1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 270/1997 The State of Maharashtra ...Appellant. Versus 1 Radheshyam s/o Ratanlal Agrawal, Age : 42 years, Occu. Business. 2 Mahaveer s/o Ratanlal Agrawal, Age : 45 years, Occu. Business, Both R/o Civil Club, Mantha Road, Dist. Jalna. ...Respondents. Mr. S.N. Kendre, A.P.P. for appellant / State. Mr. P.K. Joshi, Advocate for respondents No.1 and 2. WITH CRIMINAL REVISION APPLICATION NO. 346/1997 Maharashtra State Electricity Board through its Executive Engineer, M.S.E.B. No.1, Jalna, Tq & Dist. Jalna. ....Petitioner. (Original complainant) Versus 1 Radheshyam s/o Ratanlal Agrawal, Age : 47 years, Occu. Business. 2 Mahaveer s/o Ratanlal Agrawal, Age : 50 years, Occu. Business, Both R/o Civil Club, Mantha Road, Dist. Jalna. 3 The State of Maharashtra, through P.P., High Court, Bench at Aurangabad. ....Respondents (Original accused Nos. 1 and 2) 2 Mr. H.M. Karwa, Advocate for appellant. Mr. P.K. Joshi, Advocate for respondents No. 1 and 2. CORAM : A.V. NIRGUDE, J. Date :15th October, 2010 ORAL JUDGMENT :- 1 This appeal and the revision are filed against the judgment and order of acquittal passed by the learned III Judicial Magistrate Magistrate (First Class), Jana in Regular Criminal case No. 108/1993. The respondents were accused of offences punishable under Sections 39 and 44 of the Indian Electricity Act, 1910. 2 The case of the prosecution in short can be narrated as under. The respondents/accused are Directors of the Company by name Rishi Steel Alloyed Pvt. Ltd who has a factory situated in the M.I.D.C. area of Jalna. The factory was consuming electric supply and was installed with a electric meter. There are similar three other factories in the neighbourhood. All four factories were supplied electricity through a common high tention electric cable. In March, 1993 the M.S.E.B. noticed disparity between the units of electricity supplied to the four factories including factory of respondents/accused and the meter reading of these factories taken together. It was found that disparity was to the extent of 36.6%. M.S.E.B. thus drew a conclusion that there was something amiss. They therefore, 3 started investigation and visited all the four factories for testing meters during 13/04/1993 to 24/04/1993. Ultimately on 14/05/1993 the electric meter installed at the factory of the respondents was thoroughly inspected by senior officers of M.S.E.B., in presence of independent panch witnesses. They found that, at the bottom of the meter box, there were three holes of 4 m.m. sizes. The officers of the M.S.E.B. having technical knowledge of the construction of the meter, drew a conclusion that the respondents were inserting metal wires through these holes and thereby interfering in the regular working of the electric meter. They further concluded that such interference would slow down the running of the meter. Having realized this, the officers of the M.S.E.B. sealed the meter and even sealed the holes found on the meter box by soldering a metal plate on it. They again recorded the consumption of electricity by the factory of the respondents and found significant increase in the reading of the meter. They therefore, lodged a criminal complaint with the concerned Police Station against the respondents. 3 The Police thereafter, started investigation and filed a charge sheet against the respondents. The learned magistrate recorded evidence of five witnesses. The first one was the panch in presence of whom on 14/05/1993, the meter was inspected and panchanama was drawn. The other four witnesses are various officers of the M.S.E.B.. The witnesses No. 2 and 4 very categorically stated that if wires are inserted 4 through the holes, they would reach certain terminals of the meters and it would slow down the running of the meter. Admittedly, the prosecution witnesses did not notice any wire inserted in the holes. Admittedly, further the prosecution witnesses on 14/05/1993 or thereafter during the investigation, did not carry out a practical of inserting wires through the holes and demonstrate that the insertion of wires interfered in the working of the mater and had slowed it down. The learned magistrate held that the prosecution could not prove beyond reasonable doubt the offences punishable under Section 39 and 44 of the Electricity Act. 4 After hearing submissions of the respective learned counsel for the parties, following points arose for my consideration. i)Whether the prosecution proves that the respondents committed theft of energy ? ii)Whether the prosecution proves that the respondents interfered with the electric meter ? iii)Whether the complaint is made by competent person as expected under Section 50 of the Electricity Act ? iv)What is the scope of appreciation of evidence when the appeal against acquittal is filed ? Point No.1 :- 5 Before the evidence on this point is appreciated, one 5 must know as to what is theft of energy as contemplated by Section 39. So, I have to quote Section 39 as under. Section 39 reads as under. 39. Theft of energy.- 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 one thousand rupees, or with both; and if it is proved that any artificial means or means not authorized 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 any abstraction, consumption or use of energy has been dishonestly caused by such consumer. 6 There are two parts in S.39. First part is the penal provision providing sentence to an accused who dishonestly abstracted or consumed or used energy. The second part of this section is more important. It says that if the prosecution could prove that any artificial mean or a mean not authorized by the supplier of the electricity, existed at the site of the accused, used for abstraction of consumption or use of the energy, one could presume that such abstraction, consumption or use of the energy is dishonest. 7 The prosecution mainly relies on the existence of the three holes found at the meter box, as “the artificial mean” which was according to it was used by the respondents for abstracting or consuming the electricity. 6 8 The existence of three holes in the meter box has not been seriously challenged by the respondents/ accused. As said above, these holes were found firstly on 14/05/1993 when the officers of Maharashtra State Electricity Board (hereinafter referred as M.S.E.B.) inspected the meter thoroughly in presence of the independent panchas. Three prosecution witnesses namely the prosecution witness No.2 Dhogde the then Dy. Execution Engineer of Jalna, the prosecution witness No.4 Naik the Executive Engineer of testing division of M.S.E.B. and the prosecution witness No.5 Shri Achelkar the Superintending Engineer of M.S.E.B. saw the three holes in the meter box. 9 The prosecution witness No.2 Dhogde stated that if a wire is inserted in the first hole, it would touch certain terminal No.1 of T.T.B. (an appliance fixed in the meter box by the side of the meter). He said, if another wire is inserted in second hole, it would touch terminal No.3 on T.T.B. and if third hole is used for inserting wire, it would touch terminal no.5 of T.T.B. He said, the insertion of wires would reduced the recording of the consumption of the electricity than the actual consumption. 10 The prosecution witness No.4 the Executive Engineer in the testing division also reiterated that if the wires are externally inserted through the three holes, there would be slowing down of the meter. The meter would then show less 7 consumption than the actual one. He categorically stated that due to the holes, there was possibility of tampering of the meter. This witness also stated that before the holes in the meter could be located on 14/05/1993 he and his team had thoroughly checked the consumption pattern of the four factories to whom one single cable was supplying electricity exclusively. As per the technical term, the cable that supplied electricity exclusively to the four consumers including the factory of the respondent / accused is called 3 K.V. feeder cable. He stated that there was a sub station for this 33 K.V. feeder Cable. He said, he was entrusted with the work to test the meters installed at the sub station and also the meters installed at the consumer’s end. He said, he came to Jalna for the purpose of testing of the meters. He said, his team was of five members. He said, he knew that there was report of loss of electricity and so he inspected this particular 33 K.V. Feeder cable. He said under his supervision, his team tested meters of all consumers one by one. He said, all the observations made by his team were reduced into writing. He placed on record Photostat copy of the observations. He also added in the cross examination that he had prepared notes of observations in respect of all the other three companies and had submitted such note with the Superintending Engineer, Aurangabad. He then said that after they found the holes in the meter box, they gagged the holes, by welding a metal strip on them and thereafter, from 14/05/1993 to 22/05/1993 he tested the meters of all the four consumers including the respondents/accused. He said, he 8 found from the readings the loss of electricity at the 33 K.V. feeder got reduced up to 10%. He even stated that he had tested feeder meter installed at sub station of 33 K.V. Cable. He said, after taking the review of losses, he tested the meter installed at sub station of 33 K.V. feeder on 14/06/1993. At that time, he found the feeder meter showed only 7.4% loss. 11 The prosecution witness No.5 was the Superintending Engineer of Aurangabad circle in 1993. Jalna circle fell into his jurisdiction. He said, in May 1992, they had installed energy meter for the purpose of energy audit. The energy audit means to calculate energy sent out, from feeder lines and the energy consumed of the consumers. He said, every month an officer took energy audit of each feeders. He said, since January,1993 their officers started energy audit of the 33 K.V. feeder of this case. He said, his officers found that there was difference to the extent of 36.6% in the units of electricity sent through this feeder and the consumption shown at the meters of the consumers. Due to this, he said, he directed the Executive Engineer (Testing), to check out all the consumer meters on that feeder. He said, on 28/04/1993 he received first report from the Executive Engineer (Testing) but found nothing abnormal in it. He said, thereafter, he directed the Dy. Engineer O & M to check daily reading of the meters of the four consumers and the panel meter of the sub station and compared the reading. He said, from 05/05/1993 to 09/05/1993 the readings were taken and the difference observed was 9 36.6%. He said, thereafter, he directed the Dy. Engineer to check reading of the consumer panel meter for two times a day, once in the day time and once in the night time separately. He said, from these readings, they noticed that the difference in the night was larger than the difference in the day time reading. He said thereafter, he directed the testing engineer to “tackweld” (probably another technical term) all the meters of the four consumers. Accordingly, he said, on 14/05/1993 he personally visited the factory premises of the respondents/accused for supervising the testing of the electric meter. He said that on inspection of the meter they found three holes in the meter box. He said, after gagging all the holes and tack welding all the meters, the loss of energy was reduced to 10%. 12 On the basis of this material, the prosecution wants to prove that it was the respondents who had committed theft of the energy. To this, the defence suggested to the witnesses that the theft could have occurred through other three electric meters installed at other three consumers. Indeed this was a pertinent objection to the conclusion drawn by the witnesses. However, during the cross examination of the prosecution witness No.4, he stated as under. “I submitted my observation report in respect of all four companies. I had given in my report sent to S.E. the fact that I suspected theft on behalf of the accused / Company. It is true to suggest that I have adopted the procedure of elimination in between four consumers after making observations of all four consumers and gave my conclusion that losses are due to three 10 holes of meter box in question.” 13 This statement clearly indicates that this witness for the purpose of audit after the gagging of the holes found in the meter box, had put the meters of all four consumers under observations and adopting the method of 'elimination' came to a definite conclusion that the meter of the respondent was recording less consumption earlier. In the cross examination, he admitted that he did not give his report in respect of the other three consumers to the respondents/accused. But in the facts of this case, it was necessary for the accused to demand and get that information before the Court. It can not be said that the prosecution was under obligation to put before the Court the observations which led the prosecution witnesses to conclude that the other three consumers were not stealing the energy. 14 The second serious objection to the evidence of the prosecution is that the prosecution witnesses did not actually insert wires through the holes for demonstrating that the meter was slowed down due to inserting of such wires. This objection looks quite attractive but it is obvious that the holes in the meter box could not have been authorized/permitted by the M.S.E.B.. So, it is proved that the holes found in the meter box were artificial means not authorized by the licensee. Section 39 expects in such situation that, it should be presumed until the contrary is proved that abstraction of energy was dishonestly caused by the consumer. 11 15 In the case of Jagannath Singh alias Jainath Singh versus B.S. Ramaswamy and another reported in AIR 1966 Supreme Court page 849, the prosecution could successfully show that there was abnormal wastage of energy which could not be due to wastage in transmission and so they suspected theft of energy. In that case, the meters of several consumers were inspected and found to be tampered with. It was further found that the seal of meter cover of the accused was broken and a sealing nut was found loosened exposing a stud hole on the meter cover. The Supreme Court observed - “The effect of the last part of S. 39 is the existence of the unauthorised means for abstraction is prima facie evidence of dishonest abstraction by some person. The special rule of evidence goes no further. The prosecution must prove aliunde that the accused made the abstraction. The fact that the 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 may lead to the inference that he is guilty of the dishonest abstraction.” 16 The Supreme Court further observed that the effect of the last part of Section 39 is that the existence of unauthorized means for abstraction is prima facie evidence of dishonest abstraction by some person. 17 In this case, the prosecution has proved that the consumption of electricity after the holes were sealed, increased significantly and in view of the fact that the prosecution eliminated the possibility of stealing of energy by 12 other three consumers, it proves that the respondents/accused alone had committed the theft of energy. 18 Although the learned Magistrate was shown the above mentioned judgment of the Supreme Court, he it seems did not read the judgment in proper perspective. The reasoning recorded by the ld. Magistrate in this regard are patently untenable. Point No.2 19 Section 44 of the Act reads as under. 44. Penalty for interference with meters or licensee' s works, and for improper use of energy. Whoever-- (a) connects any meter referred to in section 26, sub- section (1), or any meter, indicator or apparatus referred to in section 26, section 26, sub- section (7), with any electric supply- line through which energy is supplied by a licensee, or disconnects the same from any such electric supply- line ; or (aa) unauthorisedly re-connects any meter referred to in sub- section (1) of section 26, or any meter, indicator or apparatus referred to in sub- section (7) of section 26, with any electric supply- line or other works, being the property of the licensee, through which energy may be supplied, when the said electric supply line or other works has or have been cut or disconnected under sub- section (1) of section 24; or (b) lays, or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee ; or (c) maliciously injures any meter referred to in section 26, 13 subsection (1), or any meter, indicator or apparatus referred to in section 26, sub- section (7), or willfully or fraudulently alters the index of any such meter, indicator or apparatus, or prevents any such meter, indicator or apparatus from duly registering; or (d) improperly uses the energy of a licensee; shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both and, in the case of a continuing offence, with a daily fine which may extend to fifty rupees; and if it is proved that any artificial means exist for making such connection as is referred to in clause (a), or such re- connection as is referred to in clause (aa), or such communication as is referred to in clause (b), or for causing such alteration or prevention as is referred to in clause (c), or for facilitating such improper use as is referred to in clause (d), and that the meter, indicator or apparatus is under 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 connection, re- connection, communication alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer. 20 This case from the evidence on record would squarely fall within clause ‘C’ of the Section. The holes in the meter box were found while meter box and meter were in exclusive custody of the respondents/accused, but they made no attempt to prove that the holes were not caused by them or were in existence since prior to installation of the meter etc.. The offence under Section 44 thus is proved beyond reasonable doubt. 14 Point No.3:- 21 The learned advocate appearing for the respondents/accused then submitted that the institution of the prosecution against respondents/accused was not authorized as expected by the provisions of Section 50 and so the prosecution case should fail. Section 50 reads as under. “Institution of prosecutions:- 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 a State Electricity Board or an Electrical Inspector, or of a person aggrieved by the same.” 22 In this case, the complaint is made by the Executive Engineer M.S.E.B., at Jalna -P.W. No.3- who deposed, after getting the reports of theft of electricity, he lodged the complaint on 25/06/1993. He said, his duties included supervision and administration of the board’s work at Jalna. 23 The first question that is required to be decided is whether prosecution witness No.2 when filed the criminal complaint against the respondent / accused had acted 'at the instance of the State Electricity Board'? The answer is in affirmative because the Board had appointed him to look after its work in that particular district. He was in charge for supervision of the work and was also the Principal Officer doing 15 the administration. He thus, was answerable to the Board for any loss that would occur to the Board. The phrase used in the section, 'at the instance of' means 'at the solicitation' or 'at the request of'. If in such situation the Principal Officer at the station during the course of his duty files a complaint, such complaint was made on behalf of the Board. Pursuant to the complaint he lodged, if the Police had filed the charge sheet against the respondent/accused, it would amount to sufficient compliance with the requirement of Section 50. 24 Useful reference can be made to the judgment of Madras High Court in the case of Public Prosecutor versus Abdul Wahab reported in AIR 1969 Madras 280. 25 Even our High Court has taken similar view in case of State Versus Maganlal Chunilal Bogawat reported in AIR 1956 Bombay 354. The Division Bench of this Court observed as under. “Where a person acting for and on behalf of the Electric Supply Company lodges a complaint with the police in respect of unlawful extraction of electric energy, the subsequent prosecution started on a charge-sheet filed by police must be regarded as instituted at the instance of the company. Section 50 does not require that there should be a complaint by any specified person. If the proceedings have been commenced at the instance of the Government or the person specified in S. 50, the prosecution must be regarded as proper. Ordinarily the Criminal law can be put into motion by any person. But the Legislature with a view to protect persons from being harassed by false complaints for offences under the Indian Electricity Act and the rules thereunder has made this 16 particular provision under S.50. Point No.4 26 Shri P.K. Joshi appearing for the respondents/ accused then submitted that the High Court while appreciating the evidence in an appeal filed against acquittal should concentrate mainly on the reasons given by the trial Court for recording the order of acquittal. He said, if the reasons recorded by the trial Court are found cogent and convincing, the High Court is not justified in disturbing them. He in other words suggested that while hearing this appeal, the Court should not re-appraise the evidence. To substantiate this contention, Mr. Joshi placed reliance on the judgment in the case of Ramesh Babulal Doshi versus State of Gujrat reported in (1996) 9 Supreme Court Cases 225. In this case, the Supreme Court indeed observed as under. “This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for 17 reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not.” 27