Ram Chander Prasad Sharma Vs. State of
Bihar & ANR  INSC 41 (8 February 1966)
08/02/1966 MUDHOLKAR, J.R.
CITATION: 1967 AIR 349 1966 SCR 517
CITATOR INFO :
F 1967 SC 947 (5) R 1983 SC 822 (6)
Indian Electricity Act (9 of 1910), ss. 39
and 50-Existence of artificial means for abstraction of electricity-When
evidence of dishonest abstraction-Complaint to police on behalf of Company-if
prosecution at the instance of person aggrieved.
The appellants mill was supplied with
electric energy by the Patna Electricity supply company. The electric meter was
tampered With by breaking its seals opening its stud and inserting a wire which
prevented the rotation of the disc,so that the consumption of electricity was
not perfected. There was thus a perfected artificial means for abstraction of
energy. At the instance of the Chief 'Engineer of the Electricity Supply
Company, who had been specifically empowered to act on behalf of the company, a
report was made by the Assistant Engineer against the appellant to the police
and the appellant was prosecuted for an offence, under s. 39 of the Indian
Electricity Act, 1910 The trial Court acquitted him but the High Court, on
appeal, convicted him.
In appeal to this Court,
HELD: (i) The appellant was guilty For a
conviction under s. 39, it must perfected artificial means for abstraction
dishonest abstraction was by the accused tampering was so blatant- and so
effect done without the appellant's knowledge or connivance.[524 B-C] Jagannath
Singh atlas Jainath Singh and Sohari Lal v. B.S. Ramrwamy,  1 S..C.R.
(ii) Since the Electricity_ Supply company
was a body corporate it must act only through its officers, and therefore it
would follow that the law was set in motion by the "person aggrieved'
within the meaning of s. 50 of the Act. [523 C]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 48 to 51 of 1963.
Appeals from the Judgment and Order dated the
23rd January 1963 of the Patna High Court in Government Appeals Nos. ' of'
1960, 39 and 19 of 1959, and Criminal Appeal No. 42 of 1959 respectively.
M/s. Nuruddin Ahmad and U. P. Singh, for the
Appellants (Ir Cr. As. Nos 48 to 50 of 1963, and Appellant No. 2 (In Cr. A. No.
51 of 1963) :
M/s. D. P. Singh and U. P. Singh, for
Appellant No. 1 (Jr, Cr. A. No. 51 of 1963):
M/s. A. N. Sahay, N. K. Prasad Bukhaiyer and
for Respondent No. 1.
M/s. A. N. Sahay and S. P. Varma, fog
Respondent No. 2.
518 The following judgment of the court was
delivered by Mudholkar J.-By a common judgment delivered on January 23, 1963
the High Court at Patna decided four appeals preferred by the State of Bihar
and two criminal revision petitions, one on behalf of the complainant and
another on behalf of an accused person. Those appeals arose out of four
prosecutions launched against certain persons running mills or factories which
were supplied with energy by the Patna Electricity' Supply Company (hereafter
referred to as P. E. S. Co., for the sake of brevity). The offenses with which
they were charged were under ss. 39 and 44 (c) of the Indian Electricity Act,
1910 (9 of 1910) and r. 138 read with r. 56 made under the Act. The trying
magistrate acquitted all those persons who are appellants before us in respect
of each of these offenses, except Ram Chander Prasad, appellant in Crl. A. 48
of 1963. He was convicted of all the three offenses and sentenced variously. In
appeal he was acquitted of the offence under s. 39 by the Additional Sessions
Judge, Patna while his conviction and sentences under the other two provisions
were upheld. The State thereupon preferred an appeal against his acquittal
under s. 417, Code of Criminal Procedure before the High Court. The State
likewise preferred appeals against the acquittal of the accused persons in the
other three cases. All the appeals were heard together and were substantially
The complainant Ram Chandar Parsad Sharma's
petition was allowed and that of an accused person dismissed. The accused
persons have, therefore, preferred four appeals before us and though we will
deal with them in this judgment we will take them separately one after the
Criminal Appeal No.48 of 1963 According to
the prosecution, on June 11, 1958 the Assistant ,Engineer (Mains) of the P. E.
$. Co. by name Chatterjee visited the Ramji Mills situated at Dinapur. The mill
is run with a 15 horse power motor which is supplied with electric energy by P.
E. S. Co. lt is provided with a three phase mater. Chatterjee found the mill
working but noticed that the disc of the meter was not rotating with the result
that the consumption of electrical energy was not being registered at all. Upon
inspection of the meter Chatterjee noticed that a piece of wire had been
inserted into the meter through the top stud hole on the right hand side of the
meter cover. This h. d been done by unscrewing the nut and thus exposing the
stud hole. Eventually a report was made to the police by Chatterjee at he
instance of Ramaswami the then Chief Engineer and General Manager of P. E. S.
After investigation the appellant was placed
for trial before the Judicial Magistrate, First Class, Dinapur. He framed
charges against him in respect of all the three offenses. The appellant pleaded
not guilty and denied having inserted the wire inside the meter or to have
tampered with it in any way. His main defence, however, 519 was that the mill
belonged to the joint family and its management was in the hands of his father
He further said that he was practicing
medicine and was running a homoeopathic dispensary in Dinapur. He did not deny
that the meter had been tampered with but according to him this was done by
Chatterjee himself because he was not given illegal gratification which he had
demanded from Lohari Pandit, who was the munshi of the Mill.
All the courts are concurrent in holding that
the appellant was running the mills and that he was a consumer as defined in s.
2(c) of the Act. Moreover, his convictions under s. 44(c) and under r. 138 read
with r. 56 are not challenge before us. In the circumstances it is not open to
him now to say that he had no concern with the mills. The only question then is
whether the offence Under s. 39 has been brought home to him Section 39 of the
Act reads thus :
"Whoever dishonestly abstracts consumes
or uses any energy shall be deemed to have committed theft within the meaning
of the Indian Penal Code and the existence of artificial means for such abstraction
shall be prima facie evidence of such dishonest abstraction." It has been
concurrently found by the courts below that at the time of the inspection the
mill was working but the meter was not registering the consumption. It has also
been found concurrently that the meter had been tampered with, that its seals
were broken, that its stud was open and a wire had actually been inserted in it
which prevented the disc from rotating. These findings were not challenged
before us and in our opinion quite rightly. What was, however, said was that in
view of our recent decision in Jagannath Singh alias Jainath Singh and Sohari
La v. B. S Ramaswami(1) these facts by themselves would not justify the
inference that the appellant has committed an offence under s. 39. That was a
am in which, though the meter seal was broken and the sealing nut was loosened
which exposed the stud hole of the meter there was no evidence to show that a
wire or any other foreign matter had been introduced in the meter which would
have the effect of stopping or retarding the rotation of the disc. The meter
was actually registering consumption of energy and the prosecution had not
established by using a check meter or otherwise that what was being registered
was less than the current actually consumed by the mill. It is in the
background of these facts that this Court observed "The effect of the last
part of s. 39 'is that the existence of the unauthorised means for abstraction
is Prima facie (1)  1 S.C.R. 885.
520 evidence of dishonest abstraction by some
person. The special rule of evidence goes no further. The prosecution must
prove aliunde that the accused made the abstraction. The fact that the accused
is in possession and control of the artificial means for abstraction coupled with
other circumstances showing that he alone is responsible for the abstraction
may lead to the inference that he is guilty of the dishonest abstraction."
This Court also. held that an exposed stud
hole cannot by itself be, regarded as a perfected artificial means for
abstraction of electrical energy. In the present case, however, the artificial
means was 'perfected' because a wire had actually been introduced through the
stud hole and had the effect of preventing the rotation of the disc. The High
Court has held that the appellant was not merely a consumer but was the person
who supervised over the working of the mill and the custody of and control over
the meter could not be with anyone else but him.
Tampering was so blatant and so effective
that it could no. have been done without his knowledge or connivance. Further
there is evidence on record to the effect that it takes a considerable time and
requires certain amount of skill to do what has been found to have been done to
this meter. Clearly, therefore, it could not be the work of anyone other than
an interested person. Indeed, looking to the effectiveness of the tampering it
must follow that its object was to prevent the recording of electrical energy
consumed by the mill. The person interested in this would naturally be the
consumer. The learned Additional Sessions Judge no doubt said that the
possibility of the appellant's father or some other member of the family
tampering with the meter' cannot be ruled out. In our view such a speculative
possibility is not enough to create reasonable doubt, the benefit of which
could be given to the appellant. In our opinion, therefore, the High Court was
right and accordingly we dismiss this appeal.
Criminal Appeal No. 49 of 193 This case deals
with Onkar Mills which, according to the prosecution, is run by the appellant
Jainarain Lal. When Chatterjee ins- pected this mill along with Kamla Prasad,
Government inspector, on June 13, 1958 he found that two, seating wires of the
meter were broken. He drew up a report of this on August 2,1958 and submitted
it to Ramaswami.
Before this date, however, that is, on July 1
1958 Ramaswami had visited the place along with Chatterjee and Srinivasan, the
then mains Superintendent. Both the appellants took these persons to the room
in which the meter had been installed. Ramaswami found the sealing wires cut
near the seals and also found that both the seals had been tampered with.
According to the prosecution, therefore, the appellants were guilty 521 of
offenses not only under r. 138 read with r. 56 framed under that Act but also
of offenses under s. 44(c) and s. 39 of the Act. In so far as the offence under
s. 39 is concerned what is mainly relied upon by the prosecution is that while
between June 28 and July 1, 1958 the meter reading showed a daily consumption
of electric energy at about 300 units, for the period prior to that it showed
an average daily consumption of only 100 units.
In so far as the. offence under s. 44(c) is
concerned the facts to be borne in mind are these : On July 1958 the meter was
bound with wires at the instance of the P. E. Co.
officials. It is, however, a fact that the
meter. stopped registering the current used all of a sudden within 24 hours.
Indeed, on this score the appellants themselves made a complaint to the P. E,
S. Co. by telegram. When the meter was examined it was found that nitric acid
had been poured on it and thus the meter had been tampered with.
This evidence was not accepted by the trying
magistrate who felt that things looked rather suspicious. On the other hand the
High Court upon a consideration a the evidence has come to the conclusion that
the meter had been deliberately tampered with. The appellants have been found
by the High Court to be consumers and in our opinion rightly and, therefore,
with respect to the offence of tampering which is punishable under s. 44(c)
they must be held to be guilty.
It is not for us to re-assess the evidence on
the point because it is the High Court which as the final court of facts, has
to assess evidence. In the circumstances we see no ground to E interfere with
the convictions and sentences passed on the appellants by the High Court for
the offence under s. 44(c) of the Act.
In so far as the offence under r. 138 read
with r. 56 is concerned it is clear that the offence has been Established.
Indeed, it is not even the appellants' case
that the meter was not tampered with. But according to them all this was done
by Chatterjee. This explanation has been rejected by the High Court and in our
opinion rightly. We, therefore, dismiss their appeal in respect of their
conviction and sentences for this offence.
In our opinion, the conviction of the
offenses under s. 39 is unsustainable. It is no doubt true that the meter had
been tampered with. But there is nothing to show that there was any perfected
artificial means in existence so as to raise the presumption of dishonest
abstraction under s. 39 prior to the stopping of the meter. The mere fact that
the consumption of energy between June 28 and July 1, 1958 was a 300 units per
day whereas it was much less prior to that date does not necessarily lead to
the inference that in the past there was dishonest abstraction of electric
The rise in consumption between June 28 and
July 1, could be accounted for by circumstances such as longer working hours
user of current in a wasteful manner, user of current for more 522 appliances
and so on. In the circumstances, therefore, we do not think that the High Court
was right in convicting the appellants under 39 of the Act. We, therefore, set
aside their convictions and sentences in respect of the offence under S. 39.
Criminal Appeal No. 50 of 1963 This appeal
concerns the tampering of seats of three power meters installed in the mill
belong into the appellant Krishna Prasad Sao. Accepting the evidence of N.
Ghosh, a meter inspector,' the High Court has held the prosecution case to be
established. the assessing the evidence of Ghosh the prosecution has referred
to the evidence of Ramaswami who had inspected the meters in question three
days after Ghosh had inspected them and also to the, evidence of the Mains
Superintendent Bhattacharya and meter reader Sen who accompanied him. The High
Court has also accepted the prosecution case that at the inspection by Ramaswami
it was found that the terminal covers of two of the meters were dislodged from
their normal positions and were actually hanging by the wires. It was also
found that the cover seals of all the meters had been tampered with. Indeed,
according to Ramaswami the seals had- been so cut and placed that despite what
had been done they gave a deceptive appearance of being in tact. It was further
found that there were no seals on two of the cut-outs that the seals on the
terminal covers of all the three meters were not genuine and that one of the
meters had registered no advance whatsoever subsequent to Ghosh's visit on the
19th while the other two had F registered only 49 and 50 units respectively
between that date and the 22nd July.
It may be mentioned that Krishan Prasad
actually made an extra-judicial confession when he was questioned by Ramaswami
regarding the tampering. He no doubt retracted the confession but the High
Court has relied upon it.
Acting on the evidence the High Court set
aside the acquittal of Krishan Prasad in respect of all the offenses including
the one under s. 39 of the Act.
Before we come to the merits we will deal
with an objection to the effect that the prosecution was incompetent as it was
not launched by a person competent to do so. It is based upon S. 50 of the Act
which runs thus "No prosecution shall be instituted against any person for
any offence against this Act or any rule, licence or order there under, except
at the instance of the Government or an Electric Inspector, or of a person
aggrieved by the same.
The prosecution here was commenced with a
charges sheet submitted by the police to the Judicial Magistrate. The offenses
were investigated into by the police after the first information reports was
launched 523 with them by Bhattacharya. What is contended is that information
given by him could not entitle the police to submit the charge sheet. It is
also said that submission of a charge sheet by the police is not the same thing
as institution of prosecution at the instance of the State. It is, however, not
dispute 1 that if the law was set in motion by a person aggrieved by making a
first information report to the police a charge sheet could properly be
submitted by the police. It is true that Bhattacharya was not himself a "person
aggrieved" and that the "person aggrieved" was the P. E. S. Co.
The P. E S. Co. however, is a body corporate and must act only through its
directors or officers. Here we have the evidence of Ramaswami to the effect
that he held a general power of attorney from the P. E. S. Co., and that he was
specifically empowered thereunder to act on behalf of P. E. S. Co., in all
legal proceedings. The evidence shows that it was at his instance that
Bhattacharya launched the first information report and, therefore, it would
follow that the law was set in motion by, the "person aggrieved".
The objection based on s. 50 must, therefore,
be held to be untenable.
Now as to the merits. In so far as
convictions for the offenses under s. 44(c) of the Act and r. 138 read with r.
56 are concerned there is ample evidence. In
addition to the evidence of Ramaswami and Bhattacharya there is the evidence of
Kamla Prasad, Assistant Electrical Inspector who is an independent person. The
evidence of these witnesses has been believed by the High Court and it shows
clearly that the meters were tampered with and the seals cut. The finding of
the High Court that Krishna Prasad Sao was a consumer and that the meters Were
in.-his custody and under his control is also based upon adequate material. The
High Court was, therefore, justified in convicting the appellants for offenses
under those provisions. The High Court has also relied upon the extra-judicial
confession of Krishna Prasad which, it may be mentioned, was retracted by him
later in the sense that he denied having made any such confession. Mr. Nuruddin
Ahmed on behalf of the appellant contended that no conviction can be based upon
a retracted extra-judicial confession.. The respondent contended that this was
not a case of retracted confession to which the rule of prudence requiring
corroboration applies. It would not be profitable to discuss the merits of the
rival contentions and we will proceed on the assumption that this is a case of
retracted confession. It seems to us that in any I event Mr. Nur-ud-din's
contention cannot be accepted.
In Pyarelal v. State(1) this Court, while
pointing out that ordinarily corroboration is required it is not a rule of law
but only a rule of prudence. It is also said that it is not an inflexible rule
of practice or prudence that in no circumstances such a conviction can be used
without corrobo- (1)  Supp. 1 S.C.R. 689.
524 ration, on a retracted confession. We are
satisfied that the High Court had before it adequate material apart from the
retracted confession for holding that the meters had been tampered with and the
In so far as the conviction under s. 39
concerned the matter stands on a different footing. It is not sufficient to say
that a meter had been tampered with a and that it was under the control of the
accused person. It is further necessary to show that there was dishonest
abstraction, consumption or use of electrical energy by the accused person.
Before raising a presumption thereunder that there was dishonest abstraction
the presence of an artificial means which would render abstraction of energy
possible has to be established.
Here we have three-phase meters and,
therefore, unless all are tampered with abstraction of energy without fear of
detection is not possible. It is difficult to presume that the appellant would
have knowingly done something to the meter which would not have escaped
detection of a meter reader and facilitated the abstraction of electric energy.
In fact what he had said in his confession
was that Jai Narain, a meter reader of the company had done something to the
meter. That may or may not be so. Jai Narain who was co-accused with the
appellant was acquitted by the trial court and his acquittal was not challenged
by the State.
There is no material on the bar is of which
it could be held that there was either a perfected artificial means of
abstraction or there was in fact any abstraction of electrical energy. In the
circumstances the presumption permissible under s. 39 cannot be raised in
favour of the prosecution. It follow, therefore, that the appellant's
conviction under s. 39 is unsustainable. We accordingly set it aside as also
the sentences passed upon him in respect of that offence.
Criminal Appeal No. 51 of 1963 The appellant
here is Durga Prasad. The mains which were alleged by the prosecution to have
tampered with were installed in Shankarji Mills. According to the prosecution
the appellant Durga Prasad and Chandra Mohan Prasad are the proprietors of the
mill, having purchased it from one Musanlal. It is not disputed that the sale
deed is in their names. According to the appellants, however, it was purchased
by Sarju Prasad father of Durga Prasad and maternal grandfather of Chandra
Mohan. On June 18, 1958, Chatterjee inspected the installation. Further,
according to him the normal consumption of the mill would be 70 units per day
of eight hours working while the meter showed 700 to 750 units per month. He
also found that both the seals provided on the top cover of the meter had been
tampered with and the top right sealing nut on the stud to, be loosened and-
raised up leaving stud hole on the meter exposed. He also found lot of did in
the 525 meter. The company's seals on one of the cut-outs were also found
missing. He, therefore, reported the matter to Ramaswami and also on June 19,
1958 there was a joint inspection by Ramaswami and Chatterjee. Eventually a
prosecution was launched against the appellants for offenses- under s. 39 and
s. 44(c) of the Act and r. 138 read with r. 56. As already stated, the
appellants were acquitted by the trying magistrate but were convicted by the
The main contention raised on the appellant's
behalf by Mr.
Nur-ud-din is that the appellants cannot be
regarded as con- sumers and, therefore, they could not be convicted of any of
It is no doubt true that in the company's
books it is Musanlal, the original owner who is shown as proprietor of the
mill. But it is not denied that he sold the mill to the appellants. It may be
that the consideration came from Sarju Prasad but the evidence which has been
accepted by the courts below shows that the mill was actually run by both the
appellants. According to the prosecution the appellants are partners. Though it
is true that the partnership deed has not been placed before us there is other
material which would justify the conclusion that they are partners. The fact
that the sale deed stands in the names of both these persons shows prima facie
that both of them have interest in the mill. Then there is a statement of
Ramaswami to the effect that they were partners. Then there is the evidence to
the effect that both of them were taking part in running the mill. In the
circumstances they could both be held to be the co-owners of the mill. Before
its amendment in the year 1959 the definition of consumer in s. 2(c) was as
"Consumer means any person who is
supplied with energy by a licensee, or whose premises are for the time being
connected for the purposes of a supply of energy with the works, of a
licensee." It is an admitted fact that the mill was connected with works
of P. E. S. Co. If, therefore, the appellants became co-owners by reason of the
purchase of the mill from Musanlal they must be regarded as consumers even
though Musanlal's name still continues to be borne on the records of P. E. S.
The High Court has found as a fact, after
consideration of the evidence, that the meters had been tampered with and the
company's seals broken. The appellants who are consumers are thus liable to be
convicted under S. 44(c) and r. 138 read with r. 56.
In so far as the offence under s. 39 is
concerned the position is, however, different. There is no material on the
basis of which it could be said that what was done to the meter was a perfected
M11Sup/CI66-2 526 artificial means by reason of which dishonest abstraction,
consumption or use of electrical energy was possible. Nor again, is there
evidence to show that electrical energy was being consumed by the mill over and
above what was recorded by the meters. In these circumstances the conviction of
the appellants under s. 39 cannot be maintained. We, therefore, allow his
appeal to this extent and set aside the conviction and sentence in respect of
the offence under s. 39 of the Act.
What we have said above is sufficient to
dispose of all the appeals.
Appeal 48/63 dismissed.
Appeal Nos. 49, 50 and 51 of 63 allowed in