Anna Chandy, J.
1. This is an appeal against acquittal. The respondent accused was convicted by the First Class Magistrate Cranganoxe under Section 379, I. P.C. read with Section 39 as also under Section 44(c) of the Indian Electricity Act. He was sentenced to two months rigorous imprisonment under the first count and for the second to pay a fine of Rs. 200 in default of payment of which he was to undergo simple imprisonment for one month. On appeal the Sessions Judge, Trichur acquitted him of all charges.
2. The case against him was that he the owner of a coir factory where electricity was used in the process of manufacturing coir products committed theft of electric energy by tampering with the electric meter installed in his factory. The modus operandi is ingenious. A tiny hole was drilled on the underside of the meter so that a thin sliver of wood could be pushed in, which stops the movement of the rotating decontrolling the recording of consumption of energy. On 4-3-1964 two of the accuser's workmen P. Ws. 4 and 5 informed the local Electrical Engineer P. W. 2 about the accuser's nefarious activities. P. W. 2 went to the factory and inspected the meter along with P. W. 3. He found that the meter was tampered with. He complained to the local Sub Inspector who registered the case but later referred it as a mistake of fact. Then a complaint was filed by the Assistant Engineer (Electrical), Irinjalakuda before the first Class Magistrate who after trial convicted the accused as noted earlier. The accused s appeal was allowed by the learned Sessions Judge of Trichur mainly on the ground that the presumptions under Section 39 and 44 of the Electricity Act are not available in this case as there is no proof that the meter, when installed at the accused's premises was intact.
3. The relevant portion of Section 44 of the Electricity Act is as follows:
44. Penalty for interference with meters or licensee's works and for improper use of energy : Whoever
(a) * * * * *
(b) * * * * *
(c) maliciously injures any meter referred to in Section 28, Sub-Section (1), or any meter, indicator or apparatus referred to in Section 26, sub's (7), or willfully or fraudulently alters and index of any such meteri indicator or apparatus or prevents any such meter indicator or apparatus from duly registering; or
(d)...and if it is proved that any artificial means exist for making such connection as is referred to in cl. (a) or such communication as is cl. (b) or for causing such alteration or prevention as is referred to in cl.(c) or for facilitating such improper use as it referred to in cl. (d) and that the meter indicator or apparatus is under the custody or control of the consumer whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, communication, alteration, prevention or improper use, as the case may be has been knowingly and willfully caused by such consumer.
4. The meaning of Section 44(c) is quite clear. If it is proved that the meter has been tampered with and that the meter was in the custody of the consumer then the court shall presume that the consumer was responsible for the tampering unless the contrary is proved. In the present case the existence of artificial means to prevent the meter from duly registering the consumption of energy has been established it is also established that the accused is the 'consumer' who has the custody of the meter and there is no manner of evidence that it was not the accused who is responsible for the tampering. Under these circumstances the court is bound to presume that it was the accused who did the mischief. Moreover there is also the evidence of P. W. 6 the engineer who installed the meter in the accuser's factory that the meter was in tact and had no hole in it when installed.
The cross examination of this witness was not directed as this aspect of his evidence but was intended to make out that the meter was not a new one when installed. The meter did show a reading of 5780 units which would indicate that it had been in use before. However that does not mean that it was defective much less that it already had a hole drilled in it. Pw. 6 is a respectable and competent witness and any ambiguity in his evidence regarding the question whether the meter was new or used--a fact which he was not interested in ascertaining cannot affect the credibility of his evidence.
What he was concerned with was to see that a proper meter was supplied and for that purpose he had to examine the meter to find if there were any defects in it. His evidence also gains strength from the presumption which may be drawn that the Electricity Department is not expected to supply a defective meter with a hole as it is against their interest to do so. I agree with the learned Magistrate that the evidence of Pw. has to be accepted. Under these circumstances the acquittal of the accused of the charge under Section 44(c) of the Electricity Act cannot be sustained.
5. Similarly the acquittal of the charge under Section 39 also cannot stand. Section 39 reads 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 (45 of 1860); and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction.
The position taken by the learned defiance counsel is that the presumption under. 39 is not available in this case as the existence of a complete means of extraction of energy or preventing the meter from duly registering as distinct from a partial means, is not proved. The argument is that the presence of a hole in the meter cover by itself will not provide 'a means' to extract energy but something more such as the presence of some substance which is introduced through the hole to bring the revolving disc to a stop should also be proved before one can say that the existence of 'a means' to extract energy has been established.
The decisions of the Patna High Court including the latest one Krishna v. Jagarnath : AIR1985Pat76 cited by the Prosecutor do not according to the learned deface counsel, apply to the facts of this case. In the case referred to, the court held that the mere exposure of the 'stud-hole' in the meter is sufficient to attract the presumption under Section 39 as even without the introduction of any foreign substance through the hole the revolving disc will be slowed down or brought to a stop automatically by the action of dust or moisture entering the meter through the exposed stud hole.
In the present case there is no evidence that the revolution of the disc will be affected by dust or moisture entering through the drilled hole. The evidence here is that if a thin stick or some such instrument is pushed through the hole it will come into contact with the disc and bring its movement to a stop. A hole had been drilled in the cover of the meter. To complete the process of extraction one has only to push in a small thin piece of wood like a match stick. The stick will not be left permanently in place, as this would stop the meter from recording anything at all, a result which lead to detection. This would be done only as and when thought necessary. Therefore the most important or as one may call it the permanent part of the means for extraction is the hole and the existence of this is established. It is also quite clear that the hole could have served no purpose whatsoever other than to have access to the mechanism of the meter for the extraction of the energy. I therefore feel that the hole drilled in the meter cover will constitute a 'means' for extracting energy' as contemplated in the section.' It may also be mentioned in this connection that when the accused was asked about the evidence of Pws. 4 and 5 who accused him of the abstraction of energy he only chargpd them in turn of having done it and had no case that there was no effective means of abstracting the energy.
6. In view of the total absence of evidence to rebut this presumption which has to be drawn under Section 39 the direct evidence of Pws. 4 and 5 two disbanded employees of the workshop that they actually saw the accused in the act of tampering with the meter can well be left out of consideration, but the suggestion made by the accused that they were responsible for making the hole cannot exonerate him. One can imagine that the mischief was being done by the accused with their knowledge and connivance and when they were turned out they thought of spiting him by divulging the information to the authorities, but there is absolutely no good faith in the suggestion that they who had no opportunity to go back to the workshop after they were sent out much less the time and convenience necessary to drill a hole in the meter did so. Though in view of the presumption available it may not be necessary to let me positive evidence of the actual extraction of energy it may as well be mentioned that as noted by the Magistrate with reference to Ext, P-8 and Ext. D.2 bills for five months together in 1962 the consumption was more than 1000 units per month but subsequently there was a fall in the consumption ranging from 101 to 300 and 500 units per month and alter the tampered meter was replaced on 20- 3-1984 the consumption of current went up.
7. In the result the order of acquittal passed by the learned Sessions Judge is set aside and the conviction and sentence entered by the learned Magistrate are restored. However it may be mentioned that Section 379,1. P.C. need not be tacked on to Section 30 of the Electricity Act (vide Avtar Singh v. State of Punjab : 1965CriLJ605 . (t may also be observed that the view taken by the learned Sessions Judge that no complaint is necessary under Section 50 of the Act for an offence under Section 39 as theft is a cognizable offence under the Penal Code is faulty as is held by the Supreme Court in the same decision.