THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1493 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed in C.C.No.59 of 2002 by the I Additional District and Sessions Judge, Nalgonda-cum-Special Tribunal constituted under the Indian Electricity Act, 1910 on 06.07.2004. The appellant herein was prosecuted for the offences under Sections 39 and 44 of Indian Electricity Act alleging that on 07.09.2000 at 16.10 hours P.W.1, ADE/OP, Mungonde inspected the service connection No.1647 Category-I of the accused, along with his staff P.Parvathalu, Sd.Azmeer Pasha, Lineman and observed that the consumer has inserted a loop wire of 10” in length between meter first terminal and outgoing fuse cut-out and thus bypassed the electrical energy from the meter and indulging in pilferage of energy by suppressing the actual consumption. The loss sustained by the company is estimated to be Rs.6,000 + 50/- depending upon connected load and duration of utility. P.W.1 issued P.A. notice to the accused and gave complaint to P.W.5, C.I of police, who registered the case in Crime No.119 of 2000 under Sections 39 and 44 of Indian Electricity Act and took up investigation. On 24.11.2000 at 10.00 hours the accused surrendered before the police. The Inspector of police, Vigilance & APTS, Nalgonda, collected the ownership certificate and certificate of release of service connection and filed the charge sheet against the accused. The learned Special Judge has framed the charges under Sections 39 and 44 of Indian Electricity Act against the accused. The accused pleaded not guilty for the said charge. In order to establish the said charges, the prosecution examined P.Ws.1 to 7 and got marked Exs.P.1 to P.7. No oral and documentary evidence was adduced on behalf of the accused. Taking into consideration of the said oral and documentary evidence, the lower Court has found that the prosecution could able to establish the charge under Sections 39 and 44 of Indian Electricity Act, convicted and sentenced to undergo rigorous imprisonment for Two years and also to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused. Now, the point that arises for consideration is: Whether the prosecution could able to establish the pilferage of energy by the accused by inserting a loop wire beyond reasonable doubt? P O I N T: The appellant’s counsel has pleaded that P.W.1 has not conducted any panchanama at the time of inspection of the premises and seizure of M.O.1-10” loop wire and the house number was not mentioned in inspection notes Ex.P.1 or in the complaint Ex.P.3. Therefore, it is doubtful that the alleged inspection has taken place in the house of the accused. The Additional Public Prosecutor on the other hand has pleaded that the Investigating Officer has collected the ownership certificate from revenue authorities and service connection certificate from the electricity department. He further pleaded that the ownership of the said house is in the name of the wife of the accused and service connection was in the name of the accused and during the course of inspection of number of houses in that area, P.W.1 has found pilferage of electricity in the house of the accused only and there is nothing on record to establish that there was animosity between P.W.1 and accused for foisting a false case against the accused. He further pleaded that there is no necessity of drafting any panchanama at the time of seizure of M.O.1 and the evidence available on record clearly establishes the offence under Sections 39 and 44 of Indian Electricity Act. P.W.1 is the ADE, OP, Bhongir as on the date of inspection. On 07.09.2000 at 16.10 hours he along with P.W.2 and Ajmeer Pasha inspected the SC.No.1647 – Category-I located in Narayanapur village. At the time of inspection the accused was present. P.W.1 found that one loop wire measuring about 10” was inserted from meter first terminal to the fuse cut out outgoing terminal duly bypassing the meter; as such the consumer/accused was indulging in the power theft by suppressing the original consumption recorded by the meter. Immediately, he prepared the inspection notes and the accused refused to sing on the inspection notes and on his instructions Ajmeer Pasha removed the loop wire, which was used by the accused for power theft and he seized the same and kept in a sealed cover and preserved it for evidence. He estimated the connected load 945 watts and the loss was estimated Rs.6,000/- + Rs.50/- supervision charges and he prepared P.A. notice and the same was handed over to the accused. Thereafter, he lodged a complaint before police Vigilance and handed over the inspection notes along with complaint and the sealed cover having loop wire which was seized by him. Ex.P.1 is the inspection notes. Ex.P.2 is the provisional assessment notice and Ex.P.3 is the complaint. M.O.1 is the loop wire. In the cross- examination, he admitted that on the date of inspection, 20 to 25 service connections were inspected on that day and he has not noted the house number in Ex.P.1. On 15.09.2000 he has lodged the complaint and he has not verified who was the owner of the house. He denied that he has filed a false complaint only to harass the accused. P.W.2, who accompanied P.W.1 at the time of inspection, has supported the evidence of P.W.1 with regard to their inspection and noticing the loop wire of 10” inserted in the meter to the fuse cut out outgoing terminal and thereby committed the theft of energy. In the cross- examination, he also admitted that on the date of inspection 20 to 25 houses were inspected by them and except the accused no other case was booked. He also could not able to say the house number of the accused. Therefore, from the evidence of P.Ws.1 and 2, it is evident that when they inspected the service connection of the accused, the loop wire from meter first terminal to the fuse cut out outgoing terminal was inserted to prevent the recording of consumption in the meter. P.W.3, Junior Accounts Officer, Sub-ERO Office, Munugole. He has issued service release certificate for service connection 1647-Category-I in the name of the consumer/accused, at Narayanapur village, on 20.10.1997. Ex.P.4 is the service release certificate issued by him. In the cross-examination, he has stated that the consumer’s A-Form application is not available in their office. He issued Ex.P.4 as per monthly return and consumer ledger. The said certificate was issued at the request of the police Vigilance & APTS, Nalgonda. P.W.4, panchayath secretary of the Narayanapur village and he has issued the ownership certificate Ex.P.5. As per the said certificate the house No.3-133/C is in the name of Gurram Shaymala, wife of the accused. P.W.5, Inspector of Police, who worked as Inspector of Police, A.P. Transco, Nalgonda. According to him, he received a complaint from P.W.1 and registered the case in crime No.119/2000 under Sections 39 and 44 of Indian Electricity Act and issued the FIR Ex.P.6. He recorded the statements of P.Ws.1 and 2 and Pasha and visited the scene of offence and drawn rough sketch of the scene of offence Ex.P.7. P.W.6, S.I of police, who worked in Vigilance, Nalgonda. According to him on 24.11.2000 at 10.00 A.M. the accused surrendered before him and he arrested the accused and produced him before the Court. In the cross-examination he has stated that in spite of several efforts he could not trace-out the accused. P.W.7, another investigating officer, who worked as inspector of police, Vigilance, AP Transco, Nalgonda. According to him on 21.05.2002 he collected ownership certificate Ex.P.5 from P.W.4 and collected service release certificate Ex.P.4 from P.W.3. The said certificate indicates that the service No.1647 category – I released in the name of the accused on 20.10.1997. He also collected a copy of provisional assessment notice Ex.P.2 from P.W.1 and after completion of investigation, he deposited the case property M.O.1 and filed the charge sheet before the Court. In the cross-examination, he admitted that the house stands in the name of Shyamala, who is the wife of the accused. He denied that the owner can only obtain the service connection. He also denied that he has filed the case against the accused only for statistical purpose. From the evidence of investigating officer P.W.7 and P.W.3 the service connection No.1647 category-I stands in the name of the accused. As per the evidence of P.W.7 and P.W.4 the house bearing No.3-133/C stands in the name of wife of the accused. As per the evidence of P.Ws.1 and 2, they have checked the service connection No.1647, Category-I in Mungode village and the said connection stands in the name of the accused. P.Ws.1 and 2 have categorically stated that during the course of their inspection they found insertion of loop wire 10” in length between meter first terminal and outgoing fuse cut-out and thus bypassing the recording of electrical consumption in the meter. Therefore, from the above it is established that the accused has committed the offence of pilferage of electricity in service connection No.1647, which is standing in his name. Thus, the prosecution could able to establish that the accused has committed the pilferage of energy beyond reasonable doubt. With regard to quantum of sentence, the lower Court has sentenced the accused to undergo R.I for 2 years and to pay fine of Rs.5,000/- in default to undergo S.I for 3 months for the offence under Sections 39 and 44 of Indian Electricity Act, 1910. As per Section 39 of the Indian Electricity Act, the punishment prescribed is imprisonment for a term which may extend to 3 years, or with fine which shall not be less than Rs.1,000/- or with both. The said punishment was amended by the Indian Electricity (AP Amendment) Act No.35 of 2000 with effect from 31.07.2000. As per the said amendment, the imprisonment for a term which may extend to 5 years but which shall not be less than 3 months and with fine which may extend to Rs.50,000/- but which shall not be less than Rs.5,000/-. Section 44 of Indian Electricity Act provides the punishment, which may extend to 3 years or with fine which may extend to Rs.5,000/- or with both. In view of the amended Act 35 of 2000, the minimum punishment prescribed is 3 months and fine of Rs.5,000/. In the present case, it is established that the accused has committed theft of energy by inserting a loop wire from the meter to the fuse cut out. In view of the nature of offence committed by the accused, I hold imposing the minimum punishment of 3 months and payment of fine of Rs.5,000/- is sufficient punishment for the accused. In the result, the appeal is partly allowed only to the extent of reducing the sentence of imprisonment of R.I for 2 years to S.I for 3 months and the payment of fine of Rs.5,000/- is confirmed. _______________________ P.DURGA PRASAD, J 11 th November, 2011 Ksp