Bhagalpur Electric Supply Co. Ltd. vs Profulla Kumar Ghosal and Others

Dhavle, J.—This is a rule issued by Agarwala, J., against the acquittal of Pramatha Nath Ghosh on charges u/s 379, I.P.C. and Sections 39 and 44(c), Electricity Act. It was issued at the instance of the Bhagalpur Electric Supply Co. through Mr. K.N. Makhija, their Resident Engineer. The trying Magistrate found that the prosecution evidence was defective and that the prosecution had failed to connect with the charges framed the three accused persons of whom Pramatha Nath Ghosh is one, Agarwala, J. having declined to interfere with the acquittal of the two others as prayed for by the complainant.

Of direct theft there was no evidence. Section 39, Electricity Act, however provides not only that whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Penal Code, but also that the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction. This dispenses with direct proof of abstraction by the accused, but does not indicate the person who is to be held liable for the constructive abstraction.

u/s 44(c) of the Act (to quote only the portion that is now relevant), whoever maliciously prevents any such meter (that is, any meter referred to in Section 26, Sub-section (1)) from duly registering shall be punishable with fine. The section further provides that if it is proved that any artificial means exist for causing such prevention as is referred to in Clause (c) and that the meter is in the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such prevention has been knowingly and wilfully caused by such consumer. The case of the prosecution was that a meter No. 281, which was placed by the Bhagalpur Electric Supply Company on the premises of the Annapurna Mills, to which the company supplied power, had been prevented from duly registering by the insertion of sand and the injection of moisture into the meter.

It has been suggested before me that the trying Magistrate overlooked this presumption u/s 44, and the suggestion is supported by the fact that the Magistrate observes that there is no definite evidence that the accused persons including Pramatha Nath Ghosh wilfully and fraudulently tampered with the meter with the intention of causing loss to the company and making profit for themselves. But while there is force in this suggestion, the prosecution cannot avail itself of the statutory presumption as against Pramatha Nath Ghosh unless Pramatha is shown to be a consumer within the meaning of the Electricity Act.

Now, the word "consumer" is defined in Section 2(c) of the Act to mean

any person who is supplied with energy by a licensee, or whose premises are for the time being connected for the purposes of a supply of energy with the works of a licensee.

The trying Magistrate observed that there was no definite evidence that Pramatha Nath Ghosh was connected with the Mill in any definite and well defined capacity. Upon this learned Counsel has referred to the evidence of the complainant, the Resident Engineer of the Bhagalpur Electric Supply Company, who speaks of P.N. Ghosh managing the business of the Mill being a share-holder of the Mill, and also being a working partner of the Mill. But in cross-examination the witness has to make admissions which show that no weight can be attached to these allegations of his, for he admits that he calls P.N. Ghosh, Manager of the Mills, because he (P.N. Ghosh) calls himself so and that he (the witness) has not seen any paper of the Mill showing that Mr. Ghosh is the Manager of the Mill. He also admits that he does not know all the proprietors of the Mill, and that when he speaks of P.N. Ghosh as one of the proprietors of the Mill, he is doing so from information which he has gathered "from some people who had knowledge of this". This is hearsay, and it is idle to ask a Court to act on such evidence. Mr. Yunus has referred me to the evidence of three other prosecution witnesses, two of whom (like the complainant) are employees of the Bhagalpur Electric Supply Company. One is K.K. Bhattacharji, the store-keeper of the company, who speaks of P.N. Ghosh managing the Annapurna Mills, but has to say in cross-examination that "it is a matter of common knowledge and I also heard from P.N. Ghosh as to who the proprietors of the Mill are". Another witness is Dibendra Nath Banerji the Meter Inspector of the Electric Supply Company. The witness is apparently not used to weighing his words when giving evidence, for he spoke in his examination-in-chief of noting certain facts in the Meter Test Register and a removal slip--facts which are not found in these documents. It is only in his cross-examination that he speaks of P.N. Ghosh being one of the proprietors of the Annapurna Mills and also the Manager, but he has further to say that he got the information from P.N. Ghosh himself. Asked what the occasion was that led him to this talk, the witness said that he once asked P.N. Ghosh and that P.N. Ghosh gave the information. That is the kind of evidence that one often comes across in cases in which there is no reliable evidence at all and it is sought to bind the accused by statements alleged to have been made by themselves. It is unconvincing to a degree, and I am not surprised that the Magistrate declined to act on it. The only other witness to whom Mr. Yunus has drawn attention in this connexion is S.C. Biswas, Electrical Overseer of Bhagalpur, who refers at one place in his evidence to Pramatha Nath Ghosh as consumer. The details that he gives in cross-examination do not make Pramatha out to be a consumer at all and are consistent with Pramatha''s case that he only looked after the Annapurna Mills occasionally as a friend.

Moreover, even if we assume that the prosecution is right in calling P.N. Ghosh the Manager of the Annapurna Mills, can it be said that he comes within the definition of "consumer"? Learned Counsel lays stress on Rowland, J.''s explanation of this definition in Bhagalpur Electricity Supply Co. Ltd. Vs. Hari Prasad Saha and Others, that:

The definition includes any person who is supplied with energy by a licensee, and any person whose premises are for the time being connected for the purposes of a supply of energy with the works of a licensee. Prima facie it should be enough to prove either that energy was supplied for the use of the accused, or, that the accused were owners or occupiers of premises connected up with the licensee''s electric system.

It is difficult to See how these observations improve the case of the Bhagalpur Electric Supply Co. at all. Their registered consumer, I understand, is a different individual altogether, and the person supplied with the energy was not the manager but the proprietor or proprietors of the Mills. The premises also could not be said to be the premises of the Manager.

As a last resource, learned Counsel relied on Ex. 15(6), a paper apparently sent with the bills made out by the Bhagalpur Electric Supply Co. for electricity supplied, which contains in Col. 1 the number of the bill and in Col. 2 the date and signature of the person receiving the bill. It is suggested that this column for date and signature is to contain the signature of the consumer, and that P. N. Ghosh having signed in this column, this is sufficient proof that he was the consumer. Learned Counsel has since attempted to clarify his position by saying that his signature on Ex. 15 must be taken with the fact that he paid the bills; this was necessary because chaprasis and other servants often receive bills in the master''s absence and sign them and pass them on to the proper person. The mere receipt of the bills or Pramatha''s signature in the proper place will plainly not constitute him the person who is liable to pay the bill. The fact that the Manager paid the bills--it is the case of the prosecution that Pramatha did so--would again not suffice to make him the consumer; it is not inconsistent with the proprietor being the consumer and authorizing the Manager to pay the bills. Ex. 15 (6) thus falls so far short of making P.N. Ghosh the consumer that it is surprising that any serious argument was addressed to me on the basis of this paper. I have already said that unless it is shown that P.N. Ghosh was a consumer within the meaning of the definition, the presumption given in the concluding portion of Section 44 is not available to the prosecution; and it is perfectly clear that without this presumption there is no case whatsoever against P.N. Ghosh either u/s 379, I.P.C., or u/s 39 or Section 44(c), Electricity Act.

The judgment of the trying Magistrate is undoubtedly open to remark on more than one ground. He has overlooked the presumption in the concluding portion of Section 44, and he has also attached far too much importance to the possibility that "the incorrect recording in the meter may have been due to various causes" when there was definite evidence before him that the meter was tested and put into order before it was fixed up in the Annapurna Mills and that on its removal from there it was found to have had sand and moisture deliberately introduced in the mechanism. But some of the confusion in the mind of the Magistrate, I have no doubt, was caused by the way the evidence was presented to him. The evidence relating to the liability of P.N. Ghosh as a consumer is not worth the paper it is written on and should not have been seriously advanced or relied on in any Court of law.

The acquittal of P.N. Ghosh was, in the result, correct on the ground that the prosecution failed to establish that he was a consumer and had no other evidence establishing his liability under the sections under which he was proceeded against. The rule is discharged.