IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.721 of 2008 Between: The State of Andhra Pradesh, represented by Public Prosecutor, High Court of A.P., Hyderabad .. Appellant AND M/s. L. Madanlal Steels Ltd., and Manohar Bagria .. Respondents JUDGMENT: This appeal is directed against the reversal of the judgment of conviction and sentence imposed by the Additional Judicial Magistrate of First Class, Sangareddy, in C.C.No.1239 of 1997 on 21-04-1999 against the accused 1 to 5 and their acquittal by the judgment in Criminal Appeal No.64 of 1999 on the file of the Special Sessions Judge for trial of offences under SC/ST (POA) Act-cum-V Additional District and Sessions Judge, Medak at Sangareddy, dated 9-11-2006. The factual background for the appeal is that the Inspector of Police, Vigilance and APTS, Rangareddy and Medak Districts, filed a charge sheet in Crime No.6 of 1991 against the accused alleging that a team of officers of APSEB inspected the premises of the factory of the 1st accused on 19-03-1991 at 11-45 A.M. and found flattening of meter fixing board seals bits impressions, removal of four CT secondary wires insulations, meddling of potential wires of external circuit, artificial means between meter board and meter box to record less consumption, stopping and starting functioning of HT meter automatically though electricity supply was available continuously and difference in MD resets memory and consumers’ reading register. The accused were thus committing pilferage of energy by installing an electrical devise preventing the meter from recording the consumption and hence, the accused were prosecuted. Copies of the documents were furnished to the accused on their entering appearance before the trial Court, which took cognizance of the offences and they denied the offences when they were examined under Section 239 of the Code of Criminal Procedure. To the charge under Sections 120-B and 379 of the Indian Penal Code and Sections 39 and 44 of the Indian Electricity Act, the accused pleaded not guilty. The prosecution examined PWs.1 to 15 and marked Exs.P.1 to P.46, D.1, D.2 and C.1 to C.16 and M.Os.1 to 15 during trial. The accused denied the incriminating circumstances appearing against them in the evidence when they were examined under Section 313 of the Code of Criminal Procedure and no other defence evidence than Exs.D.1 and D.2 was adduced. The trial Court rendered its judgment extracting the evidence of PWs.1 to 15 in detail and referring to the written arguments submitted by both parties. The trial Court firstly opined that any officer, who has some technical know how will be authorized to detect pilferage of energy and is competent to launch prosecution. The trial Court also found that for the first time the electricity officials found a foreign device not known to them earlier during the inspection on 19-03-1991 and consultation with experts would have taken sometime to understand the exorbitant loss sustained by the organization. The relevant documents were not in possession of PW.1 at the time of inspection and therefore, the trial Court opined that the delay of 24 hours in lodging the complaint is not fatal. The trial Court also was of the opinion that the prosecution cannot be appreciated regarding its contention of non-filing of the records of the check meter and meter recordings in the log sheets, which were contended by the learned counsel for the accused to be sufficient to show the absence of any pilferage of energy. However, as the check meter is connected with four industries, the shortfall due to pilferage was considered to be not assessable from the check meter. The trial Court further considered even the entries in the log sheets to be of no help when the recorded consumption of the check meter cannot be the basis since it is not calibrated. The trial Court further found that from the photographs Exs.P.1 to P.9 and the evidence of PWs.1 to 7, an electrical gadget containing a transformer, a receiver and coils with a printed circuit board was very much available in the meter of the accused. In the absence of any explanation, the trial Court presumed the placing of such gadget to be with a mala fide and dishonest intention and from the evidence of PW.13, an expert, the trial Court opined that such foreign material was kept only for abstraction of energy. The trial Court also noted the meter being activated and stopped even during the supply of energy without any other explanation showing the electronic gadget to be used to abstract the energy. The trial Court also observed the callous and careless attitude of the officials of APSEB in recording the consumption every month and in spite of being educated with sufficient technical knowledge, they did not notice tampering of seals or possibility of tampering with the meters. The electronic gadget could not have gone unnoticed by the officials and still the trial Court felt that in checking the seals with the naked eye, a small electronic gadget of advanced technology placed behind the meter board could have escaped the attention of the person recording the consumption or even an expert. The evidence of the expert from Forensic Science Laboratory-PW.14 about the possibility of tampering in the manner it was detected was observed to be not possible to be noted by a common man like PW.2 checking the meter as a routine. The trial Court also observed that mere non-tampering with the outer side seals will not rule out tampering of internal seals and no adverse inference can be drawn against the prosecution. The trial Court, accepting the evidence of PW.14, ignored any minor contradictions or omissions in the investigation, more so, in view of the death of the investigating officer before he was examined. The trial Court, therefore, concluded that the guilt of the accused was successfully established for offences punishable under Section 39 read with Section 49 A of the Indian Electricity Act. The offence under Section 379 of the Indian Penal Code was held to be an integral component of the offence under the special statute and while holding the prosecution to have not proved any offence of criminal conspiracy punishable under Section 120 B of the Indian Penal Code, the trial Court, after hearing the accused regarding the quantum of sentence and considering the age of the 2nd accused, imposed a sentence of Rigorous imprisonment for two years and a fine of Rs.5,000/- each for the offences punishable under Section 39 read with Section 49-A and Section 44-C read with Section 49- A of the Indian Electricity Act with default sentence for a period of three months in case of non-payment of fine and directed both the sentences to run concurrently. In appeal against the said judgment, the appellate Court rendered the impugned judgment wherein after adverting to the factual background for the appeal, the appellate Court noted that PW.1 does not know whether there is a check meter at the sub- station, which will record the entire consumption of power on that particular line. It also noted that PW.1 could not say whether the log sheets were being maintained daily pertaining to that sub- station and the meter box seals were found in tact, untampered and unrepressed, the seals having been fixed on 21-02-1991 by the Divisional Engineer (Operations) while recording the monthly readings. PW.1 could not also say whether the Divisional Engineer (Operations) has examined the meter on 8-1-1991 and the Appellate Court laid emphasis on the admission of PW.1 that when the outside two seals of the meter box are found untampered, it is not possible to go inside the box and put an artificial means to tamper the power unless the outside boxes are tampered. The further statement of PW.1 that he could not find any remote controller in the possession of the accused was also noted and the mode of calculation of the loss suffered by the Board not being mentioned in the inspection notes was also referred to. The evidence of PW.7 that the meter box had its seals in tact before opening it at the time of inspection and that the inside four seals were also found normal and MD seal was in tact was also referred to. The Appellate Court felt that the evidence of PW.7 also established that the seals were in tact and that without opening the outer seals no foreign object can be placed in the meter. The version of PW.2 about his inability to give any reasons for not filing the statement of consumer representative earlier and the fact that Ex.P.23 did not contain the signatures of the consumer representative were also taken adverse note of. The Appellate Court failed to understand why check meter method was not used to know about whether there was any abstraction of energy and the daily log sheets Exs.C.1 to C.8 reflected the correct recording of the readings by the check meter. The Appellate Court further felt that Exs.C.1 to C.8 rebut any presumption of abstraction of energy under Section 39 of the Indian Electricity Act and again reverting to the statement of PW.1 corroborated by PW.2 further supported by PW.4 and PW.6 about all the seals being in tact, the Appellate Court concluded that the accused had no means to enter the box for pilferage of energy. The accused was, hence, considered to be entitled to an acquittal on that ground and the admission by the witnesses that they did not conduct any test of meter or electronic gadget during the inspection was also noted. The artificial means allegedly used by the accused having been not tested, the Appellate Court considered that such artificial means could have been operated by a remote control device is not acceptable, more so, when it was not recovered. Even the report of the Forensic Science Laboratory was doubted for that reason and the opinion without any supporting reasons as admitted by PW.14 was considered unacceptable. While upholding the competence of the officer, who prosecuted, the appellate Court referred to callous and careless attitude of the officials noted by the trial Court to conclude that the prosecution, which failed to seize the remote controller from the accused, failed to establish any pilferage of energy by using such a device. Ultimately, there was no possibility of pilferage of energy when the seals were in tact. The appellate Court allowed the appeal and set aside the conviction and sentences. The State approached this Court through the learned Public Prosecutor contending that the ingredients to constitute the necessary offences having been made out by the prosecution, the well reasoned judgment of the trial Court could not have been interfered with by the Appellate Court. The reasons given by the appellate Court for rejecting the evidence of PWs.1 to 6 were stated to be not valid and cogent and hence, it is desired that the acquittal of the accused be reversed. Sri K. Venkateswara Rao, learned counsel, representing the learned Public Prosecutor for the appellant and Sri C. Praveen Kumar, learned counsel representing the respondents 1 and 2 are heard. The point for consideration is whether the acquittal by the Appellate Court in reversal of the conviction by the trial Court is susceptible for reversal in this appeal? The basis for the prosecution of the accused was some external physical features found at the meter in question in the premises of the factory of the 1st accused, which were suspected to be indicative of tampering of the meter, by introduction of some foreign object or substance inside the meter and by operating some remote control device as to facilitate pilferage of energy due to intermittent working and stopping of the meters. The trial Court, which had exhaustively dealt with the oral and documentary evidence on record, found firstly about the competence of the officer, who launched the prosecution to so prosecute and secondly about any delay in lodging the report to be of no significance on which aspects even the Appellate Court expressed no different opinion. However, the trial Court itself found force in the arguments of the learned counsel for the accused about non-filing of the records of the check meter and the meter recordings shown in the log sheets and the trial Court also noted the improvements made by the version of the prosecution in contending that the check meter was not properly working to get over such a defence. The trial Court forthright rejected the stand taken by the prosecution though the readings of the check meter were considered to be not a dependable basis, when it was connected to four industries including the subject industry. For the same reason, the entries in the log sheets were also ignored, but from the reasoning of the trial Court itself this is undoubtedly a circumstance, which must have compelled the Court to scrutinize the prosecution story with more care, caution and circumspection. The trial Court agreed with the contention that not only the breaking of seals and presence of artificial means, but also abstraction of energy has to be proved by the prosecution. But, the evidence for the prosecution, even if it were to be considered as proving presence of artificial means even without breaking the outer seals, did not present any positive indication of abstraction of energy by such questionable means by any of the accused. The electronic gadget said to be visible in Exs.P.1 to P.9- photographs and negatives was not shown positively by the evidence to be capable of pilferage of energy or to have actually resulted in pilferage of energy though a very strong suspicion might have arisen from the presence of such an artificial means or electronic gadget in the meter, which the trial Court rightly observed, would not have been placed for fancy. However, PW.13, the expert, himself admitted that any modification of the circuit is possible only after the box seals and wooden board seals are tampered and there is nothing in the evidence of the witnesses to the inspection to show any such tampering of the seals. The meter was stated to have been found to be activated and stopped intermittently during the inspection, but the artificial means being used to abstract energy in that manner is clearly the inference which the trial Court drew from such circumstances, but not the positive finding of even the technical personnel examined on behalf of the prosecution. The callous and careless attitude of the officials concerned is a matter of concern even for the trial court and admittedly no tampering was ever found or suspected during any inspection at any earlier point of time including during the times of noting the meter reading by the officials concerned. If the electronic gadget had been noticed during the inspection in question, there is no reason as to why it escaped the attention of the concerned during the earlier visits, which of course was attempted to be explained away by the trial Court by a process of strained reasoning. While the report of PW.14 was admitted, even PW.14 is not supported by reasons, which were sought to be given during the evidence of PW.14 that if excessive pressure is used, the seal bit may appear to be flattened and the impression on the seal depends on the pressure used by the hand. The manner in which PW.14 came to his conclusion was about the possibility of flattening of bits, loosening of wire, reintroduction of the wire and repressing of the same and in equating such a possibility with certainty, the principle that an accused in a criminal case is presumed to be innocent until the contrary is proved was clearly given a go bye. The possibility suggested by PWs.13 and 14 coupled with the evidence of the persons, who participated in the inspection, might be capable of creating very strong doubts about the complicity of the accused, but they cannot be equated to any legal proof beyond reasonable doubt without an unambiguous answer to the fundamental question as to how any tampering with the meter or any pilferage of energy or any manipulation of the readings would have been possible, when admittedly the seals were in tact and there was no possibility of pilferage even according to PW.1 and when any remote control device was not recovered at the scene or produced before the Court and when the operation of the electronic gadget said to have been found in the photographs was not shown to be the cause for the alleged pilferage. Under the circumstances, the benefit of doubt given to the accused by the appellate Court cannot be interfered with and the possibility of taking a second view on the evidence by itself cannot be a ground to interfere with an acquittal by a final fact finding Court on merits unless its appreciation is perverse and baseless. Therefore, the Criminal Appeal should fail and it is accordingly dismissed. _____________________ G. BHAVANI PRASAD, J Date: 14-11-2011 Ksn