Judgment : Per S. TAMILVANAN, J. 1. The Criminal Appeal No. 751 of 2005 and Criminal Revision Case No. 329 of 2005 are preferred against the Judgment dated 31.3.2004, made in C.C.No. 328 of 2002 on the file of the Judicial Magistrate, Dharapuram. 2. The brief facts of the case are as follows : On 8.5.2002 at about 11.45 p.m. the electric meter bearing S/F/No. 1726/5 in S.C. No. 115 relating to the poultry run by the respondents 1 to 4/accused, was found tampered with, by stopping the meter running, though consumption of electric energy was taken place. The prosecution case is that by hanging the meter downwards, the respondents 2 to 4 illegally consumed electric power and thereby A1, A3 and A4 have committed an offence punishable under Sections 39(1), 44(1)(c) of Indian Electricity Act, 1910 (Tamil Nadu Amendment Act 1980) and A2 under Sections 353 and 201 I.P.C. 3. In support of the prosecution case, PWs. 1 to 9 were examined, Exs. P1 to P10 and M.O.1 were marked and after considering the oral and documentary evidence and also the arguments advanced by both the learned counsel, the trial Court held that the charges levelled against the respondents 2 to 5 have not been proved beyond reasonable doubt and accordingly acquitted the accused aggrieved by which the State has preferred Criminal Appeal in C.A. No. 751 of 2005 and the de facto complainant has preferred Criminal Revision case in Crl. R.C. No. 329 of 2005. 4. It is not in dispute that the electricity service connection in S.F. No. 1726/5 in S.C.No. 115 relates to the poultry run by the respondents 1 to 4/accused herein. As per the complaint Ex. P4, given by P.W. 1, the then Assistant Executive Engineer of the Electricity Board of the Division, he had made a surprise inspection on 8.5.2002 at about 11.45 p.m. along with P.W.2 and others. When the service connection was being inspected, the meter box of the service connection was found hanging downwards from its original position and thereby the functioning of the meter had been temporarily stopped and while the meter was fixed on wall properly, the same was running in good condition. The aforesaid service connection is in the name of the first respondent/A1. According to the appellant there itself an observation mahazar was prepared and copy was given to the accused. The aforesaid service connection is in the name of the first respondent/A1. According to the appellant there itself an observation mahazar was prepared and copy was given to the accused. But the second respondent/A2 refused to sign in the observation mahazar and the third respondent /A3 wife of the second respondent subsequently came to the seen of occurrence and fixed the meter properly on the wall, while it was hanging. 5. According to the defacto complainant, the respondents had prevented the Electricity Board officials from discharging their duty. According to the learned counsel appearing for the defacto complainant/P.W.1 the trial Court without considering the evidence properly has recorded the acquittal. It is seen that the respondents 1 to 4/accused have denied the allegations against them. 6. According to the learned counsel for the respondents/accused, there was no pilferage or theft of electric energy by them as alleged by the appellant and the revision petitioner. 7. An it was said to be a surprise inspection and that too, during night hours by the officials of the Electricity Board, no independent witness was examined to substantiate the alleged inspection and other factum of the prosecution case. 8. In the appeal preferred by the State, the learned Government Advocate contended that the meter was not functioning while it was hanging downwards and that the Court below had misconstrued the evidence of P.Ws. 1 and 2. It being a criminal case, the prosecution has to establish the case against the accused beyond reasonable doubt. It is seen that the employees of the revision petitioner, Tamil Nadu Electricity Board Distribution Circle (Kolingudi) alone were examined, to substantiate the alleged fact that the meter box was placed hanging and thereby the respondents/accused committed theft of energy by way of stopping the meter. Since the said allegation has been totally denied by the respondents/accused the burden is heavily upon the prosecution to establish the case. 9. Since the said allegation has been totally denied by the respondents/accused the burden is heavily upon the prosecution to establish the case. 9. The short point to be considered in the appeal and the revision would be, whether the charges levelled against A1 to A3 under Section 39(1), 44(1)(c) of Indian Electricity Act 1910 (Tamil Nadu amended Act 1980, against A1, A3 and A4 under Section 353 I.P.C. and against A2 under Section 201 I.P.C. have been proved beyond reasonable doubt and whether the finding of the Court below, in recording the judgment of acquittal would be considered as perverse finding as contended by the appellant and the revision petitioner. 10. Learned counsel appearing for the respondents 1 to 4/accused, have contended that the charges levelled against respondents are baseless and the same have not been proved by the prosecution beyond reasonable doubt. Admittedly, there were number of houses near by the poultry, the seen of occurrence, but no independent witness was examined in support of the prosecution case, though the inspection was said to have been conducted at 11.45 p.m. on the date of occurrence. 11. According to the learned counsel for the respondent/accused, sending the meter for MRT test could be mandatory but it was not sent for MRT test and there was no evidence to show that the respondents 1 to 4 have committed theft of energy. 12. In a revision or appeal against acquittal, the complaint or the de facto complainant should establish that there is manifest error of law or perverse finding on the part of the Court below in recording acquittal and for which the finding should be against evidence or without evidence. 13. In the decision, reported in Bansilal v. Laxman Singh , AIR 1986 SC 1721 : (1986) 3 SCC 444 : (1986) MLJ (Crl) 597 the Hon‘ble Supreme Court of India, has held that under Section 401 of the code of Criminal Procedure, the power to set aside order of acquittal should be sparingly exercised by the High Court. As per the decision a mere circumstance that a finding of fact recorded bythe trial Court, in the opinion of the High Court be wrong, would not justify an order of acquittal being set aside and directing for retrial of the accused. As per the decision a mere circumstance that a finding of fact recorded bythe trial Court, in the opinion of the High Court be wrong, would not justify an order of acquittal being set aside and directing for retrial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an order of acquittal, merely because it was inclined to differ from the findings of the fact reached by the trial Court on the appreciation of evidence. The revisional power of the High Court is much more restricted in its scope, with the above finding, Delhi High Courts decision was reversed by the Hon‘ble Apex Court. 14. In the decision reported in AIR 1975 SC-1960, the Hon‘ble Supreme Court of India has held that in a criminal revision under Section 401 re-appraisal of evidence is not permissible. 15. Similarly in AIR 1967 SC-34, it has been held by the Apex Court as follows: “Before raising a presumption under Section 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 bythe 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 person. In the decision reported in Srinivasa Reddiar v. N. Ramaswamy Reddiar AIR 1966 SC 859 it has been held as follows: “The effect of the last part of Section 39 is that the existence of the unauthorised means for abstraction is prima facie evidence of dishonest abstraction by some person. The special rule of evidence goes no further. The prosecution must prove aliunde that the accused made the abstraction. The fact that the accused is in possession and control of the artificial means for abstraction coupled with other circumstances showing that he alone is responsible for the abstraction may lead to the inference that he is guilty of the dishonest abstraction.” 16. The prosecution must prove aliunde that the accused made the abstraction. The fact that the accused is in possession and control of the artificial means for abstraction coupled with other circumstances showing that he alone is responsible for the abstraction may lead to the inference that he is guilty of the dishonest abstraction.” 16. Here in the instant case, the prosecution has to substantiate the factum that on 8.5.2002, at about 11.45 p.m. P.W.1 the then Assistant Executive Engineer, P.W.2 and other were inspecting the service connection at Ellapalayam Village bearing S.F.No. 1726/5 in S.C. No. 115 and found the electric meter hanging downwards and thereby it was stopped, but electric power was being consumed. As found by the Court below there is no independent witness to prove the allegation that the disputed electric service connection was inspected and the meter was found hanging as stated by the prosecution. There is no independent witness to establish the allegations that the electric meter was found hanging downwards and thereby electric power was being consumed by the respondents/accused without recording the consumption.17. According to the learned Public Prosecutor as well as the learned counsel appearing for the de facto complainant there was no tampering of meter and no foreign material was found inside the meter. According to the learned Government Advocate appearing for the appellant/revision petitioner, the meter need not be sent for MRT test. But as contended by the learned counsel for the respondents/accused, it should have been scientifically proved that while meter was placed hanging in downward position, that would virtually stop the functioning of the meter, though there was consumption of the electric power in the service connection. The aforesaid allegation of the prosecution has not been proved by scientific evidence or independent expert opinion. 18. The evidence of P.W.1 in my view is not sufficient to prove allegation that the meter had been stopped form functioning while the same was placed hanging in downward position, in spite of consumption of electric power. Further, the earlier consumption could have been verified by the authorities of the appellant, with the records relating to the service connection, so as to establish the alleged theft of the electric energy. Further, the earlier consumption could have been verified by the authorities of the appellant, with the records relating to the service connection, so as to establish the alleged theft of the electric energy. Here in this case, admittedly no such evidence was produced by the prosecution to establish that the respondents/accused, while running the very same poultry, had subsequently paid lesser electric consumption charges by way of the alleged fraudulent means. As per the finding of the Court below, the prosecution has not established that the respondents/accused have committed any theft of electric power by fraudulent means. Similarly, it has not been proved that the second respondent had set right the meter which was found hanging and prevented the Electricity Board officials from discharging their duties. I am of the view that the meter of the service connection should have been sent for MRT test in order to prove the non functioning of the meter while the same is placed in the downward position. 19. On a perusal of the impugned judgment of the Court below with reference to the evidence and finding available on record, I am of the considered view that the finding is based on evidence and hence it cannot be construed as a perverse finding and that there is no manifest error of law or infirmity so as to warrant interference of this Court. Therefore, in my view, the criminal appeal preferred by the state and the criminal revision preferred by the de facto complainant are liable to be dismissed. 20. In the result, confirming the judgment of the Court below the criminal appeal and the criminal revision are dismissed. However, I am of the view that this order will not have any bearing if there is any other connected appeals or departmental proceeding pending against the respondents/accused or any other persons.