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Madhya Pradesh High Court · body

2011 DIGILAW 362 (MP)

State of M. P. v. Ganesh Criminal

2011-03-18

SUSHMA SHRIVASTAVA

body2011
JUDGMENT 1. Appellant/State has preferred this appeal against the order of acquittal of respondent under section 379 of IPC read with section 39 of the Indian Electricity Act, 1910, passed by Judicial Magistrate First Class, Seoni in Criminal Case No. 142/91, decided on 17.4.95. 2. According to prosecution on 21.4.90 about 11.30 at night at village Marjhor, District Seoni, Mohd. Ayub Ali, Junior Engineer of M.P. Electricity Board, Seoni (Gramin), upon inspection found that respondent Ganesh was committing theft of electricity by illegally abstracting direct energy from the main line by means of a wire unathorizedly put by him and using electricity bulbs at his house. Junior Engineer Mohd. Ayub Ali made a panchanama in front of village Kotwar and panch witnesses and seized the electric wire measuring 60 ft., switch, bulb, holder and adapter etc. from his house and made a written complaint to the Station House Officer of Police Station Lakhanwada. On the basis of report of Junior Engineer of M.P. Electricity Board, Seoni, an offence was registered against the respondent and was investigated. Electrical appliances seized by Junior Engineer Mohd. Ayub Ali from the house of respondent were also seized by the Police. After due investigation, respondent was prosecuted under section 379 of IPC read with section 39 of the Indian Electricity Act and was put to trial before Judicial Magistrate First Class, Seoni. 3. Respondent Ganesh denied the charges framed against him under section 379 of IPC read with section 39 of the Indian Electricity Act (hereinafter referred to as 'Electricity Act') and pleaded false implication. 4. Learned Judicial Magistrate First Class, after trial acquitted the respondent of the aforesaid charges mainly on the ground that in view of the provisions of section 50 of the Electricity Act, the charge-sheet filed against the respondent by the Police and not by the aggrieved person, was not maintainable. Being aggrieved by the aforesaid judgment of acquittal, the State of M.P. has preferred this appeal. 5. Learned counsel for the appellant/State submitted that the trial Court failed to consider the overwhelming evidence available on record against the respondent regarding theft of electricity and erroneously acquitted him on a technical ground without examining the merits of the case. 6. Learned counsel for the respondent, on the other hand, justified the acquittal of the respondent and submitted that no case of theft of electricity was proved against the respondent. 6. Learned counsel for the respondent, on the other hand, justified the acquittal of the respondent and submitted that no case of theft of electricity was proved against the respondent. Learned counsel for the respondent also submitted that the prosecution miserably failed to prove that the house, where the seizure of wire etc. was allegdly made, belonged to the respondent or he committed theft of electricity. 7. Perused the impugned judgment and the evidence on record. 8. The trial Court has acquitted the respondent mainly on the ground that the charge-sheet against respondent was filed by the Police and not by the aggrieved person, as required by section 50 of the Electricity Act; as such prosecution of the respondent under section 39 of the Indian Electricity Act was not maintainable. On perusal of the record, it is evident that the complaint in respect of the theft of electricity allegedly detected at the house of respondent was made by Junior Engineer of MPEB Seoni, namely, Mohd. Ayub Ali (PW-2). The evidence of ASI R.P. Singh Parihar (PW-4) also revelas that on the basis of written complaint made by Mohd. Ayub Ali Junior Engineer of MPEB Seoni, the FIR (Ex. P-5) was registered by the then Station House Officer of Police Station, Lakhanwada and after investigation the charge-sheet was filed by Police Station, Lakhanwada. 9. Evidently, thus prosecution of the respondent was initiated at the instance of Mohd. Ayub Ali, Junior Engineer of MPEB Seoni, an office of the Electricity Act Board and criminal law was set in motion on the basis of his written complaint. Section 50 of the Electricity Act also requires that prosecution under the Act should be instituted at the instance of Govt. or State Electricity Board or an Electrical Inspector, or of a person aggrieved. Section 50 of the Electricity Act reads as under: "No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order there under, except at the instance of the Government [or a State Electricity Board] or an [Electrical Inspector]. or of a person aggrieved by the same." 10. Section 50 of the Electricity Act reads as under: "No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order there under, except at the instance of the Government [or a State Electricity Board] or an [Electrical Inspector]. or of a person aggrieved by the same." 10. The apex Court in the case of State of Karnataka v. Adimurthy @ B. Moorthy reported in AIR 1983 Supreme Court page 822 has held, the word 'at the instance of' in section 50 must, in the context in which it appears, mean "at the behest of or at the solicitation of. The apex Court in the aforesaid case also noted with approval the view taken by Karnataka High Court in the case of State of Karnataka v. Abdul Nabi, reported in 1975 Cri.LJ. Page 746 that where a person acting for or on behalf of Board lodges a complaint with the Police in respect of the unlawful abstraction of electric energy and Police in term files a charge-sheet, the prosecution must be regarded as instituted at the instance of the Board. 11. Thus, when a written complaint was lodged by Mohd. Ayub Ali, Junior Engineer of the MPEB an officer of the Electricity Board, Seoni, on the basis of which Police after investigation filed a charge-sheet against the respondent, it cannot be said that the prosecution was not at the instance of the Board. The Division Bench of this Court in the case of Hargyan v; State of M.P. reported in 2003 (2) JLJ 113 = 2003 Cri. LJ Page 2936 (MP) after considering the various decisions of this Court on the point and in the light of the decisions of the apex Court, has held as under:- "An officer of the Electricity Board, who is Incharge 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 person. Such complaint at the instance of the officer of the Electricity Board, who is incharge 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." 12.1n view of the legal position enunciated above, the trial Court gravely erred in holding that the charge-sheet filed by the Police against the respondent for the offence under section 39 of the Electricity Act was not maintainable, when the charge sheet was filed on the basis of written complaint made by Junior Engineer of Electricity Board, Seoni. 13. However, on merits, when the entire evidence is examined, it is found that there is no clinching or dependable evidence against the respondent in respect of the theft of electric energy. Assistant Engineer of MPEB, Seoni, A.K. Pandey (PW-l) and Junior Engineer Mohd. Ayub Ali (PW 2) are the two main witnesses, who have deposed that the respondent had taken illegal connection of electricity from the main line in his house, but none of these two witnesses are sure that the house, where theft of electricity was allegedly detected and the seizure of wire etc. was made, was in fact the house of respondent. According to both A.K. Pandey, (PW-l) and Mohd. Ayub Ali (PW-2), they had inquired from the village Kotwar about the house of respondent Ganesh, who had informed them that the house belonged to Ganesh, but the village Kotwar has not been examined to substantiate their version that the house, where theft of electricity by abstracting energy from main line by means of a wire was detected, was the house of the respondent or he was its exclusive owner. Both Assistant Engineer A.K. Pandey (PW-1) and Junior Engineer Mohd. Ayub Ali (PW-2) do not appear to have any personal knowledge in this regard that the house in question was the house of respondent Ganesh. On the other hand, they had admittedly inquired it from village Kotwar, whose evidence is lacking in the case. No other authentic evidence was produced in this behalf. 14. Ayub Ali (PW-2) do not appear to have any personal knowledge in this regard that the house in question was the house of respondent Ganesh. On the other hand, they had admittedly inquired it from village Kotwar, whose evidence is lacking in the case. No other authentic evidence was produced in this behalf. 14. Assistant Engineer A.K. Pandey, (PW-l) tried to depose that respondent Ganesh was found present in the house at the time of checking and seizure etc., but he also failed to properly identify the respondent at the time of his deposition and he pointed out some other person as Ganesh, out of the two persons present at that time, though he corrected himself later on. The deposition of Assistant Engineer A.K. Pandey, (PW-1) as given in this behalf in para 4 of his deposition, indicates that he was not sure of the identify of the respondent, therefore, he identified some other person as respondent Ganesh. The other witness, namely, Mohd. Ayub Ali Junior Engineer (PW2) also failed to depose in his evidence that the respondent was present at the time of detecting the theft of electricity and seizure of the electrical appliances in the house in question at night was made in his presence. There is no other evidence of any person of the vicinity to the effect that the theft of the electricity was detected at the house of respondent Ganesh or that he was present at the time of seizure etc. Even Police Officer R.P. Singh Parihar (PW-4), Assistant Sub-Inspector, who seized the articles produced by Junior Engineer Mohd. Auyb Ali (PW-2) at the Police Station, also admitted that the respondent was not produced before him alongwith the articles seized by the Junior Engineer. 15. In view of the aforesaid facts and doubtful evidence, the charge of theft of electricity was not proved against the respondent beyond periphery of doubt. No interference in the order of acquittal of the respondent is, therefore, called for. Appeal fails and is dismissed.