Madras High Court

Muthukumar vs The State Rep By on 15 May, 2025

                                                                                         CRL.A(MD).No.53 of 2019


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Reserved on : 06.12.2024
                                                Pronounced on : 15.05.2025

                                                            CORAM

                           THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

                                              CRL.A(MD).No.53 of 2019
                    Muthukumar                                               ... Appellant/ Accused No.2
                                                            Vs.
                    The State rep by,
                    The Inspector of Police,
                    Ettayapuram Police Station,
                    Thoothukudi District.
                    (Crime No.146 of 2010)
                                                                             ... Respondent/Complainant

                    Prayer : This Criminal Appeal is filed under Section 374 of Cr.P.C., to call
                    for the records and set aside the conviction and the fine imposed in
                    Spl.C.C.No.5 of 2013 dated 19.09.2018, by the learned Principal District
                    & Sessions Judge, Thoothukudi.
                                    For Appellant            : Mr.R.Anand
                                    For Respondent           : Mr.M.Sakthi Kumar,
                                                               Government Advocate (Crl.Side)

                                                          JUDGMENT

This appeal has been filed to set aside the judgment and conviction

passed by the learned Principal District & Sessions Judge, Thoothukudi, in

Spl.C.C.No.5 of 2013 dated 19.09.2018.

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2.The appellant, who is accused No.2 in Spl.C.C.No.5 of 2013, on

the file of the learned Principal District & Sessions Judge, Thoothukudi,

has filed this appeal, challenging the conviction and sentence imposed on

him for the offence under Section 135(1)(c) and Section 138(d) of the

Indian Electricity Act, by the impugned order dated 19.09.2018.

3. The brief facts of the case are as follows:-

A1 has obtained service connection No.2013 from the Tamil Nadu

Electricity Board for M/s.Puvaneswari Industries situated at

Kumaretaiyapuram Village, Ettaiyapuram Taluk. At the time of occurrence,

the said Industry was under the maintenance of the appellant/A2. On

12.08.2010, at about 07.00 p.m, the officials of the Tamil Nadu Electricity

Board inspected the said Company and found that the appellant is said to

have indulged in theft of 20446 Units of electrical energy with the help of

A1 and caused loss to the Tamil Nadu Electricity Board to the tune of

Rs.19,16,572/-. Hence, a complaint was lodged before the respondent

police and the same was registered as a case in Crime No.146 of 2010 for

the offences punishable under Section 135(1)(c), 138(d) and 150(1) of the

Indian Electricity Act. After completion of investigation, the Investigating

Officer filed final report before the learned Principal District & Sessions

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Judge, Thoothukudi, and the same was taken on file in Special

SSpl.C.C.No.5 of 2013.

3.1. After taking cognizance, the learned trial Judge framed the

charges against the appellant for the offence under Section 135(1)(c) and

Section 138(d) of the Indian Electricity Act. On the basis of charges, the

learned trial Judge, questioned the appellant and the appellant pleaded not

guilty and hence, the trial was conducted and the prosecution adduced the

evidence of P.W.1 to P.W.8 and marked the documents under Ex.P1 to

Ex.P.14 and also marked 6 material objects under MO.1 to MO.6. On the

side of the defence, no one was examined and no documents were marked.

3.2. The learned trial Judge, considered the same and examined the

appellant under Section 313 Cr.P.C., by putting the incriminating materials

available against him and he denied the same and hence, the case was

posted for examination of the defence witness. On the side of defence, no

witness was examined and no document was marked.

4. The learned trial Judge after considering the oral and documentary

evidence, convicted the appellant for the offence under Section 135(1)(c)

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and Section 138(d) of the Indian Electricity Act, by the impugned order

dated 19.09.2018, and sentenced him to undergo 3 years of rigorous

imprisonment and imposed a fine of Rs.5,000/- in default, to undergo 3

months rigorous imprisonment for the offence under Section 135(1)(c) of

the Indian Electricity Act, and sentenced him to undergo 3 years of

rigorous imprisonment and imposed a fine of Rs.5,000/- in default, to

undergo 3 months rigorous imprisonment for the offence under Section

138(d) of the Indian Electricity Act.

5. Aggrieved over the same, the appellant has filed this appeal on the

grounds stated in the memorandum of grounds of appeal.

6. To prove the offence under section 135 of the Indian Electricity

Act, 2003, the prosecution shall prove the following ingredients:-

6.1. The appellant is the occupier of the premises.

6.2. Dishonestly tampered the top of the meter or used a tampered

meter, cut the bolt and nut, short circuited the secondary terminals in the

meter, interfering with accurate recording of electricity usage, tampering

the calibration of electric meter, which results in stealing of electricity.

6.3. Improperly used the energy of a licensee.

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6.4. In this case, to record a finding whether the prosecution proved

the above ingredients beyond reasonable doubt, this Court extracts the

relevant portion of the evidence of the prosecution witnesses:-

6.4.1. P.W.2, in his evidence stated as follows:-

“,J xU jpl;lkpl;l Ma;t[ ,y;iy/ Ma;tpw;F nghtjw;F Rkhh; 1 kzpneuj;jpw;F Kd;djhf Jiwj;jiythplk; vdf;F bjhiyngrp jfty;

te;jJ/ Jiw jiythplk; ,Ue;j bjhiyngrp te;j tpguj;ij nghyprhh; tprhuizapd;nghJ ehd; brhy;ytpy;iy/ Ma;t[ Jt';fpa Kjy; Koa[k; tiu vjphpfs; ,UtUk; me;j ,lj;jpy; ,y;iy vd;why; rhpjhd;/ g[tnd!;thp ,z;bl!;l;hp epWtdj;jpd;

                                  chpikahsh;            ahh;           vd;gjw;fhd               Mtz';fis
                                  Ma;tpd;nghJ            vLj;J              bry;ytpy;iy/            Ma;tpw;F
                                  gpwFjhd;          chpikahsh;                ahh;       vd;gJ        vdf;F
                                  bjhpate;jJ/          ghJfhg;gpw;fhf                itf;fg;gl;L      ,Ue;j

                                  MRT       rPy;    nrjg;gLj;jg;gl;L             ,Ue;jjhf           nghyprhh;
                                  vd;id              tprhhpj;jnghJ                     brhy;ypapUf;fpnwd;/
                                  rk;gtj;jpw;F        gpwF       rPy;fs;       gw;wpa         tpgu';fSf;fhd
                                  gjpntLfis               ehd;           ghh;itapltpy;iy/               me;j
                                  bjhHpw;rhiyapd; kPll
                                                     ; h; hPo';                 gw;wpa        gjpntl;oida[k;

ehd; ghh;itapltpy;iy/ kpd;thhpa tpjpfspd;go kPl;lh; hPo'; gjpntL kw;Wk; rPy; gw;wpa gjpntL ,it me;j bjhHpw;rhiyapnyna guhkhpf;fg;glntz;Lk; vd;why; rhpay;y/ rPy; gjpntL braw;bghwpahsh;

                                  kpd;msit                   ghpnrhjid                        Ma;t[f;Tlj;jpy;
                                  guhkhpf;fg;gLk;/                kPll
                                                                     ; h;             hPo';          gjpntL
                                  rPy;gjpntL                    ,uz;Lnk                         bjhHpw;rhiy






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                                    guhkhpg;gpy;    ,Uf;Fk;         vdt[k;       mt;thW           ,y;iy        vd
                                    bgha;      brhy;Yfpnwd;           vd;why;         rhpay;y/           nghyprhh;
                                    tprhuizapd;nghJ              Ma;t[f;F         Kd;g[          ,Ue;j       kPl;lh;
                                    hPo';nfh       rPypd;      ek;gh;fis           ehd;          brhy;ytpy;iy
                                    vd;why;        rhpjhd;/         nghyprhh;          tprhuizapd;nghJ
                                    vd;ndhL         te;J        ,Ue;j          Jsrp         vd;gtUk;           xU
                                    Ma;twpf;if        jahh;      bra;jjhf            ehd;        brhy;ytpy;iy/
                                    ehd;    brhd;d          ehspYk;      neuj;jpYk;         Ma;tpw;F          ehd;
                                    nghftpy;iy              vd;why;       rhpay;y/           m/rh/1           jpU/
                                    KUfhde;jk;         mth;fs;          bgha;g[fhh;         bfhLj;jjhft[k;
                                    mth;       nfl;L          bfhz;ljpd;nghpy;                   ehd;       rhl;rp
                                    brhy;Yfpnwd; vd;why; rhpay;y/

6.4.2. P.W.3 also in his evidence stated as follows:-

                                            “eh';fs;        Ma;t[      bra;jnghJ            nghy;l;       ,uz;L
                                    Jz;lhf          ,y;iy         Mdhy;          2      Jz;Lfshf               fl;
                                    bra;tjw;Fz;lhd                                                      midj;J
                                    milahs';fs;                ,Ue;jJ/                me;j              nghy;l;oy;
                                    Jthuk; ,Ue;jJ/””

6.4.3. P.W.4 also in his evidence stated as follows:-

                                            “nghyprhh;           vd;           Kd;dpiyapy;                  me;j
                                     bjhHpw;rhiyapy;          thriy         kl;Lk;       ghh;itapl;lhh;fs;/
                                     ehd;     ifbaGj;J          nghl;L        ,Ue;j         ngg;ghpy;       vd;d
                                     vGjg;gl;L        ,Ue;jJ           vd;gJ          vdf;F             bjhpahJ
                                     vd;dplk; thrpj;J fhz;gpf;ftpy;iy/”

6.4.4. P.W.8 also in his evidence stated as follows:-

                                            “kpd;               ,izg;gpw;F                        brhe;jkhd
                                    g[tnd!;thp ,d;l!;ohp!; tHf;fpy; xU                             jug;gpduhf
                                    nrh;f;fg;gltpy;iy            vd;why;          mjd;            chpikahsh;






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                                  jug;gpduhf          nrh;f;fg;gl;Ls;shh;/         ,e;j          vjphpfSf;Fk;
                                  kpd;      thhpaj;jpw;Fk;        ,ilnat[s;s            cah;      kpd;mGj;j
                                  xg;ge;jk;             vjida[k;                 m/rh/1               vd;dplk;
                                  xg;gilf;ftpy;iy/                mnj         nghy;          m/rh/1       me;j
                                  epyj;jpw;Fwpa          chpik        kw;Wk;       xg;ge;jk;       vjida[k;

vd;dplk; xg;gilf;ftpy;iy vd;why; rhpjhd;/ ehDk;

tprhuizapy; me;j Mtz';fis nfl;L bgw;nwdh vd;why; nfl;nld; mth;fs; jutpy;iy/ ,e;j tHf;fpy; rk;gt ,lj;jpy; fpuhk eph;thf mYtyh;

                                  xU        rhl;rpahf           ,Ue;Js;shh;           vd;why;           rhpjhd;/
                                  mthplk;         ,e;j           epyj;jpd;        chpikahsh;              gw;wpa
                                  tptu';fis           mtiu         tprhhpj;j        nghJ         ehd;     nfl;L
                                  bjhpe;J              bfhz;nldh                 vd;why;                bjhpe;J
                                  bfhs;stpy;iy/                 vjphpfSf;Fwpa           bjhHpw;rhiyapy;
                                  kPl;lhpy;    filrpahf            nghlg;gl;l        rPy;.       mjd;     ek;gh;

vd;W nghlg;gl;lJ vd;gjw;F rPyp'; hp$pl;liu ehd; Ma;t[ bra;atpy;iy vd;why; rhpjhd;/ mnjnghy;

                                  rk;gt          ele;j            bjhHpw;rhiyapy;                 filrpahf
                                  vLf;fg;gl;l         kPl;lh;    hPo';    kw;Wk;      filrpahf            vd;d
                                  kPl;lh;     hPo';     ,Ue;jJ           vd;w        tptu';fis             ehd;
                                  tprhhpf;ftpy;iy                 vd;why;            rhpjhd;/             rhl;rp
                                  bre;jpy;Fkhh;         vdJ        tprhuizapy;            khjphprPy;       ve;j
                                  njjpapy;      ahhplk;         xg;gilj;jhh;        vd;gij          Fwpg;gpl;L
                                  brhy;ytpy;iy                  vd;why;          rhpjhd;/             tHf;fpy;

ifg;gw;wg;gl;l nghy;l; el; kw;Wk; rPy;fs; Rkhh; 10 khjk; fhyjhkjkhf Ma;tpw;F mDg;gg;gl;Ls;sJ vd;why; 6 khjk; fhyjhkjj;jpy; mDg;gg;gl;Ls;sJ/ kpd;thhpa mjpfhhpfs; me;j jla';fis xg;gilf;Fk; nghJ kpd;thhpa CHpah;fspd;

Jiza[ld; xg;gilf;f mwpt[Wj;jpajpd; bgahpy; kpd;thhpa CHpah;fs; tUifapy; Vw;gl;l fhyjhkjk;

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jhd; mjw;F fhuzk;/ ,e;j tHf;fpy; vl;ilag[uk;

                                  fhty;epiya                    Fw;w                 vz;/146-2010?Mf
                                  gjpt[      bra;ag;gl;oUf;fpwJ              m/rh/1           KUfhde;jk;
                                  jd;id        tujd;.        bre;jpy;Fkhh;            Mfpa         ,uz;L

vjphpfs; jk;ik gzpbra;atplhky; jLj;jjhf mnj fhty; epiyaj;jpy; g[fhh; bfhLj;J Fw;w vz;

145-2010 tHf;F gjpt[ bra;ag;gl;oUe;jJ vd;why;

                                  rhpjhd;/         me;j          Kjy;jfty;                    mwpf;ifapd;
                                  efiy         ,e;j          tHf;F            nfhg;g[ld;           jhf;fy;
                                  bra;atpy;iy        vd;why;         rhpjhd;/        rk;gt        njjpapy;
                                  rk;gtk;                 ele;jjhf                            brhy;yg;gLk;
                                  g[tnd!;rhp       ,d;l!;ohp!;             mDgt!;jw;fs;               ,e;j
                                  vjphpfs;     ,y;iy         vdt[k;        nkw;go         bre;jpy;Fkhh;.
                                  tujd;                         Mfpnahh;                              jhd;
                                  mDgt!;jw;fshf                      ,Ue;jhh;fs;                   vd;why;

rhpay;y/ ,e;j tHf;fpy; kdij rhptu brYj;jhky; Fw;w ,Wjp mwpf;if jhf;fy; bra;ag;gl;Ls;sJ vd;why; rhpay;y/ g[s;sp tptu fzf;fpw;fhf m/rh/1dhy; jug;gl;l bgha; g[fhhpd; mog;gilapy rhpahd tprhuiz nkw;bfhs;shky; vjphpfs; kPJ Fw;w ,Wjp mwpf;if jhf;fy; bra;ag;gl;Ls;sJ vd;why; rhpay;y/

7. From the reading of the above evidence, the following facts are

clear:-

7.1. Subject matter of service connection is not in the name of the

appellant.

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7.2. Neither documentary nor oral evidence was adduced on the side

of the prosecution to prove that the appellant was enjoyed the said

premises and was along with service connection.

7.3. There was no record to show that the appellant was in-charge of

the premises are present in the occurrence place and running the industry.

7.4. Even in the Inspection Report of the Electricity Board, it is

stated that the industry was not functioning.

7.5. There was no material to show that the appellant has committed

any act of tampering of meters and illegally tapped of electricity to run the

industry.

7.6. There was huge delay of 10 months in sending the incriminating

materials to the lab for getting the opinion.

7.7. P.W.4, mahazar witness admitted that he signed the document

without knowing the contents of the document.

7.8. There was no material to show the last reading of the electric

meter of the premises to prove the misuse of the electricity.

8. From the reading of the above evidence, this Court without any

hesitation holds that the appellant has not enjoyed the said property on the

date of the inspection. Further, no material had been adduced to prove his

enjoyment over the said service connection. In the above circumstances,

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without any possession and the enjoyment of the service connection on the

part of the appellant, charge against the appellant is not legally

maintainable.

9. Further, this court in the case of Kanniyappan Vs. State in

Crl.A.No.545 of 2014 has held as follows:-

“5(1)This Court in 1972(1) L.W (Crl) 133, held that, in the case of the charge of electricity theft or manipulation made against number of persons the prosecution must specifically prove who committed the offence by legal evidence.

If there are more than one accused, it is the bounden duty of the prosecution to discharge the burden by proving the case against each of the accused by adducing independent evidence of the proof of some overt act establishing or proving the dishonest abstracting or consumption or use of any energy. Otherwise there is the great risk and hazard on the administration of justice resulting in the conviction of at least some innocent persons while sometimes the really guilty consumers are punished. Such a danger must be avoided even at the risk of exculpating and acquitting the really guilty for the sake of saving innocent persons from conviction and consequential

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imprisonment.”

10. Apart from that, as held by the Hon'ble Supreme Court of India

in the case of Ram Chander Prasad Sharma Vs. State of Bihar and

Another reported in AIR 1967 SC 349, the prosecution not only should

prove the tampering of the meter but also prove that the meter in dispute

was under the control of the accused. In this case, as referred above, there

was no evidence to show that the disputed meter was under the control of

the accused.

11. Therefore, it is relevant to extract the following portion of the

above said judgment of the Hon'ble Supreme Court of India:-

“12.Insofar as the conviction under Section 39 is concerned the matter stands on a different footing. It is not sufficient to say that a meter had been tampered with and that it was under the control of the accused person. It is further necessary to show that there was dishonest abstraction, consumption or use of electrical energy by the accused person. Before raising a presumption thereunder that there was dishonest abstraction the presence of an artifical means which would render abstraction of energy possible has to be

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established. Here we have three phase meters and, therefore, unless all are tampered with abstraction of energy without fear of detection is not possible. It is difficult to presume that the appellant would have knowingly done a Meter Reader and facilitated the abstraction of electric energy. In fact what he had said in his confession was that Jai Narain, a Meter Reader of the company had done something to the meter. That may or may not be so. Jai Narain who was co-accused with the appellant was acquitted by the trial Court and his acquittal was not challenged by the State. There is no material on the basis of which it could be held that there was in fact any abstraction of electrical energy. In the circumstances the presumption permissible under Section 39 can not be raised in favour of the prosecution. It follow, therefore, that the appellant's conviction under Section 39 is unsustainable. We accordingly, set it aside as also the sentences passed upon him in respect of that offence.”

12. The similar view also was expressed in the following case of

Subramaniam and others in Crl.A.No. 446 of 2009

“Merely because the security seals were found damaged, in the absence of any evidence to show that the appellants used any artificial means to abstract

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energy, they cannot be convicted under Section 135 of the Electricity Act.”

13. The appellant purchased the property from the first accused. The

first accused also sent a communication on 26.03.2010 to cancel the

agreement entered between him and the Electricity Department. There is

no evidence adduced to prove the subsequent agreement between the

appellant and the Department to provide a service connection. Further, no

evidence was adduced to prove the occupation of the appellant in the said

Industry. Even as per the evidence of the prosecution, the Industry was not

running and the premises was locked and also no one was working in the

said Industries. In view of the above factual and legal aspects, this Court

holds that the prosecution miserably failed to prove the offence under

Sections 135(1)(c) and 138(d) of the Indian Electricity Act, against the

appellant.

14. In view of the said factual circumstances, this Court inclines to

set aside the judgment of the learned trial Judge holding that the

prosecution has not proved the case beyond reasonable doubt.

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15.Accordingly, the appeal is allowed on the following terms:

1.The judgment passed by the learned Principal District & Sessions Judge, Thoothukudi, in Spl.C.C.No.5 of 2013 dated 19.09.2018, is set aside.

2.The appellant is acquitted from all the charges in Spl.C.C.No.5 of 2013 dated 19.09.2018, passed by the learned Principal District & Sessions Judge, Thoothukudi.