ORDER
1. The second accused in C.C. No. 461 of 1985 on the file of the Judicial First Class Magistrate, Erode is the petitioner. The accused 1 and 2 were charged for offences punishable under Ss. 39(1) and 44(1)(c) of the Indian Electricity Act as amended by Tamil Nadu Act 1980 read with S. 39 and S. 44(c) of the Indian Electricity Act, 1910.
2. The first accused is the Proprietor of Astalakshmi Ice Factory at door No. 13-A, Kalaimagal Kalvi Nilayam Road, Erode. The second accused is the lessee of the said factory and as per N.S.C. No. 269 electricity was supplied to the said ice factory and both the accused had tampered with the meter and consumed 30,412 Units of electricity for the Ice factory and caused loss of Rs. 60,690/- to the Government. A case was registered by the Erode Town Police under the abovesaid provisions of the Act.
3. The prosecution has examined P.Ws. 1 to 7 and marked Exs.P. 1 to P. 20 and also marked M.Os. 1 to 5. The accused have not examined any defence witness nor marked any exhibits or material objects. On a consideration or the oral and documentary evidence the learned trial Magistrate found the first accused not guilty of the offences and acquitted him, but found the second accused guilty for tampering with the meter and committing theft of electricity, convicted him under sections 39(1) and 44(1)(c) of the Indian Electricity Act (as amended) and sentenced him under S. 39(1) of the said Act to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- and under S. 44(1)(c) of the said Act to pay a fine of Rs. 500/- in default under each of the two Sections to undergo rigorous imprisonment for one month. The second accused filed appeal in C.A. No. 68/87 before the Sessions Court, Periyar District at Erode and the learned Sessions Judge confirmed the conviction and sentence of the trial Court and dismissed the appeal. The second accused has filed this revision against the judgment of the learned Sessions Judge, challenging the legality of the same.
4. Learned counsel for the petitioner pointed out that the Maravaneri M.R.T. Seal was not produced before the lower Court by P.W. 2 for comparison whereas Erode Model Seal M.O. 1 and Mettur M.R.T. Seal M.O. 2 were produced. But actually Maravaneri M.R.T. Seal alone had been affixed on the meter in the factory premises of the first accused. When that was no produced, the prosecution has failed to establish the guilt as against the accused that the meter had been tampered with. To other argument put forward by the learned counsel for the petitioner is that there is no evidence to show that any artificial means was used for extracting electrical energy and that in the absence of such evidence even if it is assumed that the meter was found tampered with, it could not be stated that the accused had committed the offence of theft of electric energy.
5. Learned Public Prosecutor contended that there is evidence of the seal which was put on the meter in question. But there was only a seal affixed on a paper and not the original seal itself. That is the original seal of Maravaneri M.R.T. was not produced and marked. But the Mettur and Erode seal of M.R.T. was marked. What the prosecution has done is that it was produced only secondary evidence and there is no explanation for not producing Maravaneri M.R.T. seal and in the absence of primary evidence, the secondary evidence, cannot be accepted especially in the absence of explanation for not producing the same before the lower Court. Therefore, the allegation of tampering with the meter was not proved satisfactorily by the prosecution beyond reasonable doubt.
5A. Mr. Karpakavinayagam, learned counsel for the petitioner also pointed out that the investigating officer had not conducted investigation regarding Exs. P. 12 P. 13, and P. 14 and that he had only produced the same and marked in the trial Court without conducting investigation on the same and without giving an opportunity to the accused to putforth their case as against those Exs. P. 12, P. 13 and P. 14. Learned counsel for the petitioner also relied upon the judgment reported in Ram Chandra v. State of Bihar, (1967 Cri LJ 409). There, Their Lordships of the Supreme Court held that before raising a presumption under S. 39 of the Electricity Act that there is a dishonest abstraction of energy, the presence of perfected artificial means which will render abstraction of energy possible has to be established by the prosecution. It is further necessary to show there there was a dishonest abstraction, consumption or use of electrical energy by the accused person. It is not sufficient to say that the meter has been tampered with and that it is under the control of the person. In the case on hand, it is not sufficient to say that the meter had been tampered with and that it is under the control of the accused. The first accused, owner of the premises was acquitted by the trail Court. There is no evidence in this case that the accused had used any artificial means for extracting electricity dishonestly and therefore, the ratio of the judgment referred to above squarely applied to the facts of the present case.
6. Learned Public Prosecutor could not point out anything from the evidence of Prosecution witnesses to show that the accused had used artificial means for extracting electricity. Even with regard to tampering, there is no acceptable evidence that the accused had tampered with the meter since Maravaneri M.R.T. seal was not produced. In the absence of the same, the prosecution has not proved that the original seal is not found and the seal had been tampered with. In the circumstances, the prosecution has not proved either, tampering with the meter or theft of electricity by the accused/petitioner. In the circumstances, the conviction and sentence as against the petitioner under both the counts, cannot be sustained and the accused/petitioner herein is found not guilty. Therefore, the judgments of the lower Courts are set aside. The revision is allowed and the petitioner is acquitted. The fine amount if paid is directed to be refunded to the petitioner.
7. Revision allowed.