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1998 DIGILAW 931 (MP)

State of M. P. v. Babusingh

1998-11-30

D.P.S.CHAUHAN

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JUDGMENT D.P.S. Chauhan, J. 1. The Respondent Babusingh was tried in Criminal Case No. 51/86 by the Judicial Magistrate First Class Ajaygarh for theft of electric energy and was charged Under Section 39 of the Indian Electricity Act, 1910 (for brevity, hereinafter referred to as the Act) read with Section 379 of the Indian Penal Code wherein he was acquitted by judgment and order dated 17.6.88 and against this acquittal, the present appeal was directed by the State of Madhya Pradesh after seeking leave from this Court. 2. The brief facts of the case are that on 15.3.1986, Shri S.D. Khare, who was Divisional Engineer (Vigilance), Madhya Pradesh Electricity Board, Sagar, alongwith Assistant Engineer Shri, M.L. Arjaria, Shri R.K. Jain and Assistant Lineman Heera Bhaiyyalal and two police persons, reached the village Bhawanipur for making suprise checking where he found at the residence of Babusingh, the accused, without the electric connection having been obtained, a 10 H.P. electric motor was being run as well as the flour mill and the Huller, though no electricty consumption meter was installed there, the report of which was given to the Head Constable Ramsewak there in the village Bhawanipur itself, which was taking up as Dehati Nalishi No. 0/86 and subsequently sent to Police Station Dharampur where Crime No. 14/86 was registered against Babusingh. 3. The trial Court recorded the acquittal on two grounds: (1) Firstly, that the prosecution has failed to establish the theft beyond reasonable doubt that on the date of the surprise checking, the accused, by connencting the wire, was consuming electricity without permission from the Madhya Pradesh Electricity Board; and (2) Secondly, there was no sanction for his prosecution as required under Section 50 of the Act. 4. Heard Shri B.P. Athya, Panel Lawyer, the learned Counsel for the Appellant-State and Shri Siddharth Datt, the learned Counsel for the Respondent. 5. So far as the question of sanction is concerned, if would be useful to extract out Section 50 of the Act: 50. Institution of prosecutions - No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or an Electrical Inspector or of a person aggrieved by the same. 6. Institution of prosecutions - No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or an Electrical Inspector or of a person aggrieved by the same. 6. The Section 50 uses the word "aggrieved person" and in such cases, the question would arise as to who would be the aggrieved person. The aggrieved person naturally would be the person who is in the employment of the distributor as it is his job to see that the electricty is distributed to an authorised person and in the present case, Shri R.K. Jain, who was the Assistant Engineer in the Madhya Pradesh Electricity Board and was working in the Vigilance cell of the Electricity Board and as such, he falls within the meaning of the word "aggrieved person", and therefore, the reasoning given by the trial Court that the prosecution was sans sanction as required Under Section 50 of the Act is misfounded. It was a case where no sanction was necessary as Shri R.K. Jain was the person who was aggrieved by the unauthorised illegal consumption of energy and its theft. 7. The second reasoning was that the prosecution failed to establish the fact that the accused, after directly connecting the line, was consuming the electricity without permission of the Electricty Board. 8. Learned Counsel for the Appellant State submitted that in the present case a finding is recorded in para 11 of the judgment that at the relevant time, at the place of Babusingh, electricity was running in the cut out and the starter. 9. Relevant portion from para 11 is extracted below The evidence of Shri R.K. Jain was discraded by the trial Court on the basis that the witness clearly does not say that when he reached the spot, he found the electric motor running. 10. In this connection, Section 39 of the Act is relevant and the same is extracted below: 39. Relevant portion from para 11 is extracted below The evidence of Shri R.K. Jain was discraded by the trial Court on the basis that the witness clearly does not say that when he reached the spot, he found the electric motor running. 10. In this connection, Section 39 of the Act is relevant and the same is extracted below: 39. Theft of energy - Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with improsonment for a term which may extend to three years or fine which shall not be less than one thousand rupees, or with both, and if it is proved that any artificial mean 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. Section 39 states that if it is porved that any artificial mean or means not authorised by the license exist for the abstraction, consumption of 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. In the present case, the material on the record has proved the existence of artificial means not authorised by the licensee, for the abstraction, consumption or use of energy by the consumer as in the cut out and starter, there was electric current and in view of this, the view of the trial Court cannot be accepted that he prosecution failed to establish clearly that when the concerned persons reached on the spot, they found the electricity meter running. When a presumption is made by the law, then, the burden of rebutting the presumption is on the consumer and in the present case, the consumer has failed to rebut such a burden. The liability of the consumer Under Section 39 of the Act cannot be absolved. 11. In view of the above, I find that the offence Under Section 39 of the Act has been made out against the Respondent Babusingh though no charge Under Section 379 IPC is established against him. 12. The appeal accordingly succeds and is allowed. The judgment and order of the trial Court is set aside. 11. In view of the above, I find that the offence Under Section 39 of the Act has been made out against the Respondent Babusingh though no charge Under Section 379 IPC is established against him. 12. The appeal accordingly succeds and is allowed. The judgment and order of the trial Court is set aside. The Respondent Babusingh is convicted Under Section 39 of the Indian Electricity Act, 1910. 13. Heard the learned State counsel and the learned Counsel for the Respondent on the question of sentence. The learned Counsel for the Respondent submitted that it is a case of 1986 and about 12 years have elapsed. No. useful purpose would be served by sentencing the Respondent with imprisonment and he submitted that the fine would be adequate punishment for his taking care and caution in future. Learned State counsel has no objection. 14. In view of the above, I consider it proper to impose a minimun sentence of fine which has been provided Under Section 39 of the Act i.e Rs. 1,000/-. The Respondent Babusingh is thus sentenced with fine for Rs. 1,000/-. The fine so imposed shall be recoverable from the Respondent within two months from today. In the event of failure, the Respondent shall be sent to prison for a period of one year.