JHALKAN SINGH Vs. SLATE OF M.P.

JUDGEMENT

(1.) THE applicant -accused Jhalkansingh having convicted under section 39 of the Indian Electricity Act read with section 379 of the IPC and the other applicant -accused Sumer, having been convicted under section 39 of the Electricity Act read with section 379 and 109 of the IPC and each having been sentenced to pay the fine of R.250 and in default of fine, one month's R.I. by both the Courts below, present revision is now preferred against the same.

(2.) ON 14 -1 -76, meter reader Bhandari had gone to the tube well of the applicant -accused Jhalkansingh. In the cover of the meter, a hole was found and one wooden piece was found inserted and meter at that time was not recording the consumption of energy, although the tube well, at the relevant time, was in operation. At the relevant time, Jhalkansingh was not present, but the other applicant -accused Sumer was present who took out the inserted piece of wood and threw it away. Seizures were duly made and on the written complaint of the officer -in -charge of the M. P. Electricity Circle Gadarwara, both the applicant -accused were put up for trial for the offence for which they have been convicted and sentenced. The applicants -accused took the pleas of alibi. The trial Court convicted and sentenced both the applicants accused, Appeal preferred by them was also dismissed and hence now, their present revision.

(3.) Now coming to the question as to what offence has actually been made out, the Supreme Court, after reviewing the matter, has finally settled all the conflicting views of the various High Courts and has held in Avatar Singh v. State of Punjab AIR 1965 SC 666, that dishonest of abstraction or electrical energy has been made an offence by a fiction created by section 30 of the Indian Electricity Act and consequent1y it is this section which makes dishonest abstraction of energy, an offence. The offence so created by fiction under section 39 of the Electricity Act has to be followed to the end and the offences so created entails the punishment mentioned in the Indian Penal Code for that offence (See Avatar Singh v. State of Punjab (supra). It therefore follows that in the instant case, the offence committed is under section 39 of the Electricity Act, the offence being punishable as a theft within the meaning of the Indian Penal Code. How far successful prosecution for such an offence, institution of the prosecution has to be at the instance of the person named in section 50 of the Electricity Act. 7. The question that now has to be finally considered is whether, in the instant case, institution of prosecution has been made at the instance of proper person as enjoined by section 50 of the Indian Electricity Act. The FIR., in the instant case is found to be lodged by the office -in -charge of the M.P. Electricity Circle. Gadarwada. It bas been held in Bhagalpur Elec. Supply Co., Ltd. v. Hari Pd. Sahay AIR 1938 Pat. 15, that if the Resident Engineer or any person incharge of the affairs of the company makes a complaint or a prosecution is started at his instance, such a person would equally come within the definition of a person aggrieved, as required by section 50 of the Electricity Act. This also seems to be the view of the Supreme Court, which has confirmed the Patna view (See Ramchandra v. State of Bihar) AIR 1967 SC 349. In the instant case, the aggrieved person viz., the office -in -charge of the: Electricity Circle Gadarwada had initiated the complaint on the strength of which the State has prosecuted the applicants -accused. Therefore, the prosecution, in the instant case, is found to be properly instituted. Thus, there is no illegality or irregularity in the procedure, in the matter of trial of the applicants -accused. Both the applicants -accused viz., the Master and the servant, are found to have committed the offence under section 39 of the Electricity Act, liable for punishment as deemed to have committed the offence of theft within the meaning of the Indian Penal Code. Therefore, convictions of the applicants -accused under section 39 of the Electricity Act read with section 379 of the IPC for purposes of punishment are found to be proper. Conviction and sentence do not call for any interference. This case by no stretch of imagination, calls for any leniency so as to afford the applicants -accused the benefit of Probation of Offenders Act. Question 2. of punishment twice over does not arise, since, Rs. 817.92p. had been paid not as fine but as dues of electricity charges.