JUDGMENT
R.N. Sahay, J.
1. Both the petitioners are said to be qualified Engineers. Petitioner No. 1 is a graduate in Civil and Structural Engineering from University of Munich. Petitioners started a firm in the name and style of Allgeme in Engineering Bureau (India) at Jamshedpur and have a factory in the name at Dimna Road, Mango, Jamehadpur. Petitioners’ factory undertakes the job of fabrication, erection and machinery jobs in TISCO and other places. The petitioners-firm took a three phase 440 volt low tension Industrial Service Electrical connection from the Bihar State Electricity Board in the year 1971 being Consumer No. DR/204. It appears that on 24-4-1990 officials of the CID. Special Cell of the Bihar Electricity Board made a surprise inspection of the factory premises of the petitioners. On inspection, everything was found in order. However, it was mentioned in the report that the meter was running, the body seal was provided, terminal seal was provided. However, the C. T. Box was not sealed. The petitioner wrote to the Board to test the meter. However, the meter was not checked again.
2. Again on 16-2-1991, the factory was inspected by the CID (Special Cell), Patna. The authorities did not find any tampering of the meter. The report (Ann. 3) states as follows:
(a) Meter box and C. T. have been sealed with the signature of AEE CID Spl. Cell and AEE (S) and JEE (S) Mango and Dy. S. P. CID Spl. Cell, Patna, (the last date of inspection 24-4-1990).
(b) Meter is moving in the right direction while testing through 2 (two) phase.
(c) Meter is moving in reverse direction while testing through 3rd one phase.
It is apparent from the report that there is no allegation that the meter was tampered or energy was being illegally abstracted by use of any artifical means.
However, on the same day, Rajeshwar Singh, Assistant Engineer of the Board filed a written report alleging that the petitioner has committed offence under Sections 39/44 of the Indian Electricity Act because the Board had suffered huge loss because of theft of electrical energy. The petitioner was also arrested but later on released on bail.
3. After investigation, charge-sheet was submitted before the Chief Judicial Magistrate, Jamshedpur who passed the following order:
20-4-1991 : Received the charge-sheet No. 21 dated 28-2-1991 under Section 39/44, Indian Electricity Act, 1986 against the accused (1) Arun Kumar Nandi (2) Shyamal Kumar Sur.
Cognizance of the offence under Section 39, I. E. Act against the said accused persons namely Arun Kumar Nandi and Shyamal Kumar Sur has been taken and the case is transferred in the court of Shri K. P. Sahay, J. M. 1st class, Jamshedpur for disposal.
Issue summons against the accused persons and notice to their bailors fixing 6-5-1991 for appearance.
4. The petitioner has moved the Court challenging the order of the Chief Judicial Magistrate taking cognizance. Mr. Anwar learned Counsel for the petitioner contends that there is no material before the Chief Judicial Magistrate to take cognizance for offence under Section 39 of the Indian Electricity Act. Secondly it was contended that the Chief Judicial Magistrate without perusing the case diary and other documents and without applying his judicial mind, took cognizance. On merit, it has been submitted that the FIR was based on the report of the CID (Special Cell) of the Board (Annexure-3). There is no allegation in this report to attract Section 39 of the Indian Electricity Act,
5. Section 39 of the Indian Electricity Act reads as follows ;-
Theft of energy.–Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both ; and if it is proved that any artificial mean or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer.
6. This section was amended by Act 31/86. Prior to the amendment, this section read as follows:
Theft of energy,-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.
7. The Hon’ble Supreme Court in Jagannath Singh v. H. Krishna Murthy and Ors. reported in AIR 1967 SC 947 held that “mere existence of tampared meter did not amount to ‘such artificial means for abstraction of energy’ as would make it an offence under Section 39.”
This decision may not be applicable to the present case after the amendment of Section 39.
8. Sri Anwar, however, contended that only because the meter of one phase was running in the reverse direction, it cannot be said that petitioners were dishonestly abstracting or consuming electric energy. There is no material in the case diary to indicate that any electrical energy was being consumed by illegal means. It is submitted that this pertinent fact was not consumed by the Chief Judicial Magistrate taking cognizance.
Mr. Anwar has invited my attention to Annexure-5 which is Meter Relay test report which was conducted after the institution of the case. According to this, negligible error was found in the meter. In this report, it is specifically stated that ’cause of the reverse rotation of the disc of installed meter can only be ascertained after checking of the connections of the installed CTs. and meter by breaking the paper seals including the testing in in MRT lab Jamshedpur. Testing of this meter was done as per written request of Asstt. Elec. Engineering, Mango.
9. It thus becomes crystal clear that the FIR wan filed on an incomplete fact and without getting the meter tested. If the cause for reverse rotation of disc could not be detected by the Experts, it can hardly be said that the petitioners are responsible for defect in the meter, if any.
10. Having regard to the facts and circumstances of the case, I am of the opinion that the proceeding against the petitioners deserves to be quashed as no case is made out for their prosecution under Section 39 of the Indian Electricity Act. However, it is made clear that after further test if it is found that the petitioners are responsible for causing the meter to rotate in reverse direction with the result that the meter is not registering the actual consumption of energy by the petitioners, the authorities of the Board will be at liberty to file fresh complaint against the petitioners.
11. In the result, this application is allowed and the order of the Chief Judicial Magistrate, Jamshedpur taking cognizance against the petitioners and the proceeding in relation of the case-G.R. 374/91 (Mango P. S. Case No. 24/91) is quashed.