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2004 DIGILAW 91 (MAD)

State Rep. S. I. of Police v. Santhana Kumar

2004-02-01

R.BANUMATHI

body2004
Judgment :- State has come forward with this appeal against the order of acquittal. By the judgment in C.C.3804/94 dated 24.9.96 VII Metropolitan Magistrate, George Town, Chennai has acquitted the accused under Section 39(1) and 44(1)(c) of the Indian Electricity Act. 2. Case of prosecution could briefly be stated thus: P.W.1-Ananthasekaran was the Assistant Executive Engineer (O & M), T.N.E.B, Royapuram. P.W.2-Sukumar was the Assistant Executive Engineer (Anti-Theft Squad) of T.N.E.B, Royapuram. P.W.3 was working as Foreman in Royapuram Area. On 21.4.92-7.15 p.m. P.Ws.1 and 2 visited the premises-Door No.23, Ramanayakan Street and inspected the Electricity Service Connection No.01-04-174. Accused is the owner of the premises. For inspecting the premises and the service connection, as contemplated under the law, Ex.P1 Notice was served upon Gajendran who was employed in Balaji Cycle Shop, one of the tenants. P.Ws.1 and 2 noticed M.O.1 Meter found intact. The accused had connected Fuse Unit to Main Switch through M.O.5-Yellow Wire, by-passing M.O.1-Meter, taking electric supply directly from the Fuse Unit. At the time of checking up, though all the electrical appliances were used in the premises, M.O.1-Meter was found to be not working, since connection was given to the Main Switch straight from the incoming Fuse Unit. M.O.1 Meter was not recording the consumption. The Top Carrier of the Fuse Unit was removed. In the Open Fuse Unit M.O.5-Yellow Wire was found to be connected. 3. The Department has authorised P.W.1-Ananthasekaran, A.E.E (O&M) to give the complaint. Pursuant to the authorisation, P.W.1 lodged Ex.P2-Complaint before Royapuram Police Station. On the same day, at 9.00 p.m, on receipt of Ex.P2, P.W.5-Sub-Inspector of Police has registered the case against the accused and one Muthiah, in whose name the service connection stands, in Crime No.586/92 under Sections 39(1) and 44(1)(c) of the Indian Electricity Act under Ex.P12-F.I.R. 4. P.W.5-Sub-Inspector of Police had taken up the investigation. He has visited the spot-No.23, Ramanaicken Street, Royapuram. M.O.4-Photographs were taken on the tampered unit. Ex.P10-Observation Mahazar and Ex.P13-Rough Plan were prepared on the scene of occurrence. On the direction of Sub-Inspector of Police, P.W.4-Foreman removed M.O.1-Meter and M.O.5-Yellow Wire and handed over to P.W.5. They were seized under Ex.P11 Seizure Mahazar. 5. Since there was dishonest abstraction of energy, the Department has prepared Ex.P4-Working Sheet. The loss of energy was calculated at 6092 Units. Loss of Revenue was calculated at Rs.37,466/-. On the direction of Sub-Inspector of Police, P.W.4-Foreman removed M.O.1-Meter and M.O.5-Yellow Wire and handed over to P.W.5. They were seized under Ex.P11 Seizure Mahazar. 5. Since there was dishonest abstraction of energy, the Department has prepared Ex.P4-Working Sheet. The loss of energy was calculated at 6092 Units. Loss of Revenue was calculated at Rs.37,466/-. Ex.P6 is the Green Meter Card to be kept in the office and Ex.P7 is the White Meter Card, retained by the consumer. 6. The accused had filed W.P.9053/92 and W.M.P.13062/92 for quashing the proceedings in Letter No. EE/O & M/VPD/Rule 46/C1/F.DOC/D 3683/92 dated 26.6.92. (Ex.P4-Working Sheet) On completion of investigation, accused was charge sheeted for the offences punishable under Section 39(1) and 44(1)(c) of the Indian Electricity Act. 7. To substantiate the charges against the accused, in the trial court, P.Ws.1 to 5 were examined. Exs.P1 to P13 were marked. M.Os.1 to 5 were remanded. Before the trial court, the accused while denying theft, adopted a double standard. While at one stretch in W.P.9053/92 he admitted himself to be the consumer, before the criminal proceedings he denied 'theft' on the ground that the White Meter Card Ex.P7 standing in the name of Muthiah. The accused raised the plea that there is no connection between him and the electric connection 01-04-174. 8. Upon consideration of the evidence, the learned Magistrate found that the theft of Energy is not proved beyond reasonable doubt and acquitted the accused inter alia on the following findings: (i) There is no connection between the accused and the electricity connection 01-04-174 as per Exs.P6 and P7 and evidence of P.Ws.1 and 2; (ii) Even if it is presumed that the accused is the owner of the electricity service connection, no notice either about the inspection or about the theft of energy was served on the accused; (iii) Gajendran upon whom Ex.P1-Notice was served was not examined; (iv) Photographer (who had taken M.O.4-Photographs) was not examined; (v) Yellow Wire-M.O.5 was not marked either through P.Ws.1 and 2 or through independent witness or mahazar witness, but marked through P.W.5-I.O. Aggrieved over the acquittal, the State has preferred this appeal. 9. 9. Assailing the findings and contending that the reasonings for acquittal suffers from serious and substantial error, the learned Government Advocate raised the following contentions: (i) By Ex.P2, P8 and P12 and Ex.D1 supplemented by the oral evidence of P.Ws.1 and 2, accused is proved to be the actual consumer, to whom the energy is supplied, though the White Meter Card is standing in the name of one Muthiah, who was then only the tenant; (ii) Dishonest abstraction of energy to the tune of 6374 Units, causing loss of Rs.39,200/- and that the accused is proved to be responsible for abstraction of energy; (iii) The trial court grossly erred in not invoking the presumption under Section 39 of the Indian Electricity Act. Contending that the trial court has not properly appreciated the evidence and the reasonings are not based upon the materials on record and suffering from serious infirmity, the learned Government Advocate prays for reversal of acquittal. 10. Countering the arguments, the learned counsel appearing for the accused submitted that Ex.P1 notice was served upon one Gajendran and that the essential witness to unfold the inspection of the premises was not examined. It is further submitted that the onus cast upon the prosecution to establish that at the time of inspection the accused was incharge or responsible for the conduct of the business in the premises is not discharged. It is further submitted when the service connection stands in the name of one Muthiah no presumption under Section 39 of the Indian Electricity Act could be raised against the accused. Pointing out the other contradictions in the evidence, main contention urged is omission to mark the yellow wire-M.O.5. through P.Ws.1 to 3 but marking through P.W.5-I.O, depriving opportunity to the accused to cross-examine the witness on that aspect. 11. Upon careful re-assessment of the evidence, impugned judgment and submissions by both sides and other materials on record, the following points arise for consideration in this appeal: (i) Whether the trial court was justified in acquitting the accused without raising the presumption under Section 39 of the Indian Electricity Act'; (ii) Whether the grounds of acquittal and the impugned order suffer from serious and substantial error warranting interference? 12. 12. Instant case is an illustrative example of how the precious resource of power is extracted by the dishonest consumers, even if charged they go scot free, seeking shelter under 'possible doubts' which are not reasonable doubts. The courts deal with these offences arising under the Indian Electricity Act like any other criminal cases, arising under the Indian Penal Code, casting heavy burden upon the prosecution to prove the guilt beyond reasonable doubt. Though the concept of proof beyond reasonable doubt is equally applicable to these cases, the yard stick for the assessment of evidence is to be in the light of the presumptions to be drawn under the provisions of the Act. Direct evidence of theft of electricity is rarely forthcoming. To facilitate the proof of theft, Section 39 of the Indian Electricity Act provides for raising up of presumption. A demonstrated infra, the court below has neither invoked the presumption under Section 39 of the Indian Electricity Act nor has applied the same to the case in hand. The learned Magistrate has not at all adverted to the case in AIR 1966 SC 849 which the prosecution has strongly relied upon. 13. We may presently demonstrate how the trial court has misdirected itself, without raising presumption under Section 39 of the Indian Electricity Act The learned Magistrate erred in entertaining the fanciful doubts on the prosecution case, while ignoring the formidable evidence of P.Ws.1 and 2. 14. We may firstly resolve the point raised by the accused, "that there is no connection between him and the Service Connection No.01-04-174 and that he is not the consumer within the meaning of sub-section 2(c)." On this aspect, the appreciation of evidence by the trial court defies logic. The learned Magistrate failed to take note of dishonest double standard adopted by the accused. Admittedly, the accused is the owner of the premises Door No.23, Ramanaicken Street. The premises is a Commercial Complex, let out to at least nine tenants. From Ex.P2-Complaint it is seen that it is let out to-(1)Francis David; (2) Subraanian; (3)Devaraj; (4)Santhanakumar; (5)Chockalingam; (6)Shanmugam; (7)Balaji Cycle Shop; (8)M.M.Bottle Stores and (9)Venkatesh Sound System. In Ex.P2-Complaint P.W.1 has clearly stated that A1-Santhanakumar is the owner of the premises 15. The service connection was obtained in 1965. The house then stood in the name of one Ponnammal. The service connection was obtained in the name of tenant-Muthiah. In Ex.P2-Complaint P.W.1 has clearly stated that A1-Santhanakumar is the owner of the premises 15. The service connection was obtained in 1965. The house then stood in the name of one Ponnammal. The service connection was obtained in the name of tenant-Muthiah. Owner of the premises viz., Ponnammal had given her consent-Owner's Consent for giving service connection in the name of tenant Muthiah. The owner's consent for giving service connection to the premises in the name of Muthiah is clear from the following: "I consent to the installation by you at the above mentioned premises tenanted by Mr/Mrs. Muthia of electric service cables, meters, wiring, fittings and other equipments for the supply of electricity (hereinafter called "The Installation" under the terms of an agreement between you and the tenant of the above said premises." (Vide Ex.P5) Thus service connection so issued in the name of Muthiah continues to be in the name of Muthiah. The tenant Muthiah is presently not a tenant in the premises as per the names of tenants listed out in Ex.P2. Perhaps Muthiah, the then tenant vacated. But the service connection continued to be in his name. 16. In Ex.P2, P.W.1 has clearly asserted that the accused is the owner of the premises. Ex.P4 is the Working Sheet for calculation of loss of Energy and loss of Revenue. In Ex.P4 the accused is stated to be the house owner as is clear from the following: 2. Name of the house owner: Santhana Kumar (Also as enjoyer of service connection) Though the service connection stands in the name of Muthiah, evidence of P.W.1, Ex.P2-Complaint and Ex.P4 Working Sheet clearly set forth that the accused is the owner of the premises and also "the consumer to whom the electricity is supplied". Though the service connection was obtained in the name of tenant Muthiah, the fact remains that Ponnammal was the owner of the premises. Thus the premises Door No.23, Ramanaicken Street is the ancestral property of the accused. In fact in the affidavit filed in the writ petition W.P.9053/92 the accused himself has admitted that he is the owner of the premises and that it is his ancestral property. Clear admission of ownership of the premises and the service connection is set forth in the following averments in W.P.9053/92: "Premises bearing door No.23, Ramanaicken Street, Royapuram is my ancestral property. Clear admission of ownership of the premises and the service connection is set forth in the following averments in W.P.9053/92: "Premises bearing door No.23, Ramanaicken Street, Royapuram is my ancestral property. While my father was alive the service connection of electricity to the said premises was obtained by one M.Muthiya the erstwhile tenant who run the grocery shop since my father was an illiterate. The M.E.G Meter had been installed in the front portion of the premises in which the grocery shop was run." 17. Further from the affidavit filed in the writ petition it is also made clear that the service connection is in the front portion of the premises where the cycle shop is run by the tenant-Shanmugam. Without mincing words the accused has admitted payment of electricity consumption charges in the commercial tariff. "For the past 12 months the total consumption of the electricity to the entire premises is only 932 units as calculated by the respondents. I have been paying the electricity charges in the commercial tariff even though except three portions of the premises other 3 portions are residential one." 18. From the averments in the writ petition two things are made clear: (i) Accused, by his own admission, admits to be the owner of the premises and in possession of White Meter Card; (ii) That the accused is consuming the electricity of the service connection No.01-04-174 and paying tariff in the commercial rate; By his own admission of the averments in the writ petition it is clear that the accused is the consumer and the 'owner of the premises to whom energy is supplied'. 19. Under Section 2(c) of the Indian Electricity Act, 'Consumer' means any person who is supplied with energy by a licensee or the Government or by any other person engaged in the business of supplying energy to the public under this Act or any other law for the time being in force, and includes any person whose premises are for the time being connected for the purpose of receiving energy with the works of a licensee, the Government or such other person, as the case may be." The inclusive definition includes 'any person in whose premises are for the time being connected for the purpose of receiving energy'. Thus, the accused clearly falls within the inclusive definition. Thus, the accused clearly falls within the inclusive definition. This definition of Section 2(c) was neither referred to by the learned Magistrate nor considered. 20. The basic ingredient of Section 39 that the accused is the consumer is well proved by his own admission in the writ petition W.P.9053/92. This evidence of strong character is brushed aside by the trial court on the flimsy ground Learned Magistrate failed to undertake the exercise of scrutinising and making assessment of evidence. The finding that the prosecution has not produced the document that the accused is the "Consumer" is in ignorance of the materials on record and the inclusive definition of Section 2(c) of the Act. The finding that the prosecution has not established the connection of the accused with service connection No.01-04-174 cannot be sustained at all. 21. The learned Magistrate has neither referred to Ex.P8-Averments in the writ petition nor clear admission in Ex.P8 was taken note of. But the learned Magistrate casually observed ... "even if accused is admitted to be the owner, that no notice was served upon the accused". This reasoning again amounts to misappreciation of the facts. The Meter Board and the Service Connection is in the front portion of the premises-in the cycle shop let out to the tenant-Shanmugam and admittedly the Meter Card is kept in the house of the accused. The accused has clearly admitted that whenever the officials visited the premises they used to take the Card from his house and made entries in the Card after getting it from his family members. 22. Ex.P1-Notice was served upon one Gajendran and the said Gajendran signed in Ex.P1. The said Gajendran is employed in Balaji Cycle Shop. As seen from Ex.P1, notice served upon Gajendran is compliance of due notice. In fact no written notice is necessary prior to inspection. Prior information is sufficient. Officials of the Electricity Board can enter the premises at reasonable hours on informing the consumer of their intention. There is no provision for any statutory notice to be issued to the consumer prior to inspection. What sub-section (1) of Section 24 of the Indian Electricity Act requires is that the consumer shall be informed prior to inspection of the meter. There is no provision for any statutory notice to be issued to the consumer prior to inspection. What sub-section (1) of Section 24 of the Indian Electricity Act requires is that the consumer shall be informed prior to inspection of the meter. When the meter was inspected in the presence of the person employed under the tenant of the cycle shop, the plea of the accused of want of prior information is not justified. 23. When admittedly Meter was in the first portion and Gajendran was served upon the notice, the accused cannot successfully complain that the Meter was inspected without notice to him. The finding of the trial court is This unreasonable finding suffers from serious infirmity. Gajendran is obviously under the control of the accused. It amounts to saying as to why the prosecution has not examined "the accused himself as a witness on behalf of the prosecution." 24. Let us now refer to the evidence let in for proving the interference with the meter. P.Ws.1-A.E.E/O&M and P.W.2 A.E.E in the Power Theft Squad have inspected the premises on 21.4.92-7.15 p.m. They have consistently spoken about the yellow wire being connected to the E.B incoming Fuse Unit and the power supply directly taken from the Main, by-passing M.O.1-Meter. P.Ws.1 and 2 have consistently spoken about such direct supply from the Fuse. They noted while all the electrical appliances were burning, the Meter was not recording the consumption. That itself is a clear case of 'theft of energy'. 25. Evidence of P.Ws.1 and 2 is strengthened by M.O.4-Photos. It is evident from M.O.4 series photographs that the Fuse Unit is uncovered and the Yellow Wire connected to the Main. There is no connection between the meter and the fuse unit. This evidence of strong character was brushed aside by the trial court on the flimsy ground of non-examination of Photographer. Of course the courts have held that photographs cannot be admitted in evidence, without examining the person who took the photographs. But that cannot be the principle of universal general application. The photographs are properly verified by P.W.5-Inspector of Police. The photographs are produced as Material Object. Exhibiting Material Object is one media of proof-permitted on account of great inconvenience or impracticability in bringing out the original situation before the court. But that cannot be the principle of universal general application. The photographs are properly verified by P.W.5-Inspector of Police. The photographs are produced as Material Object. Exhibiting Material Object is one media of proof-permitted on account of great inconvenience or impracticability in bringing out the original situation before the court. Though the production of photographs thus is only to demonstrate the actual position of the meter, P.W.5-Sub-Inspector has spoken about the contemporaneous taking of M.O.4-Photographs. It is not as if the photographs are produced for identifying a person etc; but marked only for bringing out the actual situation. The learned Magistrate has committed substantial error in brushing aside the photographs on the flimsy ground of non-examination of photographer. By saying so, the trial court has not adverted to the actual position of the Meter and Fuse Unit exhibited to the eyes of the court. 26. From the evidence of P.Ws.1 and 2 and by M.O.4-Photographs, prosecution has clearly established malicious interference with the meter-apparatus. Energy is proved to have been abstracted by-passing the Meter directly connecting the Main Switch to the Fuse Wire obviously with the fraudulent intention in abstraction of energy. Section 26 deals with the Meter. The basic purpose of Section 26 is the provision and maintenance of the correct Meter for ascertaining the amount or the quantum of energy consumed. Thus sub-section (2) and (3) deals with the responsibility of the parties for maintaining correct meters. To this end the section provides for the following: "Sub-section (2) imposes an obligation on the licensee to maintain the meter in condition of prescribed accuracy, if the licensee has hired it out to the consumer and provides for the consequences of his failure to do so. Sub-section (3) deals with the case where the consumer has elected to purchase the meter outright, in which case, it is the consumer's responsibility to keep the meter correct." 27.Penalty for Interference with Meter:-Section 44(a) of the Act makes it an offence for any person who connects any meter, indicator or apparatus referred to in sub-section (7) of Section 26 with electric supply-line through which energy is supplied by a licensee or disconnects the same from any such electric supply-line. Connecting Main Switch directly to the Fuse Unit by-passing the Meter is a clear case of "dishonest abstraction of Energy." 28. Connecting Main Switch directly to the Fuse Unit by-passing the Meter is a clear case of "dishonest abstraction of Energy." 28. The word "abstraction" should be construed liberally and in the context of Section 39 of the Act. It means taking all appropriation. As in the instant case, Energy directly passing to the Main Switch without being connected to the Meter. The connecting wire with the Meter is tampered with for preventing the Meter from duly registering the Energy consumed. The accused is thus proved to have consumed Energy direct from the Board's Main with his own arrangement. In other words, connecting the Fuse Unit direct to the Main Switch through M.O.5 Yellow Wire evidently showing "dishonest abstraction of Energy". 29. "Theft" is proved by the direct evidence of P.Ws.1 and 2 at the time of inspection and by M.O.4-Photographs. It is clearly a 'statutory theft' covered by Section 39 of the Act. From their evidence, the essential requirements are proved as: (i) Uncovering of the Fuse Unit; (ii) Connecting Fuse Unit directly to the Main Switch with the Yellow Wire; (iii) By direct abstraction of Energy. That the accused dishonestly abstracted the energy is well proved by the strong evidence of P.Ws.1 and 2, substantiated by Ex.P2-Complaint. 30. After registration of the case, as per the direction of P.W.5-Sub-Inspector of Police, P.W.3-then Foreman removed M.O.1-Meter and M.O.5-Yellow Wire and handed over the same to the Police. P.W.3 has clearly spoken about the removal of M.O.1-Meter and also M.O.5-Yellow Wire. Under Ex.P11-Seizure Mahazar the following objects including M.O.1-Meter and M.O.5-Yellow Wire were seized: (1.1/2 x 1) The above objects seized under Ex.P11 were produced before the court under Form-95. On 11.5.92 the court had received the Material Objects including M.O.5-Yellow Wire. When the witnesses were examined before the trial court in November 1995, M.O.5-Yellow Wire was very much available before the court. While so, on behalf of the accused vague suggestion was made that the Yellow Wire was not seized. The suggestion made by the accused lacks in substance. 31. That the M.O.5-Yellow Wire, a material object was not marked through the Departmental Witnesses P.Ws.1 and 2, connecting with the Service Connection No.01-04-174 is one of the grounds for disbelieving the case of the prosecution. It is to be noted that three years after the occurrence i.e., in November 1995 the witnesses-P.Ws.1 to 3 were examined. 31. That the M.O.5-Yellow Wire, a material object was not marked through the Departmental Witnesses P.Ws.1 and 2, connecting with the Service Connection No.01-04-174 is one of the grounds for disbelieving the case of the prosecution. It is to be noted that three years after the occurrence i.e., in November 1995 the witnesses-P.Ws.1 to 3 were examined. For one reason or other M.O.5-Yellow Wire was not marked through P.Ws.1 to 3; but was marked through P.W.5-Inspector of Police. As said earlier, M.O.5-Yellow Wire was produced before the court under Form-95 and the court had also received the same. While being so, during the cross-examination of P.W.5-Investigating Officer, the defence was repeatedly harping upon the point that Yellow Wire (which was received in the court on 11.5.92) was not earlier produced and created for the purposes of the case and an after thought. This contention of the accused that M.O.5-Yellow Wire was not earlier produced is unsustainable and the trial court erred in accepting the contention, ignoring the materials on record i.e., Ex.P10-Form-95. 32. Non-marking of M.O.5-Yellow Wire through P.Ws.1 and 2 is made much of by the trial court in treating it as bonafide doubt and giving benefit of doubt to the accused. That approach of the trial court is perverse and cannot be sustained. The learned Magistrate erred in assessing the evidence like any other offences arising under the Indian Penal Code-ignoring the presumption to be raised under Section 39 of the Indian Evidence Act. 33. The lapse on the part of the prosecution to mark M.O.5-Yellow Wire through P.Ws.1 and 2 cannot go to the advantage of the accused. Under Section 165 of the Indian Evidence Act the court has a duty to unfold the truth. For the purpose of securing complete justice by full discovery of truth, under Section 165 of the Indian Evidence Act wider latitude is given to Judge. If really the trial court felt that M.O.5-Yellow Wire ought to have been marked through P.Ws.1 and 2, the trial court ought to have exercised its power under Section 165 of the Evidence Act and Section 311 Crl.P.C to recall the witnesses-P.Ws.1 and 2. The power under Section 165 of the Evidence Act is an instrument of great capacity in the hands of Judge, particularly of the trial court. Failure to exercise the same might result in failure of justice. The power under Section 165 of the Evidence Act is an instrument of great capacity in the hands of Judge, particularly of the trial court. Failure to exercise the same might result in failure of justice. In a criminal trial Judges are not mere spectators; but a vital and integral factor in the discovery and elucidation of facts. The Judge must watch that 'Truth Triumphs'. The learned Magistrate was not right in extending benefit of the minor lapse to the advantage of the accused. Dishonest abstraction of Energy is "theft" and an offence punishable under Section 39 of the Indian Electricity Act. For convicting the accused under Section 39 of the Indian Electricity Act the following aspects are to be proved: (i) Tampering; (ii) Tampering done by the accused is of such functional character so as to enable the pilferage of Electricity without doing anything more; (iii) Tampering should be capable of retarding the function of the Meter or stopping the Meter in recording the quantity of the Electricity consumed. The evidence on record clearly brings out the above aspects. 34. When the essential aspects are proved, the presumption under Section 39 of the Indian Electricity Act is to be raised. Section 39 reads: "39. 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 existence of Yellow Wire directly connecting the Fuse Unit and the Main Switch raises the presumption under Section 39 of the Act that there was pilferage of energy dishonestly committed by the accused, the consumer to whom the Energy is supplied. The learned Magistrate has not taken into consideration the presumption under Section 39 of the Act nor tell tale circumstances of dishonest abstraction of Energy. 35. The learned Magistrate has not taken into consideration the presumption under Section 39 of the Act nor tell tale circumstances of dishonest abstraction of Energy. 35. In the Written Arguments submitted by the prosecution before the trial court, the prosecution has mainly relied upon AIR 1966 SC 849 Jagannath Singh v. Ramaswamy where the Supreme Court has held thus: "who ever abstracts or consumes or uses electrical energy dishonestly commits a statutory theft. The theft may be proved by direct or circumstantial evidence. Direct evidence of theft is rarely forthcoming. To facilitate proof of the theft, the section provides that the existence of artificial means for such abstraction is prima facie evidence of such dishonest abstraction. We thin that the word "abstraction" should be construed liberally and in the context of Section 39, it means taking or appropriation. Energy may be dishonestly abstracted by artificial means or unauthorised devices. For instance, energy before it passes through a consumer's meter may be abstracted from the main of the electric company by an unauthorised wire connecting the main with a private terminal, the connecting wire is the artificial means for abstraction." While the above decision squarely applies to the cases of theft of Energy, the trial court has neither referred to the same, nor stated any reasoning’s for not taking into consideration the above decision. 36. More often than not, the lower courts dealing with theft of Energy arising under the Indian Electricity Act do not properly appreciated Section 39 and the presumption to be raised thereon and Section 44. The courts are to address themselves on (i) The abstraction of Energy by interference with the Meter; (ii) Drawing of presumption of guilt was drawn in the circumstances of such interference of the Meter. 37. In the instant case where the accused is proved to have abstracted energy directly from the Board's Main, the accused cannot be allowed to go scot free. Fanciful doubts cannot be entertained as against the definite evidence of the official witnesses. On appreciation of facts the court cannot close their mind to the truth. Elaborately discussing on the concept of reasonable doubt, in AIR 1990 SC 1459 Vijayee Singh v. State of U.P the Supreme Court held that the accused is only entitled to the benefits of genuine doubt on the prosecution version and not the vacillating doubts of the confused mind. Elaborately discussing on the concept of reasonable doubt, in AIR 1990 SC 1459 Vijayee Singh v. State of U.P the Supreme Court held that the accused is only entitled to the benefits of genuine doubt on the prosecution version and not the vacillating doubts of the confused mind. It is relevant to refer to the following decision cited by the Supreme Court: "Lord Denning,J in Miller v. Minister of Pensions (1947)2 All ER 372 (373), while examining the degree of proof required in criminal cases stated: "That degree is well-settled. It need not reach certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable," the case is proved beyond reasonable doubt." Regarding the concept of benefit of reasonable doubt Lord Du Paraq,J, in another context observed thus: "All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth." 38. Upon reassessment of proved facts and evidence, the order of acquittal is to be reversed. Courts should be impressed upon the view of the Supreme Court while on the one hand that no innocent man should be punished; at the same time the courts are to see that no guilty person should escape. Both are public duties. It is the onerous duty of the court to find out the truth within the permissible limits. The findings of the trial court are palpably wrong, manifestly erroneous and demonstrably unsustainable. The trial court has failed to appreciate the evidence in passing the order of acquittal and the same is to be reversed. 39. Alternatively the learned counsel for the accused prays for leniency stating that the accused had already paid the amount of loss assessed R.37,466/-. In this connection the dishonest conduct on the part of the accused is to be pointed out. 39. Alternatively the learned counsel for the accused prays for leniency stating that the accused had already paid the amount of loss assessed R.37,466/-. In this connection the dishonest conduct on the part of the accused is to be pointed out. As per Ex.P4-Working Sheet loss of Energy and loss of Revenue was calculated at Rs.37,466/- as noted below: Units as per calculation .. 7024 Actual consumption .. 932 ---- Loss of Energy .. 6092 ---- Loss of Revenue .. 6092 x 2.05 x 3 = 37465.8 say Rs.37466 Though the accused was served upon the Working Sheet even in 1992 he has not paid the amount. He has only filed W.P.9053/92 for quashing the proceedings Letter No. EE/O&M/VPD/Rule 46/C1/F.DOC/D 3683/92 dated 26.6.92. By the interim order obtained from this court in W.M.P.13062/92 the accused was enjoying the benefit of service connection by paying part of the amount. Only after the disposal of the writ petition i.e., nearly after ten years, the accused had come forward to pay the amount by the proceedings of P.W.2 Lr.No.SE/CEDC/N/G1/DM1/F TOE 01/92-93/VPD/R05/2001 dated 11.1.2001.A fresh notice was issued to the accused who is the owner of the premises and the person/enjoyer of the Service Connection. The Enquiry was conducted on 11.10.2000 and thereafter the accused was directed to pay the balance of Rs.22,479/- to be paid by him in three instalments between January 2001-March 2001. Thus, the payment of the amount is only in compliance to the direction in the writ petition and as per the fresh assessment notice issued thereon. It is to be noted that the accused has not come forward to pay the amount at the early stage. The Department was deprived of the amount for more than a decade cannot be lost sight of. In any event demand of the amount assessed cannot in any way absolve the accused from the criminal responsibility. 40. The order of acquittal is to be reversed. The accused is found guilty under Section 39 and 44(1)(c) of the Indian Electricity Act. Conviction at this distant point of time would not in any way mitigate the rigor of the offence. The precious resource of Electricity made available to the consumer is dishonestly abstracted. When the theft was planned, employing his own device, no leniency could be shown to the accused. Conviction at this distant point of time would not in any way mitigate the rigor of the offence. The precious resource of Electricity made available to the consumer is dishonestly abstracted. When the theft was planned, employing his own device, no leniency could be shown to the accused. Considering the loss of Energy and the conduct of the accused and other circumstances, the accused is to be sentenced to undergo rigorous imprisonment of two years and imposing fine of Rs.5,000/-. 41. Therefore the judgment of VII Metropolitan Magistrate, George Town, Chennai in C.C.3804/94 (dated 24.9.96) acquitting the accused under Section 39 and Section 44(1)(c) of the Indian Electricity Act is set aside and this appeal is allowed. The Appellant/Accused is found guilty under Section 39 of the Indian Electricity Act and convicted and sentenced to undergo rigorous imprisonment for TWO YEARS and fine of Rs.5,000/- is imposed, in default to undergo sentence of imprisonment of six months. No separate sentence is imposed for the conviction under Section 44(1)(c) of the Act. The trial court is directed to take immediate steps by issuing warrant to secure the appellant to commit him to prison to serve the sentence.