Jagarnath Singh Vs. B. S. Ramaswamy
[1965] INSC 188 (22 September 1965)
22/09/1965 BACHAWAT, R.S.
BACHAWAT, R.S.
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION: 1966 AIR 849 1966 SCR (1) 885
CITATOR INFO :
RF 1967 SC 349 (3) F 1967 SC 947 (4,5,6) D
1990 SC 882 (4)
ACT:
Indian Electricity Act (9 of 1910), ss. 39,
and 44 and Indian Electricity Rules, 1956, r. 138-Scope of
HEADNOTE:
Consequent on the discovery of an abnormal
waste of electrical energy, investigations were started and it was found that
the meter of the appellant, who was an industrial power consumer, had been
tampered with. The seal on the meter cover was broken, a sealing nut was
loosened imposing a stud hole, and it was thus possible to retard the rotation
of the inside disc. The appellant was charged with offences under ss. 39 and 44
of the Electricity Act, 1910 and r. 138 of the Electricity Rules, 1956 and was
convicted by the High Court.
In appeal to the Supreme Court,
HELD:(i) In the absence of proof that he used
all reasonable means to ensure that the seal should not be broken, the
liability of the appellant was absolute under r. 138, and so, he was rightly
convicted. [886 H] (ii) The exposure of the stud hole was an artificial means
for preventing the meter from duly registering the energy supplied, and since
the appellant, having custody or control of the meter did not rebut the
pre-resumption under s. 44 that he wilfully and knowingly prevented the meter
from duly registering he was rightly convicted under that section. 887 C-E] (iii)
But the High Court was in error in holding that the exposure of a stud hole on
the meter cover without more,, was an artificial means of abstraction and was
prima facie evidence of dishonest abstraction by the appellant, under s. 39.
The effect of the last part of s. 39 is that
the existence of the unauthorised means for abstraction is prima facie evidence
of dishonest abstraction. By tampering with the meter and causing it to record
less than the units actually passing through it, a consumer may take unrecorded
energy without paying for it and such unauthorised taking would be abstraction.
A meter with an exposed stud hole, without more, is not a perfected instrument
for unauthorised taking of energy and cannot be regarded as an artificial means
for its abstraction. 'Me existence of artificial means for preventing the meter
from duly registering, gives rise to the presumption, that the meter was
prevented from duly registering, only for purposes of s. 44, but that
presumption cannot, be imported into s. 39. [888 A-B, C. E]
CRIMINAL APPELLATE JURISDICTION :Criminal
Appeals Nos. 76 and 130 of 1963.
Appeals by special leave from the judgment
and order dated the April 5, and 25, 1963, of the Patna High Court in Criminal
Appeals Nos. 5 and 6 of 1961 respectively.
886 Akbar Imam and D. Goburdhan, for the
appellant (in Cr. A. No. 76 of 1963).
D.Goburdhan, for the appellant (in Cr. A. No.
130 of 1963).
Avadesh Nandan Sahay and S. P. Varma, for
respondent No. 1 (in both the appeals).
The Judgment of the Court was delivered by
Bachawat J. The two connected appeals raise common questions of construction of
ss. 39 and 44 of the Indian Electricity Act, 1910 and Rule 138 of the Indian
Electricity Rules, 1956. The appellants in both appeals have been convicted
under ss. 39 and 44 of the Indian Electricity Act, 1910 and rule 138 (b) of the
Indian Electricity Rules, 1956. The appellant in Criminal Appeal No. 1 30 of
1963 has also been convicted under s. 201 of the Indian Penal Code.
The Patna Electric Supply Co. Ltd. supplied
electrical energy in Patna, Patna City and Dinapur to about 22,000 consumers,
of whom about 900 were industrial power consumers. The normal wastage of energy
in course of transmission was 15 to 16 per cent of the units generated.
In 1958, the Chief Inspector of the Company
noticed an extra abnormal loss of about 8 per cent which could not be due to
wastage in transmission and suspected extensive theft of the Company's
electrical energy. Vigours investigations were started, and after surprise
raids and inspections, it was discovered that the meters of several consumers
had been tampered with. Both the appellants are industrial power consumers at
Dinapur. The Inspectors found that the meters of both the appellants had been
tampered with. In respect of both meters they found a seal on the meter cover
broken and a sealing nut loosened exposing a stud hole on the meter cover.
Through the exposed stud hole it was possible to insert a thin wire, dust or
moisture inside the meter and thereby to retard the rotation of the inside
disc. In due course, complaints were filed against the appellants.
Rule 56(2) of the Indian Electricity Rules,
1956 requires that the consumer shall use all reasonable means in his power to
ensure that no seal affixed ,to his meter is broken otherwise than by he If the
seal is broken in contravention of r. 56. even the consumer who has not himself
broken the seal is Punishable under P.,. 138 with fine, unless he proves that
he used all reasonable means in his power to ensure that the seal should not be
broken. In the absence of such proof, the liability of the consumer in respect
of the breakage of the seal is absolute under r. 138(b). The 887 appellants
were rightly convicted of the offence under r.
138(b). We may now read the relevant part of
s. 44 "44.Whoever(c) prevents any such meter .... from duly ...... and if
it is proved that any artificial means exist for prevention as is referred to
in clause (c) and that the meter is under the custody or control of the
consumer, whether it is his property or rot, it shall be presumed, until the
contrary is proved, that such prevention .... has been knowingly and wilfully
caused by such consumer." The exposure of the stud hole permits the
insertion of foreign material inside the meter retarding the rotation of the
inside disc, and is thus an artificial means for preventing the meter from duly
registering the energy supplied. For purposes of s. 44 the existence of such an
artificial means raises the presumption that the consumer, in whose custody or
control the meter is, wilfully and knowingly prevented the meter from duly
registering. To raise this presumption, it is not necessary to prove also that
the consumer was responsible for the artificial means or that the meter was
actually prevented from duly registering. The appellants did not rebut the
presumption, and were rightly convicted under s. 44.
The High Court also convicted the appellants
of the offence under s. 39. It held that the exposure of the stud hole was an
artificial means of abstraction of energy and was prima facie evidenceof
dishonest abstraction by the consumer. Section39 reads "Whoever
dishonestly abstracts consumes or uses any energy shall be deemed to have
committed heft 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." Whoever abstracts or consumes or uses electrical
energy, dishonestly commits a statutory theft. The theft may be proved by
direct or circumstantial evidence. Direct evidence of the theft is rarely
forthcoming. To facilitate, proof of the theft, the section provides that the
existence of artificial means for such abstraction is prima facie evidence of
such dishonest abstraction We think that the word "abstraction"
should be construed liberally and in the context of s.39 it means taking or
appropriation. Energy may be dishonestly abstracted by artificial means or
unauthorised devices. For instance, energy before it passes through a consumer's
meter may be abstracted from the main of the electric company by an
unauthorised wire connecting the main with a private terminal; the connecting
wire is the artificial means for abstraction. Again, by tampering with the
meter and causing it to record less than the units actually passing through it,
the consumer may take the unrecorded energy without paying for it. The
tampering of the meter and the taking of the unrecorded energy are
un-authorised by the contract with the electrical company, the un-authorised
taking is an abstraction and the crippled meter is a artificial means for
abstraction.
The effect of the last part of S. 39 is that
the existence of the unauthorised means for abstraction is prima facie 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.
An exposure of a stud hole on the meter cover
is an artificial means for preventing the meter from duly registering. For the
purposes of s. 44, the existence of this artificial means gives rise to the
presumption that the meter was prevented from duly registering, but this
presumption cannot be imported into S. 39. A meter with an exposed stud hole,
without more, is not a perfected instrument for unauthorised taking of energy, and
cannot be regarded as an artificial means for its abstraction. To make it such
an artificial means, the tampering must go further, and the meter must be
converted into an instrument for recording less than the units actually passing
through it. A check meter affords an easy method of proving that the consumer's
meter is recording less than the units consumed and is being used as an
artificial means for abstraction of the unrecorded energy. To bring home the
charge under S. 39, the prosecution must also prove that the consumer is
responsible for the tampering. The evidence adduced by the prosecution must
establish beyond doubt that the consumer is guilty of dishonest abstraction of
energy.
In the cases under appeal, the High Court was
in error in holding that the exposure of a stud hole on the meter cover without
more was an artificial means of abstraction and was prima facie evidence of
dishonest abstraction by the appellants . The question still remains whether
the conviction of the appellants -under s. 39 can be sustained upon the
materials on the record.
889 In Criminal Appeal No. 76 of 1963, the
prosecution proved that a seal on the meter cover was broken and a sealing nut
was loosened exposing a stud hole on the meter cover. But the prosecution
proved nothing else. No foreign material was found inside the meter. No attempt
was made to verify that the meter was recording less than the units actually
consumed. The prosecution failed to prove that the appellant abstracted,
consumed or used any energy without paying for it. The appellant was charged
with throwing acid on the meter and attempted to remove the evidence of
tampering, but this charge was not pressed in the High Court. In this state of
the evidence, the appellant is entitled to the benefit of the doubt and the
conviction under s. 39 cannot be sustained.
In the result, Criminal Appeal No. 76 of 1963
is partly allowed, and the conviction and sentence under s. 39 of the Indian
Electricity Act read with s. 379 of the Indian Penal Code are set aside. The
convictions and sentences under s. 44 of the Indian Electricity Act and r.
138(b) of the Indian Electricity Rules are affirmed.
In Criminal Appeal No. 130 of 1963, the
prosecution proved that a seal on the meter cover was broken and a sealing nut
was loosened exposing a stud hole on the meter cover. The tampering discovered
on July 1, 1958. Soon thereafter, the Company's Inspectors made several
attempts to inspect and check the meter. The appellant did not permit the
inspection and the checking. After the seizure of the meter, it was discovered
that acid had been thrown on it with a view to destroy the evidence of the
tampering, and there is ground for believing that this was done by the
appellant or with his connivance. There is reason to believe that the checking
of the meter, if permitted by the appellant, would have disclosed that after
the tampering the meter was recording less than the units actually consumed,
and was used as an artificial means for abstraction of the unrecorded energy.
The materials on the record show that the
appellant was responsible for the tampering. Moreover, the High Court has
recorded the finding that the recorded consumption immediately before the
discovery of the tampering was lower than the normal consumption. We are
satisfied that the appellant abstracted and consumed electrical energy
dishonestly, that is to say, without the intention of paying for it, and the
conviction under s. 39 should be sustained.
We think also that the appellant was rightly
convicted of the offence under s. 201 of the Indian penal Code.
In the result, Criminal Appeal No. 130 of
1963 is dismissed.
Cr. App. 76 of 1963 Partly allowed.
Cr. App. 130 of 1963 dismissed.
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