IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 CRL.REV.PET.NO. 1749 OF 2009() -------------------------------------------- CRA.135/2007 OF SESSIONS COURT, TRIVANDRUM CC.458/1999 OF JUDL. MAGISTRATE OF FIRST CLASS COURT- II,NEYYATTINKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ SOBHAKUMAR, S/O. CHELLAYYAN, AGED 50 YEARS, MULLUVILA PERUMTHOTTAM KINARUVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE. BY ADV. SRI.K.V.SABU RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1749 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of July, 2009 O R D E R -------------- Against concurrent finding regarding theft of electrical energy by use of unauthorized means and consequent conviction and sentence for the offence punishable under Section 39 of the Indian Electricity Act (for short, “the Act”) petitioner has come up in revision. 2. Case is that on 28.8.1998 P.Ws.1 and 2, Engineers attached to the Vigilance Wing of the Kerala State Electricity Board inspected the electric meter installed in house No.105 allegedly belonging to the petitioner and found that the electric meter was tampered with. To the adjoining shed where certain machineries were installed unmetered electricity was being drawn from the main line excluding the meter. P.Ws.1 and 2 verified Ext.P2, meter card for the month of June 1998 and found the reading as 1039. There was no change in the readings as on the date of inspection (28.8.1998) but they found that electrical fittings in the house and adjoining shed were working. According to P.Ws.1 and 2, machineries were working in the shed. They prepared a mahazar. Complaint was given to the police. Police seized the meter (M.O.1.), fuse (M.O.2) and weather CRL. R.P. No.1749 of 2009 -: 2 :- proof wire (M.O.3) used to divert electrical energy otherwise than through the electric meter. P.Ws.1 and 2 gave evidence regarding the alleged incident in the manner stated above. P.Ws.3 and 5 are independent witnesses, but they did not support the prosecution. Exhibit P6 is the mahazar for scene of occurrence prepared by the police. Evidence of P.Ws.1 and 2 is that wires at the outgoing terminal had been removed and it was fitted to the incoming face line so as to facilitate use of unmetered energy. Petitioner examined D.Ws.1 to 3 to show that he has no connection with the house in question or the meter installed there. D.W.1 is the Secretary of the Grama Panchayat. Exhibit D2 is the building tax assessment register and D2(a) is the assessment concerning house No.105. Evidence of D.W.1 and Ext.D2 show that during 1998-99 the assessment of the house stood in the name of one Chellayyan Nadar and later, that assessment was changed to the name of one Bijukumar. Later that change was also cancelled. Exhibit D3 series are receipts issued to the said Bijukumar for payment of licence fee and fee for installation of 5 H.P. motor in house No.105 P.W.3 is Executive Engineer of the Electrical Division. He proved notice dated 16.2.2003 issued to one Sarajakshi as per her request. Going by the evidence of P.W.3, consumer of electrical energy concerning the said house was the said Sarajakshi. Basing on the above evidence it was contended on behalf CRL. R.P. No.1749 of 2009 -: 3 :- of petitioner that he has nothing to do with the house or the meter. Learned counsel for petitioner asserted that argument before me as well. But Exts.P4 and P5 stare at petitioner. Exhibit P4 is the copy of judgment of this Court in O.P. No.17569 of 1998 admittedly filed on behalf of petitioner seeking restoration of supply of energy to the very same house. This Court directed restoration of power supply to the very same consumer and in respect of the very same house. Exhibit P5 is the application filed by petitioner before the KSEB seeking restoration of supply (disconnected on 28.8.1998 pursuant to the detection of theft) to the very same house on the strength of Ext.P4, judgment. Thus it is seen from Exts.P4 and P5 that petitioner himself has owned up ownership and occupation of the house in question where the electric meter was installed. P.W.7, Secretary of Grama Panchayat proved Ext.P7 to show that P.Chellayyan Nadar (in whose name assessment of building No.105 stood during 1998-99) died on 6.5.1996. It is therefore clear that there was some change of assessment regarding the house but ownership and possession of the house vested with the petitioner as seen from Exts.P4 and P5. Petitioner has no satisfactory explanation for Exts.P4 and P5. Hence his contention that he had nothing to do with the house in question or the electric meter installed therein during the relevant time cannot be accepted. CRL. R.P. No.1749 of 2009 -: 4 :- 3. It is contended by learned counsel that at the time of inspection by police there was nothing to show that electrical electrical energy was used in the shed adjoining the house in question. That argument is also equally unsustainable since there is the evidence of P.Ws.1 and 2 that at the time of their inspection on 28.8.1998 unmetered energy was being enjoyed in the adjoining shed where the machineries were installed. There is evidence that unauthorized modes for extraction of unmetered electrical energy was found which is prima facie evidence of theft of electric energy. Section 39 of the Act provides for that. Hence inference is possible that petitioner has been enjoying unmetered electrical energy which amounts to theft. I have gone through the judgments under challenge and find no reason to interfere with the conviction of petitioner. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one year and payment of fine of Rs.5,000/-. Appellate court modified the sentence as simple imprisonment for three months and fine of Rs.1,000/- with a default sentence. Learned counsel for petitioner submitted that petitioner is not involved in any other case and that leniency may be shown to him. 5. I have considered the request of counsel. True, this is a white collar crime and is required to be dealt with sternly. Learned counsel submits that loss caused to the KSEB has already been CRL. R.P. No.1749 of 2009 -: 5 :- compensated by the petitioner. It is also submitted that petitioner is leading a quite family life and is now aged 50 years. Considering these circumstances I am inclined to think that petitioner need not be visited with a sentence of imprisonment. I am inclined to think that imprisonment till rising of the court and fine of Rs.5,000/- will be sufficient in the ends of justice. Resultantly, this revision is allowed in part to the following extent: Sentence imposed on the petitioner is modified as simple imprisonment till rising of the court and payment of fine of Rs.5,000/- (Rupees Five thousand only) and in default of payment to undergo simple imprisonment for one month. Petitioner is granted time till 10.8.2009 to pay the fine in the trial court. He shall appear in the trial court on 11.8.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv