JUDGMENT : K.K. Ramakrishnan, J. This appeal has been filed to set aside the judgment and conviction passed by the learned Principal Sessions Judge, Thoothukudi, Thoothukudi District, in Spl.C.C.No.1 of 2014, dated 13.08.2020. 2.The appellant, who is accused No.2 in Spl.C.C.No.1 of 2014 on the file of the learned Principal Sessions Judge, Thoothukudi, Thoothukudi District, has filed this appeal, challenging the conviction and sentence imposed on him for the offence under Sections 135(1)(b), (c) and 135(1) (d) of Indian Electricity Act, by the impugned order dated 13.08.2020, for the alleged act of electricity theft committed in the premises of Kiruba Ice Plant at Kurunji Nagar, Veerapandiapattinam. 3. The brief facts of the case are as follows:- P.W.1 to P.W.4 are the officers in the Tamil Nadu electricity Board conducted the investigation on 02.01.2012 at 03.00 p.m, in the 'Kiruba Ice Plant' situated at Kurunji Nagar, Veerapandiapattinam. After causing notice to the accused on the ground that they are in occupation of premises. At that time, they found that there is tampering of the meter with an intention to commit the theft of electricity in the service connection No.A 129 available in the said Ice Plant. Thereby, caused loss of Rs.21,42,609/- to the Tamil Nadu Electricity Board. Hence, they preferred the material document in the presence of the VAO/P.W.5 and also recovered the incriminative material and lodged a complaint before the respondent police about the theft of electricity by tampering the meter. The respondent police registered a case in Crime No.11 of 2012 for the offence punishable under Section 135(1)(b)(c) and (d) of the Indian Electricity Act, 2003. Thereafter, investigation conducted. P.W.9 conducted investigation by collecting the material. Thereafter, P.W.10 continued the investigation and filed final report before the learned Principal Sessions Judge, Thoothukudi, Thoothukudi District, against the appellant and the original owner and the same was taken on file in Spl.C.C.No.1 of 2014. 3.1. After taking cognizance, the learned trial Judge framed the charges against the appellant for the offence punishable under Section 135(1)(b), 135(1)(c) and 135(d) of Electricity Act, 2003. On the basis of charges, the learned trial Judge, questioned the appellant and the appellant pleaded not guilty and hence, the trial was conducted and the prosecution adduced the evidence of P.W.1 to P.W.10 and marked the documents under Ex.P1 to Ex.P.16 and also marked 3 material objects under MO.1 to MO.3. 3.2. On the basis of charges, the learned trial Judge, questioned the appellant and the appellant pleaded not guilty and hence, the trial was conducted and the prosecution adduced the evidence of P.W.1 to P.W.10 and marked the documents under Ex.P1 to Ex.P.16 and also marked 3 material objects under MO.1 to MO.3. 3.2. The learned trial Judge, considered the same, examined the appellant under Section 313 Cr.P.C., by putting the incriminating materials available against him and he denied the same and hence, the case was posted for examination of the defence witness. On the side of the defence, no one was examined and 7 documents were marked as Ex.D.1 to Ex.D.7. 3.3. A1, who is the owner of the property filed Ex.D.1 to Ex.D7 and pleaded that there was energy theft in his Ice Factory. Therefore, he made a complaint to P.W.1's office. On the basis of the same, inspection was conducted and hence, he is noway connected with the tampering of meter and electricity theft. 3.4. The learned trial Judge after considering the explanation given by A1, acquitted him and convicted A2 on the ground that he was in occupation of premises at the time of inspection, for the offence under Sections 135(1)(b),(c) and 135(1)(d) of Indian Electricity Act, by the impugned order dated 13.08.2020, and sentenced him to undergo 3 years of Rigorous Imprisonment each and to pay a fine of Rs.5,000/- each in default, to undergo 6 months Simple Imprisonment each for the offence under Sections 135(1)(b),(c) and 135(1)(d) of Indian Electricity Act. The sentences were ordered to run concurrently. 4. Aggrieved over the same, the appellant has filed this appeal on the grounds stated in the memorandum of grounds of appeal. 5.1. The learned counsel for the appellant submitted that to prove the possession of factory and he had been using disputed electricity connection, no evidence was adduced by the prosecution. Even though P.W.5/Village Administrative Officer deposed about the possession and enjoyment of the appellant, to prove the same, no document was produced. They issued notice to one San David and he was not examined on the side of the prosecution to prove the possession of the appellant. Even though P.W.5/Village Administrative Officer deposed about the possession and enjoyment of the appellant, to prove the same, no document was produced. They issued notice to one San David and he was not examined on the side of the prosecution to prove the possession of the appellant. Without proving the possession of the appellant and control over the disputed electricity meter, the case of the prosecution that the appellant is enjoying the property and he committed the theft of electrical energy by tampering the meter is not accepted. Therefore, the prosecution has not proved the offence against the appellant beyond reasonable doubt. 5.2. The learned counsel for the appellant further submitted that there was no difference while checking the reading in meter. If any electricity theft is committed, the same should be shown in the check meter also. Even though one month prior to the date of inspection, the meter was changed by the department on the basis of the request made by A1/owner. Therefore, calculating the loss for the period of one year i.e., Rs.1,42,609/- shows the non application of mind when the electricity officers in their report stating that the compounding amount is Rs.3,75,000/-. Therefore, he seeks for acquittal. 6. The learned Government Advocate (Crl.Side) on instructions and upon perusal of records submitted that to prove the occupation, number of documents were filed and P.W.1 to P.W.3 specifically deposed about the same and their evidence also supported the prosecution case. Therefore, he seeks for the confirmation of the conviction and sentence imposed by the learned trial Judge. 7.This Court considered the rival submissions made by the learned counsel appearing for the appellant and the learned Government Advocate (Crl.Side) appearing for the respondent and perused the materials available on record and the precedents relied upon by them. 8. To prove the charge under Sections 135(1)(b),(c) and 135(1)(d) of Indian Electricity Act, the Electricity Board shall prove the appellant is the occupier of the premises and the alleged meter is under the control of him and he tampered the meter and thereby, he committed the theft of energy. 9.1. In this case, P.W.1, in his evidence stated as follows:- 9.2. P.W.2, in his evidence stated as follows:- 9.3. P.W.9, in his evidence stated as follows:- 10. From the reading of the above evidence, the following facts are clear:- 10.1. 9.1. In this case, P.W.1, in his evidence stated as follows:- 9.2. P.W.2, in his evidence stated as follows:- 9.3. P.W.9, in his evidence stated as follows:- 10. From the reading of the above evidence, the following facts are clear:- 10.1. The subject matter of “Electricity service connection” is not in the name of the appellant. 10.2. No evidence was adduced to prove the appellant's enjoyment over the said premises along with the service connection. 10.3. No evidence was adduced to prove the appellant's control over the said service connection. 10.4. Further, no evidence was adduced to show that the appellant has committed the offence of energy theft by tampering the meter. 10.5. Apart from that, A1, whos is the owner of the property has submitted that he gave a complaint before the Tamil Nadu Electricity Board and the same was marked as Ex.D.2. In which, he specifically made the allegations against one Manikandan, who was one of the lessee. The appellant's name was neither found in Ex.D.2 nor found in any of the documents produced by the prosecution. 11. From the reading of the above evidence, this Court without any hesitation held that the appellant's involvement in the energy theft in the premises of A1 is not proved beyond reasonable doubt. Further, no material had been adduced to prove his enjoyment over the said service connection. In the case of circumstances, without any possession and the enjoyment of the service connection on the part of the appellant, charge against the appellant is not legally maintainable. 12 . Further, this court in the case of Kanniyappan Vs. State in Crl.A.No.545 of 2014 has held as follows:- “5(1)This Court in 1972(1) L.W (Crl) 133 , held that, in the case of the charge of electricity theft or manipulation made against number of persons the prosecution must specifically prove who committed the offence by legal evidence. If there are more than one accused, it is the bounden duty of the prosecution to discharge the burden by proving the case against each of the accused by adducing independent evidence of the proof of some overt act establishing or proving the dishonest abstracting or consumption or use of any energy. Otherwise there is the great risk and hazard on the administration of justice resulting in the conviction of at least some innocent persons while sometimes the really guilty consumers are punished. Otherwise there is the great risk and hazard on the administration of justice resulting in the conviction of at least some innocent persons while sometimes the really guilty consumers are punished. Such a danger must be avoided even at the risk of exculpating and acquitting the really guilty for the sake of saving innocent persons from conviction and consequential imprisonment.” 13. Apart from that, as held by the Hon'ble Supreme Court of India in the case of Ram Chander Prasad Sharma Vs. State of Bihar and Another reported in AIR 1967 SC 349 , the prosecution not only proved the tampering of the meter but also the meter in dispute is under the control of the accused. In this case, as referred above, there was no evidence to show that the disputed meter is under the custody of the accused. 14. Therefore, it is relevant to extract the following portion of the above said judgment of the Hon'ble Supreme Court of India:- “12.Insofar as the conviction under Section 39 is concerned the matter stands on a different footing. It is not sufficient to say that a meter had been tampered with and that it was under the control of the accused person. It is further necessary to show that there was dishonest abstraction, consumption or use of electrical energy by the accused person. Before raising a presumption thereunder that there was dishonest abstraction the presence of an artifical means which would render abstraction of energy possible has to be established. Here we have three phase meters and, therefore, unless all are tampered with abstraction of energy without fear of detection is not possible. It is difficult to presume that the appellant would have knowingly done a Meter Reader and facilitated the abstraction of electric energy. In fact what he had said in his confession was that Jai Narain, a Meter Reader of the company had done something to the meter. That may or may not be so. Jai Narain who was co-accused with the appellant was acquitted by the trial Court and his acquittal was not challenged by the State. There is no material on the basis of which it could be held that there was in fact any abstraction of electrical energy. In the circumstances the presumption permissible under Section 39 can not be raised in favour of the prosecution. There is no material on the basis of which it could be held that there was in fact any abstraction of electrical energy. In the circumstances the presumption permissible under Section 39 can not be raised in favour of the prosecution. It follow, therefore, that the appellant's conviction under Section 39 is unsustainable. We accordingly, set it aside as also the sentences passed upon him in respect of that offence.” 15. The similar view also expressed in the following case of Subramaniam and others in Crl.A.No. 446 of 2009 “Merely because the security seals were found damaged, in the absence of any evidence to show that the appellants used any artificial means to abstract energy, they cannot be convicted under Section 135 of the Electricity Act.” 16. P.W.5, the Village Administrative Officer, who was present at the time of inspection also not deposed about the possession and enjoyment of the premises and the appellant's control over the electricity meter. Further, according to P.W.1 and other electricity officials, one person namely, San David received the notice before the inspection and he was not examined by the prosecution. From that, it is clear that the investigation was not conducted in the presence of the appellant. Therefore, the prosecution is duty bound to prove the presence of the appellant in the scene of occurrence. Hence, this Court drawn the adverse inference to uphold the material evidence. Even as per the evidence of P.W.1, the meter was rectified before 1 year of the occurrence. Further, P.W.9, the Investigating Officer deposed that from his investigation, the period of theft of energy could not be assured and the said deposition is as follows:- 17. In view of the above factual and legal aspects, this Court held that the prosecution miserably failed to prove the offence under Sections 135(1)(b), (c) and 135(1)(d) of Indian Electricity Act, against the appellant. Hence, this Court inclines to set aside the conviction and sentence passed by the learned trial. 18.Accordingly, the appeal is allowed on the following terms: 1.The judgment passed by the learned Principal Sessions Judge, Thoothukudi, Thoothukudi District, in Spl.C.C.No.1 of 2014 dated 13.08.2020, is set aside. 2.The appellant is acquitted from all the charges in Spl.C.C.No.1 of 2014 dated 13.08.2020, passed by the learned Principal Sessions Judge, Thoothukudi, Thoothukudi District. 18.Accordingly, the appeal is allowed on the following terms: 1.The judgment passed by the learned Principal Sessions Judge, Thoothukudi, Thoothukudi District, in Spl.C.C.No.1 of 2014 dated 13.08.2020, is set aside. 2.The appellant is acquitted from all the charges in Spl.C.C.No.1 of 2014 dated 13.08.2020, passed by the learned Principal Sessions Judge, Thoothukudi, Thoothukudi District. 3.Fine amount paid by the appellant shall be refunded to the appellant forthwith and the amount of Rs.3,00,000/- (Rupees Three Lakhs Only), which was already deposited by the appellant in Spl.C.C.No.1 of 2014 on the file of the learned Principal Sessions Judge, Thoothukudi, Thoothukudi District, as per order of this Court, dated 15.09.2020, in Crl.MP(MD)No.6704 of 2020, shall also be refunded to him forthwith. 4.Bail bond executed by the appellant shall stand cancelled.