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Supreme 720
Supreme Court of India
R.C. Lahoti and Brijesh Kumar, JJ.
R. Balakrishna Pillai —Appellant
versus
State of Kerala —Respondent
Criminal Appeal No. 372 of 2001
With
Criminal Appeal No. 373 of 2001
And
Criminal Appeal Nos. 725-727 of 2002
Decided on 28-2-2003
Held : On the basis of the discussion held by us, our conclusions are as follows :
1. That Electricity was being supplied by the State of Kerala to State of Karnataka and other States since long before the relevant period.
2. That the Minister for Power and Energy, State of Karnataka along with Chairman of Karnataka Electricity Board approached the appellants seeking assistance to help out during the crisis of scarcity of electricity in their State. They had a meeting in that connection with A1 and A2 on 29.9.1984 and laid emphasis upon its dire need also keeping in view the need of its industries and M/s. GIL as well as Wheel and Axle Plant.
3. That the letter written by the Chairman, KEB to the Secretary, Power, Government of Karnataka dated 29.9.84 indicates that no firm commitment was made by the State of Kerala/KSEB for supply of electricity except some assurance for assistance to the maximum possible. This letter also indicates that it was told that during peak hours it was not possible to provide electricity for M/s. GIL.
4. That the supply of electricity was continued in pursuance of the talks initiated by the Minister of Power and Energy, Karnataka but at a revised rate which was enhanced to 42 paise per unit.
5. That the imported Kerala energy was priced at 80 paise per unit as high cost energy by the State of Karnataka/KEB at which rate it supplied to its consumers. But on representation of M/s. GIL to the State of Karnataka/KEB after calculation, lowered the rate of high cost energy to 64 paise per unit for M/s. GIL.
6. That it was concern of the State of Karnataka/KEB to fix any rate of imported energy and its disbursement to its consumers as it would find fit and proper.
7. That no fixed quantity of electricity was earmarked or sold by the State of Kerala/KSEB to M/s. GIL. M/s. GIL was supplied electricity by the State of Karnataka/KEB @ 64 paise per unit as fixed by KEB.
8. That it is nobody s case that State of Karnataka or anybody felt aggrieved by fixation of lesser rate of high cost energy by KEB for M/s. GIL.
9. That since the arrangement was arrived at, in pursuance of negotiations at the Ministerial level of the two States and the Minister of Power, State of Kerala as Minister in charge being authorised to 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. (Para 36)
Held also : 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. (Para 41)
Held thereafter : 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 conscious 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 lacking. The electrical energy was exported to Karnataka/KEB at the request of State of Karnataka during the period of crisis of shortage of energy which is not objected to, so as to be illegal but for a part of it which is allocated by the State of Karnataka/KEB to M/s. GIL which constitutes no offence. The prosecution failed to prove the case of sale of electricity by KSEB to M/s. GIL or the KSEB or A1 and A2 having caused profit to M/s. GIL. Admittedly, appellants did not stand to gain in any manner. The prosecution case thus fails. (Para 46)
Held consequently : In the result, the appeals No. 372/01 and 373/01 are allowed and the judgment and order of conviction and sentence passed against the appellants by the Trial Court and upheld by the High Court under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act are set aside. The appellants need not surrender and their surety bonds are discharged. In view of the fact that the judgment of the High Court has been set aside, no orders are required to be passed in Criminal Appeals No. 725-27/02, having rendered infructuous, they stand finally disposed of as such.
Judgment
Brijesh Kumar, J.—This is a case in which the appellants before us in Criminal Appeal No. 372 of 2001 and Criminal Appeal No. 373 of 2001 have been convicted under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (for short `the Act ) for having caused, M/s. Graphite India Ltd. (for short ‘M/s. GIL’), Bangalore, to obtain valuable thing namely, electricity by selling it to the said company illegally and by abusing their official position as public servants which also resulted in pecuniary advantage to M/s. GIL to the tune of Rs. 19 lakhs and odd. So far the said two appellants themselves are concerned, it is neither the case of the prosecution nor the finding of any court that they gained or acquired any kind of benefit, pecuniary or otherwise, out of the transaction in question. The High Court, on the other hand, finds that there is nothing to show that for obtaining Kerala electricity any illegal gratification was given to the appellants or any illegal means was employed by M/s. GIL.
2. The two appellants for the aforesaid conviction have been sentenced to simple imprisonment for a period of one year and a fine of Rs. 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.
3. 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.
4. During the relevant period namely, October, 1984 to May, 1985, A-1 was Minister for Electricity, Government of Kerala and A-2 was Technical Member/Chairman of the Kerala State Electricity Board (for short `KSEB ). The two have been found to have illegally sold 1,22,41,440 units of Kerala electricity to M/s. GIL without sanction of the State Government as per the requirement under the law. It is also the prosecution case that no written agreement was entered into between the KSEB and the Karnataka Electricity Board (for short `KEB ) for supply of the electricity.
5. Undisputedly KSEB supplied electricity to KEB at the rate of 42 paise per unit. KEB charged for the said high cost energy used by the industries in Karnataka at the rate of 80 paise per unit whereas for the electricity supplied to M/s. GIL the KEB charged at the rate of 64 paise per unit i.e. to say 16 paise less as compared to the rate charged by it from its other consumers. It resulted in pecuniary benefit to M/s. GIL. According to the prosecution to KSEB earmarked a definite quantity of electricity and supplied the same to M/s. GIL without sanction of the State Government as required under the law before selling electricity to any industry outside the state. It could be possible only at the instance of the two appellants who are said to have abused their official position for the benefit of M/s. GIL.
6. The appellants refuted the prosecution case and chose to contest. According to the defence case, the electricity was supplied by the KSEB to KEB on the basis of a decision taken at the State level by A-1 who was the Minister concerned and authorised to take such decisions according to the rules of business. The electricity was being supplied by the State of Kerala much prior to the relevant period to different neighbouring States including Karnataka and Tamil Nadu. Such supplies have been made s
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