Sadhu Charan Sahu vs State of Orissa

S. Acharya, J.—The Petitioner stands convicted u/s 379, Indian Penal Code for dishonest abstraction and consumption of electric energy which u/s 39 of the Indian Electricity Act, 1910 (hereinafter referred to as the ''Act'') is deemed to be an offence of theft within the meaning of the Indian Penal Code.

The prosecution case, in short, is that on the night between the 11th and 12th March, 1976 the Petitioner''s house had been decorated with some electric fittings, such as bar lights, decorative bulbs etc., in connection with a marriage function in the Petitioner''s house. The said electric fittings had been illegally connected directly with the overhead main electric supply line without any connection with the electric meter in that home. P.W. 1, the Executive Engineer (Electrical), City Distribution Division, Cuttack (hereinafter referred to as the ''Division''), on receiving a telephone message, proceeded to the spot at about 11 p.m. on that night and saw the existence of the said unauthorised device through which electric energy from the overhead main electric supply line was being abstracted for decorating the house with the aforesaid electric bulbs and fittings.

P.W. 1 immediately lodged information about the same at the police station whereupon P.W. 7, the I.O., proceeded to the spot and seized the aforesaid unauthorised electric fittings. Charge sheet was submitted u/s 379/34. Indian Penal Code against the Petitioner and an electric Mistri (since acquitted), who allegedly was engaged to connect the electric wires with the overhead main line.

In the trial both the accused persons pleaded not guilty to the charge. The Petitioner further stated that he had decorated his house with electric bulbs and fittings by connecting the sa me to his own meter, but as the employees of the Electricity Department demanded illegal gratification from him and he did not pay the same they foisted this false case against him.

The prosecution examined 9 witnesses. Both the accused persons examined themselves u/s 315, Code of Criminal Procedure. Besides, they examined another witness also.

The Petitioner has admitted that the house which had been decorated with electric bulbs and fittings belongs to him, that in the night of occurrence a function connected with the marriage of his nephew was being performed in his house and that he was in charge of the said function as the Murabi of the house.

Both the Courts below have held that on the evidence of P.W. 1, a gazetted officer of class 1, who had no axe to grind against the Petitioner, and also that of P.Ws. 2 to 4 and 8 it is established beyond reasonable doubt that direct connection had been unauthorisedly taken from the overhead main electric supply line to the house of the Petitioner in the night of occurrence and with the electric energy abstracted through that line the Petitioner had illuminated and decorated his house with electric bulbs and fittings. It has also been found that the Petitioner has failed to prove that he got his house decorated by tapping energy through his own meter, that the people of the Electricity Department had demanded illegal gratification from the Petitioner and as be did not pay the same they foisted this false case against him. It is further found that it was the Petitioner who was responsible for the unauthorised and dishonest abstraction and consumption of electric energy from the main line. On the above findings he has been found to be guilty of the offence u/s 379, Indian Penal Code as provided u/s 39 of the Act. For the said offence the trial Court sentenced the Petitioner to undergo R.I. for 3 months and to pay a fine of Rs. 300/-; in default to undergo R.I. for a further period of 3 months, but the appellate Court has set aside the substantive sentence of imprisonment and has imposed only a fine of Rs. 500/-; in default to suffer R.I. for 3 months.

It has been urged by Mr. Sahu, the learned Counsel for the Petitioner, that the conviction of the Petitioner cannot be sustained as there is no evidence to show that it was the Petitioner who actually had connected the/aforesaid electric fittings with the overhead main electric supply line and thereby illegally abstracted electric energy therefrom. The Petitioner has admitted in his statement u/s 313, Code of Criminal Procedure and in his deposition u/s 315, Code of Criminal Procedure that he had decorated his house on that night with the said electric bulbs and other fittings. He has further admitted that he was managing the said marriage function as the Murabi of the house. On the evidence of P.Ws. 1 to 4 and 8 it is established beyond reasonable doubt that unauthorised connection had been made directly from the overhead main electric supply line, and electric energy thereby was illegally abstracted for lighting the bulbs and fittings in the Petitioner''s house in the night of occurrence. On the aforesaid positive stand taken by the Petitioner and on the well established facts that the aforesaid fittings were connected directly with the overhead electric line and electric energy was directly abstracted therefrom and not through the meter in the said house, one has to discard the Petitioner''s plea that the said electric fittings were connected with from his own electric meter.

In the case reported in Jagarnath Singh Vs. B.S. Ramaswamy, , it has been said that the effect of the last part of Section 39 of the Act is that the existence of the unauthorised means for abstraction is prima facie evidence of dishonest abstraction by some person.

The special rule of evidence does not go further. The prosecution must prove aliunde that the accused made the abstraction. In the same strain it has been observed:

The fact that accused is in possession and control of the artificial means for abstraction coupled with other circumstances showing that he alone is responsible for the abstraction my lead to the inference that he is guilty of the dishonest abstraction.

Thus dishonest abstraction of electric energy can be-proved directly or circumstantially. On the well established fact in this case that electric energy was being dishonestly abstracted directly from the overhead main supply line and was being consumed for the aforesaid electric fittings in the possession of the Petitioner, considered along with the admission of the Petitioner as stated above, and his failure to prove and plea of institution of this case due to nonpayment of illegal gratification to the Electricity Department people, the only possible conclusion which one can deduce is that the Petitioner alone and none else was responsible for the unauthorised and dishonest abstraction of electric energy from the overhead main supply line in the night of occurrence. So the aforesaid contention of Mr. Sahu is without any force.

It was next contended by Mr. Sahu that the prosecution in this case was not launched in accordance with the provisions of Section 50 of the Act, and hence the conviction of the Petitioner cannot be maintained. In this connection it was contended that there was nothing on record to show that P.W. 1 lodged the F.I.R. at the instance of the Orissa State Electricity Board (hereinafter referred to as the O.S.E.B.). The point was not agitated in any of the two Courts below. Undisputedly P.W. 1, who lodged the F.I.R. in this case, was the Executive Engineer of the City Distribution Division, Cuttack under the O.S.E.B. There is absolutely no doubt that electric energy was and is distributed in the relevant area only by this Division, and that bills for consumption of electric energy are prepared by the O.S.E.B. through this Division under the signature of the Executive Engineer and charges are released by this Division.

Without doubt, the Executive Engineer is a responsible officer of the Board and he is in charge of managing and looking after all the affairs of the Division. All correspondence of this Division of the Board is made in his name. Therefore, P.W. 1 was the officer in charge of this Division. It cannot be disputed that if electric energy is dishonestly abstracted then the Board shall be aggrieved as it will suffer loss on that account. P.W. 1, being in charge of this Division, was duty-bound not only to prevent illegal abstraction of electric energy, but also to take all legal action whenever such abstraction was detected. In fact P.W. 1, on receiving a telephone message at about 11 p.m. went to the place of occurrence, himself inspected the premises of the Petitioner, and an detecting .the said illegal and dishonest abstraction of electric energy lodged the F.I.R. at the police station at about 3 a.m. in that night. In the F.I.R. he stated that the Petitioner "had his premises decorated with electric lights by dishonestly abstracting electric energy from our overhead electric line near pole No. 20 of Sankarpur Nuasahi." Nothing has been asked to him questioning his authority to file that F.I.R. in this case, as this question, now raised, was not in contemplation at any previous stage.

On the above considerations the institution of the case by P.W. 1 can justly be said to be at the instance of the Board which no doubt was aggrieved by the complained of act of the Petitioner.

The provision in Section 50 of the Act, in my opinion, has been made to prevent institution of cases under the Act by some independent busy body or persons who have nothing to do with the affairs of the Board. In taking the above view I am supported by the observations made in paragraph 13 of the case reported in The Public Prosecutor Vs. Abdul Wahab and Others, . The decisions cited by Mr. Sahu in this connection are distinguishable an facts and do not directly support the above-mentioned point urged by him.

The law in this case has been set in motion by a responsible officer of the status of P.W. 1 who was in charge of almost all the affairs and business of the Division under the Board at the relevant time, and not by just somebody who had nothing to do with the affairs of the Board. On the above consideration I find that the present case was properly instituted, and there is no merit in the contention of Mr. Sahu on this aspect.

The third and the last point urged by Mr. Sahu was that the conviction of the Petitioner could not be maintained as in the charge framed against the Petitioner Section 39 of the Act was not mentioned along with the charge u/s 379, Indian Penal Code framed against the Petitioner. This question was also not raised in any of the Courts below. Prejudice to the accused on the above score was not pleaded nor even suggested at any previous stage. The abstraction of electric energy amounts to an offence of theft because of the provisions of Section 39 of the Act. So in the charge framed against the Petitioner the Court should have stated that the accused (Petitioner) committed the offence u/s 379, Indian Penal Code read with Section 39 of the Act. But in the facts of this case merely because Section 39 of the Act was not mentioned in the charge the trial is not vitiated as the accused, as is evident from the materials on record, knew well that he was being prosecuted for his act of dishonestly and illegally abstracting electric energy from the main supply line, which act constitutes an offence of theft within the meaning of Section 379. Indian Penal Code as provided u/s 39 of the Act. From the cross-examination of the prosecution witnesses the statement of the Petitioner in the trial Court and his deposition in that Court u/s 315, Code of Criminal Procedure it is quite evident that the accused was fully posted with the offence of which he was charged, and non-mention of Section 39 of the Act in the charge was merely a technical irregularity and has not vitiated the trial 10 any manner whatsoever. Accordingly, I do not see any merit in this contention also.

The impugned judgment is not challenged on any other ground.

I do not find any merit in this revision and it is accordingly dismissed.

Revision dismissed.