Tamil Nadu Electricity Board, Tiruttani vs D.K. Kanniappa Mudaliar and Another

This revision filed by P.W. 1 the Junior Engineer Periodical Inspector, Tamil Nadu Electricity Board, Tiruttani, is directed against the order of

acquittal passed by the learned Judicial Second Class Magistrate, Tiruttani in C.C. No. 1 of 1981.

The brief facts of the prosecution which are necessary for the disposal of this revision may be narrated as follows :

P.W. 1, the Junior Engineer, P.W. 2, Tester and Inspector attached to the office of the Divisional Engineer (Electrical) T.N.E.B. Tiruttani, along

with the Helper, Subramanian, inspected the service connection No. 719 belonging to respondent 1 at Pathathurpettai village at 8.55 a.m. On 25-

3-1980 and when they tested the third phase, they noticed that the disc of the meter was rotating on the reverse side and the incoming and

outgoing wires were exchanged and fixed in the opposite direction and there were tampering with the meter and theft of energy committed by

respondent 1. When questioned, respondent 1, who was present, admitted the guilt and pleaded excuse in the presence of witnesses. Thereafter,

on a report given by P.W. 4, the Junior Engineer, T.N.E.B., Pathathurpettai, P.W. 6 the S.I. of Police, registered a case, seized the meter and

meter box and after observing all formalities and examination of witnesses, laid the charge-sheet against respondent 1 under S. 379, I.P.C., read

with S. 39, Electricity Act. The prosecution has examined P.Ws. 1 to 6, filed Exs. P. 1 and P. 2, and marked M.Os. 1 and 2 to substantiate the

charge against respondent 1.

The plea of the accused-respondent 1 was one of complete denial.

The learned Magistrate acquitted respondent 1 mainly on the ground that failure to give prior notice under S. 26(4), Electricity Act (hereinafter

referred to as the Act) was fatal to the prosecution case and further, since there was no eye-witnesses to the theft of energy, the offence of theft

was not established and hence respondent 1 was entitled to an order of acquittal.

Section 26(4) of the Act reads as follows :

The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention, have

access to, and be at liberty to inspect and test, and for that purpose, if he thinks fit, take off and remove, any meter referred to in sub-section (1);

and, except where the meter is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing

shall, if the meter is found to be otherwise than correct, be recovered from the consumer; and where any difference or dispute arises as to the

amount of such reasonable expense, the matter shall be referred to an (Electrical Inspector), and the decision of such Inspector shall be final.

On a careful consideration of the abovesaid section, I find that it does not contemplate any statutory notice to be issued prior to the inspection

and it contemplates only mere information to the consumer at the time of inspection and there is no mandatory prescribed form of notice in writing.

Further, the above section is only a rule of evidence and no statutory obligation casts on the licensee, viz., the Tamil Nadu Electricity Board, to

issue notice to the consumer prior to the inspection. In the instant case, it was the evidence of P.Ws. 1 and 2 that respondent 1 was actually

present and he opened the meter box and thereupon inspection was done in his presence. It is well established proposition of law that even if there

is any illegality committed in the seizure of articles, it cannot be a ground to throw the entire prosecution on that score. Hence I hold that the

learned Magistrate committed a grave error in acquitting the accused on the sole ground.

Under S. 39 of the Act, dishonest abstraction of energy by itself is made as a theft. Under S. 44(c) -

Whoever maliciously injures any meter referred to in S. 26, sub-section (1), or any meter, indicator, or apparatus referred to in S. 26, sub-section

(7), or wilfully or fraudulently alters the index or any such meter, indicator, or apparatus, or prevents any such meter, indicator or apparatus from

duly registering.

Thus, the absence of artificial device would not negative the offence of theft as observed by the Court below. Section 39 has to be read along with

S. 44(c) and as per the above provisions, wilful or fraudulent alteration of the index of any meter or prevention of any such meter from duly

registering itself is an offence if once it is established that there is fraudulent tampering of the meter with a view to extract energy, the licensor would

be liable for prosecution under S. 39 read with S. 44(c) of the Act. Therefore, the finding of the learned Magistrate that the offence of theft of

energy was not made out by the prosecution is erroneous.

The learned counsel for respondent 1 submitted that even though the order of acquittal cannot be sustained for the reasons assigned by the court

below, yet, in view of the fact that the prosecution instituted by the Junior Engineer, P.W. 4 was not sustainable under S. 50, Electricity Act, and

further, the occurrence took place in March 1980, about four years ago and if the acquittal is set aside and re-trial is ordered, respondent 1 would

be put to serious hardship.

Section 50 of the Act reads as follows -

No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the

instance of the Government or an (Electrical Inspector) or of a person aggrieved by the same.

Their Lordships of the Supreme Court in Avtar Singh Vs. State of Punjab, , have held that it had not been established that the prosecution had

been instituted at the instance of any person mentioned in S. 50 of the Act, and hence the conviction of the appellant was unsustainable. In the

instant case, there was no evidence adduced as to whether P.W. 4 had instituted the prosecution at the instance of persons mentioned in S. 50 of

the Act. In the absence of any such evidence, on the part of the prosecution and in view of the above decision, I find much force in the contention

of the learned counsel for respondent 1. Hence, I hold that the order acquitting respondent 1 has to be sustained on this ground, but not on the

ground failure to issue notice under S. 26(4) of the Act. Further, since the occurrence took place in March 1980, i.e., about four years ago, and as

there were proceedings for all these days, it would not be just and proper to order retrial once again.

In the result, the order of acquittal passed by the court below is confirmed and this revision will stand dismissed.

Petition dismissed.