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PETITIONER: JAGARNATH SINGH

       Vs.

RESPONDENT: B. S. RAMASWAMY

DATE OF JUDGMENT: 22/09/1965

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1966 AIR  849            1966 SCR  (1) 885  CITATOR INFO :  RF         1967 SC 349  (3)  F          1967 SC 947  (4,5,6)  D          1990 SC 882  (4)

ACT: Indian  Electricity  Act  (9 of 1910), ss. 39,  and  44  and Indian Electricity Rules, 1956, r. 138-Scope of-

HEADNOTE: Consequent  on  the  discovery  of  an  abnormal  waste   of electrical  energy, investigations were started and  it  was found that the meter of the appellant, who was an industrial power  consumer,  had been tampered with.  The seal  on  the meter cover was broken, a sealing nut was loosened  imposing a stud hole, and it was thus possible to retard the rotation of the inside disc.  The appellant was charged with offences under ss. 39 and 44 of the Electricity Act, 1910 and r.  138 of the Electricity Rules, 1956 and was convicted by the High Court. In appeal to the Supreme Court, HELD:(i)  In  the  absence of proof that  he  used  all reasonable meansto  ensure that the seal should  not  be broken, the liability of the appellant was absolute under r. 138, and so, he was rightly convicted. [886 H] (ii) The  exposure of the stud hole was an artificial  means for  preventing the meter from duly registering  the  energy supplied, and since the appellant, having custody or control of  the meter did not rebut the pre-resumption under  s.  44 that he wilfully and knowingly prevented the meter from duly registering he was rightly convicted under that section. 887 C-E] (iii)  But the High Court was in error in holding  that  the exposure  of a stud hole on the meter cover  without  more,, was  an artificial means of abstraction and was prima  facie evidence of dishonest abstraction by the appellant, under s. 39. 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 tampering  with  the meter and causing it to record less  than the units actually passing  through it, a consumer may take unre corded  energy

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without paying for it and such unauthorised taking would  be abstraction.   A  meter with an exposed stud  hole,  without more, is not a perfected instrument for unauthorised  taking of energy and cannot be regarded as an artificial means  for its  abstraction.   ’Me existence of  artificial  means  for preventing  the meter from duly registering, gives  rise  to the  presumption,  that the meter was  prevented  from  duly registering,   only  for  purposes  of  s.  44,   but   that presumption cannot, be imported into s. 39. [888 A-B, C. E]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION :Criminal Appeals Nos.   76 and 130 of 1963. Appeals  by special leave from the judgment and order  dated the  April  5,  and 25, 1963, of the  Patna  High  Court  in Criminal Appeals Nos. 5 and 6 of 1961 respectively. 886 Akbar  Imam and D. Goburdhan, for the appellant (in Cr.   A. No. 76 of 1963). D.Goburdhan, for the appellant (in Cr.  A. No. 130 of 1963). Avadesh  Nandan Sahay and S. P. Varma, for respondent No.  1 (in both the appeals). The Judgment of the Court was delivered by Bachawat J. The two connected appeals raise common questions of  construction of ss. 39 and 44 of the Indian  Electricity Act,  1910  and Rule 138 of the  Indian  Electricity  Rules, 1956.   The appellants in both appeals have  been  convicted under ss. 39 and 44 of the Indian Electricity Act, 1910  and rule  138  (b) of the Indian Electricity Rules,  1956.   The appellant in Criminal Appeal No. 1 30 of 1963 has also  been convicted under s. 201 of the Indian Penal Code. The  Patna  Electric  Supply Co.  Ltd.  supplied  electrical energy  in  Patna, Patna City and Dinapur  to  about  22,000 consumers,   of  whom  about  900  were   industrial   power consumers.   The  normal  wastage of  energy  in  course  of transmission  was 15 to 16 per cent of the units  generated. In 1958, the Chief Inspector of the Company noticed an extra abnormal loss of about 8 per cent which could not be due  to wastage in transmission and suspected extensive theft of the Company’s  electrical energy.  Vigours  investigations  were started,  and after surprise raids and inspections,  it  was discovered  that  the meters of several consumers  had  been tampered  with.   Both the appellants are  industrial  power consumers at Dinapur.  The Inspectors found that the  meters of  both the appellants had been tampered with.  In  respect of  both meters they found a seal on the meter cover  broken and a sealing nut loosened exposing a stud hole on the meter cover.   Through  the exposed stud hole it was  possible  to insert  a thin wire, dust or moisture inside the  meter  and thereby  to retard the rotation of the inside disc.  In  due course, complaints were filed against the appellants. Rule  56(2) of the Indian Electricity Rules,  1956  requires that  the  consumer shall use all reasonable  means  in  his power to ensure that no seal affixed ,to his meter is broken otherwise than by he If the seal is broken in  contravention of  r. 56. even the consumer who has not himself broken  the seal  is  Punishable  under P.,. 138 with  fine,  unless  he proves  that  he used all reasonable means in his  power  to ensure  that the seal should not be broken.  In the  absence of  such proof, the liability of the consumer in resPect  of the breakage of the seal is absolute under r. 138(b).  The                             887 appellants  were rightly convicted of the offence  under  r.

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138(b).  We may now read the relevant part of s. 44               "44.Whoever-               (c)   prevents any such meter .... from duly                ......   and  if  it  is  proved   that   any               artificial means exist    for prevention as is               referred to in clause (c) and  that the  meter               is  under  the  custody  or  control  of   the               consumer,  whether it is his property or  rot,               it shallbe presumed, until the contrary  is               proved,  that  such prevention ....  has  been               knowingly   and   wilfully  caused   by   such               consumer." The  exposure  of  the stud hole permits  the  insertion  of foreign material inside the meter retarding the rotation  of the  inside  disc,  and  is thus  an  artificial  means  for preventing  the  meter  from  duly  registering  the  energy supplied.   For purposes of s. 44 the existence of  such  an artificial  means raises the presumption that the  consumer, in  whose  custody  or control the meter  is,  wilfully  and knowingly  prevented  the meter from duly  registering.   To raise  this presumption, it is not necessary to  prove  also that  the consumer was responsible for the artificial  means or   that  the  meter  was  actually  prevented  from   duly registering.  The appellants did not rebut the  presumption, and were rightly convicted under s. 44. The High Court also convicted the appellants of the  offence under s. 39. It held that the exposure of the stud hole  was an   artificialmeans  of abstraction of energy and  was prima facie evidenceof  dishonest  abstraction  by  the consumer. Section39 reads               "Whoever  dishonestly  abstracts  consumes  or               uses               any  energy shall be deemed to have  committed               heft  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." Whoever  abstracts  or consumes or uses  electrical  energy, dishonestly  commits  a statutory theft.  The theft  may  be proved by direct or circumstantial evidence. Direct evidence of the theft is rarely   forthcoming.  To facilitate,  proof of the theft, the section provides that  the  existence   of artificial means for such abstraction is     prima     facie evidence  of  such dishonest abstraction We think  that  the word "abstraction" should be construed liberally and in  the context  of s.39 it means taking or  appropriation.   Energy may  be  dishonestly  abstracted  by  artificial  means   or unauthorised divices.  For instance, energy before it passes through a consum 888 er’s  meter may be abstracted from the main of the  electric company  by an unauthorised wire connecting the main with  a private  terminal;  the connecting wire  is  the  artificial means  for abstraction.  Again, by tampering with the  meter and  causing  it  to record less  than  the  units  actually passing  through  it, the consumer may take  the  unrecorded energy  without paying for it.  The tampering of  the  meter and the taking of the unrecorded energy are un-authorised by the contract with the electrical company, the  un-authorised taking  is  an  abstraction  and the  crippled  meter  is  a artificial means for abstraction. 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

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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. An  exposure  of  a  stud hole on  the  meter  cover  is  an artificial   means  for  preventing  the  meter  from   duly registering.   For the purposes of s. 44, the  existence  of this artificial means gives rise to the presumption that the meter   was  prevented  from  duly  registering,  but   this presumption cannot be imported into S. 39.  A meter with  an exposed  stud  hole,  without  more,  is  not  a   perfected instrument for unauthorised taking of energy, and cannot  be regarded  as  an artificial means for its  abstraction.   To make  it  such an artificial means, the  tampering  must  go further, and the meter must be converted into an  instrument for  recording less than the units actually passing  through it.   A check meter affords an easy method of  proving  that the  consumer’s  meter  is recording  less  than  the  units consumed  and  is  being used as  an  artificial  means  for abstraction  of  the unrecorded energy.  To bring  home  the charge under S. 39, the prosecution must also prove that the consumer  is  responsible for the tampering.   The  evidence adduced by the prosecution must establish beyond doubt  that the consumer is guilty of dishonest abstraction of energy. In  the cases under appeal, the High Court was in  error  in holding that the exposure of a stud hole on the meter  cover without more was an artificial means of abstraction and  was prima  facie  evidence  of  dishonest  abstraction  by   the appellants   .  The  question  still  remains  whether   the conviction  of the appellants -under s. 39 can be  sustained upon the materials on the record.                             889 In  Criminal Appeal No. 76 of 1963, the  prosecution  proved that a seal on the meter cover was broken and a sealing  nut was  loosened exposing a stud hole on the meter cover.   But the  prosecution proved nothing else.  No  foreign  material was  found inside the meter.  No attempt was made to  verify that  the meter was recording less than the  units  actually consumed.    The  prosecution  failed  to  prove  that   the appellant  abstracted, consumed or used any  energy  without paying for it.  The appellant was charged with throwing acid on  the  meter  and  attempted to  remove  the  evidence  of tampering,  but  this  charge was not pressed  in  the  High Court.  In  this  state of the evidence,  the  appellant  is entitled  to  the benefit of the doubt  and  the  conviction under s. 39 cannot be sustained. In  the  result, Criminal Appeal No. 76 of  1963  is  partly allowed, and the conviction and sentence under s. 39 of  the Indian Electricity Act read with s. 379 of the Indian  Penal Code are set aside.  The convictions and sentences under  s. 44 of the Indian Electricity Act and r. 138(b) of the Indian Electricity Rules are affirmed. In  Criminal Appeal No. 130 of 1963, the prosecution  proved that a seal on the meter cover was broken and a sealing  nut was  loosened exposing a stud hole on the meter cover.   The tampering discovered on July 1, 1958.  Soon thereafter,  the Company’s  Inspectors made several attempts to  inspect  and check the meter. The appellant did not permit the inspection and  the  checking. After the seizure of the meter,  it  was discovered  that acid had been thrown on it with a  view  to destroy  the evidence of the tampering, and there is  ground for  believing that this was done by the appellant  or  with his connivance.  There is reason to believe that the  check-

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ing of the meter, if permitted by the appellant, would  have disclosed  that after the tampering the meter was  recording less  than the units actually consumed, and was used  as  an artificial  means for abstraction of the unrecorded  energy. The  materials  on the record show that  the  appellant  was responsible for the tampering.  Moreover, the High Court has recorded   the   finding  that  the   recorded   consumption immediately before the discovery of the tampering was  lower than  the  normal consumption.  We are  satisfied  that  the appellant   abstracted   and  consumed   electrical   energy dishonestly, that is to say, without the intention of paying for it, and the conviction under s. 39 should be  sustained. We  think also that the appellant was rightly  convicted  of the offence under s. 201 of the Indian penal Code. In the result, Criminal Appeal No. 130 of 1963 is dismissed.             Cr.  App. 76 of 1963 Partly allowed.               Cr.  App. 130 of 1963 dismissed. 890