A.V. Ravindra Babu, J.

1. Challenging the judgment, dated 05.03.2010 in Calendar Case No. 2 of 2009, on the file I Additional Sessions Judge-cum-Special Tribunal to try the Offences under the Indian Electricity Act, East Godavari at Rajahmundry ("Special Judge" for short), the unsuccessful accused filed the present Criminal Appeal.

2. The accused faced charges under Sections 135 and 138 of the Electricity Act, 2003 before the learned Special Judge and on conclusion of trial, he was found guilty of the charge under Section 135 of the Electricity Act, 2003 and accordingly, he was convicted under Section 235(2) of the Code of Criminal Procedure ("Cr.P.C.") and sentenced him to undergo simple imprisonment for a period of six months.

3. The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Special Judge for the sake of convenience.

4. The State, represented by the Inspector of Police, Vigilance & Anti Power Theft Squad, Rajahmundry, filed charge sheet against the accused in Crime No. 974 of 2007 under Sections 135 and 138 of the Electricity Act, 2003, alleging in substance that the accused is a registered consumer of Service Connection No. 1111/Cat.III of Sri Veera Hanuman Rice & Flour Mill, Market Road, Ramachandrapuram Town and is running the said mill.

(ii) On 04.10.2007 at 3-30 p.m., the Assistant Divisional Engineer, Operation, Ramachandrapuram (P.W.1) along with L.W.2-Dwarampudi Venakta Rama Reddy, Assistant Engineer, Operation, Ramachandrapuram, L.W.3-Gonigantala Naga Vara Prasad and Line Inspector, Operation, Ramachandrapuram, inspected the premises of the said mill in the presence of Sanivarapu Veerapandu, Supervisor, working in the said Rice & Flour Mill (P.W.3). They found that the accused dishonestly and intentionally committed theft of electrical energy by way of bypassing the meter of SC No. 1111/Cat.III. They found that there are no MRT seals to CT Chamber. They observed One Phase (R-Phase) CT Secondary wires were removed inside the CT chamber. During testing at CT Meters Lab at Bommuru, they found that R-Phase secondary connections are in open condition and in the MRI data it was noticed that LT TVAR meter is working with errors. As per MRI Data, R-Phase CT is opened and tampered from 04.07.2007 with reading 58361. The accused indulged in pilferage of energy by tapping the incoming R-Phase meddling with the wiring connections of incoming R-Phase at terminal block wherever required at his convenience. He suppressed the recorded consumption and utilized power for industrial (Rice & Flour Mill) and caused loss to the APEPDC Ltd., to a tune of Rs. 30,865/-depending upon the connected load, duration of utility as stipulated under terms and conditions of supply. P.W.1 prepared the inspection notes. P.W.3, the Supervisor of the Mill, signed in the notice of inspection.

(iii) On 14.11.2007 at 1-45 p.m., on receipt of the report from P.W.1 about the offence committed by the accused, the Inspector of Police, Vigilance & APTS Police Station, Rajahmundry (P.W.5) registered a case in Crime No. 974 of 2007 under Sections 135 and 138 of the Electricity Act, 2003 and investigated into. During the course of investigation, he examined several witnesses and got recorded their detailed statements. He prepared rough sketch of the scene of offence. Therefore, a prima facie case made out against the accused under Sections 135 and 138 of the Electricity Act, 2003. Hence, the charge sheet.

5. The learned Special Judge took cognizance under the above provisions of law and after appearance of the accused, copies of case documents were furnished. Thereafter, the learned Special Judge framed charges under Sections 135 and 138 of the Electricity Act, 2003 and explained the same to the accused in Telugu, for which he pleaded not guilty and claimed to be tried.

6. To bring home the guilt against the accused, the prosecution before the learned Special Judge examined P.W.1 to P.W.5 and got marked Ex.P.1 to Ex.P.7 and the defence got marked Ex.D.1 during the cross examination of P.W.2. After closure of evidence of the prosecution, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in, for which he denied the same and he did not let in any defence evidence.

7. The learned Special Judge on conclusion of trial, found the accused guilty of the offence under Section 135 of the Electricity Act, 2003 and after questioning him about the quantum of sentence and considering the representation made by the accused, took a lenient view and sentenced him to suffer simple imprisonment for a period of six months. Felt aggrieved of the same, the unsuccessful accused as above, filed the present Criminal Appeal.

8. Now, in deciding the Criminal Appeal, the points that arise for consideration are as follows:

(1) Whether the prosecution before the learned Special Judge proved beyond reasonable doubt that the accused on 04.10.2007 at 3-30 p.m., committed pilferage of energy by bypassing meter in the manner as alleged

(2) Whether judgment, dated 05.03.2010 in C.C. No. 2 of 2009 on the file of learned Special Judge is sustainable under law and facts and whether there are any grounds to interfere with the same

Point Nos. 1 and 2:

9. P.W.1 is the then Assistant Divisional Engineer, who raided the Rice & Flour Mill of the accused. P.W.2 is MRT ADE, who conducted inspection of the meter pertaining to SC 1111/Cat.III. P.W.3 is said to be present physically at the time of raid conducted by P.W.1 at the Rice & Flour Mill of the accused and he is said to be the Supervisor in the Rice & Flour Mill of the accused. The prosecution examined P.W.4 to speak about the raid conducted by P.W.1 in the Rice & Flour Mill of the accused. P.W.5 is the investigating officer.

10. Sri P. Radha Krishna, learned counsel appearing for the appellant, would contend that even according to the case of the prosecution, the accused was not present physically at the time of so-called raid conducted by P.W.1 on 04.10.2007. P.W.1 claimed to have obtained the signature of P.W.3. P.W.3 turned hostile to the case of the prosecution. The prosecution did not examine any independent witness to speak about the raid said to be conducted by P.W.1. Though the meter was alleged to be seized on 04.10.2007, but, it could be examined even according to P.W.2 on 02.11.2007 and the delay was not explained by the prosecution. There is no consistency with regard to the presence of the accused at the time of testing of the meter on 02.11.2007. Though P.W.5 was not competent to look into technical aspects, but he conducted investigation and filed the charge sheet. The learned Special Judge without properly appreciating the evidence on record, recorded an order of conviction against the accused, as such, the Criminal Appeal is liable to be allowed.

11. Sri Y. Jageeswara Rao, learned Special Assistant, representing the learned Public Prosecutor, would contend that the admissions made by P.W.3 discloses that he was working in the Rice & Flour Mill of the accused since long time and he was an authorized person. Signature of P.W.3 on the inspection notes was not in dispute. In fact, P.W.1 and his party made a telephone call to the accused to come to the Rice & Flour Mill, but he did not turn up. The presence of accused at the time of conducting test over the meter on 02.11.2007 is proved by the prosecution. The evidence of P.W.1 and P.W.2 would prove the same. The accused has no say at all as to how the meter could be tampered. The meter that was seized by P.W.1 was in the proper custody till it was subjected to test. The accused refused to come forward to compound the offence. The learned Special Judge rightly appreciated the evidence on record and took a lenient view, as such, the Criminal Appeal is liable to be dismissed.

12. Coming to the evidence of P.W.1, his evidence on crucial aspects is such that on 04.10.2007 at 3-00 p.m. they received complaint that there was theft of electricity in Veera Hanuman Rice & Flour Mill, Market Road, Ramachandrapuram. After receipt of the information, he, L.W.2-Dwarampudi Venkata Rama Reddy, Assistant Engineer, Operation and L.W.3-Gonigantala Naga Vara Prasad, Line Inspector, Operation went to the Mill at 3-30 p.m. One Sanivarapu Veerapandu, a Supervisor, working in the Rice & Flour Mill was present there. The registered consumer is Vasam Hanumantha Rao (Accused). The accused was not present at the time of inspection. They checked the meter. While verifying they found that in 3 phases all the voltages are almost equal in R-Phase and there was less current recorded. There were no MRT seals to CT chamber and CT secondary wires were removed inside the CT chamber and 2 phases were functioning. Notes of inspection was prepared in the presence of Sanivarapu Veerapandu. Statement of Veerapandu was recorded in the notices of inspection. He put his signature in the notices of inspection. He (P.W.1), L.W.2 and L.W.3 also put their signatures in the notes of inspection. One K. Satyanarayana, local electrician signed. The statement of Veerapandu which is contained in the notes of inspection was written by K. Satyanarayana. Ex.P.1 is notes of inspection. Meter was removed at the time of inspection for testing before MRT Lab, Bommuru on 02.11.2007 in the presence of L.W.5-Veerapandu. The meter was sent to MRT Lab, Bommuru. He, L.W.2, L.W.4-K. Tilak Kumar and Yerrayya, ADE, DPE, Rajahmundry were present. The consumer Vasam Hanumantha Rao and L.W.5-Veerapandu were also present at the time of test conducted in MRT Lab, Bommuru. Ex.P.2 is the MRT Test report. On the basis of Ex.P.2, they served notice on the accused assessing the loss of energy as Rs. 30,715/-and Rs. 150/-towards supervising charges. Ex.P.3 is the provisional assessment notes. On 10.11.2007 they received MRT Lab report and then he presented a report to Station House Officer, APTS Police Station, Rajahmundry, immediately. Ex.P.4 is the report presented by him. It is not a case of defect in the meter, but it is a case where the connection in one of 3 phases was removed. He was examined by the Inspector of APTS, Rajahmundry.

13. Coming to the evidence of P.W.2, the prosecution examined him to prove that he conducted a test to the meter. According to him, on 02.11.2007 he received meter in SC 1111, Ramachandrapuram, Cat.III of Sri Veera Hanuman Rice & Flour Mill, Ramachandrapuram for testing. He conducted test of meter in the presence of Vasam Hanumantha Rao (the consumer), P.W.1, L.W.2-D. Venkata Rama Reddy, D. Srinivasa Rao, ADE, Operation, Ramachandrapuram, P. Yerrayya, ADE, DPE, Rajahmundry. He prepared a report and sent it to the A.E., Operation, Ramachandrapuram. Ex.P.2 is the MRT report (already marked). In his presence accused and other departmental officers signed Ex.P.2. Findings are that R-Phase secondary connections are in open condition. Subsequently, he was examined by the police.

14. Coming to the evidence of P.W.3, Sanivarapu Veerapandu, his evidence in substance is that he used to work as a Supervisor in Sri Veera Hanuman Rice & Flour Mill, Ramachandrapuram, prior to the inspection conducted by the Electricity department people. After the inspection, he stopped working in the said mill. On 04.10.2007 at about 3-00 p.m., P.W.1 came to the mill, questioned him about the owner of the mill and he furnished information that the accused is the owner. P.W.1 asked him about whereabouts of the owner and he told him that he is on camp. Then, P.W.1 checked the meter and asked him to telephone to the accused. He tried to contact the accused on telephone, but he could not get him. Then, they went away and again at 5-00 p.m., he came and removed the meter and stated that the meter is defective. Then, he replied that three months back it was verified and tested. Then, he telephoned to the accused and the accused did not come. They went away saying that they would provide a new meter. On the next day, they came with new meter and fixed it and enquired him about the accused. Three signatures in Ex.P.1 are that of him. One person brought by P.W.1 scribed the statement in Ex.P.1. Though the contents of statement were not read over to him, but he put his signatures, on bonafide belief that they would provide a new meter. Witness identified all the three signatures in Ex.P.1 as that of him. He does not know whether the accused put his signature on any report. As he did not support the case of the prosecution on certain aspects, the Additional Public Prosecutor got declared him as hostile and during cross examination he denied that he stated as in Ex.P.5. He denied that knowing fully well about the contents in Ex.P.1 only, he put his signature.

15. The prosecution examined P.W.4, who is resident of the locality and he deposed that the accused is running a Rice Mill by name Veera Hanuman Rice & Flour Mill. He knows P.W.3, who is working in the said Mill. Two and half years back at 3-30 or 4-00 p.m., officials belongs to Electricity Department came to the Rice Mill and went inside the Rice Mill. At that time, P.W.3 was present.

16. P.W.5 is the investigating officer. He deposed about the receipt of Ex.P.4 along with the notes of inspection under Ex.P.1 from P.W.1 on 14.11.2007. He also received Ex.P.3 provisional assessment notes and Ex.P.2 MRT test report. He registered a case in Crime No. 974 of 2007 under Sections 135 and 138 of the Electricity Act and took up investigation. Ex.P.6 is FIR. He examined P.W.1, P.W.2, L.W.2 and recorded their statements. He also examined P.W.3, P.W.4 and recorded their statements. He prepared rough sketch. He tried to secure the presence of the accused to know as to whether he is willing to compound the offence, but he was found absconding. Later, he got anticipatory bail. After completion of investigation he filed charge sheet.

17. As evident from Ex.P.1, it is the purported inspection notes in which the signatures of P.W.3 were there. As seen from Ex.P.1 as many as three signatures of P.W.3 were there. The purported statement of him reveals that he made a statement that on 04.10.2007 electricity officials inspected it and found that there were no MRT seals and one phase CT secondary wires were removed, etc. Though P.W.3 turned hostile to the case of the prosecution on certain aspects, but there is no dispute from his evidence about the inspection made by P.W.1 along with his supporting staff. There is no dispute that P.W.3 was no other than the representative of the accused in the Rice Mill because he was working there since three years prior to the inspection in this regard. It is not the defence of the accused before the learned Special Judge that P.W.3 had nothing to do with the Rice Mill and he was not at all authorized to sign Ex.P.1. Apart from this, the evidence of P.W.3 that without knowing the contents of Ex.P.1, he signed cannot stand to any reason. So, the evidence on record proves that P.W.3 being representative of the accused signed Ex.P.1 confirming the inspection made by P.W.1 and his staff in the Rice Mill of the accused. Thus, Ex.P.1 is a crucial document. The evidence of P.W.3 coupled with the evidence of P.W.4 who was a neighbor proves the inspection conducted by P.W.1 over the Rice Mill of the accused.

18. Now, turning to the incriminating material that was found by P.W.1, it is to the effect that in three phases all the voltages are almost equal, but in R-phase, there was less current recorded. There were no MRT seals to CT chamber and CT secondary connections were removed inside the CT chamber and two phases were functioning. This portion of the evidence of P.W.1 has corroboration from the contents of Ex.P.1 with regard to the things that were noted. P.W.3 had no business to sign Ex.P.1 when it was in blank as deposed by him believing the version of P.W.1 that they would provide a new meter. During cross examination of P.W.1, the accused did not dispute the visit made by P.W.1 to the Rice Mill. His defence is that he did not tamper the seals but the defect was in the meter. It is to be noted that the evidence of P.W.1 is that on the date of inspection, he removed the meter for the purpose of testing and later it was tested on 02.11.2007 and after receipt of the test report, he lodged a report with the police. The evidence of P.W.2 supports the evidence of P.W.1 in this regard. Both these P.W.1 and P.W.2 consistently testified the presence of the accused at the time of meter testing on 02.11.2007. Ex.P.2 is the meter testing report. Ex.P.2 contains the purported signature of the consumer. Though the defence counsel got marked Ex.D.1, which is to the effect that on behalf of the consumer, Sanivarapu Veerapandu was present, but it is not proved through the evidence of P.W.5, the investigating officer. The learned defence counsel got marked Ex.D.1. It was supposed to be proved through the evidence of P.W.5, the investigation officer, who recorded the statement of P.W.2. The contradiction that was suggested to P.W.2 that he did not state as in Ex.D.1 was not proved. The evidence of P.W.1 and P.W.2 is quietly consistent that consumer was present. It has also support from Ex.P.2, the MRT report.

19. The contention of the appellant is that there was delay in conducting the test. It is to be noted that electricity officials who are discharging the duties of conducting raids, etc., are expected to be busy. Absolutely, it is not the case before P.W.2 that the meter was tampered in their custody. On the other hand, he categorically deposed in cross examination that as per column No. 10 of Ex.P.2, the position of the meter is correct, but R-Phase connections are in open condition. Absolutely, the accused did not challenge the testimony of P.W.2 about the delay in conducting the test. Apart from this, when he was physically present at the time of conducting test on 02.11.2007, he did not raise any objection. Now, he cannot contend that the delay in conducting test is fatal to the case of the prosecution.

20. It is to be noted that P.W.1 and his team issued a provisional assessment notice on 10.11.2007 to the accused. The accused did not choose to come forward to compound the offence. According to P.W.1, the report was lodged on 10.11.2007. Thus, all these goes to show that the accused being the owner of Sri Veera Hanuman Rice & Flour Mill has to take responsibility for tampering the meter. He cannot escape from the responsibility on the ground that he was not physically present. Even according to the evidence of P.W.3, when P.W.1 made efforts to contact the accused, the accused did not come forward. Apart from this, according to the evidence of P.W.1, in the spot itself he furnished information to the registered consumer on telephone about their inspection since he was not available at the Mill. All these goes to show that P.W.1 made every effort to contact the consumer at the time of inspection asking him to come there. But, he did not choose to come there even according to the evidence of P.W.3. The evidence of P.W.1 and P.W.2 coupled with Ex.P.2 clearly proves that the meter in the Rice & Flour Mill of the accused was tampered.

21. Hence, I am of the considered view that the prosecution has adduced cogent evidence before the learned Special Judge about the raid conducted by P.W.1 and his team on 04.10.2007 and that during the said raid they found that the meter in the Rice & Flour Mill of the accused was tampered. They have resorted to for scientific examination of the meter and the evidence of P.W.2 coupled with Ex.P.2 report reveals that the meter was tampered. The evidence of P.W.1 and P.W.2 means that only for pilferage of energy it was tampered. The act of the accused squarely attracts the offence under Section 135 of the Electricity Act, 2003. The learned Special Judge with cogent reasons found the accused guilty of the offence under Section 135 of the Electricity Act, 2003. Apart from this, having regard to the representation made by the accused, the learned Special Judge took a lenient view and sentenced him to suffer simple imprisonment for a period of six months.

22. Viewing from any angle, I am of the considered view that the prosecution before the learned Special Judge proved the charge under Section 135 of the Electricity Act 2003 beyond reasonable doubt, as such, the judgment, dated 05.03.2010 in Calendar Case No. 2 of 2010, on the file I Additional Sessions Judge-cum-Special Tribunal to try the Offences under the Indian Electricity Act, East Godavari at Rajahmundry, is sustainable under law and facts and there are no grounds to interfere with the same.

23. In the result, the Criminal Appeal is dismissed, confirming the judgment, dated 05.03.2010 in Calendar Case No. 2 of 2010, on the file I Additional Sessions Judge-cum-Special Tribunal to try the Offences under the Indian Electricity Act, East Godavari at Rajahmundry.

24. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 18.09.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant (accused) and to report compliance to this Court.

25. The Registry is further directed to send the copy of the judgment to the trial Court on or before 18.09.2023.

26. Consequently, miscellaneous applications pending, if any, shall stand closed.