S. Manickam vs Dhanakoti and Others

Singaravelu, J.—This is a revision preferred by an officer of the Tamil Nadu Electricity Board (P.W.I 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 Ss. 44(c) and 39

of the Indian Electricity Act, read with S.379, I.P.C.

The charge-sheet was laid by the police against the respondents herein (accused 1 and 2) stating that the Electricity Board officials inspected the

premises and electric connection meter No. 165 belonging to the first respondent (first accused) in which the second respondent (second accused)

is running a 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 commit 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 respondents (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 also Court relied on the ruling reported in Jagarnath Singh v. Krishnamurthi

AIR 1967 S.C. 947 : 1967 L.W. (Crl). 121 and 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 S. 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.

I have heard learned counsel for both sides and perused the papers on record. 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 a 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.2, a 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 were not 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 at 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.

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 these official witnesses and their detailed statements about the tampering of

the seals in the meter and the mode 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 S. 39 or under S. 44(c) of the Indian Electricity Act,

1910. A mere reading of S. 39 as amended by Tamil Nadu Act 39 of 1980 would convince one that the prosecution has proved this case to the

hilt. S. 39(1) of the Act runs thus-

Whoever dishonestly abstracts, consumes or uses any energy shall be 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, S. 44, sub-S.(c) of the Act reads that whoever maliciously injures any meter referred to in S. 26, sub-S. (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 S. 379, I.P.C. 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 Jagarnath Singh v. Krishnamurthi AIR 1967 S.C. 947 = 1967 L.W. (Crl). 121 does not apply to the facts of the case on hand. In

our case, the actual extraction of electricity by artificial means has been proved.

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 considerably. 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.

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 Court reported in State v. Ranagasami Gounder 1975 M.L.J. Crl. 250=1972 L.W. (Crl.) 133 which acquitted the accused on the

reasoning that which of the accused had really committed tampering with 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 business. When once the

prosecution discharges the initial onus of proof, it is for the accused to show that the tampering or the abstraction of electricity was done without

their knowledge. As stated already, S. 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. S. 44 also raises a similar presumption.

The result of my discussion is that the prosecution has proved that the respondents have jointly committed theft of electrical energy as evidenced

by the meter reading Ex.PS. Under S. 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 artificials means for abstraction of energy amounting to theft. Therefore, the order of

acquittal has to be and is hereby set aside and the revision is allowed. The result is, the matter is remitted back to the trial court for disposal

according to law, and in the light of the observations contained herein.