Madras High Court · 2025

CRL.A(MD).No.53 of 20192.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 2/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019Judge, 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) 3/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019and 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. 4/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 20196.4. 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; kPl;lh; 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;/ kPl;lh; hPo'; gjpntL rPy;gjpntL ,uz;Lnk bjhHpw;rhiy 5/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019guhkhpg;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; 6/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019jug;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; 7/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019jhd; 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.8/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 20197.2. 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, 9/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019without 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 10/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019imprisonment.”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 11/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019established. 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 12/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019energy, 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. 13/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 201915.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.3.Fine amount paid by the appellant shall be refunded to the appellant forthwith.4.Bail bond executed by the appellant shall stand cancelled. 15.05.2025NCC : Yes/NoIndex :Yes / NoInternet :Yes / Nodss14/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019To1. The Principal District & Sessions Judge, Thoothukudi. 2. The Inspector of Police, Ettayapuram Police Station, Thoothukudi District.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.15/16 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.53 of 2019K.K.RAMAKRISHNAN ,J. dssOrder made in CRL.A(MD).No.53 of 201915.5.202516/16