State by Public Prosecutor vs Rangaswamy Gounder and Others

K.N. Mudaliyar, J.—This is an appeal by the State against the order of the court of Sub Magistrate, City III Coimbatore acquitting the six accused-Respondents of offence u/s 39 of the Indian Electricity Act, 1910 read with S. 379 of the Indian Penal Code.

The accusation against these accused Respondents is that on 3rd May, 1969 at about 10 a.m. at Athappagoundanpudur, the six accused committed theft of electrical energy.

P. W. 1 Thiru Shanmugha Sundaram is the Assistant Engineer, Athappagoundanpudur is within his jurisdiction. On 3rd May, 1969, he went to inspect certain service connections in Irugur and Athappagoundanpudur. He inspected service connection No. 87 at Athappagoundanpudur accompanied by his supervisor, Haneefa, P. W. 2. P. W. 1 deposed that service connection No. 87 is given for agricultural purposes and used for pumping water out from the well. According to him, when he inspected the service connection No. 87, he saw the motor running and pumping water out. But strangely, he found the meter provided for the service for measuring the electrical energy consumed by the motor was not functioning. He found a small bit of V.I.R wire connected between the incoming wire and the outgoing side of the cut out. Therefore, he suspected that the consumers had meddled with it and consumed energy illegally. He made a detailed inspection and found two incoming wires were connected directly in the cut out and then taken to the consumer''s switch. The third wire was taken to the meter, then to the cut out and then taken to the consumer''s switch. This third incoming wire was found cut before the meter and insulation of the wire was removed for about 2 inches, and the cut ends were twisted. The V.I.R. big wire was found placed on the twisted end of the incoming wire and taped with black insulation tape and that the other end of the bit wire was connected to the outgoing side of the third cut out by just hooking the wire to the contact of the fuse carrier of the third cut out and inserted in the third cut out. There was no fuse wire in the third cut out and the electrical energy had been taken directly to the consumer''s switch bypassing the meter. P. W. 1 prepared a complaint, Ex. P-1 to the Police. He prepared a rough sketch Ex. P-2. The prosecution relied on Ex. P-3, the contract between the Department and the consumers one Ponnuswamy Gounder. (This Ponnuswamy Gounder died prior to the dale of offence, according to the learned Public Prosecutor) and a few others. Inasmuch as the names of the fathers of the consumers are not mentioned in the document, it is contended by the learned Counsel for the Respondents-accused that it is not possible to connect the accused with the names of the consumers who are the contracting parties to Ex. P-3.

P.W.1 further deposed that Ex.P-4 is an application signed by accused 1, 2, 3 and 5 for getting service connection. He calculated the loss of electrical energy due to illegal consumption amounting to Rs. 1643 and asked them to deposit the same. Accused 1, 2, 3 and 5 have deposited the amount. The service connection was restored, He found that there were two other partners or shareholders and accused 4 and 6 are also suspected to be the consumers of the electrical energy. The indemnity bond, Ex. P-5, was executed by accused 1, 2, 3 and 5 on 5th December, 1969. These people have paid Rs. 1643 towards loss of electrical energy estimated at 16,596 units. P. W. 2 corroborated the testimony of P. W. 1 P. W. 3 is a photographer. He marked M. Order 3 series. P. W. 4 stated that S. Nos. 167 and 168 belong to the accused. He spoke to the existence of a well and another pump set in Survey Number 168.

The plea of the accused was one of denial.

The learned Public Prosecutor argued that the six-accused-Respondents are "consumers" and that on the evidence of P. W. 1 corroborated by the evidence of P. W. 2, the offence u/s 44(c) is made out and the presumption u/s 44 must be drawn regardless of the non existence of a charge for an offence u/s 44 of the Indian Electricity Act. I consider that this argument has no substance because the courts are not at liberty to draw the legal presumption against accused persons in the absence of a charge. The accused must be given notice of the charge so that they may meet the same effectively with whatever defence that may be open to them. In the absence of such a charge, the conviction of the accused u/s 44 is impossible. I am not justified in drawing any inference invoking the presumption u/s 44 against the consumers, namely the accused-Respondents. The learned Counsel for the Respondents relied on the reasoning found in Assistant Engineer v. Ramankutti (1966), M.L.J. Cri. 390. Anna Chandy, J., held that if it is proved that the meter has been tampered with and that the meter was in custody of the consumer, then the court shall presume that the consumer was responsible for the tampering unless the contrary is proved. I am afraid this reasoning will not be of any assistance to the argument of the learned Public Prosecutor inasmuch as it is not proved by the prosecution that the meter was in custody of the six accused-Respondents. Section 39 is extracted here below:- "Whoever dishonestly" abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction.

If one compares the terms of Section 39 with the terms of Section 44, there is no warrant for drawing any presumption against "consumer". In my view, Section 39 does not contemplate the "consumer'', as the culprit even on the basis of the existence of artificial means for abstraction of energy being prima facie evidence of dishonest abstraction. The section starts with the important phrase "whoever dishonestly". This section does not necessarily contemplate the "consumer", although, it does not exclude the "consumer". "Consumer" and others would fall within the ambit of the phrase "whoever" if he dishonestly abstracts, consumes or uses any energy. The presumption arising u/s 44 cannot be imported into the interpretation or construction of Section 39 of the Central Act 9 of 1910.

The evidence of P. W. 1, if accepted, as I do, would lead to the conclusion that there has been tampering with the meter in such a way as to prevent the same from duly registering but there is still the burden on the prosecution to prove the ingredient of "dishonesty" within the meaning of Section 39 of the Act. On 3rd May, 1969, P. W. 1 stated that the pump set was working, the motor also was working but the meter was not registering the consumption of the energy. In this state of evidence of P.W.1, it is possible to hold that the abstraction of the electrical energy is dishonest by relying on the latter clause of Section 39 of the Act. But the question is who has committed the offence? There are six accused Respondents who are charged with the offence u/s 39 of the Act. P. W. 4 states that S. Nos. 167 and 168 belong to the accused, but there is a well and motor pump set in S. No.168. P. W. 4 does not say who the owners of S. No. 167 are. It is true that there was cultivation in both the survey numbers, but he states that "A-2 Rangaswami Gounder is the only person remaining now". What exactly(sic) he means, I am unable so comprehend. P. W. 4 as the karnam of the village admits that patta No. 333 does not show the names of the accused except the second accused. He has also further admitted that he did not state in Ex. P. 7 the individual shares of property allotted to each of the accused distinctly. The testimony of P. W. 4 is not helpful to the prosecution for proving that all the six accused got the benefit of the irrigation facilities flowing from the pump set working in S. No. 168. In this state of evidence, is it legally valid, to draw a universal inference about the guilt of all the six accused-Respondents? I hesitate to do so. It might be that one of the six accused might be the real culprit or one of the over-enthusiastic farm-servants might have been responsible for this dishonest abstraction of energy on 3rd May 1969.

Certain authorities have been cited before this Court wherein the accused has been a consumer within the meaning of the Act and where there has been also a charge u/s 44 of the Act, proof against the consumer and in conjunction with a conviction for an offence u/s 39. In Jagarnath Singh Vs. B.S. Ramaswamy, after considering the scope and ambit of S. 44 in paragraph 5, the Supreme Court held:

An exposure of a stud hole on the meter cover is an artificial means for preventing the meter from duly registering. For the purpose of S. 44, the existence of this artificial means gives rise to the presumption that the meter was prevented from duly registering, but this presumption cannot be imported into S. 39. A meter with an exposed stud hole, without more, is not a perfected instrument for unauthorised taking of energy, and cannot be regarded as an artificial means for its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check, meter affords an easy method of proving that the consumer''s meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. To bring home the charge u/s 39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy.

This ruling of the Supreme Court bans the importation of the presumption arising u/s 44 into S. 39. There is also an important rule that the prosecution must also prove that the "consumer" is responsible for the tampering. In other words, the evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of electrical energy. Applying this test, I am unable to find that the evidence on record established beyond reasonable doubt that these six accused Respondents are guilty of dishonest abstraction of electrical energy.

The learned Public Prosecutor relied on the ruling of the Supreme Court in Criminal Appeal No. 48 of 1963 as reported in Ram Chander Prasad Sharma Vs. State of Bihar and Another, . But that was a case where on the facts found by the two Courts below, the Supreme Court did not interfere with the conviction u/s 39 of the Act. On facts, the High Court held in that case that the Appellant was not merely a ''consumer'' but was a person who supervised over the working of the mill and the custody and control over the meter could not be with anyone else, but him. Tampering was so blatant and so effective that it could not have been done without his knowledge or connivance. The tampering appeared to have taken considerable time and required certain amount of skill. The High Court held on the facts in that case that it could not be the work of any one other than the interested person. Their Lordships of the Supreme Court rejected the speculative theory of some other member of the family tampering with the meter. Put the facts in this case are fundamentally different from the facts found in the other case. P.W. 1 deposed that in the complaint given by him to the police, Ex. P. 1, he did not mention the fact of his meeting the first accused on the spot on 3rd May 1969. In chief examination, he never mentioned about the presence of the first accused. He also admitted that in the S. 162 Code of Criminal Procedure statement he has not mentioned about the presence of the first accused. He further deposed that the metal box in which the meter and other wires are contained had got a key. When he visited on 3rd May 1969, the service connection box, M.O. 1 was locked. In addition to the key P.W. 9 possessed, the workmen, supervisor and the line inspector have also keys. The key must be kept in custody only for the use of the departmental people. Without the key, anybody cannot open the box. In this state of evidence, it should be rather difficult to pitch upon any one of the accused as tampering with the meter-box-lock. I noticed from the testimony of P.W. 1 that large quantity of energy was consumed in the month of September 1968 to the month of April 1969. For the said consumption of electrical energy, considerable amounts have been paid by the accused-Respondents. The mere fact of the execution of an indemnity bond, viz., Ex. P. 5, and their payment of Rs. 1643/- would not lead to the establishment of the dishonest abstraction of energy during the months, September 1968 to April 1969. I have already held on the basis of acceptance of the testimony of P W. 1 that on the day, namely, 3rd May, 69, there was dishonest abstraction of energy, but such a conclusion does not support the finding that the accused were guilty of the offence u/s 39 of the Act either on that day, viz., 3rd May, 1969 or during the preceding months.

The learned Counsel for the accused-Respondents relied on the reasoning of the Supreme Court in Jagarnath Singh v. K. Murthy AIR 1967 S.C. 947. In this case, their Lordships of the Supreme Court considered the fact that there were obstructions in the passage leading to the meter and that the meter was installed in a dark corner. There was also the existence of the tampered meter. On these facts their Lordships of the Supreme Court found that these facts are not sufficient to establish that the Appellant in the Patna case (A.I.R. 1965 Pat. 760 did in fact abstract electricity by tampering with the meter.

If there are more than one accused, it is the bounden duty of the prosecution to discharge the burden by proving the case against each of the accused by adducing independent evidence of the proof of some overt act establishing or proving the dishonest abstraction or consumption or use of any energy. Otherwise there is the great risk and hazard on the administration of justice resulting in the conviction of at least some innocent persons while sometimes the really guilty consumers are punished. Such a danger must be avoided even at the risk of exculpating and acquitting the really guilty for the sake of saving innocent persons from conviction and consequential imprisonment.

The criminal appeal is without merit. I am unable to find any ground to interfere with the order of acquittal passed by the III City Sub Magistrate, Coimbatore. The Criminal Appeal is dismissed.