Prosecution failed to prove the allegation.

This revision filed by P.W. 1 the Junior Engineer Periodical Inspector, Tamil Nadu Electricity Board, Tiruttani, is directed against the order of acquittal passed by the learned Judicial Second Class Magistrate, Tiruttani in C.C. No. 1 of 1981.

2. The brief facts of the prosecution which are necessary for the disposal of this revision may be narrated as follows.

P.W. 1, the Junior Engineer, P.W. 2, Tester and Inspector attached to the office of the Divisional Engineer (Electrical) T.N.E.B. Tiruttani, along with the Helper, Subramanian, inspected the service connection No. 719 belonging to respondent 1 at Pathathurpettai village at 8.55 a.m. On 25-3-1980 and when they tested the third phase, they noticed that the disc of the meter was rotating on the reverse side and the incoming and outgoing wires were exchanged and fixed in the opposite direction and there were tampering with the meter and theft of energy committed by respondent 1. When questioned, respondent 1, who was present, admitted the guilt and pleaded excuse in the presence of witnesses. Thereafter, on a report given by P.W. 4, the Junior Engineer, T.N.E.B., Pathathurpettai, P.W. 6 the S.I. of Police, registered a case, seized the meter and meter box and after observing all formalities and examination of witnesses, laid the charge-sheet against respondent 1 under S. 379, I.P.C., read with S. 39, Electricity Act. The prosecution has examined P.Ws. 1 to 6, filed Exs. P. 1 and P. 2, and marked M.Os. 1 and 2 to substantiate the charge against respondent 1.

3. The plea of the accused-respondent 1 was one of complete denial

4. The learned Magistrate acquitted respondent 1 mainly on the ground that failure to give prior notice under S. 26(4), Electricity Act (hereinafter referred to as the Act) was fatal to the prosecution case and further, since there was no eye-witnesses to the theft of energy, the offence of theft was not established and hence respondent 1 was entitled to an order of acquittal.

5. Section 26(4) of the Act reads as follows

"The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention, have access to, and be at liberty to inspect and test, and for that purpose, if he thinks fit, take off and remove, any meter referred to in sub-section (1); and, except where the meter is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter is found to be otherwise than correct, be recovered from the consumer; and where any difference or dispute arises as to the amount of such reasonable expense, the matter shall be referred to an (Electrical Inspector), and the decision of such Inspector shall be final." *

6. On a careful consideration of the abovesaid section, I find that it does not contemplate any statutory notice to be issued prior to the inspection and it contemplates only mere information to the consumer at the time of inspection and there is no mandatory prescribed form of notice in writing. Further, the above section is only a rule of evidence and no statutory obligation casts on the licensee, viz., the Tamil Nadu Electricity Board, to issue notice to the consumer prior to the inspection. In the instant case, it was the evidence of P.Ws. 1 and 2 that respondent 1 was actually present and he opened the meter box and thereupon inspection was done in his presence. It is well established proposition of law that even if there is any illegality committed in the seizure of articles, it cannot be a ground to throw the entire prosecution on that score. Hence I hold that the learned Magistrate committed a grave error in acquitting the accused on the sole ground.

7. Under S. 39 of the Act, dishonest abstraction of energy by itself is made as a theft. Under S. 44(c) -

"Whoever maliciously injures any meter referred to in S. 26, sub-section (1), or any meter, indicator, or apparatus referred to in S. 26, sub-sectio