Mahaveer vs. The State Of Maharashtra

2025 INSC 1206
REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2154-2155 of 2011


MAHAVEER … APPELLANT(S)


VERSUS


STATE OF MAHARASHTRA
AND ANR. …RESPONDENT(S)



J U D G M E N T



SANJAY KAROL, J.


1. These appeals, at the instance of the appellant-convict, are
directed against the judgment and order dated 15th October,
2010, passed in Criminal Appeal No.270/1997 and Criminal
Revision Application No.346/1997, whereby a learned Single
Judge of the High Court of Judicature at Bombay ( Bench at
Aurangabad ) overturned the findings of acquittal recorded by the
Signature Not Verified
Digitally signed by
NAVEEN D
IIIrd Jt. Judicial Magistrate (FC) at Jalan in Reg. Criminal Case
Date: 2025.10.08
17:24:20 IST
Reason:
Criminal Appeal Nos. 2154-2155 of 2011 Page 1 of 16


No.108/93 for the offence punishable under Sections 39 and 44
1
of the Indian Electricity Act, 1910 .

2. The facts as have been laid out by the Courts below are as
follows:-
2.1 The appellant-convict was a Director of M/s. Rushi
2
Steels and Alloys Pvt. Ltd. , situated at Plot No.52/7 of
MIDC Area, Jalan and was responsible for conducting the
business of the Company. The power supply to the
Company was provided by the Maharashtra State Electricity
3
Board .
2.2 The officials of the MSEB, in March 1993, noticed
a mismatch between the units supplied to these factories vis-
à-vis the readings taken from the meters at these factories.
The alleged disparity was to the extent of 36.6 per cent.
Naturally, an investigation was followed in the months of
April and May 1993. During inspection of the meters placed
at the factory of the appellant-convict by senior officials of
MSEB, in the presence of independent witnesses, it was
found that the meter had been tampered with, and the box in
which it was placed had 3 holes of 4 mm each.
2.3 According to the prosecution, the officials of the
MSEB concluded that the workers of the Company had been

1
Hereinafter referred to as “The Act”
2
Hereinafter referred to as the “Company”
3
Hereinafter referred to as “MSEB”
Criminal Appeal Nos. 2154-2155 of 2011 Page 2 of 16


using additional wires, interfering with the meter supply and
thereby causing a slowdown in the running of the meter. As
such, the holes were sealed. On a subsequent reading of the
meter, the disparity was now found to be around 10 per cent.
2.4 The approximate quantification of the alleged theft
of electricity was to the tune of Rs.30 lakhs.
2.5 The Executive Engineer, MSEB, lodged a First
Information Report with the Taluka Jalan Police Station, on
th
25 June 1993. Upon completion of the investigation, a
st
chargesheet was filed before the Court on 1 October 1993.

3. The prosecution examined five witnesses. Statement
4
under Section 313 Code of Criminal Procedure of the two
accused, namely Radheshyam and Mahaveer, the present
appellant-convict (Mahaveer), was also recorded. It may be
noted here itself that the appeal qua Radheshyam stood dismissed
th
as abated vide order dated 30 September 2019. The defence did
not lead any other evidence and furnished a whole and complete
denial of the accusations levelled by the prosecution.

4. The Trial Court, on consideration of the entire evidence,
concluded that the prosecution had failed to establish its case
beyond a reasonable doubt. It could not prove abstraction,
dishonest use or consumption of electrical energy. The charges

4
Hereinafter referred to as “Cr.PC”
Criminal Appeal Nos. 2154-2155 of 2011 Page 3 of 16


under Sections 39 and 44 of the Act could not be established and
as such, the following order was passed:-

“1. Both the accused viz., (1) Radheshyam S/o Ratanlal
Agrawal, age 40 years and 2) Mahaveer S/o Ratanlal
Agrawal, age 55 years, Directors of M/s. Rushi Steel
and Alloys Pvt. Ltd. Company are hereby acquitted
of the punishable offence under Section 39 of the
Indian Electricity Act, 1910.

2. Both the accused are further acquitted of punishable
offence U/sec. 44 of the Indian Electricity Act,
1910.

3. Both accused are acquitted under the provisions of
Section 248(1) of Cr. P.C.

Bail bonds of both accused stand cancelled.
4.

5. Both the accused be set at liberty forthwith.

6. Muddemal viz., meter box in question be delivered
to prosecution vide Exh. 122, application of
prosecution claiming meter box in question U/sec.
452 Cr.P.C. subject to condition that prosecution
shall execute a bond to restore it to the court if order
made under Sub Section (1) of Sec. 452 Cr.P.C. is
modified or set aside an appeal or revision.”

(S.D. Agrawal)
rd
3 Jt. Judicial Magistrate
(F.C.) Jalna
Date : 25.4.1997”

5. On appeal, the High Court framed the following points for
consideration:-

“i) Whether the prosecution proves that the

respondents committed theft of energy?

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ii) Whether the prosecution proves that the
respondents interfered with the electric meter?
iii) Whether the complaint is made by competent
person as expected under Section 50 of the
Electricity Act?

iv) What is the scope of appreciation of evidence
when the appeal against acquittal is filed?”


6. On consideration of evidence, the High Court held that
once the extra holes in the meter box were sealed, the
consumption increased significantly, and since the possibility of
any other user stealing the electricity had been foreclosed by the
holes being plugged with a metal plate having been placed there,
it stood proved that the appellant-convict(s) was responsible for
the theft. Regarding Section 44 of the Act, it was concluded that
the case would fall squarely under clause ‘ c ’ of the said Section.
Further, it was observed that the appellant-convict(s) did not
make any attempt to prove that the extra holes in the meter box
were not caused by them. Regarding the issue that PW-3 Dinkar,
being the competent authority to lodge the complaint, it was held
that he was given that he had been deputed by the MSEB as the
officer responsible for that area. Accordingly, a complaint at his
instance would be treated as a complaint made on behalf of
MSEB, and so, it would be in accordance with the law. On the
next point, it was held by the learned Single Judge that the Trial
Court had not appreciated the law as laid down by this Court in
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5
Ramesh Babulal Doshi v. State of Gujarat . Having recorded
as above, the appeal and the revision were allowed, and the
appellant-convict(s) was sentenced to suffer rigorous
imprisonment for a period of one year and to pay a fine of
Rs.2 lakhs each, in default whereof the appellant-convict(s) was
to undergo further rigorous imprisonment for a period of 3
months.

7. Hence, these appeals. We have heard learned counsel
appearing for the parties.


8. The short question to be considered is whether the
acquittal of the appellant-convict(s) was correctly reversed by the
High Court and whether the conviction so handed down to him
is sustainable in law.

9. The two provisions, of which infraction is alleged on the
part of the appellant-convict(s), are reproduced below for ready
reference: –

Section 39

[ 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,

5
(1996) 9 SCC 225
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consumption or use of energy has been dishonestly caused by
such consumer.]


Section 44

44. Penalty for interference with meters or licensee's
works, and for improper use of energy .—Whoever—

(a) connects any meter referred to in Section 26, sub-section
(1), or any meter, indicator or apparatus referred to in Section
26, sub-section (7), with any electric supply-line through
which energy is supplied by a licensee, or disconnects the same
1
from any such electric supply-line, [ *]; or
2
[(aa) unauthorisedly re-connects any meter referred to in sub-
section (1) of Section 26, or any meter, indicator or apparatus
referred to in sub-section (7) of Section 26, with any electric
supply-line or other works, being the property of the licensee,
through which energy may be supplied, when the said electric
supply line or other works has or have been cut or disconnected
under sub-section (1) of Section 24; or]

(b) lays, or causes to be laid, or connects up any works for the
purpose of communicating with any other works belonging to
3
a licensee, [ *]; or

(c) maliciously injures any meter referred to in Section 26, sub-
section (1), or any meter, indicator or apparatus referred to in
Section 26, sub-section (7), or wilfully or fraudulently alters
the index of any such meter, indicator or apparatus, or prevents
any such meter, indicator or apparatus from duly registering;
or

(d) improperly uses the energy of a licensee;
4
shall be punishable with [imprisonment for a term which may
extend to three years, or with fine which may extend to five
thousand rupees, or with both], and, in the case of continuing
5
offence, with a daily fine which may extend to [fifty] rupees;
6
and [if it is proved that any artificial means exist] for making
7
such connection as is referred to in clause (a), [or such re-
connection as is referred to in clause (aa),] or such
communication as is referred to in clause (b), or for causing
such alteration or prevention as is referred to in clause (c), or
for facilitating such improper use as is referred to in clause
Criminal Appeal Nos. 2154-2155 of 2011 Page 7 of 16


8
(d), [and that] the meter, indicator or apparatus is under the
custody or control of the consumer, whether it is his property
9
or not, [it shall be presumed, until the contrary is proved,]
10
that such connection, [re-connection,] communication,
alteration, prevention or improper use, as the case may be, has
been knowingly and willfully caused by such consumer.

(Emphasis supplied)

6
10. In Satya Narain Prasad v. Bhagwan Ramdas it was
observed as follows:

“ 3. …It can be seen that Section 39 as such does not prescribe
any sentence but yet it creates an offence by raising a fiction,
namely, that whoever has dishonestly used or abstracted any
energy shall be deemed to have committed the theft within the
meaning of Penal Code, 1860. Therefore, dishonest abstraction
of electricity is deemed to be an offence under the Penal Code
by virtue of this fiction created under Section 39 of the
Electricity Act. Interpreting this section, this Court in Avtar
Singh case [(1965) 1 SCR 103 : AIR 1965 SC 666] held: (SCR
p. 107-A-B)

“To put it shortly, dishonest abstraction of
electricity mentioned in Section 39 cannot be an
offence under the Code for under it alone it is not
an offence, the dishonest abstraction is by
Section 39 made a theft within the meaning of the
Code, that is, an offence of the variety described
in the Code as theft. As the offence is created by
raising a fiction, the section which raises the
fiction, namely Section 39 of the Act, must be
said to create the offence. Since the abstraction is
by Section 39 to be deemed to be an offence
under the Code, the fiction must be followed to
the end and the offence so created would entail
the punishment mentioned in the Code for that
offence. The punishment is not under the Code
itself for under it abstraction of energy is not an
offence at all.”

6
1995 Supp (4) SCC 629
Criminal Appeal Nos. 2154-2155 of 2011 Page 8 of 16



It looks as though the High Court has only referred to the last
sentence and overlooked the fact that Section 39 expressly
made dishonest abstraction of electricity, as offence punishable
under the Code. Section 39, therefore, makes something which
was not a theft within the Penal Code, a theft within it, and
consequently that section also makes theft punishable in the
manner provided in the Code because the illegal abstraction of
electricity is deemed to be a theft within the meaning of Code
and it must be deemed for all purposes a theft including the
purpose of imposing the punishment. Therefore, in deciding
whether an offence of theft as provided under Section 39 is
made out or not the Court has to read Section 39 along with
provision of IPC dealing with theft.”

(Emphasis supplied)

11. It has to be noted that prior to proceeding with the merits
of the case, that reversal of acquittal by the High Court in exercise
of its appellate jurisdiction in and of itself does not call upon this
Court to reappreciate the entire evidence when an appeal is
preferred by special leave under Article 136 of the Constitution
7
of India. Reference to Kalamani Tex v. P. Balasubramanian
would suffice. A Bench of three learned Judges records the
position as under:
“11. Having given our thoughtful consideration to the rival
submissions, we do not find any valid ground to interfere with
the impugned judgment [P. Balasubramanian v. Kalamani Tex,
2017 SCC OnLine Mad 35499]. It is true that the High Court
would not reverse an order of acquittal merely on formation of
an opinion different than that of the trial court. It is also trite in
law that the High Court ought to have compelling reasons to
tinker with an order of acquittal and no such interference
would be warranted when there were to be two possible
conclusions. [C.K. Dasegowda v. State of Karnataka, (2014)
13 SCC 119, para 14 : (2014) 5 SCC (Cri) 599] Nonetheless,

7
(2021) 5 SCC 283
Criminal Appeal Nos. 2154-2155 of 2011 Page 9 of 16

(Emphasis supplied)

12. By way of an appeal, it is urged before us that the High
Court has committed a manifest error in overturning the findings
of acquittal entered by the Trial Court. A perusal of the record
convinces us that there may be some strength to this submission.
As such, while being conscious of the self-imposed limitations
qua reappreciation of evidence by this Court under the extant
jurisdiction, we tread further.

13. A perusal of Section 39 of the Act reveals that any person
who dishonestly abstracts, consumes or uses any energy commits
Criminal Appeal Nos. 2154-2155 of 2011 Page 10 of 16


theft of energy. The second part of the Section provides that if it
is proved that any artificial means or the means that have not been
authorised by the licensee, are used in such theft of energy till the
contrary is proved, it shall be assumed and presumed that such
theft has been committed by the consumer. What is obvious from
the above is that for the presumption against the consumer to take
effect, it must be proved that an artificial means or a means not
authorised by the licensee had been used in committing the theft.
In other words, the presumption is not of automatic application,
and instead, something is required to be established for it to apply.
In the instant case, therefore, it must be established by the MSEB

that an artificial means had been employed.
14. As we have already noted supra , the State examined five
witnesses to establish its case. Let us now examine how these
five witnesses are able to establish that artificial means had been
employed in the theft of electricity.
14.1 PW -1 was one Shankarrao, who was a witness to
the panchnama . He states that he was called there and shown
a meter box. He made a positive statement that he signed the
said document. When cross-examined, he stated that when
he signed the document, he had no knowledge of what had
taken place there, nor was the document written as per his
understanding. It was written independently, and he had
only affixed his signature on it. The meter he was shown was
not working. He was also shown some wires affixed to a
Criminal Appeal Nos. 2154-2155 of 2011 Page 11 of 16


wooden board. It is admitted that he, having noticed
whatever he was shown, deduced, without confirmation, that
there had been a theft of electricity.
14.2 PW-2 was Balwant, Dy. Ex. Engineer, MSEB,
Officer, Jalna. In his detailed examination in chief, this
witness detailed the entire process of the cloud of suspicion
being cast on the company of the appellant-convict, as also
the step-by-step actions taken in regard of such suspicion. In
his cross-examination, it comes for that he had not checked
the consumption of electricity by the other companies. It was
further stated:-

“…It is true to suggest that all the statement made by me
by deposite and regarding less recording of energy are
based on guesswork and nothing specific. It is true to
nothing specific with regard record with less electricity
can be stated by me.… I do not know as to whether
previously there were separate whole at the bottom of the
metre is question…. It is to do to suggest that I have been
pressurised by superior in deposed before the Hon’ble
Court”

14.3 PW-3 was the complainant. He testified that during
the inspection of the meter box, 3 holes were found. After
plugging the holes, it was stated that the discrepancy fell to
10 percent. The numbers mentioned in the report, according
to him, were correct, and he has signed the same. In his
cross-examination, he admits that none of the officers of the
MSEB verified the possibility of –

Criminal Appeal Nos. 2154-2155 of 2011 Page 12 of 16


“shortening the current by insulting wires in the holes of
the bottom of metre box. It is true to say that, all the
conclusions reached by us in the alleged occurrence
about theft of electricity in respect of metre box in
question entirely based upon the inference only.”

14.4 PW-4 testified that he had come to Jalan for the
purpose of conducting tests on the meters. At the time of
testing, the original seal of the meter box was found to be
intact. He further said that there was a direct correlation
between the plugging of the holes in the meter box and the
number of discrepancies, which were reduced significantly.
In his cross-examination, it comes forward that he had, on
the basis of what he saw during the inspection drew an
inference that the energy consumed was not in a proper
manner because “there was possibility due to existing the
three holes in question.” The further relevant portion is
reproduced as under:
“I had given in my report send to S. E. the fact that, I
suspected have gone behalf of accused company. It is
true to suggest that, I have adopted the procedure of
elimination in between the 4 consumers after making
observations of all for consumers and gave my
conclusion that, the losses are due to 3 holes of metre
box in question.”

14.5 PW- 5 is a retired Chief Engineer, who at the relevant
point in time, was the Superintending Engineer, Aurangabad
Circle. He is the one who gave directions to the concerned
officials to commence the investigation. He details in his
testimony, the receipt of information of the discrepancy to
Criminal Appeal Nos. 2154-2155 of 2011 Page 13 of 16


the extent of 36.6% and the steps he took thereafter,
including discussing with higher officials. In his cross-
examination, he admits as follows:
“it is true to suggest that, the existence of 3 holes at the
bottom of the metre box of the accused is be only
because for charging the accused for pilferage of
energy.”
15. It is evident from the above discussion and extracts of the
testimonies put forward by the prosecution that none of them have
deposed with complete confidence about the alleged theft of
electricity and the use of artificial means therein, by the appellant-
convict. Most of the testimonies are based on estimation,
presumption, approximation or possibilities. Needless to state,
the same cannot be deemed to be sufficient for the purposes of
proving the above. Reference may be made to Vadivelu Thevar
8
v. State of Madras , wherein this Court has explained the nature
of witness testimony and its corresponding effect on the overall
case. The second of the three mentioned therein is ‘ wholly
unreliable .’ The testimonies that make up this case appear to fall
squarely into this categorization. As a necessary follow-up of the
inability of the prosecution to prove the use of artificial means,
the presumption against the consumer, that is, the appellant-
convict, is not set in motion.


8
1957 SCC OnLine SC 13
Criminal Appeal Nos. 2154-2155 of 2011 Page 14 of 16


16. Insofar as the charge under Section 44 is concerned, we find
that to be resting on shaky grounds as well. Nothing has been
brought on record to show that the meter had been injured or
tampered with. None of the investigators from the MSEB carried
out a practical exercise of checking the holes and the wires, and
the possibility of it being actually used for theft, as is alleged to
have taken place. None of the witnesses or any other third person
saw the accused, or, for that matter, any other person connected
to the Company, openly tampering with the box. There was no
categorical statement whatsoever that at the time of installation
or any time prior to the inspection of the meter box by officials of
the MSEB, there were no holes in the box. In other words, there
are too many open possibilities for criminal liability to be affixed
to any person. In our considered view, therefore, Section 44 of the
Act also has not been proved beyond a reasonable doubt.

17. Consequent to the above discussion, we hold that neither
Sections 39 nor Section 44 could be established against the
appellant-convict. As such, the appeals are allowed. The
th
judgment and order dated 15 October 2010, passed in Criminal
Appeal No.270 of 1997 and Criminal Revision Application No.
346 of 1997, passed by the High Court of Punjab and Haryana, is
set aside. Mahaveer, the instant Appellant, is acquitted of all
charges. The bail bonds are discharged.

Criminal Appeal Nos. 2154-2155 of 2011 Page 15 of 16


Pending application(s), if any, are disposed of.




….………………………………..J.
(SANJAY KAROL)



….………………………………...J.
(PRASHANT KUMAR MISHRA)

New Delhi;
October 8, 2025.
Criminal Appeal Nos. 2154-2155 of 2011 Page 16 of 16