Perumal v. The Inspector of Police

JUDGMENT This appeal has been filed to set aside the judgment and conviction passed by the learned Principal Sessions Judge, Dindigul, in Spl.C.C.No.4 of 2009 dated 24.07.2020.

2.The appellant, who is accused No.3 in Spl.C.C.No.2009, on the file of the learned Principal Sessions Judge, Dindigul, has filed this appeal, challenging the conviction and sentence imposed on him for the offence under Section 135 of the Electricity Act, by the impugned order dated

24.07.2020.

¶3The brief facts of the case are as follows:- The appellant and the other accused have obtained electricity service connection No.86 from the Tamil Nadu Electricity Board for M/s.Kudagu Industries situated at Kugiliamparai, Vedasandur Taluk, Dindigul District, the appellant representing as Managing Director. On 24.12.2003, at about

01.00 a.m, P.W.1/defacto complainant, who was working as Assistant Executive Engineer, Tamil Nadu Electricity Board, Kugiliamparai and Enforcement of Electricity Board and her team inspected the said Company and found that the accused were said to have indulged in theft of electrical energy. Hence, a complaint was lodged before the respondent police and the same was registered as a case in Crime No.325 of 2003 for the offences punishable under Sections 39(1) and 44(1)(c) of the Indian Electricity Act, 1910. After completion of investigation, the Investigating Officer filed final report before the learned Principal Sessions Judge, Dindigul, and the same was taken on file in Special Spl.C.C.No.2009.

3.1.After taking cognizance, the learned trial Judge framed the charges against the appellant for the offences under Sections 39(1) and 44(1)(c) of the Electricity Act, 1910. On the basis of charges, the learned trial Judge, questioned the appellant and the appellant pleaded not guilty and hence, the trial was conducted and the prosecution adduced the evidence of P.W.1 to P.W.12 and marked the documents under Ex.P1 to Ex.P.13 and also marked 7 material objects under MO.1 to MO.7.

3.2. The learned trial Judge, considered the same, examined the appellant under Section 313 Cr.P.C., by putting the incriminating materials available against him and he denied the same and hence, the case was posted for examination of the defence witness. On the side of defence, no witness was examined and no document was marked.

¶4The learned trial Judge after considering the oral and documentary evidence, convicted the appellant for the offence under Section 135 of the Indian Electricity Act, by the impugned order dated 04.12.2020, and imposed a fine of Rs.12,08.580/- in default, to undergo 3 months simple imprisonment.

¶5Aggrieved over the same, the appellant has filed this appeal on the grounds stated in the memorandum of grounds of appeal.

¶6To prove the offence under section 135 of the Indian Electricity Act, 2003, the prosecution shall prove the following ingredients:-

6.1. The appellant is the occupier of the premises.

6.2. Dishonestly tampered the meter, installed or used a tampered meter, reversing the reading of the meter by loop connection or any other device or method, interfering with accurate recording of electricity usage, tampering the calibration of electric meter, which results in a manner whereby electricity is stolen.

6.3. Improperly used the energy of a licensee.

6.4. In this case, to render a finding whether the prosecution proved the above ingredients beyond reasonable doubt, this Court extracts the relevant portion of the evidence of the prosecution witnesses:-

6.4.1. P.W.1, in her evidence stated as follows:- "v';fs; g[yd; tprhuizapnyh kw;w Mtz';fs; K:ynkh bgUkhnsh. bt';fplrhkpnah me;j ,lj;ij mDgtpj;jhh;fs;

vd;gjw;F

Mtz';fs;

jhf;fy; bra;atpy;iy vd;why; rhpjhd;". CRL.ArMi).No.27coofo2020 "vdD; ila Mtz';fspd; mog;gilapy; bgUkhSk;. bt';fpLrhkpak[ ; kpd;gfphk; hd xg;ge;jk; bra;J bfhs;stpyi; y vd;why; rhpjhd;/ mjdhy; mth;fs; vdf;F ve;jtpj fl;Lg;ghLk; cilath;fs; myy; vd;why; rhpjhd;"/ o6.4.2.oP.W.3oalsooinohisoevidenceostatedoasofollows:- "Mtzj;jpd; mog;gilapy; bt';fplrhkpnah. bgUkhnsh ,e;j kpd; ,izgi; g bgwtpy;iy vd;why; rhpjhd;/ Mtzj;jpd; mog;gilapy; FlF epWtdj;jpw;F kpd; ,izg;g[ nfhhp ahh; tpz;zg;gk; bfhLj;jhh;fs; vd;why; uhkrhkp. bry;tuh$; vd;gth;fs; bfhLj;Js;shh;fs;/ kpd; ,izg;g[ jpUl;L ele;jjhf brhyy; g;gLk; fhyk; tiu nkw;brhd;d egh; nghpy; jhd; ,izg;g[ ,Ue;jJ vd;why; rhpjhd;/ ,e;j kpd; ,izg;ig khw;wf;nfhhp bt';fpLrhkpnah. bgUkhnsh kpd;thhpaj;jpw;F ve;j kDtk[ ; mspf;ftpy;iy vd;why; rhpjhd;/ v';fs; Mtzj;jpd; mog;gilapy; ,e;j kpd; ,izg;gpd; chpikahsh;fs; bry;tuh$%k;. uhkrhkpak[ ; vd;why; rhpjhd;"/

6.4.3.oP.W.5oalsooinohisoevidenceostatedoasofollows:- "FlF mli; l fkb; gdpapy; giHa kPl;liu khw;wp g[jpa kPll; iu bghWj;j cj;jut[ te;jJ/ mjd;go giHa klP ;liu vLj;Jtpl;L g[jpa kPll; iu 26/11/2001?k; njjp bghWj;jp mJ ey;y epiyapy; ,a';Ftij fhl;o mth;fs; Kd;dpiyapy; rPy; itj;j Mtz';fspy; ifbaGj;J bgw;nwd;". "kpd; ,izg;g[ uhkrhkp vd;gth; nghpy; ,Ue;jJ/ ehd; uhkrhkpaplk; jhd; ifbaGj;J th';fpndd;". 5/15https://www.mhc.tn.gov.in/judis

6.4.4. P.W.6 also in his evidence stated as follows:- "kpd; ,izg;g[ uhkrhkp nghpy; cs;sJ".

6.4.5. P.W.7 also in his evidence stated as follows:- "m/j/rh/M/7 nrhjid mwpf;ifapy; FlF ,z;l $;l;hP!; rhh;ghf bry;tuh$; kw;Wk; ehfuh$; bgah;fs; fhl;lg;gl;Ls;sJ

vd;why;

rhpjhd;/

m/j/rh/M/7y; bt';fpLrhkp kw;Wk; bgUkhs; Mfpnahh; bgah;fs; fhl;lg;gltpy;iy vd;why; rhpjhd;"/

6.4.6. P.W.8 also in his evidence stated as follows:- "m/j/rh/M/8?cld; ,izf;fg;gl;Ls;s o kw;Wk; o?1 gotk; b$uhf;!; efy; vd;why; rhpjhd;/ mrnyhL rhpghh;j;J cz;ik efy; vd;gjhf nkw;brhd;d o kw;Wk; o?1 efy;fspy; Fwpg;gplgltpy;iy vd;why; rhpjhd;/ nkw;brhd;d 2?got';fspy; FlF ,z;l!;l;hP!; vd;W fhl;lg;gltpy;iy vd;why; rhpjhd;/ jdghy; vd;w bgUkhs; elj;jp tUk; epWtdj;jpDila fjt[ vz; nkw;brhd;d got';fspy; fhl;lg;gltpy;iy vd;why; rhpjhd;/ v!;/vg;/vz; fhl;lg;gl;Ls;sJ/ "FlF ,z;l!;l;hP!; kw;Wk; _ tpehauhf ngg;gh;

mz;l;

nghh;L

epWtd';fSf;F

,ilna bjhlh;g[

,Ug;gjhf

Mtz';fspy;

fz;Ls;sjhf vd;why; ,y;iy"/

6.4.7. P.W.10 also in his evidence stated as follows:- "bt';fpLrhkp kw;Wk; mtuJ kfd; bgUkhs; Mfpa ,UtUk; mDgtpj;J tUfpwhh;fs; vd;W fhl;Ltjw;F Mtz';fs; vJt[k; cjtp braw;bghwpahsh; vd;dplk; bfhLj;jhuh vd;why; ,y;iy"/

6.4.8. P.W.11 also in his evidence stated as follows:- "2?k; vjphp bgUkhs; nghpy; kpd; ,izg;g[ ,Ue;jJ vd;W fhl;Ltjw;F Mtz';fs; jhf;fy; bra;ag;gl;Ls;sjh vd;why; ,y;iy/ kpd; ,izg;g[ ahh; nghpy; ,Ue;jJ vd;why; uhkrhkp nghpy; ,Ue;jJ/ kpd; ,izg;gpd; mog;gilapy;

kpd;rhuj;ij

2?k;

vjphp

bgUkhs; gad;gLj;jpdhh; vd;gjw;F Mtz';fs; cs;sjh vd;why; 2?k; vjphpapd; mDgtj;jpy; ,Ug;gjhf rhl;rpfs; tprhuizapy; bjhpate;jJ/ mjw;F Mtz';fs; bgw;W jhf;fy; bra;ag;gl;ljh vd;why; ,y;iy/ rhl;rpfspd; thf;FK:yj;jpy; jhd; cs;sJ/ g[fhhpy; 2?k; vjphp bgUkhs; kpd;rhuj;ij gad;gLj;jpajhfnth

kpd;

,izg;g[

mth; nghpy; ,Ue;jjhfnth fhl;lg;gltpy;iy vd;why; rhpjhd;/" "rk;gt ,lj;jpd; mUnf Xl;L tPLfs; ,Ug;gjhf tiuglj;jpy; ,Ug;gjhf fhl;lg;gl;Ls;sJ vd;why; rhpjhd;/ me;j

epWtdk;

ahuhy;

elj;jg;gl;lJ

vd;Wk;. mUfpy; ,Ue;jth;fis rhl;rpfshf tprhhpj;njdh vd;why; me;j Xl;l tPLfspy; ,Ue;jth;fs; ahUk; rhl;rp brhy;y Kd;tutpy;iy

mjdhy;

tprhhpf;ftpy;iy/ mUfpy; ,Ue;jth;fis Tg;gpl;Lk; tutpy;iy vd;w tptuj;ij gjpt[ bra;Js;nsdh vd;why; mth;fs; tutpy;iy vd;gjhy; ehd; tHf;F ehl;Fwpg;gpy; mJ gw;wp vGjtpy;iy/

mJ

Fwpj;J

Mtz';fspy; gjpt[ bra;atpy;iy/""

¶7From the reading of the above evidence, the following facts are clear:-

7.1.The said service connection was in the name of M/s.Kodagu Industries represented by one Ramasamy.

7.2. Neither documentary nor oral evidence was adduced on the side of the prosecution to prove the above said Perumal (Appellant) or one Venkatasamy enjoyed the property.

7.3. There was no record to show that the appellant was in-charge of the premises or present in the occurrence place at the time of the inspection.

7.4. There was no transfer of service connection either in the name of Venkatasamy or Perumal and also no material was adduced to prove that either Perumal or Venkatasamy submitted an application to transfer the service connection.

7.5. P.W.8 deposed that the M/s.Kodagu Industries stopped the business on 31.03.2001. But, no evidence was adduced to show that the appellant was running the said Industries on the date of the occurrence.

7.6. No document was produced to prove the assumed relationship between the M/s.Kodagu Industries and the Sri Vinaya Paper and Board Limited.

7.7. P.W.10 admitted that they never produced any documents to prove their possession over the factory premises.

7.8. As per the evidence of P.W.11, there are number of houses near by the place of occurrence. However, none of the residents have been examined to prove as to who was running the industry.

¶8From the above, this Court without any hesitation holds that the prosecution never adduced any material to support the prosecution version that the appellant has dishonestly abstracted the energy by tampering the meter by artificial means or by inserting or using foreign materials in the meter. Without proof of the same, the offence under Section 135 of the Electricity Act, 2003, is not held to be proved. In this aspect, it is relevant to consider the following precedents:-

9.This court in the case of Kanniyappan Vs. State in Crl.A.No.545 of 2014 has held as follows:- "5(1)This Court in 1972(1) L.W (Crl) 133, held that, in the case of the charge of electricity theft or manipulation made against number of persons the prosecution must specifically prove who committed the offence by legal evidence. If there are more than one accused, it is the bounden duty of the prosecution to discharge the burden by proving the case against each of the accused by adducing independent evidence of the proof of some overt act establishing or proving the dishonest abstracting or consumption or use of any energy. Otherwise there is the great risk and hazard on the administration of justice resulting in the conviction of at least some innocent persons while sometimes the really guilty consumers are punished. Such a danger must be avoided even at the risk of exculpating and acquitting the really guilty for the sake of saving innocent persons from conviction and consequential imprisonment."

¶10The similar view also expressed in the following case of Subramaniam and others in Crl.A.No. 446 of 2009 "Merely because the security seals were found damaged, in the absence of any evidence to show that the appellants used any artificial means to abstract energy, they cannot be convicted under Section 135 of the Electricity Act."

¶11Apart from that, as held by the Hon'ble Supreme Court of India in the case of Ram Chander Prasad Sharma Vs. State of Bihar and Another reported in AIR 1967 SC 349, the prosecution not only to prove the tampering of the meter but also the disputed meter was under the control of the accused. In this case, as referred above, there is no evidence to show that the disputed meter was under the custody of the accused.

¶12Therefore, it is relevant to extract the following portion of the above said judgment of the Hon'ble Supreme Court of India:- "12.Insofar as the conviction under Section 39 is concerned the matter stands on a different footing. It is not sufficient to say that a meter had been tampered with 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 artifical 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 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 basis of which it could be held that there was in fact any abstraction of electrical energy. In the circumstances the presumption permissible under Section 39 can not be raised in favour of the prosecution. It follow, therefore, that the appellant's conviction under Section 39 is unsustainable. We accordingly, set it aside as also the sentences passed upon him in respect of that offence."

¶13Since the appellant has not enjoyed the property on the date of the inspection and no evidence is available on record to show that the appellant dishonestly tampered the meter and improperly used the electricity energy, the conviction and sentence passed by the learned trial Judge is not om accordance with law. Hence, this Court inclines to set aside the judgment of the learned trial Judge convicting the appellant for the offences under Sections 135 of Indian Electricity Act. Hence, the appellants are entitled to acquittal.

¶14Apart from the above submission, the learned counsel for the appellant further submitted that the final report was filed under Sections 39(1) and 44(1)(c) of the Indian Electricity Act, 1910, and conviction was granted under Section 135 of the Indian Electricity Act, 2003. Even for rendering conviction, there was no alteration of charges. Hence, the conviction and sentence imposed under Section 135 of the Indian Electricity Act, 2003, is not legally maintainable is correct as argued by the learned counsel for the appellant. But, in view of the factual circumstances, this Court is not inclined to discuss the above legal aspect. Once there was no evidence to prove the occupancy of the appellant in the said premises, and the appellant has not dishonestly abstracted the energy by tampering the meter, there is no necessity to go into the question of the applicability of Section 135 of the Indian Electricity Act, 2003.

¶15Accordingly, the appeal is allowed on the following terms:

13.1.The judgment passed by the learned Principal Sessions Judge, Dindigul, in Spl.C.C.No.4 of 2009, dated 24.07.2020, is set aside.

13.2.The appellant is acquitted from all the charges in Spl.C.C.No.4 of 2009, dated

24.07.2020, passed by the learned Principal Sessions Judge, Dindigul.

13.3.Fine amount paid by the appellant shall be refunded to the appellant forthwith.

13.4.Bail bond executed by the appellant shall stand cancelled.

13.12.2024 NCC : Yes/No Index : Yes / No Internet :Yes / No dss To

¶1The Principal Sessions Judge, Dindigul.

¶2The Inspector of Police, Kugiliamparai Police Station, Dindigul District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai. K.K.RAMAKRISHNAN

,J.

dss

13.12.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 09.12.2024 Pronounced on : 13.12.2024 CORAM THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN Perumal ... Appellant/ Accused No.3 Vs. The State rep by, The Inspector of Police, Kugiliamparai Police Station, Dindigul District. (Crime No.235 of 2003) ... Respondent/Complainant Prayer : This Criminal Appeal is filed under Section 374 of Cr.P.C., to call for the records and set aside the conviction and the fine imposed in Spl.C.C.No.4 of 2009 dated 24.07.2020, by the learned Principal Sessions Judge, Dindigul. For Appellant : Mr.T.Balakrishnan For Respondent : Mr.M.Sakthi Kumar, Government Advocate (Crl.Side)