- (1.) 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. These 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 offences 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 offences, except Ram Chander Prasad, appellant in Crl. A. 48 of 1963. He was convicted of all the three offences 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 1ikewise 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 Chander Prasad Sharma's petition was allowed and that of an accused persons 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
(2.) According to the prosecution, on June 11, 1958 the Assistant Engineer (Mains) of the P. E. S. Co. by name Chatterjee visited the Ramji Mills situate at Dinapur. The mill is run with a 15 horse power motor which is supplied with electric energy by P. E. S. Co. It is provided with a three phase meter. 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 had been done by unscrewing the nut and thus exposing the stud hole. Eventually a report was made to the police by Chatterjee at the 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 offences. 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, 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.
(3.) 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 challenged 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 v. B. S. Ramaswamy, Cri Appeals Nos. 76 and 130 of 1963, D/- 22-9-1965 : (AIR 1966 SC 849) these facts by themselves would not justify the inference that the appellant has committed an offence under S. 39. That was a case 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 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 any one else but him. Tampering was so blatent and so effective that it could not 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 1963 :;