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Judgment
A. Ramamurthi, J.—The prosecution witness No. 1 Tamil Nadu Electricity Board represented by its Asst. Executive Engineer/Operation
and Maintenance, Town, Arcot, Vellore Dt. has preferred the revision aggrieved against the judgment of acquittal in C.C. No. 38/98 on the file of
Jm-Cum-DM., Arcot, dated 15.9.98.
The case in brief is as follows:
There is Rice Mill in Door No. 23, Eswaran Koil Street, Arcot and belonged to one Mani Mudaliar. Service Connection No. 3797 stood in the
name of the father of the accused. On 20.3.91 at about 1.00 p.m., P.Ws.1 to 3 Engineers working in the Electricity Board went to the Rice Mill
and inspected the Service Connection. They suspected that there was tampering of the seal in the meter. When they inspected the meter, the Mill
Driver Srinivasan was present. P.Ws.1 to 3 noticed that there was tampering of the seals and a report Ex.P2 was also prepared. The meter was
originally tested on 24.9.84 and fixed on 24.11.84. Ex.P3 is the meter cap slip. Ex.P4 is the green card. PW.2 also recorded a statement from the
said Srinivasan. PW.3 handed over the sample seals and they are M.O.1 (series). The seals in the meter on the right and left side also completely
varied. P.W. 1 gave a complaint in the Police Station under Ex.P5. The sub Inspector of Police inspected the place, arranged to take photographs
and also recovered the board as well as fuse carriers M.O.3 (Series) with the meter. The consumer was using 25 HP Motor and the reading in the
meter was 26593 units. They have consumed about 44447 units and they were not recorded in the meter and the Electricity Board had sustained
loss to the extent of Rs. 2,13,350/-. After the death of Annamalai Mudaliar the Mill is under the possession and enjoyment of the accused. Ex.P8
is the memo of calculation prepared by the Board.
PWs.4 and 5 are the Village Officials and they stated that they accompanied the Police to the Rice Mill and they were also present when the
observation magazar and other magazars were prepared and they have also singed in the magazars. PW.6 Dineshkumar stated that on the
direction of the Police he took photographs of the places pointed out by the Police. PW.7 Sub Inspector of Police examined the witnesses and
gave a requisition to the Court to send the properties for examination and after receiving the report and after completing the investigation filed the
charge sheet.
The accused was examined u/s 313 Code of Criminal Procedure with reference to the evidence and he denied the same and he had not
examined any witnesses. The trial court found the accused not guilty for the offence u/s 39 and 44(1) of the Indian Electricity Act and acquitted him
and aggrieved against this. P.W.1 has come forward with the present revision petition.
Heard the learned Counsel for the parties.
The points that arise for consideration are:
i. Whether the accused has committed an offence u/s 39 and 44 of the Indian Electricity Act?
ii. To what relief?
Point:
It is the case of the prosecution that on 20.3.91 at about 1.00 p.m. P.Ws.1 to 3 Engineers working in the Electricity Board went to the Rice Mill
situated at Door No. 23, Eswaran Koil Street, Arcot and inspected the Service Connection No. 3797 standing in the name of the father of the
accused. They noticed tampering of the seals and the inspection was made in the presence of the Mill Driver namely Srinivasan. A complaint was
also given with the Police and later the properties were recovered under the cover of magazar and after completing investigation the charge sheet
was filed by the Police. The learned Counsel for the revision Petitioner contended that the court below was not justified in acquitting the accused.
The trial court has misinterpreted the scope of Section 39 and 44 of the Indian Electricity Act. The original seals affixed at the time of testing the
meter is mere one number on one side and the seals at the time of the inspection was a different one. The difference in the seal numbers will point
out that the seals are broken and the meter was tampered and there was pilferage of electric energy. The report from the laboratory also will
indicate the fact that the seals are bogus. The inspection was made in the presence of independent witnesses as well as the Electricity Officials. The
tampering of the seals can be done only by the Respondent and as such tampering will only benefit him. He has not denied the tampering of the
seals in the meter. The presumption clause u/s 39(1) has not been considered by the court below. The investigating officer has followed all the
proper procedures prescribed under law.
It is clear that PWs.1 to 3 officials of the Electricity Board had inspected the Service Connection and noticed that there was tampering of the
seals. Although the service connection stood in the name of Annamalai Mudaliar, but, no document has been filed about his death or the particulars
of the other legal heirs. According to the investigation, the accused is the person in charge of the Rice Mill, but the village Officer PW.5 in the
course of evidence stated that he was not in possession of record to show who is the owner of the Rice Mill after the demise of Annamalai
Mudaliar. Even in the F.I.R the name of the accused as well as one Srinivasan has been given. It is the duty of the investigation to find out who was
incharge of the Rice Mill on the date of the Inspection, but there is no evidence. Ex.D1 has been pressed into service on the part of the accused to
show that the show cause notice was given to one Jamathkani on 15.5.91. But, curiously enough, he has not been impleaded as an accused in the
case. Ex.D1 and D3 have also been filed on the side of the accused to show that the Board has filed a suit including the said Jamathkani as the 2nd
Defendant and the 1st Defendant is one Mani. It therefore raises a doubt as to whether the accused was in control of the Rice Mill or the other
persons namely Jamathkani.
The prosecution witnesses stated that the meter was originally tested on 24.9.84 and installed on 24.11.84. Thereafter the inspection was made
on 20.3.91. Admittedly, the witnesses also stated that at the time of the inspection the meter was running and they did not find out any artificial
means thereby preventing the running of the disc which enabled the consumer to commit theft of electric energy. A careful reading of the evidence
of the witnesses only indicated that due to the tampering of the seal, there was suspicion that there might have been theft of electric energy. No
foreign materials had been seen by PWs.1 to 3 at the time of the inspection. The absence of any such things would only lead to the conclusion that
nothing has been done by the consumer to commit theft of energy. In the absence of any foreign materials coupled with the absence of any
evidence on the part of the prosecution relating to the manner by which theft was committed, the prosecution has failed to prove the charge. The
accused had taken a stand that he had no connection whatsoever with the Rice Mill and the prosecution has failed to produce any document and
similarly the investigating officer has also not collected any material to come to the conclusion that the accused was in management of the Rice Mill.
It is apparently clear that the charge has been filed against the accused on mere surmise and conjecture.
The learned Counsel for the revision Petitioner relied on 1983 LW (Crl) 50 that Section 39(1) of the Electricity Act says that if it is proved that
any artificial means or means not authorised by the licenses 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. When once the prosecution discharges the initials onus of proof, it is for the accused to show that the
tampering or the abstraction of electricity was done without their knowledge. There is no dispute about this principle. But, it has no application to
the case on hand.
The burden is, only upon the prosecution to show that there was theft of energy by using artificial means. As adverted to, except the tampering
of seal, nothing has been stated by the prosecution witnesses. On the other hand they admitted that the meter was running at the time of the
inspection. They did not notice any foreign material in the meter and as they did not state anything about the existence of any artificial means by
which abstraction of energy was made, I am of the view that the presumption u/s 39 and 44 of the Act would not come to the rescue. Only if the
prosecution was able to establish about the existence of any foreign material or artificial means found in the meter, then alone presumption can be
drawn and later the burden will shift on the consumer to establish that he had not committed theft of electric energy. Under the circumstances, I am
of the view that the evidence has been properly analysed by the court below and in the absence of any foreign material or any artificial means, the
court below is proper and correct in passing an order of acquittal. There is no illegality or infirmity in the order passed by the court below calling
for interference. Hence, the points are answered accordingly.
For the reasons stated above, the revision fails and is dismissed.