O.V.George vs State Of Kerala

Kerala High Court

O.V.George vs State Of Kerala on 21 May, 2024

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                  CRL.APPEAL NO. 478 OF 2024
  AGAINST THE JUDGMENT DATED 28.01.2011 IN SC NO.274 OF
  2008 OF ADDITIONAL SESSIONS COURT (SPECIAL COURT)-II,
         KOTTAYAM / I ADDITIONAL MACT, KOTTAYAM
  (CC NO.669 OF 2005 OF JUDL. MAGI. OF FIRST CLASS-III,
                          KOTTAYAM)
APPELLANT/ACCUSED:

            O.V.GEORGE
            OOMELIL, KOKKAPPILLY, THIRUVANKULAM, NOW
            RESIDING AT OOMELIL, THAZHATHANGADI P.O.,
            KOTTAYAM.

            BY ADVS.
            SRI.KMV.PANDALAI
            SMT.S.HEMALATHA


RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            DIRECTOR OF PROSECUTIONS, HIGH COURT OF KERALA.

            SMT.SEENA C., PUBLIC PROSECUTOR


     THIS    CRIMINAL   APPEAL   HAVING   COME   UP   FOR   FINAL
HEARING ON 08.04.2024, THE COURT ON 21.05.2024 DELIVERED
THE FOLLOWING:
                                  2
Crl.Appeal No.478 of 2024



                     P.G. AJITHKUMAR, J.
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                  Crl.Appeal No.478 of 2024
    -----------------------------------------------------------
             Dated this the 21st day of May, 2024

                            JUDGMENT

The judgment of conviction rendered by the Additional Sessions Judge (Special), Kottayam in S.C.No.274 of 2008 is under challenge in this appeal. It was filed originally as a Criminal Revision Petition. This Court, as per the order dated 05.03.2024, converted it as an appeal in view of the provisions under Section 401(5) of the Code of Criminal Procedure, 1973.

2. The prosecution was initiated with the following allegations:

The appellant was conducting Hotel Aiswarya International in the ground floor of a seven-storied building belonging to Aiswarya Tourist Home Pvt.Ltd. at Kottayam. Electricity energy meter installed to the power connection provided to the building by the Kerala State Electricity Board was having the number 2129523. It was installed in the cellar portion of the building. The appellant installed three resistances each of 3 Crl.Appeal No.478 of 2024 10 Ohms in the power meter, resulting in reduced recording of the electricity consumption by 80%. By such manipulation of the power meter for a period of 2½ years upto 17.08.2003, on which date the manipulation was detected by PW1 and his colleagues, the appellant caused a loss of Rs.26 lakhs to the Kerala State Electricity Board. Thereby the appellant committed the offences punishable under Section 39 of the Indian Electricity Act, 1910 read with Rules 56, 57 and 138 of the Indian Electricity Rules, 1956.

3. The prosecution has examined PWs.1 to 9 and proved Exts.P1 to P13 to establish the charge framed against the appellant. MOs.1 to 3 were identified also. After closing the prosecution evidence, the appellant was questioned under Section 313(1)(b) of the Code. He denied the incriminating circumstances appeared in evidence against him. He further stated that he was in occupation of a portion of the building alone and the power meter was intended for the whole building. The electricity meter was under the control of the building owner. He used to pay the electricity 4 Crl.Appeal No.478 of 2024 charges to the building owner, who in turn used to pay in the Electricity Board. The appellant further denied his committing any kind of manipulation in the power meter. DW1 was examined and Exts.D1 to D4 were marked on his side.

4. The trial court, after considering the entire evidence, repelled the contentions of the appellant and held that the power meter was tampered with by or on behalf of the appellant. The tampering of the power meter and loss thereby occasioned to the Kerala State Electricity Board are proved beyond doubt. Whether or not the appellant was the beneficiary of such manipulation of the power meter, he being the person in control and having domain over the power meter, the facts about the manipulation were within his exclusive knowledge, but he did not discharge his burden of proving that fact. The trial court accordingly found the appellant guilty of the offence charged against him.

5. Heard the learned counsel for the appellant and the learned Public Prosecutor.

Crl.Appeal No.478 of 2024

6. PW1 was the Assistant Engineer in the Central Section, Kottayam of the Kerala State Electricity Board. PW2 was the Assistant Engineer in Kottayam anti-power theft squad unit. On 17.03.2003 they, along with their colleagues in the Board, detected the electricity theft. Both of them deposed in detail about the inspection of the premises, where hotel Aiswarya International was functioning. They entertained a doubt about tampering of the power meter installed to the power connection provided to that building and therefore they tested the meter by installing another one, obviously bypassing the power meter in question. They noticed 80% deduction from the actual consumption of the power while using the meter in question. Therefore, they seized the existing power meter and took it into custody under a mahazar. They wrapped and sealed it. They identified MO1 before the court as the said meter. Based on the said findings, PW1 lodged Ext.P1 complaint in police, upon which the prosecution was initiated.

7. PW4 was the electrician in Hotel Aiswarya International. He deposed that he saw the Electricity Board 6 Crl.Appeal No.478 of 2024 officials seizing the power meter installed in the premises of the Hotel Aiswarya International, of which the appellant was the owner. Although the evidence of these witnesses was challenged and they were cross-examined at length, nothing to disbelieve their testimony concerning inspection of the premises and seizure of MO1 power meter could be brought out. When PW4, who was an employee of the appellant, deposed in court in categorical terms that the premises was inspected and the power meter was seized by the Electricity Board officials, there is no reason to disbelieve PWs1 and 2 insofar as those aspects are concerned.

8. MO1 was tested by PW3 in the Transformer and Meter Testing Repair (TMR) unit of the Electricity Board. He was the Assistant Engineer and on 17.03.2003 he tested the meter. Ext.P3 is his report. It is his version that he received the meter in a sealed cover, and on its examination, three resistors each of 10 Ohms were seen installed in the secondary circuit of the meter. It is his assertion that such tampering of the meter could be confirmed since seals of the KSEB and the company 7 Crl.Appeal No.478 of 2024 on the meter were seen lost. The said report of PW3 confirmed the fact that MO1 meter, which was installed to the power supply connection provided to the building where Aiswarya Hotel had been functioning, was tampered with. PWs.1 and 2 deposed that on account of such tampering, which lasted for a period of 2½ years, the Board sustained a loss of Rs.26 lakhs. The quantification of the loss is not challenged. In such circumstances, the allegation that MO1 power meter was tampered with, on account of which the KSEB sustained a loss of Rs.26 lakhs, can be said to be proved.

9. The contention of the appellant is that he was in occupation of one floor of the the seven-storied building alone and the entire remaining area was under the control and occupation of the owner of the building. Case of the prosecution is that in terms of the licence agreement under which the appellant was occupying the ground floor, the appellant was responsible to pay the electricity and water charges and that he was in control of the power meter. Indisputably, the power meter was installed in the cellar portion of the building. PW6 is 8 Crl.Appeal No.478 of 2024 one of the owners of the building. His father was the Managing Director of the company, which owned the building. After his death, PW6's mother Smt.Savithrikutty Amma was in control of the building.

10. Hotel Aishwarya International premises was handed over to the appellant in terms of an agreement entered into between himself and the father of PW6. That agreement was not produced before the court. PW7 is the investigating officer. He stated that on 23.03.2003 he saw the said agreement and prepared Ext.P5 mahazar. PW6 is an attestor to the said mahazar. The mother of PW6 was the custodian of the agreement and PW7 gave it to her in interim custody on executing her kychit, Ext,P8. Based on that agreement the prosecution has set forth the case that it was the appellant who was the real consumer and MO1 meter was in his control and custody. PW6 asserted that fact.

11. The learned counsel for the appellant would submit that in the absence of the agreement the oral testimony of PW6 cannot be acted upon so as to enter a finding that the 9 Crl.Appeal No.478 of 2024 appellant was the consumer having control over the power meter. The appellant stated during 313 questioning that he was not in control of the power meter and he used to give the electricity charges to the owner of the building.

12. The learned Public Prosecutor would point out that when PWs.1, 2, 4 and 6 stated that the appellant was the person, who had domain over the power meter, the trial court was right in finding that he was responsible for the tampering of the meter.

13. PWs.1 and 2 did not have any personal knowledge as to who had the domain over the power meter. The oral testimony of PW4 is also not helpful to find that fact in favour of the prosecution. Of course, PW6 stated that in terms of the agreement, it was the appellant, who had to pay the electricity charges. Although a few recitals in the agreement between the appellant and the owner of the building are narrated in Ext.P5 mahazar, nothing regarding the building scheduled as the subject matter of the agreement had been extracted in the mahazar.

Crl.Appeal No.478 of 2024

14. As stated, Hotel Aiswarya was functioning in the first floor of the seven storied building. The appellant did not have possession or occupation of other parts of the building. There is nothing in evidence to show in whose possession and occupation are the remaining parts of the building. Neither the agreement is produced nor, atleast, the relevant recitals from the agreement are extracted in Ext.P5 mahazar. Hence, we are at dark as to whether the cellar portion of the building, where the meter was installed, had been put in possession of the appellant. The finding of the court below that that was a fact within the exclusive knowledge of the appellant is incorrect. Whether the domain over the cellar portion and the power meter was given to the appellant is a fact not only known to the owner of the building, but also borne by records. The prosecution could have adduced evidence in uncertain terms regarding that fact. But, the prosecution failed. Except tendering the oral testimony of PW6, which is insufficient, the prosecution did not adduce any evidence to prove that fact.

Crl.Appeal No.478 of 2024

15. It may be noted that the appellant has a case that the landlord had been trying to evict him from the premises. Steps for eviction were initiated as could be seen from Exts.B1 and B1(a). It is alleged that as a sequel to that the landlord instigated the Electricity Board officials to inspect the premises. In the wake of such a contention the prosecution ought to have adduced reliable evidence to show that the appellant had absolute control over the power meter and he was the principal beneficiary of the manipulation of the meter. In the absence of cogent and reliable evidence in that regard, it cannot be said that the charge of electricity theft against the appellant is proved beyond doubt. Therefore, the finding of the trial court holding the appellant guilty is incorrect. The appeal therefore is liable to be allowed.

In the result, the appeal is allowed. The appellant is acquitted of the charge levelled against him. He is set at liberty.

Sd/-

P.G. AJITHKUMAR, JUDGE dkr/pv