PETITIONER: RAM CHANDER PRASAD SHARMA Vs. RESPONDENT: STATE OF BIHAR & ANR. DATE OF JUDGMENT: 08/02/1966 BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SARKAR, A.K. CITATION: 1967 AIR 349 1966 SCR 517 CITATOR INFO : F 1967 SC 947 (5) R 1983 SC 822 (6) ACT: 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. HEADNOTE: 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, [1966] 1 S..C.R. 885, explained. (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] JUDGMENT:
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 D. Goburdhan,.
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 allowed.
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 other.
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. Co.
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 Nathuni Thakur.
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) [1966] 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 any one
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 energy.
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 thereunder, 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) [1963] 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 seals broken.
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 can not 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
High Court.
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
the offenses.
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
follows :
“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. Co.
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 part.
527