IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SEVENTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1219 OF 2003 Between: Mummidisetti Venkata Surya Prakasa Rao alias M.S. Prakasa Rao ..... Appellant/Accused AND The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondent The Court made the following: JUDGMENT: The Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 30.10.2003, in C.C.No.6 of 2002, on the file of the learned Special Tribunal to try the Offences under the Indian Electricity Act, 1910 (Central Act IX of 1910) – cum - I Additional District Judge, Visakhapatnam, whereunder and whereby the appellant/accused was found guilty of the offence punishable under Sections 39 and 44 of the Indian Electricity Act, 1910 as amended by A.P. Amendment Act No.35 of 2000, and accordingly convicted and sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.5,000/- in default to suffer Simple Imprisonment for a period of one month, under each count, and both the substantive sentences of imprisonments were ordered to run concurrently. 2. Brief facts that are necessary for disposal of the prosecution case may be stated as follows: The accused is a registered consumer with service connection bearing No.163, category III of his Sri Prakash Rice & Flour Mill, situated at Butchayyapeta Village, Visakhapatnam District. He was having electric service connection bearing No.163. P.W.1-The Assistant Divisional Engineer, DPE-I, APEPDCL, Visakhapatnam along with P.W.2-The Additional Assistant Engineer Operation, APEPDCL, Vaddadi, along with other Officers and staff inspected the above said electrical service connection on 21.03.2002 at about 3.30 p.m. in the premises of the accused. On inspection, P.Ws.1 and 2 found that all the four seals of the meter cover M.R.T. were flattened. They also observed that the meter cover seal holes were widened and all the meter cover seals were moving over the sealing wires. Some external pressings were also observed on the meter cover seals suggesting meddling of seals. On finding about the incriminating observations, the main meter was seized and sealed in the carton box after observing formalities for detailed test in the M.R.T. Laboratory, Simhachalam. The condition of the meter was shown by the Inspecting Officer to the accused and the accused made an endorsement to the effect that P.W.1 inspected the meter and noticed about the defects. P.W.1 prepared Ex.P1-Inspection notes then and there and replaced the existing meter with another new tested meter and the disputed meter was seized and sealed in a carton box duly taking the signatures of the consumer and the inspecting staff and sent to the M.R.T. Laboratory at Simhachalam. The Officer who tested the meter found the following incriminating results: 1. All the four M.R.T. seals were flattened. Seal bits holes were widened and the sealing wire was coming out easily; 2. Cutting plier pressing marks were observed on the seal bits; and 3. The meter cover seals were tampered. Ex.P3-M.R.T. test report, dated 28.03.2002, was prepared at the M.R.T. Laboratory, Simhachalam, containing the results of the test. The accused who was also present at the time of test, made an endorsement on Ex.P3 stating that the testing of meter was done in his presence and the seals of the carton box in which the meter was seized were opened in his presence and the meter was tested. Later, the meter was handed over to the safe custody. Basing on Ex.P1-Inspection Report and Ex.P3-M.R.T. Report, P.W.1 prepared complaint and handed over the same to P.W.7-Investigating Officer. P.W.7, on the basis of the same, registered a case under Exs.P7-First Information Report and examined the witnesses and prepared Ex.P9-rough sketch of the scene of occurrence and seized Ex.P10-two consumption bills and Ex.P11-land cist receipt under the cover of Ex.P8-observation report. P.W.7 also inspected the scene of occurrence, examined the witnesses and after completion of the investigation, he filed the charge sheet. 3. When the accused was examined under Section 251 of Cr.P.C. for the offence punishable under Sections 39 and 44 of the Indian Electricity Act, 1910 as amended by A.P. Amendment Act No.35 of 2000, he denied the same, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 7 and got marked Exs.P1 to P11 besides the case properties M.Os.1 to 4. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, D.Ws.1 and 2 were examined and Exs.D1 to D8 were marked. 6. Upon appreciation of evidence on record, the trial Court rightly found the accused guilty and accordingly convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the charges under Sections 39 and 44 of the Indian Electricity Act, 1910 as amended by A.P. Amendment Act No.35 of 2000 and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel appearing for the appellant contended that there is no evidence to show that the accused meddled with the meter; that the alleged admissions made by the accused in Ex.P1-Inspection Notes and Ex.P3-M.R.T. Laboratory Report are not voluntarily given; that the meter which was tampered was not produced before the trial Court; that there were no external artificial materials used in meddling the meter; that there was a power cut imposed by the Electricity Department from time to time and so, the consumption was less, but not because of meddling with the meter, and therefore, she prays to set aside the conviction and sentence recorded against the appellant. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the meter was tested in the presence of the accused; that non-production of meter before the Court would not in any manner affect the main fabric of the complainant’s case; that as the appellant alone was incharge of, and responsible for proper maintenance of the meter, it can be inferred that he meddled with the meter and nobody would venture to meddle with the meter; that therefore, there was a scope for the appellant alone to meddle with the meter; that even though there were power cuts imposed from time to time by the Electricity Department, it is not a ground to disbelieve the prosecution version in view of the fact that the meter was meddled with that the trial Court after an elaborate consideration of the evidence on record, rightly found the appellant guilty, and convicted and sentenced him, and hence, there are absolutely no grounds to interfere with the same. 10. It is not in dispute that the accused is the registered consumer with service connection No.163, Category III of his Sri Prakash Rice & Flour Mill, Butchayyapeta Village, Visakhapatnam District. It is not in dispute that P.Ws.1 and 2 along with his officials inspected the rice and flour mill on 21.03.2002 at about 3.30 p.m. in the presence of the accused. It is also not in dispute that Ex.P1-Inspection Report was prepared by P.W.1 and it contained the endorsement of the accused saying that P.W.1 inspected the meter and noticed about the defects and seized the same and kept in the sealed carton box and sent the same to the M.R.T. Laboratory, Simhachalam. It is also not in dispute that the accused was present when P.W.5 tested the meter in the M.R.T. Laboratory, Simhachalam, and gave a report as in Ex.P3. It is also not in dispute that at the time of testing of the meter by P.W.5, the accused, who was also present in the M.R.T. Laboratory, Simhachalam, made an endorsement on the copy of Ex.P3- M.R.T. Report stating that the testing of meter was done in his presence and the seals of the carton box in which the meter was seized were opened in his presence and the meter was tested. 11. The evidence of P.W.5, who is working as the Assistant Engineer, M.R.T. Laboratory, Simhachalam, would clearly go to show that he opened the wrapper put around the meter and noticed all the four seals put to the meter were flattened and the holes of the seal pits were found widen. The sealing wire was coming out freely from the seals. He also observed the cutting plier marks on the external seal bits. Thereafter, he opened the meter and tested the meter. Ex.P3 is the copy of the M.R.T. report submitted by him. A perusal of Ex.P3-M.R.T. Report would go to show that the Officer who tested the meter, found the following incriminating results: 1. All the four M.R.T. seals were flattened. Seal bits holes were widened and the sealing wire was coming out easily; 2. A Cutting plier pressing marks were also observed on the seal bits; and Therefore, P.W.5 opined in Ex.P3 that the consumer has tampered with the meter cover seals and suppressing the actual consumption to be recorded by the meter by meddling with the mechanism of the meter, and therefore, the consumer indulged in pilferage of electrical energy. P.W.5 withstood the test of cross-examination. Nothing has been elicited to discredit the testimony of P.W.5. Therefore, there is no other reason to disbelieve the evidence of P.W.5 and the recitals in Ex.P3. From the evidence of P.W.5, it is clear that the meter was tampered with resulting in not recording the actual consumption of electricity in the meter. 12. It is not in dispute that the electricity service meter was exclusively under the control and possession of appellant, who is the owner of rice and flour mill. If really, the accused or his employees have not meddled with the meter, accused would have reported the tampering of meter to the electricity officials. There would not be any cutting plier marks on the seals suggesting that there would be a tampering of the seals. If the seal is broken, it can be visible to the accused. The seal as such may not be damaged unless somebody tampers it. It is not in dispute that the accused did not complain to the electricity officials about the broken or damaged conditions of the seals and there is no evidence to show that the accused has taken all reasonable precautions to see that the seals of the meter have not been broken or damaged. The evidence of P.Ws.1 and 2 coupled with the expert opinion would clearly reveal that the meter seals were widened and found to be flattened. 13. With regard to the endorsement made by accused on Ex.P1-Inspection Report and Ex.P3-M.R.T. Report, the contention is that the accused has not made the alleged admissions voluntarily. It is not in dispute that the accused was present at the time of inspection made by P.Ws.1 and 2 and also at the time of testing of meter by P.W.5 in the M.R.T. Laboratory, Simhachalam. The endorsements made on Exs.P1 and P3 by the accused were not shown to be obtained by the electricity officials by threat, coercion or in fraudulent manner. Further more, P.Ws.1, 2 and 5 have no grouse or personal animosity against the accused to implicate him falsely in a case of this nature. 14. The other contention is that the meter which was seized by P.W.1 has not been produced in the Court, and therefore, it is a fatal to the case of the prosecution. Because the fact that the accused was present at the time of conducting test of the meter in the M.R.T. Laboratory, Simhachalam, by P.W.5 and that P.W.5 gave Ex.P3-M.R.T. Report are not seriously denied and disputed, no useful purpose would be served even if the meter is produced before the Court, because the meter was examined by a competent person in the presence of the accused. Therefore, the contention that non-production of the meter before the Court is fatal to the case of prosecution, is wholly untenable and devoid of merit. 15. The other contention is that no external artificial material has been used to meddle with the meter. That cannot be a ground to acquit the accused because the prosecution established its case that there was a tampering of seals in the meter and thereby, crippling the meter. 16. No doubt, no artificial means like foreign material was used for meddling the meter, but at the same time, when the consumer was preventing the meter from duly registering the energy consumed, then it is an offence punishable under Section 44 (c) of the Indian Electricity Act, 1910 as amended by A.P. Amendment Act No.35 of 2000. 17. No doubt, there is no direct evidence to show that it is the appellant alone who meddled with the meter, but at the same time, it is not in dispute that the meter was exclusively within the possession and control of the appellant. There cannot be any dispute that the act can be proved by either direct evidence or circumstantial evidence. The circumstances would indicate that except for the accused, nobody had a reason to meddle with the meter. It is for the accused to explain how the meter in question was meddled which was in the exclusive possession of the accused. Section 39 of the Indian Electricity Act, 1910 as amended by A.P. Amendment Act No.35 of 2000 shows that if it is proved that artificial means exist for the obstruction of disc in the meter, it shall be presumed, until contrary is proved that the obstruction or use of energy has been dishonestly used by the consumer. Therefore, the evidence on record would clearly establish that the prosecution established its case beyond all reasonable doubt for the offences punishable under Sections 39 and 44 of the Indian Electricity Act, 1910 as amended by A.P. Amendment Act No.35 of 2000. Therefore, the trial Court rightly found the accused guilty and accordingly convicted him, and the said conviction does not call for any interference. 18. Now with regard to the sentence, it is not the case of the prosecution that the accused meddled or tampered the meter prior to the incident in question. The accused is having a wife and children who are completely depending upon his income. It seems the energy lost because of meddling with the meter was said to have been paid by the appellant. Therefore, a lenient view can be taken with regard to the sentence. 19. In the result, the conviction recorded by the learned Special Tribunal to try the Offences under the Indian Electricity Act, 1910 (Central Act IX of 1910), Visakhapatnam, vide judgment, dated 30.10.2003, in C.C.No.6 of 2002, against the appellant/accused of the offences punishable under Sections 39 and 44 of the Indian Electricity Act, 1910 as amended by A.P. Amendment Act No.35 of 2000 is confirmed. The appellant/accused is sentenced to pay fine of Rs.5,000/- (Rupees five thousand only) under each count, in default to suffer two months simple imprisonment under each count. 20. Accordingly, the Criminal Appeal is dismissed with the above modification of sentence. ______________ (K.C.BHANU, J) Dated: 27th October, 2009. KL