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2008 DIGILAW 466 (MP)

Kaluram v. State of M. P.

2008-03-25

SUSHMA SHRIVASTAVA

body2008
JUDGMENT 1. Applicant has preferred this revision against the appellate judgment dated 3.11.1998, passed by Sessions Judge, Raisen in Criminal Appeal No. 115/97 whereby the conviction of the applicant under section 379 of IPC read with section 39 of Indian Electricity Act, 1910 recorded by Chief Judicial Magistrate, Raisen and the sentence passed on him are affirmed. 2. Applicant was tried for the offence under section 379 of IPC read with section 39 of Indian Electricity Act, 1910 (hereinafter to be referred as 'Electricity Act') before Chief Judicial Magistrate, Raisen. As per prosecution allegations, on 5.3.1993, about 10:30 at night, at Rajeev Gandhi Nagar, Junior Engineer, M.P. Electricity Board, City Supply, Raisen upon inspection found that applicant was committing theft of electricity by abstracting direct energy from the electricity line by means of a wire unauthorisedly put by him and was using television and electric bulbs. Junior Engineer Upendra Kumar Kulshrestha, therefore, made a Panchnama in front of the staff and the panch witnesses and seized the wire, bulbs etc. and made a written complainant of theft of electricity to the Station House Officer, Raisen. On the basis of written report made by the Junior Engineer, M.P. Electricity Board, Raisen, an offence was registered against the applicant and was investigated. After due investigation, applicant was prosecuted under section 379 of IPC read with section 39 of the Electricity Act. 3. After trial, Chief Judicial Magistrate, Raisen found the applicant guilty for committing theft of electricity and convicted him under section 379 of IPC read with section 39 of the Electricity Act and sentenced him to Rigorous Imprisonment for one year by judgment dated 3.10.1997 passed in Criminal Case No. 230/93. 4. In criminal appeal preferred by the applicant against the aforesaid order of conviction and sentence passed by Chief Judicial Magistrate, Raisen, the Appellate Court, after considering the evidence on record and the legal aspects of the case, upheld the conviction of the applicant and sentence passed on him and dismissed his appeal by impugned judgment, which has been assailed in this revision. 5. Learned counsel for the applicant submitted that the Courts below gravely erred in law and facts in convicting and sentencing the applicant. He further submitted that Junior Engineer of the M.P. Electricity Board was not authorized to make a complaint under section 50 of the Electricity Act and the complainant made by him was incompetent. 6. 5. Learned counsel for the applicant submitted that the Courts below gravely erred in law and facts in convicting and sentencing the applicant. He further submitted that Junior Engineer of the M.P. Electricity Board was not authorized to make a complaint under section 50 of the Electricity Act and the complainant made by him was incompetent. 6. Learned counsel for the State, on the other hand, justified the impugned judgment and supported the findings recorded by the Courts below. 7. Impugned judgment and records of the Lower Courts perused. 8. There is a concurrent finding of fact of two Courts below that applicant was found committing theft of electricity by abstracting direct energy from the electric line by means of a wire. The aforesaid finding of fact does not suffer from any infirmity in view of the evidence available on record, particularly, the evidence of Junior Engineer, M.P. Electricity Board Upendra Kumar Kulshrestha (PW 6) and line man Dilip Singh (PW 4). Upendra Kumar Kulshrestha (PW 6), Junior Engineer, M.P. Electricity Board, who was also Officer-in-Charge of the City Supplies, M.P. Electricity Board, Raisen also made a Panchnama (Exh. P-2) of the action taken by him against the applicant and made a written complaint (Exh. P-3) to the police. 9. Learned counsel for the applicant placing reliance on the Single Bench decision of this Court rendered in the case of Suleman v. State of reported in 1980 JLJ 117 , submitted that Junior Engineer of the M.P. Electricity Board was not authorized to make a complaint in view of the provisions of section 50 of the Electricity Act and no prosecution could be launched on the basis of report of the Junior Engineer of the M.P. Electricity Board. 10. Learned counsel for the State on the other hand placing reliance on another Single Bench decision of this Court in the case of Jhalkan Singh and another v. reported in [ 1981 JLJ 560 = 1981 CriLJ 1230], submitted that Junior Engineer Upendra Kumar Kulshrestha was employed in M.P. Electricity Board, City Supply, Raisen and was In-charge of the area and on noticing a theft of electricity in the concerned area, he was an aggrieved person within the meaning of section 50 of the Electricity Act and was competent to file a complaint and the prosecution could be initiated at his instance. Section 50 of the Indian Electricity Act, 1910 reads as under: "No prosecution shall be instituted against any person for any offence against this Act or any Rule, licence or order thereunder, except at the instance of the Government or a State Electricity Board or an (Electrical Inspector), or a person aggrieved by the same." 11. In view of the provision of section 50 of Electricity Act, prosecution can be initiated even at the instance of a person aggrieved. The Division Bench of this Court in the decision rendered in the case of Hargyan v. reported in [ 2003 (2) JLJ 113 = 2003 CriLJ 2936 (MP)), has held as under: "An Officer of the Electricity Board, who is in-charge of the area detects the theft of electricity is duty bound to lodge the complaint with the police and at that time he will be a person aggrieved. During performance of his duties, if he detects some electricity thefts or dishonest abstraction, abstraction of any of the energy, then the officer of the said Electricity Board is competent to file a complaint on behalf of the said Electricity Board and the complaint cannot be thrown out on the technicality that the complaint was not lodged by a competent 170 [2008 (III) person. Such complaint at the instance of the officer of the Electricity Board who is in-charge to look after the affairs of the Electricity Board in a particular area will be maintainable and on such complaint police can initiate investigation and is competent to file challan if on investigation the allegation is found to be correct. Therefore, we hold that the complaint can be lodged by any of the officer of the Electricity Board appointed at a particular place to look after supply of the electricity. The Board is also competent to authorize an officer to lodge complaint by passing a resolution." 12. In view of the legal position enunciated by the Division Bench of this Court in the case of Hargyan v. (supra), Junior Engineer Upendra Kumar Kulshrestha, who was an Officer Incharge of the M.P. Electricity Board, City Supply, Raisen was competent to file a complaint of theft of electricity committed in the concerned area, as an aggrieved person and the prosecution could be initiated at his instance. The submission of learned counsel for the applicant that the prosecution of the applicant could not be initiated at the instance of Junior Engineer of the M.P. Electricity Board is thus devoid of any substance. 13. In view of the aforesaid discussion, the conviction of the applicant under section 379 of IPC read with section 39 of the Electricity Act does not suffer from any legal or factual infirmity so as to call for any interference in revision. 14. As regards the sentence, learned counsel for the applicant submitted that the incident of the case is very old of the year 1993 and the applicant has already suffered imprisonment for more than one month and twenty two days and no useful purpose would be served by sending the applicant to jail after long passage of time and the jail sentence was also not mandatory for the offence under section 39 of Electricity Act or under section 379 of IPC. He, therefore, submitted that the impugned sentence of imprisonment awarded to the applicant be reduced to the period already undergone by him with some reasonable amount of fine. 15. Considering the submissions as advanced and the facts and the circumstances of the case, especially the fact that the incident of the case herein is as old as 5.3.1993 and the applicant has already suffered imprisonment for more than one month and twenty two days, interest of justice would be sub-served, if the impugned sentence of imprisonment awarded to the applicant is modified and reduced to the period already undergone by him with fine of rupees two thousand. 16. Accordingly, the impugned sentence of imprisonment awarded to the applicant is modified and reduced to the period already undergone by him. However, the applicant shall also be liable to pay fine of rupees two thousand within a period of two months from today, in default he will suffer simple imprisonment for one month. 17. Revision stands allowed to the extent indicated above.