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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:

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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

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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." .

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             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

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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

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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

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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

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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

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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