Patna High Court
H. Krishna Murthy vs Sohrai Lal on 25 April, 1963
Equivalent citations: 1964CRILJ468
JUDGMENT
1. The respondent is the owner of a flour mill in Mahalla Kaliasthan at Dinapur. The mill is fitted with a ten horse-power motor and the respondent is its recorded consumer of the Patna Electric Supply Company Limited (hereinafter to be referred to as the PESCO) under account No. 12438. The meter provided in the installation of the respondent was a three-phase meter. It was tested by K. L. Bhattacharji (P. W. 3), an assistant meter tester of the PESCO, on the 7th January, 1952,, and supplied to the respondent on the 8th January, 1952, on which date the respondent had entered into an agreement (Ext. 1), with the PESCO agreeing to pay for the electrical energy supplied to his mill by the PESCO on certain terms. At the time of supplying the meter to the respondent, it had been properly sealed with round lead seals and the nuts on the studs were fully tightened up. Subsequently, on the 16th April, 1956, the round lead seals were replaced by a special type of seals known as the meter door seals. The nuts were again fully tightened up and in accordance with the usual practicq, the seals were put on the top studs.
2. The prosecution case is that in the normal process I of transmission, transformation and distribution pf electrical energy, there used to be a loss of energy in the PESCO to the extent of about the percent., but in 1958 it was noticed by the Chief engineers of the PESCO that the losses were amounting up to 20 to 25 per cent. The abnormal percentage of loss led the Chief Engineer to suspect that electrical energy was being stolen in some of the industrial installations. Accordingly, he deputed his subordinates to check up the meters and seals of the industrial installations.
3. The prosecution case further is that on the 1st July, 1958, the Chief Engineer (P. W. 1) along with S. Chatterjee (P. W. 2) and another officer pf the PESCO named Srinivasan visited the respondent's mill and inspected its installation in the presence of the respondent. As a result of their inspection, P. Ws. 1 and 2 found that one of the;seals of the meter was in broken condition and the top nut towards the left side of the meter was lopse and the top nut was screwed up and raised with the result that the corresponding stud hole had been exposed. On that occasion the meter reading was 41596. A formal report (Ext. 5) to this effect was drawn up by P. W. 2 on the same ay. On the 10th July, 1958, Chatterjee (P. W. 2) and H. K. Sen (P. W. 6) went to the respondent's premises twice; once at 11-20 a. m. and agjain at 12-30 p. m., but on both these occasions the respondent was absent and the box in which the meter was kept was locked. P. W. 2 and 6 were, therefore, unable to inspect the meter and tally were only able to take the index reading which was found to be 41751. A report (Ext. 6) to his effect was submitted by P. W. 2 to the Chief (Engineer (P. W. 1). On the 12th July, 1958, the Chief Engineer filed a complaint against the respondent in the Court of the Sub-divisional Magistrate, and the respondent was summoned to . take his trial.
4. On the 15th July 1958, the Assistant Electric Inspector (P. W. 4) of the Government of Bihar went to the respondent's mill along with Chatterjee (P. W. 2) for the purpose of inspecting the meter. They met the respondent, but the latter Irefused to allow them to inspect the meter. On the 2nd August, 1958, a prayer made by the Chief [Engineer in Court to seize the meter and to prcjduce it in Court was refused at the opposition I of the respondent. On the 30th October, 1.958, Supervisor (P. W. 10J of the PESCO wetit to check the respondent's meter and found rustlings on the seal and the sealing wire and he made a report (Ext. 16/3) to this effect. Then on the 4th November, 1958, an order was passed for the seizure of the meter and its production in Court. In petulance of this order, an Honorary Magistrate I (P. W. 8) seized the meter on the 27th November, 1958, in presence of the respondent and made it over to Assistant Sub-Inspector Sheo Beak Singh (P. W. n), who obtained a receipt (Ext.T14) from the respondent. After the meter had, teen seized and produced in Court, it was found that the meter was rusted to such an extent that tare of the left hand seal bits had dropped out and a lot of dust had accumulated on the disc of the meter. The sealing wire had also rusted and the position of the seal was found to have been changed. On the 12th March, 1959, R. V. P. Shrivastava (P. W. 9), a Government Fire Arms Expert, took the scrapings of the rusted portions of the meter which were subsequently sent for chemical examination, and the report of the Chemical Examiner showed that reactions of chloride and nitrate were found in the rustings.
5. Upon the aforesaid facts, the respondent was charged with the following offences:
(i) Under Sections' 39 and 44 of the Indian Electricity Act;
(ii) Under Rule 138 read with Rule 5G of the Indian Electricity Rules; and,
(iii) Section 201 of the Indian Penal Code,
6. The respondent admitted that he was the owner of the mill and had entered into an agreement (Ext. 1) with the PESCO, but he denied that he was responsible for the tamperings noticed in the meter. He characterised the prosecution case as false and took the defence that he had been falsely implicated by the Chief Engineer, who had given a notice to him in 1956 on the basis of a report made to him by one of his subordinates, but later on, the Chief Engineer expressed his regret to the respondent for having given the notice to him since his subordinate had gone back upon, the allegations made against the respondent.
7. Upon a consideration of the materials on the record, the learned trying Magistrate recorded the following findings:
(i) That the respondent is a consumer of the PESCO under account No. 12438 and meter No. 12438 was intalled at his premises after proper testing and sealings:
(ii) On the 1st July, 1958, one of the seals of the meter was found to have been tampered with when P. Ws. 1 and 2 had gone to inspect it. There is no reason to disbelieve the evidence of P. Ws. 1 and 2 that on the 1st July, 1958, one of the top nuts of the meter was found loose and screwed up, in consequence of which the stud hole had been exposed;
(iii) Under the rules, it is the liability of the consumer to see to it that the seal of the meter is not broken and the respondent as the consumer is guilty Under Clause (b) of Rule 138;
(iv) There is no evidence as to who actually broke one of the seals;
(v) There is no direct residence that the electrical energy was being impropexiy used or the meter was not properly recording the consumption of electrical energy;
(vi) The meter was in the custody of the respondent. No body would break the seal and losen the nut or expose the stud hole merely for the Bake of fun. The respondent was the only person to gain from dishonest user of electrical energy, but the prosecution has not shown that the meter was prevented from duly registering the consumption of electrical energy; and,
(vii) There is only a suspicion of theft or prevention of the meter from duly registering the consumption of electricity, but there is no evidence that "it was so actually.
8. Upon the aforesaid findings, the learned Magistrate has convicted the respondent under Rule 138 (b) of the Indian Electricity Rules and sentenced him to pay a fine of Ks. 50/-, with one month's simple imprisonment in default, but has acquitted the respondent of the other three charges. The Chief Engineer has since preferred this appeal with special leave Under Section 417 (3), Code of Criminal Procedure.
9. Mr. Avadhesh Nandan Sahay appearing in support of the appeal contends that the acquittal of the respondent of the charges Under Sections 39 and 44 of the Indian Electricity Act and Under Section 201 of the Indian Penal Code is not justified, and that once it is accepted that the meter which was in custody or control of the respondent had been tampered with in the manner deposed to by P. Ws. 1 and 2, there is no escape from the conclusion that the respondent is guilty under the aforesaid provisions of the Electricity Act. It is further contended that upon the evidence, rusting having been found on the meter and its seals subsequent to their inspection conducted by P. W. 1 and 2 on the 1st July, 1958, as confirmed by the Chemical Examiner's report, it must be held that the respondent had caused the destruction of evidence of commission of offence Under Sections 39 and 44 of the Electricity Act with the intention of screening himself from legal punishment and had thereby committed an offence Under Section 201 of the Indian Penal Code,
10. The substantial question arising for determination in this appeal is whether the tamper-ings in the meter noticed by P. Ws. 1 and 2 on the 1st July, 1958, constituted the creation of an artificial means for dishonest abstraction of electrical energy within the meaning of Section 39 of the Indian Electricity Act. Upon the evidence of P. Ws. 1 and 2, which there is no reason to disbelieve, it must be held that the. seal on the left side of the meter had been broken, the top nut on the same side of the meter had been loosened and screwed up and thereby the stud hole had become exposed. Once the stud hole is exposed, it is easy to interfere with the normal rotation of the disc of the meter, either by some mechanical means or by letting in dust or moisture inside the meter. Therefore, the exposure of the stud hole is in itself the creation of an artificial means for dishonest abstraction of electrical energy, since, in an un-tampered state,, the meter is sealed after fully tightening up the top nuts and thereby completely blocking the stud hole so as not to allow any external substance to have access inside the meter. It is the act of losening the top nut, which has the necessary effect of exposing the stud hole, which brings about the existence of an artificial means for dishonest abstraction of electrical energy. The view which I have taken is supported by a Bench decision of this Court in State of Bihar v. Parsuram Sao 1963 BLJR 182, wherein it has been held at page 187 that:
'means" which are unauthorised will come within the purview of 'artificial means' as contemplated under the Act, and an abstraction of energy through that 'means' will mean 'unauthorised abstraction' ....Under the provisions of this section, therefore, the prosecution has merely to prove the existence of artificial means for dishonest abstraction on the premises where the alleged offence has taken place. The burden would then shift to the accused to show that the artificial means on their premises was not for purpose-of dishonest abstraction in order to avoid a conviction.
11. It was contended by Mr. Gupta appearing on behalf of the respondent that the mere exposure of the stud hole by loosening and screwing up the top nut does not constitute the creation of an artificial means for dishonest abstraction of electrical energy and that it must further be proved that some external object, such as a thin wire or dust or moisture, had also been let in, causing the prevention of the normal rotation of the meter dies. My attention was drawn in this connection to the evidence of Chatterjee (P. W. 2) which shows that in another installation which he had inspected on the nth June, 1958, a wire had been found inserted through the stud hole into the meter, thereby stopping the revolution of the disc. I am, however, unable to accept the contention of the learned Counsel that unless an external object like a wire has been inserted through the stud hole, no artificial means for dishonest abstraction of electrical energy can be said to have been brought into existence. The argument of the learned Counsel ignores the consequences of unscrewing the top nut and thereby exposing the stud hole. As Ramaswamy (P. W. 1) has rightly deposed:
By breaking the seal and loosening the studs and nuts one can get access into the mechanism of the meter and stop the dies of the meter from revolving. He can do anything with the mechanism of the meter. He can also slow down the movement of the disc.... One can insert a wire into the meter to stop the disc from moving. If dust is thrown inside the meter by any means, the disc may stop rotating or its speed will be slowed down.... The meter is dust proof.
Similarly, Chatterjee (P. W. 2) has deposed:
By exposing the stud hole of the meter as found on 1-7-58, a means was achieved to prevent the meter from registering consumption at any time and to abstract power free of charge of the extent he liked.
The Senior Meter Tester (P. W. 7) has also deposed that the meter is dust proof. He has further deposed that.
If the nut is loosened a hole is exposed on the meter cover. Through this hole one can get access into the mechanism of the meter. A thin wire can be inserted through this hole to retard or completely stop the revolution of the disc.
It is, therefore, clear that the only purpose for which one can think of tampering with the seals of the meter and exposing the stud hole by unscrewing (the top nut is to have access inside the mechanism of the meter. Therefore, the very act of exposing the stud hole as aforesaid constitutes the creation of an artificial means for dishonest abstraction of electrical energy. There can be no other purpose of exposing the stud hole as aforesaid. Therefore, the exposure of the stud hole constitutes the creation of an artificial means of device for dishonest abstraction of electrical energy by having unauthorised access to the meter disc. If the stud hole is kept exposed, then the meter ceases to be dust proof, and, therefore, even without inserting a thin wire through the exposed stud hole, one can impede the normal rotation of the meter disc, by allowing dust to flow inside the meter dise. By allowing dust to flow inside the meter by natural process. If the stud hole of a dust prqof meter is kept exposed, then it is natural to expect that dust will automatically flow inside tie meter and affect the free movement of the disc. Therefore, if a consumer wants to make a dishonest user of electrical energy, then, all that he need to do is to loosen the top nut and keep the stud hole exposed, and by this means allow the dust to automatically flow inside the meter, causing %he rotation of the disc to be retarded. I am, therefore of the opinion that the very act of loosening the top nut, which necessarily exposes the stud hole, amounts to bringing into existenca an artificial means for dishonest abstraction of electrical: energy, and it is not necessary that it must further be proved that some external object or wire had also been introduced into the meter through the exposed stud hole.
The learned Magistrate also has rightly pointed out that no body would think of breaking the seal and loosening the nut or exposing the stud hole merely for the sake of fun. It is obvious that such a means or device is adopted only for the purpose of dishonestly abstracting or improperly using the electrical energy. It must, therefore, be held that what P. Ws. 1 and 2 had found as a result of their inspection of the respondent's installation on the 1st July, 1958, was the existence of Ian artificial means for dishonest abstraction of electrical energy within the meaning of Section 19 of the Electricity Act. Under that section, the existence of an artificial means for such abstraction is prima facie evidence of dishonest abstraction of electrical energy, and in the absence Of any evidence to the contrary, the mere existence j of artificial means for such abstraction must lead to the conclusion that there has been dishonest abstraction of electrical energy.
12. Where the meter which has been tampered with as aforesaid is in the control or custody of the consumer, it is legitimate to infer that it is the consumer who is responsible for bringing into existence such an artificial means or device for abstraction of electrical energy because he is the persqn who really stands to profit by such dishonest I abstraction or user of electrical energy. In an urjreported decision of this Court in Govt. Appeal No. 1 of 1960 : (1963 (2) Cri LJ 579) State of Bihar (v. Ram Chandra Prasad Sharma and analogous cdses, disposed of on the 23rd January, 1963, it was held by a Bench that from the very nature of things, the prosecution cannot be expected to I adduce direct evidence that the consumer was responsible for bringing into existence the artificial ifneans of abstraction, and in the majority of such cases, the offence of theft of electrical energy can only be proved by circumstantial evidence. Ifc was further held:
Where the consumer is shown to be in custody or Control of the meter, he is undoubtedly the person who stands to profit by dishonest abstraction, user or consumption of electrical energy, and the Existence of an artificial means or device of abstraction must inevitably lead to the conclusion that it is he who is responsible for having brought it into existence, and that would be sufficient proof of his guilt Under Section 39 of the-Act. The inference of guilt arising from such circumstances may, no doubt, be rebutted, if the consumer is able to bring some material on the record to show that he had no personal knowledge of the existence of the artificial means of abstraction, which, for example, had happened at a time when he was out of touch with his business;, either because he was ill or out of station at the-relevant time. But in absence of any such material, the inference of his guilt Under Section 39 of: the Act must be drawn from the chain of circumstantial evidence referred to above.
13. In the instant case, the respondent was-undoubtedly the consumer in whose custody 01 control the tampered meter was at the material, time. It must, therefore, follow that he was responsible for the creation of tilts artificial means for dishonest abstraction of electrical energy. The onus undoubtedly lay upon him to show that the exposure of the stud hole was not for the purpose of dishonest abstraction. The respondent has failed to discharge this onus, and, therefore, the very existence of the artificial means is sufficient to warrant his conviction Under Section 39 of the Electricity Act.
14. On behalf of the respondent, it was urged' that the mere existence of an artificial means of abstraction is wholly insufficient to justify the conclusion that there had necessarily been a dishonest user or theft of electrical energy and that it is also incumbent upon the prosecution to prove that the meter had been prevented from duly registering the consumption of electrical energy, as fact which the prosecution has not proved in this case. But this contention ignores the presumption contained in Section 39 of the Act as interpreted by this Court in 1963 BLJR 182, to which I have already referred. In the unreported decision of this Court referred to above, it was observed as follows:
Nevertheless, the fact remains that the cutting of the sealing wire and tampering with the-meter and its seals constituted an artificial means of abstraction of electrical energy, and theft of energy must be deemed to have been established from the existence of such artificial means, since the respondents have brought no material on the record to rebut the presumption which must be drawn against them Under Section 39 of the Act.
I am, therefore, of opinion that the onus which lies upon the prosecution in such a case for proving an offence Under Section 39 of the Act is discharged merely by proving the existence of an artificial means for dishonest abstraction or use of electrical energy, and an inference of guilt must be drawn from this circumstance alone, unless of course the accused is able to bring some material on the record to show that" despite the existence of such artificial means, there was in fact no theft or dishonest user of electrical energy. In the present case, the prosecution has discharged its onus by proving the existence of an artificial means contemplated by Section 39 of the Act, and the presumption which must be drawn from this circumstance in favour of the prosecution has not been rebutted by any material on behalf of the respondent. I, therefore, see no reason why aw inference of guilt against the respondent Under Section 39 of the Act should not be drawn upon the mere proof of the existence of the dishonest abstraction of electrical eneigy.
15-19. (Paras 15 to 19 have been omitted as they do not contain any point of law. (Ed.))
20. In the result, I set aside the acquittal of the respondent Under Sections 39 and 44 of the Electricity Act and Section 201 of the Indian P.Ena. 1 Code and co evict him under each of the first two sections. Under Section 39 of the Act read with Section 379 of the Indian Penal Code, I sentence the respondent to undergo rigorous imprisonment for six months. Under Section 44 of the Act, I sentence him to pay a fine of Rs. 200/-with two months rigorous imprisonment in default. I also convict him Under Section 201 read with Section 109 of the Indian Penal Code and, under it, I sentence him to undergo rigorous imprisonment for four months, which will run concurrently with tile sentence imposed upon him Under Section 39 of the Electricity Act. The appeal is thus allowed.