HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.64 OF 2004 DATE: 12.08.2010 BETWEEN: Syed Ahmed Moinuddin .. Appellant And State of A.P Rep.by Public Prosecutor .. Respondent HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.64 OF 2004 JUDGMENT: This criminal appeal is directed against the judgment dated 31.12.2003 passed by the I Additional Metropolitan Sessions Judge, Hyderabad in C.C.No.17 of 2003, whereby and whereunder the appellant was convicted for the offence punishable under Sections 39 and 44 of Indian Electricity Act and was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.5,000/-. Heard learned counsel appearing for the appellant and the learned public prosecutor representing the State. The brief facts of the case relevant for considering the present appeal are as follows: PW.1-T.I.V.Paul, DE, DPE, Hyderabad along with Saibaba, DE, DPE, Ranga Reddy District, A.M.Chandrasekhara Swamy, AE, DPE and PW.2-M.Prabhakar Reddy, lineman inspected the premises bearing No.4-1-553 on 03.01.2001 at about 12 noon and found commercial service connection No. KJ1-603 in the name of K.Hussain. They also found that the service connection was utilized for running a shop in the name and style of M/s New Classic Home Appliances. In the presence of Syed Ahmed (appellant herein) they noted the reading as 2042. In the course of inspection they found that the terminal cover seals of meter was tampered with. It is also found that the meter disk rotating in forward in R and Y phases and not rotating in B phase, B phase incoming wire was removed and kept out side the meter and the terminal block wires tightening screws were in loose condition. They got photographed the scene of offence in question, prepared inspection report and obtained the signature of the appellant. The inspection report was also attested by the other officials of the electricity department, who were present at the time of inspection. The inspection note is marked as Ex.P.1. They verified the consumption at the section office and found that it was very low i.e. 409 units for one year up to the date of inspection. The inspection report is marked as Ex.P.2. They calculated the pilfered amount basing on the connected load at Rs.69,113/-. PW.1 thereafter sent his inspection report to the ADE (Operations) for issuance of initial assessment notice. On the same day, he went to APTS, Team I office and lodged a complaint under Ex.P.3. Along with Ex.P.3 he handed over Exs.P.1 and P.2. The seal bit with cut wire was marked as MO.1. PW.9-M.Venkat Rao, the then Inspector of Police, APTS, Team I took up investigation and after completing investigation he filed charge sheet. The prosecution in order to establish the guilt of the appellant before the trial Court examined PWs.1 to 9 and marked Exs.P.1 to P.15 and MO.1. On behalf of the appellant Ex.D1 was marked. On a consideration of the entire evidence on record, the trial Court convicted and sentenced the appellant as mentioned above. Now the point for determination in this appeal is: whether the order of conviction and sentence passed against the appellant by the learned trial Court can be sustained? The prosecution established that the appellant is the tenant through Ex.P.6-certificate issued by PW.1. The prosecution also could be able to make out through PW.7 that the trade license particulars of M/s New Classic Home Appliances situated at house bearing No.4-1- 553, Troop Bazar and the trade license was issued in the name of Syed Ahmed, the appellant herein at premises No.4-1-553, Troop Bazar to run the electrical goods and pan shop and the said license was renewed from 1997 to 2002. Therefore, there is no manner of doubt whatsoever from the evidence adduced by the prosecution that the service connection in question was under the control of the appellant. PWs.1 and 2 have spoken about conducting inspection and finding terminal cover seals of meter tampered with, the meter disk rotating in forward in R and Y phases and not rotating in B phase and B phase incoming wire was removed and kept outside the meter. However, the evidence of PW.2, lineman, stated that in the first instance found the tampered meter, and in the cross examination he stated that there was road widening which had taken place prior to the inspection and before the road widening there was over head supply in the street and after the road widening in cable service connections were given. PW.2 in the course of cross-examination was unable to clarify properly as to whether the widening of the road was taken up prior to inspection or after the inspection. The defence theory is that because of the widening of the roads before inspection the meters were opened by the private contractors and therefore, they might have meddled with the meter in question. Though, PW.1 tried to clarify that their department people will accompany the private contractors whenever they open the meters, the possibility of opening meters by private contractors without the presence of Department people cannot be ruled out. Absolutely no positive evidence is let in to say that any person of the electricity department accompanied the private contractors. Therefore, the possibility of the private contractors meddling with the meter while the road widening process was going on cannot be over looked. The learned counsel appearing for the appellant relied on a decision in NARAYANA HURKAT ALIAS NARAYANA MAHESWAR v STATE Rep. BY INSPECTOR OF POLICE, VIGILANCE AND ANTIPOWER THEFT STATION[1] where the learned single Judge of this Court dealing with similar situation held that basing on the allegations in the charge sheet that there was bulging marks on one side of the seal bit, no reasonable inference could be drawn that it is a case of removal of seal wire and insertion of the same afresh. According to the learned single Judge, the prosecution should be launched basing upon the relevant material and on mere surmise or suspicion, no prosecution can be launched. The learned single Judge ultimately held that from mere circumstance that the left side seal bits of the meter were found to have bulging marks on one side of the seal bit, which is not compatible with the only one inference of pilferage, it cannot legitimately be concluded with precision that it was a case of tampering of the meter. Holding as such, the learned single Judge quashed the criminal proceedings in exercise of powers under Section 482 Cr.P.C. Coming to the case on hand, there is positive evidence that the road widening work was taken up and the said work was entrusted to the private contractors and the material on record makes it clear that there was every possibility for the private contractors for opening the meter and the said fact is probabalized by PW.2, who is the lineman present at the time of alleged inspection. Under these circumstances, it is not possible to arrive at a positive conclusion that the appellant resorted for pilferage of electricity by meddling with the meter. The appellant is, therefore, entitled for benefit of doubt and in my considered view, the learned trial Court had fallen into error in convicting the appellant for the offences mentioned above. For the foregoing reasons, the conviction and sentence passed by the trial Court for the offences punishable under Section 39 and 44 of Indian Electricity Act are liable to be set aside. In the result, the appeal is allowed. The conviction and sentence passed against the appellant are set aside and he is acquitted of the offences with which he is charged. The fine amount, if any, paid by the appellant shall be refunded to him. _______________ R.KANTHA RAO,J Dated: 12.08.2010 kvrm HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.64 OF 2004 DATE: 12.08.2010 [1] 2006-ALT (Crl.)1