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2012 DIGILAW 442 (RAJ)

J. v. V. N. Ltd. VS Ilmdeen @ Iliyadeen

2012-02-14

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—The Jodhpur Vidhyut Vitran Nigam Ltd., the appellant, is aggrieved by the judgment dated 17.8.2011, passed by Special Judge, Electricity Act Cases and Additional District and Sessions Judge NO.1, Jodhpur Metropolitan, whereby the learned Magistrate has acquitted the accused respondent, Ilmdeen @ Iliyadeen, for offences under Sections 135 & 138 of the Indian Electricity Act ('the Act', for short). 2. Briefly, the facts of the case are that on 9.3.2011, the Vigilance Party of the appellant company had carried out an inspection of super transformer. When the meter box was inspected, it was discovered that the glass of the meter was open, and there were two CT wires which were attached. Thus, it was discovered that the meter box has been tampered with. It was also discovered that excess electricity load of 33 H.P. was being taken. Therefore, excess electricity was being stolen. The transformer along with meter, and the meter box were seized. On the basis of the Vigilance Checking Report ('VCR', for short), a formal FIR, FIR No. 66/2011, was chalked out on 13.4.2011 for offences under Sections 135 & 138 of the Act. Subsequently, a complaint was filed before the learned Judge. 3. In order to support its case, the appellant examined eight witnesses, and submitted six documents. Although, the defence did not examine any witness, but it did submit two documents. After going through the oral and documentary evidence, vide judgment dated 17.8.2011, the learned Magistrate acquitted the accused respondent. Hence, this criminal leave to appeal before this Court. 4. Mr. Ravi Bhansali, the learned counsel for the appellant, has vehemently contended that the learned Magistrate has failed to appreciate the evidence in proper perspective. According to the V.C.R. (Ex.P/3), it was clearly reported that the meter box was tampered with, and additional electricity was being taken from the super transformer. Moreover, the prosecution had established its case by examining the witnesses. Despite over-whelming evidence in favour of the prosecution, the learned judge has acquitted the accused respondent. 5. On the other hand, Dr. Sachin Acharya, the learned counsel for the accused respondent, has strenuously contended that the learned judge has meticulously examined the evidence, and has given cogent reasons for acquitting the accused respondent. Therefore, the learned counsel has supported the impugned judgment. 6. Heard the learned counsel for the appellant, and perused the impugned judgment. 7. 5. On the other hand, Dr. Sachin Acharya, the learned counsel for the accused respondent, has strenuously contended that the learned judge has meticulously examined the evidence, and has given cogent reasons for acquitting the accused respondent. Therefore, the learned counsel has supported the impugned judgment. 6. Heard the learned counsel for the appellant, and perused the impugned judgment. 7. A bare perusal of the impugned judgment clearly reveals that meter and the super transformer was in the name of a partnership firm, wherein the accused was only one of the partners among six partners. Since only respondent has been made accused, it was the primary duty of the appellant to establish the fact that only Ilmdeen was responsible for the commission of the offence. The appellant has failed to prove the fact that Ilmdeen, being one of the partners of the partnership firm, was responsible for the offence. 8. Secondly, the learned Judge has noticed the fact that at the time of carrying out the inspection, neither Ilmdeen, nor any of his family members were present. Both according to the VCR (Ex.P-3), as well as according to the prosecution witnesses, they were met by one Mohan. It is only on the submission of Mohan, it was believed that the meter had been tampered with by the accused respondent. However, Mohan has not been produced as a witness. Moreover, according to some of the witnesses, they were unable to inform the court as to the relationship between Mohan and the accused respondent. Therefore, the appellant had failed to produce the star witness. 9. Thirdly, the learned Judge has noticed that the testimony of the prosecution witnesses is replete with contradictions. According to Kamal Kishore Sharma (P.W.2), the meter was installed in the same exact position and sealed, as was done at the time when the meter was installed. According to him, the glass of the meter box had been raised. However, according to Tulsidas (P.W.3), the meter was inside the box, and the reading of the meter could only be done from out side. According to him, the glass of the meter box had not been broken. According to Tulsidas (P.W.3), there were two wires which are connected, yet according to Vijay Kumar (P.W.4), there were three wires which were connected. According to Vijay Kuamr (P.W.4), in case somebody touched the glass, it was likely to be broken. According to him, the glass of the meter box had not been broken. According to Tulsidas (P.W.3), there were two wires which are connected, yet according to Vijay Kumar (P.W.4), there were three wires which were connected. According to Vijay Kuamr (P.W.4), in case somebody touched the glass, it was likely to be broken. Yet according to all the witnesses, the glass was not broken. According to Om Prakash (P.W.6), no wire were attached to the super transformer. Since, the prosecution has produced a confusing set of evidence, the learned Judge was certainly justified in concluding that the prosecution has not been able to prove its case beyond a reasonable doubt. 10. The learned Judge has also noticed the fact that there are certain contradictions between the VCR and the FIR. According to the VCR, the meter was found in non-working condition. Yet, in the FIR, no such thing is mentioned. There is no evidence produced by the appellant to prove the fact that meter was not working. Since, the learned Judge has given cogent reasons, this Court does not find any illegality or perversity in the impugned judgment dated 17.8.2011. Hence, the criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.