Judgment : The accused in C.C.No. 5658 of 1990 on the file of the VIII Metropolitan Magistrate, George Town, Madras have filed this petition under Sec. 482, Crl.P.C. praying to call for the records in the above case and to quash the proceedings in C.C.No. 5658 of 1990. .2. Short facts are: The respondent had filed a charge-sheet against the petitioners for offences under Secs. 39 and 44(c) of the Indian Electricity Act, as amended by Act 39 of 1980. The allegations in it are briefly as follows: The 1st accused is the firm and accused 2 and 3 are the partners. The 4th accused is managing the 1st accused firm. The electricity service connection is standing in the name of the 1st accused and through that service connection the 1st accused is getting electricity for production purposes. The service connection is provided with 3 phase 25 amps meter. Prior to 8. 1987 with an intention of stealing electrical energy, accused 1 to 4 partially opened the top cover of the meter, tampering the screws provided in the meter and then meddled with its recording mechanism to bring the recorded energy down to whatever lesser value required by them and kept the meter in normal position. By the above artificial means they have dishonestly and wilfully consumed 9177 units of electrical energy for a period of 198 days and they have made a wrongful gain of Rs. 27,531. Accused 2 to 4 are looking after the day to day activities of the 1st accused firm. The meter has been installed in the premises of the 1st accused-firm. Thus they have committed the offences punishable under Secs.39 and 44(c) of the Indian Electricity Act as amended. 3. Mr.K.S. Rajagopalan, learned counsel for the petitioners would submit that (i) there are no allegations in the charge-sheet that accused 2 and 3, who are petitioners 2 and 3, were in charge of the affairs of the firm and were responsible for conduct of the same and hence they are not liable; (ii) there are no materials to show that the accused have committed the offences alleged; (iii) the detection was said to be made on 8. 1987 i.e., three days prior to that date there was inspection by the officials of the Tamil Nadu Electricity Board and they did not find any tampering. While so, the alleged detection of tampering on 8. 1987 i.e., three days prior to that date there was inspection by the officials of the Tamil Nadu Electricity Board and they did not find any tampering. While so, the alleged detection of tampering on 8. 1987 cannot be believed; (iv) as per para 223 of the Tamil Nadu Electricity Board Manual a confidential report is mandatory before investigation and that was wanting in this case; and (v) as per rule 232 sanction should be obtained before the Superintendent of Police for launching of the prosecution and that was not obtained and hence it is liable to be quashed. .4. I have heard the learned Government advocate on the above aspects. I have carefully considered the submissions made by the learned counsels. I shall take up the submissions made by Mr. Rajagopalan in seriatim. Regarding the first submission, I have to refer to relevant portions in the chargesheet. In the charge-sheet it is stated that the accused 2 to 4 are looking after the day to day activities of the 1st accused-firm. It is further stated that the meter has been installed inside the premises of the 1st accused firm. These allegations are sufficient to implicate accused 2 and 3 who are the partners of the firm, with the offence alleged. Hence the first submission cannot be accepted. 5. I shall take up the second submissions last. Submission (iii) can be considered only at the time of trial which is a matter of evidence. So, at this stage, that cannot be considered. Submissions (iv) and (v) relate to certain provisions made in the Tamil Nadu Electricity Board Manual. If at all, they can be only administrative instructions. They cannot override the provisions of statutes. So, failure to follow any of these instructions cannot have the effect of quashing the very proceedings. So, these submissions also fail. 6. I shall now pass on to consider submission No. (ii). Mr.K.S. Rajagopalan would submit that from the statements of witnesses recorded under Sec. 161(1), Cr.P.C. no, materials are available to show that there was theft of electrical energy by the accused. So, these submissions also fail. 6. I shall now pass on to consider submission No. (ii). Mr.K.S. Rajagopalan would submit that from the statements of witnesses recorded under Sec. 161(1), Cr.P.C. no, materials are available to show that there was theft of electrical energy by the accused. He would submit that there is no evidence to show the presence of any artificial means which will render abstraction of energy possible and that the presence of perfected artificial means which will render abstraction of energy possible has to be established by the prosecution to make out an offence under Sec. 39 of the said Act. For considering this Sec. 39 needs extraction, which is as follows: “Theft of energy: Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees or with both; and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer.” The plain language of Sec. 39 of the Act would show that”if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer. So the existence of any artificial means or means not authorised by the license must be proved before the presumption referred to supra can be drawn. 7. I shall next pass on to consider whether the materials available in this case, show the existence of any artificial means or means not authorised by the licensee existed. Mohamed Hidayatulah, Assistant Divisional Engineer, Sowcarpet, one of the Engineers, who inspected the meter in the premises of the accused. 7. I shall next pass on to consider whether the materials available in this case, show the existence of any artificial means or means not authorised by the licensee existed. Mohamed Hidayatulah, Assistant Divisional Engineer, Sowcarpet, one of the Engineers, who inspected the meter in the premises of the accused. In his report he has stated as follows: “During the time of inspection, it was found that out of three meter cover seals provided with sealing screws at the top and the right side sealing screws with seals were found come out from the bottom of the meter and the meter cover was partially opened, thereby making access to meddle with recording of the meter." Along with this report, he had enclosed the report of Manickam, Assistant Divisional Engineer, Meter and Relay Tests, M.E.S.(D) Central Madras-2. In the said report of Manickam, he has stated as follows: "Out of the three meter cover seals provided with sealing screws at the top and the right side sealing screws with seals were found come out from the bottom of the meter and the meter cover was partially opened thereby making access to meddle with the recording of the meter." In the said report, he has also stated as follows: "The partial opening is due to the external force applied at the top and right side sealing screws only and hence I conclude that the meter is tampered and the recording is meddled." During the inspection made on 8. 1987, by Mohamed Hidayatullah and others, they found the tampering of the meter, as above. They have not found the existence of any artificial means or means not authorised by the license for the abstraction, consumption or use of energy by the consumer. In the absence of the existence of any such artificial means the presumption which can be drawn under Sec. 39 of the said Act, cannot be drawn. When that presumption is not available, the other way, in which Sec. 39 of the Act would come into play is direct evidence with regard to abstraction, consumption etc. There is no material to show that anybody saw any dishonest abstraction, consumption etc by the accused. Thus, no materials are placed before the court, to attract the offence punishable under Sec. 39 of the Act. So regarding offence under the said Sec. 39 the proceedings are to be quashed. 8. There is no material to show that anybody saw any dishonest abstraction, consumption etc by the accused. Thus, no materials are placed before the court, to attract the offence punishable under Sec. 39 of the Act. So regarding offence under the said Sec. 39 the proceedings are to be quashed. 8. The learned counsel for the petitioner, would rely upon Ram Chandra v. State of Bihar, A.I.R. 1967 S.C. 349: (1966)2 S.C.W.R. 641: 1967 S.C.D. 61: 1967 Crl.L.J. 409: (1966)3 S.C.R. 517 . In it, it was held that before raising a presumption under Sec. 39 of the Electricity Act that there is a dishonest abstraction of energy, the presence, of a perfected artificial means which will render abstraction of energy possible has to be established by the prosecution. It is further necessary to show that there was a dishonest abstraction, consumption or use of electrical energy by the accused person. It is not sufficient to say that a meter has been tampered with and that it is under the control of the accused. When this ruling was rendered, Sec. 39 of the Act reads thus: "Whoever, dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction." Sec. 39 as it stands is a little bit different and I have extracted it supra. I find that the present Sec. 39 was substituted for the original Sec. 39 by Act 31/86. Ram Chandra v. State of Bihar, A.I.R. 1967 S.C. 349: (1966)2 S.C.W.R. 641: 1967 S.C.D. 61: 1967 Crl.L.J. 409: (1966)3 S.C.R. 517 was rendered, before the present Sec.39 was substituted. However, even as per the new definition, the existence of an artificial means or means not authorised by the licensee, is a pre-requisite for raising a presumption mentioned in the said section. 9. Now I shall pass on to the offence under Sec. 44(c) of the Act. Sec. 44(c) reads as follows: "44. Penalty for interference with meters or licensee’s works and for improper use of energy. Whoever....... (a)........... (aa)........... (b)........... (c) maliciously injures any meter referred in Sec. 26, Sub-sec. (1) or any meter, indicator or apparatus referred to in Sec. 26, Sub-sec. Sec. 44(c) reads as follows: "44. Penalty for interference with meters or licensee’s works and for improper use of energy. Whoever....... (a)........... (aa)........... (b)........... (c) maliciously injures any meter referred in Sec. 26, Sub-sec. (1) or any meter, indicator or apparatus referred to in Sec. 26, Sub-sec. (7) or wilfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering." In his report, dated 8. 1987, Mohamed Hidayatullah has stated as follows: "The consumer has therefore maliciously and dishonestly tampered the meter and the recording mechanism wilfully and has altered the readings of the meter fraudulently and reduced the recordings of the meter and resorted to theft of energy." In this report, he has mentioned about the tampering of the meter. In it, he has also stated that if the top and right side sealing screws are tampered, it is possible to open the meter cover to the extent required, to manipulate the reading to the whatever value that is desired. He has also stated that by opening the meter cover, to the extent, by applying the external force at the top and right side sealing screws the meter reading had been tampered. The above would go to show that there are materials to make out an offence under Sec. 44(c) supra and so for that offence, the proceedings cannot be quashed. 10. In the result, the petition is allowed in part and the proceedings are quashed only with regard to offence under Sec.39 of Indian Electricity Act. In other respects, the petition fails. The charge is in order with regard to offence under Sec. 44(c) of Indian Electricity Act, as amended by Act 39 of 1980 and the learned Magistrate is directed to proceed with the case with regard to that offence and dispose it of according to law, expeditiously.