Judgment :- The appellant, who was convicted under Sections 39 and 44 of Indian Electricity Act, 1910 (for short ‘the Act’) and sentenced to rigorous imprisonment for two years and a fine of Rs.5,000/- in default simple imprisonment for three months, preferred this appeal. 2. The case of the prosecution is that on 19.10.1997 Assistant Engineer, A.P.S.E.B, Medak (P.W.1), Lineman, APSEB, Narsapur (P.W.2), Assistant Divisional Engineer, DEP-I, Eluru (P.W.6) and the Assistant Divisional Engineer, DEP-I, Vijayawada (P.W.7) surprised the premises of P.W.3, who is the owner of the Flour Mill, also during their inspection of several industrial establishments for detecting pilferage of energy, and found that the meter in the premises of P.W.3 was not working in ‘Y’ Phase, and they opened the meter terminal cover seal and observed that ‘Y’ Phase wire was by-passed with 1/18 gaze winding wire and that ‘Y’ Phase fuse wire was not provided in cut-out, and so the meter was not rotating in ‘Y’ Phase, and so the by-pass winding wire was removed and seized in the presence of P.W.3 and the appellant, and after preparation of Ex.P.1 – inspection notes they obtained the signatures of P.W.3 and the appellant thereon. Thereafter the loss sustained by the department was assessed Rs.1,93,950/-. So, P.W.7 sent Ex.P.4 report to the Assistant Divisional Engineer (Operations), Sangareddy, who in turn sent Ex.P.5 complaint to the Inspector, APTS, Sangareddy. 3. During the course of inspection, as the investigating officer came to know that P.W.3 leased out his Flour Mill to his operator, the appellant, for a period of 11 months from 01.08.1997 to 31.07.1998 under Ex.P.2, which was attested by P.Ws.4, 5 and others, the appellant was charge-sheeted for offences under Sections 39 and 44 of the Act. 4. The appellant pleaded not guilty of the offences charged against him and claimed to be tried. 5. In support of its case, the prosecution examined eight witnesses as P.Ws.1 to 8 and marked Exs.P.1 to P.5 and M.O.1. Appellant did not adduce any evidence on his behalf, but marked Exs.D.1 and D.2 during the cross-examination of the prosecution witnesses. 6. As stated earlier, the trial court convicted and sentenced the appellant as mentioned above. Hence, this appeal. 7. The point for consideration is whether the prosecution brought home the guilt of the appellant beyond all reasonable doubt for the offence under Sections 39 and 44 of the Act ? 8. 6. As stated earlier, the trial court convicted and sentenced the appellant as mentioned above. Hence, this appeal. 7. The point for consideration is whether the prosecution brought home the guilt of the appellant beyond all reasonable doubt for the offence under Sections 39 and 44 of the Act ? 8. Since the offence alleged is under Section 39 of the Act, for the purpose of proper understanding of the case of prosecution, I feel it relevant to extract Section-39 of the Act. It reads as “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 authorized 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, it is clear that only ‘consumer’ is liable for punishment under the said section. When unauthorized abstraction or consumption etc. is detected it shall be presumed that the ‘consumer’ was responsible therefor and so the burden is on the ‘consumer’ to show or establish that he was not responsible for the unauthorized abstraction etc. ‘Consumer’ is defined in Section-2[c] of the Act as “(c) “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; 9. In this case, the evidence of P.W.1 shows that the service stands in the name of P.Pentaiah, who is the actual owner of the flour mill at the time of inspection. In this case, the evidence of P.W.1 shows that the service stands in the name of P.Pentaiah, who is the actual owner of the flour mill at the time of inspection. During cross-examination, P.W.1 stated that P.Pentaiah i.e. (P.W.3) is the owner of the flour mill as per the records and that the meter stands in his name and on the date of inspection also, P.Pentaiah (P.W.3) was the owner and ‘consumer’ of the flour mill, and his statement was recorded on the date of inspection. He admitted that Pentaiah (P.W.3) did not state before him that the flour mill was leased out by him to the appellant, and that his inspection report and the complaint also do not disclose about the lease of the flour mill belonging to P.Pentaiah (P.W.3) in favour of the appellant and that the inspection report also does not disclose that the appellant was running the mill by the date of inspection. He also admitted that according to the inspection report and the FIR, Pentaiah (P.W.3) only was suspected for commission of theft of the energy from 19.10.1997 to 06.11.1997 and that Pentaiah (P.W.3) only was the accused as per their investigation. He also admitted that on the day of inspection, there was no record to show that the flour mill was leased out by Pentaiah (P.W.3) to the appellant. He denied the suggestion that the lease-deed was fabricated in collusion with Pentaiah to save Pentaiah (P.W.3). 10. The evidence of P.W.3, Pentaiah, the owner of the flourmill is that he is working as a lorry driver and does not know what is contained in Ex.P.1, which was written by him as per the dictation of the officers of Electricity Department and that it contains his signature, and that he is the owner of the mill inspected by the officials of electricity department, and that he leased it out to the appellant for one year from 01.08.1997 onwards under Ex.P.2. During cross-examination, he admitted that in Ex.P.1 he did not state that he leased out the flour mill to the appellant and that that the appellant worked as the operator of the flour mill for three or four years. During cross-examination, he admitted that in Ex.P.1 he did not state that he leased out the flour mill to the appellant and that that the appellant worked as the operator of the flour mill for three or four years. Initially, he stated that Ex.P.2 lease deed was with the appellant, but again stated that P.2 lease deed was with him and that he gave Ex.P.2 to the officials about 15 days after the inspection, and denied the suggestion that Ex.P.2 was fabricated to save himself, and that the appellant did not take the flourmill on lease from him. 11. P.W.4, an attestor to Ex.P.2, stated that she does not know who is the owner of the flour mill is and does not know whether the said mill was leased out to anybody in the year 1997 and that she was not examined by Police in connection with the case regarding the lease of flour mill, but Ex.P.2 contains her signature and that the flour mill was leased out by P.W.3 to the appellant. During cross-examination, she stated that she does not know reading and writing of English and does not who wrote Ex.P.2 or the month and year of Ex.P.2 or when it was written and that the appellant brought Ex.P.2 to her when she was in her house and requested her to affix her signature thereto and does not know the other signatories to Ex.P.2 and did not observe whether any other signatories to Ex.P.2 were present when she affixes her signature to Ex.P.2 in her house, and by the time of Ex.P.2, she was a Ward Member of the Gram Panchayat and that she does not know anything about the case. 12. The evidence of P.W.5 another attestor to Ex.P.2 is that P.W.3 leased out his flourmill to the appellant under Ex.P.2 lease deed in which he signed as a witness and was not examined by the Police. The Additional Public Prosecutor treated him as a hostile witness and was permitted to cross-examine him. During cross-examination by the Additional Public Prosecutor, he denied the suggestion that he was examined by the Police. During cross-examination by the counsel for appellant, he admitted that P.W.3 is his cousin brother and that he does not know who typed Ex.P.2 lease deed. 13. During cross-examination by the Additional Public Prosecutor, he denied the suggestion that he was examined by the Police. During cross-examination by the counsel for appellant, he admitted that P.W.3 is his cousin brother and that he does not know who typed Ex.P.2 lease deed. 13. P.W.6 who was present at the time of inspection of the flourmill by the officials stated during cross-examination that as per the record P.Pentaiah (P.W.3) is the ‘consumer’ of the service connection given to the flour mill and that P.W.3 did not state that he leased out the flour mill to the appellant, or that he (P.W.3) was not running flour mill at the time of the inspection. 14. P.W.7 who also was present at the time of inspection of the flourmill of P.W.3 by the Electricity Board Officials admitted during cross-examination that P.W.3 did not produce document of lease and did not disclose that he leased out the mill to the appellant, and that P.W.3 is the owner and registered consumer of the flourmill and that in column No.3 of Ex.P.1 inspection report, the appellant is shown as its operator, but not as its lessee and as per Ex.P.1 inspection notes, the suspect is only P.W.3 and that he does not know who pilfered the energy. 15. The evidence of P.W.8 is that the appellant was running the mill belonging to P.W.3 and that he does not know if there is a lease deed for that purpose. During cross-examination he stated that he does not know the affairs relating to the flourmill and how the appellant is running the flourmill and whether he was running it on lease or as an employee. 16. The evidence of P.Ws.4, 5 and 8 is not much of help to establish the lease of the flour mill by P.W.3 in favour of the appellant because P.W.4 clearly stated that she does not know the contents of Ex.P.2, which is typed in English and does not know reading and writing of English, and as P.W.5 states that he was not examined by Police and as P.W.8 stated that he does not have personal knowledge in which capacity appellant is running the flourmill of P.W.3. 17. In view of Section 39 of the Act, the presumption is that the ‘consumer’ pilfered the energy. 17. In view of Section 39 of the Act, the presumption is that the ‘consumer’ pilfered the energy. The evidence of P.Ws.1, 6 and 7 shows that P.W.3 is the registered consumer, and was present at the time of inspection and signed Ex.P.1 report as ‘consumer’ and owner of the mill. He admittedly did not inform them about the existence of Ex.P.2. Appellant admittedly signed Ex.P.1 as the operator of the mill inspected by them. 18. In the facts and circumstances of the case, I am of the considered opinion that P.W.3, in an attempt to save himself from the prosecution, must have brought Ex.P.2 lease deed into existence after inspection of his mill by P.W.1 and other officials and produced it before the investigating officer. Had the Investigating Officer taken pains to go through the provisions of Section-39 of the Act, he would not have failed to make P.W.3 also as an accused in the case, because the presumption is against P.W.3, but not against the lessee. If the investigating officer really wanted to bring the offender to book, he should have charge-sheeted P.W.3 also along with the appellant and left the case to be decided by the Court on the basis of the evidence collected by him. The investigating officer, for reasons known only to him, either by deliberately ignoring the provision of Section 39 of the Act or with a view to save P.W.3 launched prosecution only against the appellant though there is prima facie evidence against P.W.3 and though there is no prima facie evidence to show that appellant actually was running the mill as lessee by the date of inspection, because if Ex.P.2 was really in existence by the date of inspection, nothing prevented P.W.3 from producing that document before the inspecting officials of the Electricity Department i.e. P.Ws.1, 6 & 7. When Ex.P.2 is not believed and when it is not the case of the prosecution that the appellant abetted the consumer P.W.3 in pilfering the energy, the appellant cannot be said to have committed the offence either under Sections 39 or 44 of the Act, and so, I hold that the prosecution failed to bring home the guilt of the appellant for the offences under Sections 39 and 44 of the Act. The point is answered accordingly. 19. The point is answered accordingly. 19. In view of my finding on the point for consideration, the appellant is acquitted of the offences charged against him. His bail bonds shall stand cancelled.