Judgment

Leave granted.

1. One Executive Engineer of the Tamil Nadu State Electricity Board made a surprise inspection of the premises 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 Directors purported 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 the other Directors A2 to A 10 were also included being the responsible persons of A1 Mill. A 11 was 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 -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 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 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 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 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 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 liable.

15. In the absence of any allegation or material in the 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 thereagainst before the High Court has been dismissed by 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 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 h