Judgment : The Tamil Nadu Electricity Board is the petitioner herein. On the complaint of the petitioner, the Arcot police filed the charge sheet in C.C.No.172 of 1991 against one Parthasarathy, the respondent herein, for the offences under Sec.39 and 44(1)(c) of the Indian Electricity Act. By the judgment dated 24.9.1996, the learned Judicial Magistrate, Arcot acquitted the accused. Hence, this revision. 2. The case of the prosecution is this: A.R. Parthasarathy, the accused in this case is the owner of the Lakshmi Vinayaga Saraswathi Rice Mill situate at Arcot town. He is the consumer of the electricity. On 20.12.1990, the officials of the Electricity Board inspected the meter and service connection in S.C.No. 4325 fitted in the rice mill. The accused was found to be dishonestly extracted, consumed and used electric energy of 42,009 units and caused loss of Rs. 2,01,643 to the Tamil Nadu Electricity Board, by maliciously injuring the meter installed by the Electricity Board and by tampering the seals of the said meter fixed by the Board, after replacing bogus seals in the place of seals already fixed. On the basis of this accusation, P.W.7, the Sub Inspector of Police investigated the case and filed the charge sheet for the offences stated above. After trial, the learned Judicial Magistrate, Arcot acquitted the accused on the ground that it cannot be said that the accused only injured the meter and illegally extracted the electric energy, as there is no direct evidence. 3. Mr. Jayakumar, the learned counsel representing Mr. Rengabashyam, appearing for the petitioner in this revision, challenging the judgment of the trial court, would press into service that the trial court has misinterpreted Sec.39 and 44 of the Indian Electricity Act, even though the prosecution has proved that the presence of artificial means in the meter and that there was dishonest extraction of electric energy by the accused. 4. Mr.Suresh, representing Mr.Udayakumar, appearing for the respondent, would resist the said submission, in justification of the impugned judgment. 5. 4. Mr.Suresh, representing Mr.Udayakumar, appearing for the respondent, would resist the said submission, in justification of the impugned judgment. 5. At the outset, I must mention that the learned Judicial Magistrate, Arcot has exceeded his limit by referring various irrelevant materials which were not placed before the court during the trial, and allowed himself to be in complete prejudice, as a result of which a flagrant miscarriage of justice has been caused by acquitting the accused without any effort to understand the meaning of Sec.39 and 44(1)(c) of the Indian Electricity Act. 6. Let me, at the end, would point out those irrelevant considerations, of course, with judicial restraint, Before that it shall be proper for me to highlight as to how the learned Magistrate has given a perverse finding without taking into account the two sections of the Act, as indicated above. 7. The Assistant Executive Engineer who inspected the rice mill, found that the meter cover seal in the service connection was not genuine. This is clear from Ex.P-1. As per the report of P.W.3 the Executive Engineer, the seals found in the meter on the date of inspection were compared with the original seals and the said seals were found to be completely different and as such, the two seals found in the meter were bogus. Ex.P-3 series, the meter reading cards, would show that per year, the rice mill used to consume 68768 units, but in the current year, the meter reading would show only 26759. Ex.P-6 is the statement given by the accused before the officials of the Electricity Board to the effect that the meter was standing in his name and he was running the rice mill and that, both the electric meter and the consumption of energy were under his control. Ex.P-6 is the statement given by the accused before the officials of the Electricity Board to the effect that the meter was standing in his name and he was running the rice mill and that, both the electric meter and the consumption of energy were under his control. Ex.P17, the forensic report on analysing the meter and seals would show that the seals were not genuine and they were found to be bogus, About the aspect regarding the presence of artificial means in the meter, the witnesses P.W.1 to P.W.3 and the forensic expert P. W.6 would give clear details while they were examined in the court, as such, there is ample evidence to the effect that there were artificial means present in the meter and the electric energy to the tune of 42009 was extracted by using the said artificial means to make the meter reading to show only 26759 units, instead of 68768 units which is the usual consumption per year, Despite this, the learned Magistrate has held that there is no direct evidence to prove that the accused only tampered the meter and put artificial means and that he only extracted electric energy for running his rice mill. This finding is manifestly wrong, in view of Sec.39 of the Act. 8. Sec.39 of the Indian Electricity Act 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 so proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer. ” 9. The reading of Sec.39 of the Act would show that if it is proved that any artificial means exist for abstraction, it shall be presumed until the contrary is proved that any abstraction was dishonestly caused by such consumer. In other words, it is enough for the prosecution to prove the existence of any artificial means for the presumption referred to above to be drawn. In other words, it is enough for the prosecution to prove the existence of any artificial means for the presumption referred to above to be drawn. This would make it clear that the prosecution need not adduce direct evidence to show that the accused only put the artificial means in the meter. 10. As discussed earlier, the evidence of witnesses would reveal that the seals found in the meter were artificial one. It is also admitted through Ex.P-6, the statement given by the accused to the Department that he was the consumer of electricity and he was running the rice mill. Once this is established, then it is for the accused to prove that he has not abstracted the electric energy dishonesty. Though in this case, the onus was discharged by the prosecution and the evidential burden was shifted on the accused, the said burden was not discharged by the accused. 11. Let us now come to Sec.44(1)(c) of the Act. 44. Penalty for interference with meters or licensees works and for improper use of energy: Whoever- (a)…… (b)…… (c) maliciously injures any meter referred to 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; or (d)…… and if it is proved that any artificial means exist for making such connection as is referred to in clause (a), or such communication as is referred to in clause (b), or for causing such alteration or prevention as is referred to in clause (c), or for facilitating such improper use as is referred to in clause (d) and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, alteration, prevention or improper use, as the case may be, has been knowingly and wilfully caused by such consumer. ” 12. The reading of this section would reveal that if it is proved that any artificial means exist in the meter and that the said meter is under the custody of the consumer, it shall be presumed until the contrary is proved, that the abstraction has been caused by such consumer knowingly and wilfully. ” 12. The reading of this section would reveal that if it is proved that any artificial means exist in the meter and that the said meter is under the custody of the consumer, it shall be presumed until the contrary is proved, that the abstraction has been caused by such consumer knowingly and wilfully. As indicated earlier, admittedly, the meter was under the control and custody of the accused and the same was being used by abstracting energy for running the rice mill. 13. Besides, the evidence available in the instant case about the difference in meter reading between the earlier year and the current year, would as well show the energy has been extracted unauthorisedly for running the rice mill. The prosecution has placed materials in this case that the accused is a consumer and the meter was under his custody and control and there were artificial means. This aspect was not considered by the learned trial court. 14. In fact, this aspect has been considered in the following decisions: (1) Manickam v. Dhanakoti Manickam v. Dhanakoti , 1983 L. W. (Crl.) 50 (2) State v. Pavayammal State v. Pavayammal , 1978 L.W. (Crl.) 84 (Sum.) (3) Tamil Nadu Electricity Board v. Kandasamy and others, Crl. R.C.No.67 of 1994 dated 7.11.1997; (4) Tamil Nadu Electricity Board v. Jagadeesan and others, Crl.R.C.No.64 of 1994 dated 4.6.1996. 15. The judgment relied upon by the trial court in Subramaniyan v. State Subramaniyan v. State , (1992)2 M.W.N. (Crl.) 286 on the strength of the Apex Courts decision in Ram Chandra v. State of Bihar Ram Chandra v. State of Bihar , 1967 Crl.L.J. 409 would not be applicable to this case. 16. In the said case, A-1 the proprietor of the rice mill in the whose name he meter stood, was acquitted and A-2, the lessee of the said rice mill was alone convicted. Being a lessee, this Court in the said decision, took a view that the presumption under Sec. 44(1)(c) of the Act would not be applicable. But, in the instant case it has been amply established that the accused is the consumer and the owner of the rice mill. 17. Being a lessee, this Court in the said decision, took a view that the presumption under Sec. 44(1)(c) of the Act would not be applicable. But, in the instant case it has been amply established that the accused is the consumer and the owner of the rice mill. 17. The following observation in Manickam v. Dhanakoti Manickam v. Dhanakoti , 1983 L.W. (Crl.) 50 is quite relevant: “Further evidence is that the licence stands in the name of the first respondent and the second respondent is running a business. When once the prosecution discharges the initial onus of proof, it is for the accused to show that the tampering or the abstraction of electricity was done without their knowledge. As stated already, Sec.39(1) of the Act says 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 such abstraction consumption or use of energy has been dishonestly caused by such consumer. Sec.44 also raises a similar presumption.” Therefore, I am of the view that the finding in the impugned judgment is perverse. Consequently, the judgment of the lower court is liable to be set aside. 18. I shall now go into the disturbing features in the impugned judgment in which I find reflection of the prejudice of the learned Judicial Magistrate, which is the main cause to throw out the case of the prosecution. 19. The court, while rendering a judgment, has to consider the materials place before it on by proper analysis and appreciation of the same. It is settled law that the evidence adduced before the court shall be admissible and tested by the cross-examination and those evidence alone have to be taken into consideration, while arriving at a conclusion. 20. The result, of the trial shall depict the reflection of the application of kind, The word ‘mind’ means ‘judicial mind’. In other words, it is termed as unbiased mind. The application of unbiased mind only could bring out the real truth and that alone would pave the way for the court to render a reasoned judgment. 21. But in the instant case, the learned Judicial Magistrate has taken into account several irrelevant considerations which fully react and reject his prejudiced and biased mind. 22. The application of unbiased mind only could bring out the real truth and that alone would pave the way for the court to render a reasoned judgment. 21. But in the instant case, the learned Judicial Magistrate has taken into account several irrelevant considerations which fully react and reject his prejudiced and biased mind. 22. The inspection in this case was made on 20.12.1990. After investigation, the investigating officer filed the charge-sheet on 18.7.1991. In the very same court, the several similar cases ended in acquittal. So, the investigating officer filed a petition for transfer before the Chief Judicial Magistrate, Vellore. The said application was ultimately dismissed on 25.8.1995 holding that that was not a ground for transfer. The filing of the application for transfer from the lower court to some other court has apparently caused serious prejudice in the mind of the learned Judicial Magistrate, who rendered this judgment of acquittal. This also was considered as one of the grounds to reject the case of the prosecution. The relevant observation is as follows: "Tamil" To make such an observation, in my opinion, there is no basis. Moreover, it is ununderstandable as to how the learned Judicial Magistrate could say that P.W.7 the Sub-Inspector of Police, with an oblique motive, in order to help the officials of the Electricity Board, in a hasty manner subjected the accused to the harassment. Neither the order dismissing the transfer petition nor any material with reference to that was placed before the court during the course of trial and there was also no question about this put either to the officials of the Board, namely P.Ws.1 to 3 or to the Sub-Inspector of Police P.W.7. Without any material whatsoever, the above observation has been made by the learned Judicial Magistrate. In my view, this observation is highly unwarranted and without any foundation. 23. In the instant case, originally the F.I.R. was registered on 20.12.1990 for the offences 39 and 44 (1)(c) of the Indian Electricity Act and Sec.484, I.P.C. However, the charge-sheet was filed on 18.7.1991 only for the offences under Electricity Act. The learned Judicial Magistrate has laid much stress regarding the fact that the accused was not arrested during the course of investigation. It is also observed that the accused filed an application for anticipatory bail before this Court and obtained the same on 26.12.1990. The learned Judicial Magistrate has laid much stress regarding the fact that the accused was not arrested during the course of investigation. It is also observed that the accused filed an application for anticipatory bail before this Court and obtained the same on 26.12.1990. The learned Judicial Magistrate has pointed out that in between 20.12.1990 and 26.12.1990 the police officer has not arrested the accused, Is it an issue before the trial court. 24. Furthermore, it is mentioned that even though in the charge sheet Sec.484, I.P.C. was not mentioned, when the application for transfer was filed before the Chief Judicial Magistrate, it was stated in the said application that the case against the accused was under Sec.39 and 44(1)(c) read with 484, I.P.C. and so the said application was filed suppressing the fact of having filed the charge only for the offence under the Indian Electricity Act. The observation is as follows: "Tamil" This observation is quite unnecessary and irrelevant in this case, as the trial court is not concerned with the question as to what are the contents of the application filed by the police for transfer. Moreover, this application for transfer was not marked before the trial court. There was no question put to P.W.7 who filed such an application for transfer, by the accused during the course of trial. Therefore, this observation is also highly unwarranted. 25. Though the case ended in acquittal on the ground that there is no direct evidence to hold that the accused alone put artificial means in the electric meter and extracted energy, which is not a valid ground, as observed by me earlier, these irrelevant and extraneous circumstances above. As indicated above, had made the learned Judicial Magistrate to have a prejudicial mind to throw out the prosecution case. It would rather say, of course, restraint, the act of making such observations is unbecomming and does not befit the position which the Judicial Officer holds. I could only say that it is highly condemnable. At least in the future, the learned Judicial Magistrate is to see that those mistakes which have caused miscarriage of justice in this case, are not repeated. 26. I could only say that it is highly condemnable. At least in the future, the learned Judicial Magistrate is to see that those mistakes which have caused miscarriage of justice in this case, are not repeated. 26. As I indicated earlier, since the learned Judicial Magistrate overlooked the statutory provisions of Sec.39 and 44(1)(c) of Indian Electricity Act, raising presumption, which he is legally bound to taken into account and other materials, the judgment of acquittal passed by the learned Judicial Magistrate is vitiated. Therefore, the revision is liable to be allowed. 27. In the result, the revision petition is allowed. The judgment of acquittal is set aside and the case in C.C.No.172 of 1991 is remitted back to the learned Judicial Magistrate, Arcot, for a fresh disposal on the basis of the evidence already collected, bearing in mind Sec.39 and 44(1)(c) of the Indian Electricity Act.