APPLLO ENTERPRISES Vs. STATE

JUDGEMENT

(1.) THE accused in C. C. No. 5658 of 1990 on the file of the viii Metropolitan Magistrate, George Town, Madras have filed this petition under Sec. 482, Crl. P. C. praying to call for the records in the above case and to quash the proceedings in C. C. No. 5658 of 1990.

(2.) SHORT facts are: The respondent had filed a charge-sheet against the petitioners for offences under Secs. 39 and 44 (c) of the Indian Electricity Act, as amended by Act 39 of 1980. The allegations in it are briefly as follows: The 1st accused is the firm and accused 2 and 3 are the partners. The 4th accused is managing the 1st accused firm. The electricity service connection is standing in the name of the 1st accused and through that service connection the 1st accused is getting electricity for production purposes. The service connection is provided with 3 phase 25 amps meter. Prior to 1. 8. 1987 with an intention of stealing electrical energy, accused 1 to 4 partially opened the top cover of the meter, tampering the screws provided in the meter and then meddled with its recording mechanism to bring the recorded energy down to whatever lesser value required by them and kept the meter in normal position. By the above artificial means they have dishonestly and wilfully consumed 9177 units of electrical energy for a period of 198 days and they have made a wrongful gain of Rs. 27,531. Accused 2 to 4 are looking after the day to day activities of the 1st accused firm. The meter has been installed in the premises of the 1st accused-firm. Thus they have committed the offences punishable under Secs. 39 and 44 (c) of the Indian Electricity Act as amended.

(3.) I shall next pass on to consider whether the materials available in this case, show the existence of any artificial means or means not authorised by the licensee existed. Mohamed Hidayatulah, Assistant divisional Engineer, Sowcarpet, one of the Engineers, who inspected the meter in the premises of the accused. In his report he has stated as follows: 'during the time of inspection, it was found that out of three meter cover seals provided with sealing screws at the top and the right side sealing screws with seals were found come out from the bottom of the meter and the meter cover was partially opened, thereby making access to meddle with recording of the meter. " Along with this report, he had enclosed the report of manickam, Assistant Divisional Engineer, Meter and Relay Tests, M. E. S. (D)Central Madras-2. In the said report of Manickam, he has stated as follows: "out of the three meter cover seals provided with sealing screws at the top and the right side sealing screws with seals were found come out from the bottom of the meter and the meter cover was partially opened thereby making access to meddle with the recording of the meter. " In the said report, he has also stated as follows: "the partial opening is due to the external force applied at the top and right side sealing screws only and hence I conclude that the meter is tampered and the recording is meddled. " During the inspection made on 1. 8. 1987, by Mohamed hidayatullah and others, they found the tampering of the meter, as above. They have not found the existence of any artificial means or means not authorised by the license for the abstraction, consumption or use of energy by the consumer. In the absence of the existence of any such artificial means the presumption which can be drawn under Sec. 39 of the said Act, cannot be drawn. When that presumption is not available, the other way, in which Sec. 39 of the Act would come into play is direct evidence with regard to abstraction, consumption etc. There is no material to show that anybody saw any dishonest abstraction, consumption etc by the accused. Thus, no materials are placed before the court, to attract the offence punishable under Sec. 39 of the Act. So regarding offence under the said Sec. 39 the proceedings are to be quashed.