allegedly, theft of
electrical energy was detected.

2. A criminal prosecution was lodged not only against the
company but also against its Managing Director and other
G Directors purported to under Section 39(1) and 44(1)(c) of the
Indian Electricity }\ct, 1910. ·

3. Learned trial Judge, recorded a judgment of conviction --r
against the accused. So far as the Directors of the Company
are concerned, the learned trial ..Judge convicted despite
H
TAMIL NADU ELECTRICITY BOARD v. MIS 13
RASIPURAM TEXTILE (P) LTD. & ORS.

noticing the provisions contained in Section 49A of the Indian A
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
8
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 the other Directors A2 to A 1O were also included
being the responsible persons of A! Mill. A 11 was ·c
included as Electrical Supervisor and A 12 as Spinning
~
Master and A 13 as Electrical Helper were included by
P.W.8 Thiru Jayachandran in the final report".

4. Indisputably, the Managing Director of the company-.. D
R. Nainamalai as also another Director of the company R.
Palanivel Goundar expired during pendency of the said
proceedings.

5. Learned Additional District and Sessions Judge, while
E
setting aside judgment of the trial Court, categorically, held as
under:

"13. That the. petitioner 2 to 8 only Directors of the
Mill and the prosecution has not alleged that the petitioner
_, is in charge of and was responsible to the accused· No.1 F
Mill for the conduct of the business of the Mill and the
records of Investigation also did not show that the
petitioner was or had been participating in.the day to day
affairs of the Mill and the mere fact that the petitioner was
the Director of the accused No.1 Mill would not be G
sufficient to fasten criminal liability on him and the he relies
...,_, on the decision of this Court in P. Jeyanthi V. State, rep .
by Sub-Inspector of Police (Crimes), Maduravoyal Police
Station, Chingleput District 1990 law Weekly Criminal 398.
, Under Section 49A of the Act, the onus is on the H
14 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
I

""
A prosecution to establish that 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, before liability could be fastened. Once
the initial onus of the prosecution is discharged, then the
B burden shifts to the other person to prove that the offence
YJas 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
c 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 sh~ed of evidence nor anything to show that there was
D any act committed by the accused, from which a
reasonable inference can be drawn tl:iat they should also
·b~ vicariously li~ble. 4- )-

15. In the absence of any allegation or material in the
E records to disclose that the petitioners were participating }=
in the day to day affairs of the Mill the prosecution .cannot
be allowed to continue in so far as the petitioners are
,)
concerned."

6. A revision application filed by the appellant herein
F thereagainst before the High Court has been dismissed by
··f'-
reason of the impugned judgment. ~
"
7. Learned counsel appearing on behalf of the appellant \
'
would contend that in terms of Section 49A of the Indian
G Electricity Act, 1910, the burden of proof was on the accused
to show that despite the fact that they were the Directors of the
company, they had no knowledge about the commission of the -..,...
offence. The learned counsel would, furthermore, contend that
they had made no effort far less any sincere effort to show that .....
H they were not aware of the commission of the offence by '

1
'
\ TAMIL NADU ELECTRICITY BOARD v. MIS RASIPURAM
TEXTILE (P) LTD. & ORS.
15

another person. A
-{
8. It was, furthermore, urged keeping in view the fact that
eight witnesses had been examined and several documents
have been brought on record for the purpose of proving the
prosecution case, it was obligatory on part ~f the learned
8
Additional Sessions Judge as also the High Court to consider
the merit of the matter for the purpose of finding out as to
whether the private respondents and/or any of them was
'(
incharge and/or responsible for the conduct of the business of
the company or not.
c
,, 9. Learned counsel appearing, on behalf of the
~ respondents, however, supported the impugned judgment.

10. Indian Electricity Act, 1910 was enacted to amend the
law relating to the supply and use of electrical energy. Section D
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:
E
"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 F
)-
means or means not authorised by the licensee exist for
"' the abstraction consumption or use of energy by the
consumer, it shall be presumed, until the contrary is proved,
that any abstraction, consumption or use of energy has
been dishonestly caused by such consumer.
G

..
44. Penalty for interference with meters or licensee's
--(
,- works and for improper use of energy:- Whoever-

(a) connects any meter referred. to in Section 26,.
sub-section (1 ), of any meter, indicator or apparatus H
SUPREME COURT REPORTS [2008] 17 $.C.R.
e
16

A referred to in Section 26, sub-section (7), with any electric
)--
supply-line through which energy is supplied by a licensee,
or disconnects the same from any such electric supply-
line[***]; or

(aa) unauthorisedly·re-connects any meter referred
B
to in sub-section (1) of section 26, or any meter, indicator
or apparatus referred to in sub-section (7) of Section 26,
with any electric supply line or other works, being· the
-~
property of the·licensee, through which energy may be
supplied, when the said electric supply line or other works
c has or have been cut or disconnected under sub-section
(1) of section 24; or ,.,;
I'
(b) lays, or causes to be laic:t, or connects up any
works for the purpose of communicating with any other
D works belonging to a licensee, (*~*);or.

(c) maliciously injures any meterreferred to in section
26,sub-section(1) or any meter, indicator or apparatus
referred to in section 26,sub-section (7) or wilfully or
----
fraudulently alters the index of any such meter, indicator or
E
apparatus, or prevents any such meter, indicator or
apparatus from duly registering; or

(d) imprope~ly uses. the energy of a licensee.

F [shall be punishable with imprisonment for a term
which may extend to three years, or with fine which may
-cf
.,
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
G
to in clause(a) (or such re-connection as is referred to in

H
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,
-.,.,
. }--
TAMIL NADU ELECTRICITY BOARD v. MIS RASIPURAM 17

... TEXTILE (P) LTD. & ORS .

indicator or apparatus is under the custody or control of A
~ the consumer, whether it is his property or not [it shall be
presumed, until the contrary is proved] [that such
connection, reconnection, communication], alteration,
prevention or improper use, as the case may be, has been
knowingly and willfully caused by such consumer." B
12. Section 49A which was inserted by Act 32 of 1959
provides for offence by companies. It reads as under:
"I
"49A Offence by companies- (1) If the person
committing an offence under this Act is a company, every c
person who at the time the offence was committed was in
'
,-'flf 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 D
accordingly:
,.__
PROVIDED that nothing contained in this sub-section
shall render any such person liable to any punishment, if
he proves tliat the offence was committed without his E
knowledge or that he exercised all due diligence to prevent
the commission of such offence.
(2) Notwithstanding anything contained in sub-section
(1 ), where an offence under this Act has been committed
with the consent or connivance of, or is attributable to any F
·>t-
neglect on the part of, any director or manager, secretary
_, or other officer of the company, such director, manager,
secretary or other officer shall also be deemed to be guilty
of that offence and shall be liable to be proceeded against
(

-( and punished accordingly. G
'
Explanation- For the purposes of this section-

...
"!
(a) "company" means any body corporate and
includes a firm or other association of individuals; and
H
18 SUPREME COURT REPORTS · [2008] 17 S.C.R.
e • l

I

~
A · (b)"director" in relation to a firm, means a partner )-
in the firm.·
•l

13. In terms ·of the aforesaid provision, therefore, .it was
obligatory on the part of the complainant not only to make
B 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.
c 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 provisions of Section 49A ._...
,.,
of.the Act.

0 15. In terms of Sub-section (1) of Section 49A, it is for the
complainant to prove that the Director of the Company at the
time when the theft was committed was in charge of and/o'r was
responsible for. the conduct of its business. Only in the event -+--
such an averment is made and sufficient an<! cogent evidence
E is brought on reco.rd to prove the said allegations, the proviso
appended to Section 49 A would be attracted; meaning thereby
only in the event it is proved that a Director or a Group of
Directors of the Company were i.n charge of and/or were
responsible for the conduct of the business of the company, the
burden would shift on the accused to establish the ingredients
F contained
,. '
in the proviso appended to Section 49A of the Act.
" ' . -t

16. Learned Additional Sessions Judge as Well as the
High Court, in our opinion, therefore, were right in holding that
in the absence of any· averment made in the complaint petition
G as also in the absence of any evide~.ce brought on record by
the complainant to satisfy the requirements of Section 49A of
the Act, the respondents could not have been convicted.

...
--y

17. This aspect of the matter has been considered by a
H series of decisions of this Court including S.M.S.
, TAMIL NADU ELECTRICITY BOARD v. MIS RASIPURAM
TEXTILE (P) LTD. & ORS.

Pharmaceuticals Ltd. Vs. Neeta Bh{31ia & Anr. (2005) 8 SCC
19

A
89. Following the said decision this Court in K.Srikanth Singh
Vs. North East Securities Ltd. and Anr. (2007) 12 SCC 788
in a case arising under Section 138 of the Negotiable
lnstrum~nt Act, held as under:
8
"4. It is riot 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 C
' · 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 D
responsible for day-today affairs of the company ..... "

See: Saroj Kumar Poddar Vs. State (NCT of Delhi)-
(2007)3 sec
693
E
Average Advertising Pvt. Ltd. Vs. State, Govt. of
N. c. r. ors.
& (2007) 5 sec
54
'

l.
18. For the reasons aforementioned, there is no merit in
this appeal. It is dismissed accordingly.
F
RP. Appeal dismissed.

i'