S. Manickam v. Dhanakoti Others

This is a revision preferred by an Officer of the Tamil Nadu Electricity Board (P.W. 1 in the case) against the order of the Judicial First Class Magistrate, Salem, in C. C. No. 2001 of 1979 acquitting the respondents herein (accused) of offences under sections 44 (c) and 39 of the Indian Electricity Act read with section 379, Indian Penal Code.

2. The charge-sheet was laid by the police against the respondent herein (accused 1 and 2) stating that the Electri-city Boar d officials inspected the premises and electric connection meter No. 165 belonging to the first respondeat (first accused) is running business, at 11-30 a.m. , on 10th November, 1978, and found that the said electric connection meter has been tampered with and that there was replacement of original seals by bogus seals with a view to comit theft of electricity. The prosecution examined five witnesses on its side to prove the theft of energy, tampering of the meter and removal of original seals. The respondent (accused) denied the offences. The learned Judicial First Class Magistrate found that the prosecution has not proved which of the two accused had tampered with the meter and seals and that the theft of energy has not been proved beyond any doubt. The lower Court also relied on the ruling reported in Jagannath Singh v. Krishnamurthy1and held that mere existence of tampered meter does not amount to such artificial means for the abstraction of electricity as Would make it an offence under section 39. Consequently, the accused were given the benefit of doubt and P.W. 1 an officer of the Electricity Board has filed this appeal against acquittal.

3. I have heard learned Counsel for both sides and perused the papers onrecord. It is common ground that the first petitioner (first accused) is the owner of the premises and the meter connection (No. 165), and that the second petitioner (second accused) is running business therein with the aid of electricity supplied by the complainant, Electricity Board. P.W. 1 is the Assistant Divisional Engineer of the Tamil Nadu Electricity Board, who has stated that the special squad for detection of power theft came to the town and were making surprise inspections in some factories. Accordingly, on 10th November, 1978, P.W. 1 along with, P.W. 2a local Assistant Engineer, and P.W. 3 Assistant Divisional Engineer, Meter Relay Test, Mettur inspected the premises of the respondents and found that the original seals of the meter fixed by the department had been removed and some private seals fixed. They also scrutinised the seals, their manuscript and other things and they found that the letters of the original seals had been erased and changed. All the witnesses have given a detailed evidence with their reports that the seals then found in the meter were bogus seals and that the meter has been tampered with fraudulently for the purpose of committing theft of energy. They are positive that the seals found at the time of inspection werenot fixed by the Tamil Nadu Electricity Board and that they are spurious. Thus, according to them, the accused have been committing theft of energy and had assessed the value of theft of Rs. 4,771. Besides that, they have also verified the Reading Registers and found that it is a clear manipulation. P.W. 4 is the Village Munsif and he was present at the time of seizure and preparation of mahazar. P.W. 5 is the investigating officer who filed the charge-sheet after completing the investigation. As against this, we have the mere denial of the respondents-accused.

4. Now, the learned Magistrate has not properly considered the evidence of the prosecution witnesses and he relied on some extraneous circumstances and held that the prosecution has not proved the theft of energy beyond reasonable doubt. On a perusal of the judgment, I am satisfied that the trial Magistrate has ignored the positive evidence of those official witnesses and their detailed statements about the tampering of the seals in the meter and the made of committing theft of energy. The trial Magistrate accepted that the seals of the meter were tampered with, but found that the mere existence of the tampered meter would not constitute an offence under section 39 or under section 44 (c) of the Indian Electricity Act, 1910. A mere reading of section 39 as a mended by Tamil Nadu Act XXXIX of 1980 would convince one that the prosecution has proved this case to the hilt. Section 39(1) of the Act runs thus-

"Whoever dishonestly abstracts, consumes or uses any energy shall foe punishable with imprisonment for a term which may extend to"

three years or with fine which shall not be less than five hundred rupees but which may extend to five thousand rupees or with both, and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of the energy by the consumer , it shall be presumed, until the contrary is proved, that such abstraction, consumption or use of energy has been dishonestly caused by such consumer".

Similarly, section 44, sub-section (c) of the Act reads that whoever maliciously injures any meter referred to in secti n 26, sub-section (1) or any meter, indicator, or apparatus or wilfully or fraudulently alters the index of any such meter, indicator or apparatus from duly registering will be punished as per the provisions of the Act read with section 379, Indian. Penal Code. In the instant case, there is absolutely no doubt that the officials of the Anti-Power Theft Squad and the local officials of the Electricity Board have detected removal of seals, tampering of meter and theft of energy through other devices. Therefore, the decision in Jagannath Singh v. Krishnamurthy1does not apply to the facts of the case on hand. In our case, the actual extraction of electricity by artificial means has been proved.

5. The learned Magistrate then held that the meter reading was more or less uniform and therefore, there was no theft of energy. This reasoning is wholly un-understandable. Having committed theft of energy, the accused naturally has to maintain the reading of the meter so as to avoid suspicion. It is totally erroneous to think that after the tampering the meter reading will go down considerable. In fact, no offender worth the name will expose himself to the danger of detection by showing a low reading or a sudden fall in the consumption. In fact, the officials examined as P.Ws. 1 to 4 have explained to the Court how the manipulation was done.

6. Lastly, the trial Court held that there is no proof which of the two accused has tampered with the meter and relied upon a judgment of a single Judge of this C urt reported in State v. Rangaswamy Gounder1, which acquitted the accused on the reasoning that which of the accused had really committed tampering with of the meter was not established. With respect, I am not able to agree with the reasoning rendered in that decision. This is virtually asking for an impossibility, Here is a case where the first respondent is the owner of the meter connection and the second respondent is running some business therein. It is futile to expect direct evidence as to whether the first respondent or the second respondent has tampered with the meter. This is a matter exclusively within the knowledge of the accused persons. The further evidence is that the licence stands in the name of the first respondent and the second respondent is running a businesses. When once the prosecution discharges the initial on us of proof, it is for the accused to show that the tampering of the abstraction of electricity was done without their knowledge. As stated already, section 39(1) of the Act says that if it is proved that any artificial 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 such abstraction consumption or use of energy has been dishonestly caused by such consumer. Section 44 also raises a similar presumption.

7. The result of my discussion is that the prosecution has proved that both the respondents have jointly committed theft of electrical energy as evidenced by the meter reading Exihibit P-2. Under section 39 of the Indian Electricity Act, existence of artificial means prima facie proves the offence and there is the further evidence in the case that the articles seized are the artificial means for abstraction of energy a moulting to theft. Therefore, the order of acquittal has to be and is hereby set aside and the revision is allowed. The result is, the meter is remitted back to the trial Court for disposal according to law, and in the light of the observations contained herein.