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
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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
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
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.
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
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
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
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
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.
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.
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
