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2013 DIGILAW 994 (KAR)

VITTAL v. STATE OF KARNATAKA

2013-08-26

ANAND BYRAREDDY

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JUDGMENT ANAND BYRAREDDY, J.-Heard the learned Counsel for the appellant and the learned Government Pleader. 2. The appellant was the accused in the case initiated by the respondent, which is the State represented by the Vigilance Police Station of Hubli Electricity Supply Company Limited (hereinafter referred to as 'the HESCOM', for brevity). 3. It was the case of the prosecution that, the Assistant Executive Engineer, HESCOM Vigilance of Belgaum, on credible information had, along with his staff members, inspected the premises of the present appellant, namely flourmill, on 06.06.2003 at about 4.00 pm at No. 116 of Alakanur village of Raibag Taluk and it was noticed that, the meter recording the electricity supply to the flourmill of the appellant was tampered with and that the rotating disc within the meter had been made to slow down, as a result of which there was no accurate recording of the electricity consumed. This the appellant has achieved, according to the complainant, by disconnecting one of the service wires out of 4, connecting the low tension line and the meter installed at the flourmill bearing Revenue Register No. ALKR-MP-34. It is on these allegations, that the meter was seized and removed and the electricity supply was disconnected to the premises of the appellant and a case was registered in Crime No. 20/2003 before the competent Court. 4. It is after further proceedings, that the charges were framed against the appellant and the appellant having pleaded not guilty and having claimed to be tried, the prosecution had examined PWs. 1 to 9 and marked exhibits P1 to P12 apart from material objects 1 and 2. 4. It is after further proceedings, that the charges were framed against the appellant and the appellant having pleaded not guilty and having claimed to be tried, the prosecution had examined PWs. 1 to 9 and marked exhibits P1 to P12 apart from material objects 1 and 2. On recording the statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.' for brevity), the Court below had proceeded to frame the following points for consideration: (i) Whether the prosecution proves that when the complainant and other raid party members conducted a rain on installation bearing RR No. ALKR/MP/34 on 6.6.2003 at about 1600 hours which is situated in property No. 116 of Alakanur village of Raibag Taluk and the accused dishonestly abstracted the electricity to his flourmill by disconnecting one of the service wire out of 4 in between LT line and the meter and directly connecting to the same to the fuse and made the disc of the meter should run slowly and he dishonestly committed the electric energy to the tune of Rs. 67,507.20 which is having compounding charge of Rs. 44,000/-, thus, the accused has committed the offence punishable under Section 39 of the I.E. Act? (ii) Whether the prosecution further proves that accused improperly used the electricity pertains to above mentioned RR installation to him thus, he has committed the offence punishable under Section 44 of the I.E. Act? (iii) To what order The Court below had answered points No. 1 and 2 in the affirmative and convicted the appellant for the offences aforesaid and imposed the penalty with reference to Section 135 (c)(1) of the Indian Electricity Act, 2003 (hereinafter referred to as 'the 2003 Act', for brevity) and imposed penalty of Rs. 2,02,522/-, while directing payment of Rs. 67,507/- to the complainant by way of back billing charges, while the rest of the amount was to be retained by the State as fine. It is this, which is under challenge in the present appeal. 5. The learned Counsel for the appellant, contended that the allegations were not consistent with the evidence tendered and that the Court below has proceeded only on the basis of interested witnesses PWs. 3, 6, 7, 8 and 9, while their evidence was not corroborated by any independent witnesses. While on the other hand, panch witnesses, namely, PWs. 5. The learned Counsel for the appellant, contended that the allegations were not consistent with the evidence tendered and that the Court below has proceeded only on the basis of interested witnesses PWs. 3, 6, 7, 8 and 9, while their evidence was not corroborated by any independent witnesses. While on the other hand, panch witnesses, namely, PWs. 1 and 2 and the alleged eyewitnesses 4 and 5 have not supported the case of the prosecution and have turned hostile. Hence placing reliance only on the evidence of the interested witnesses, who are all official witnesses and on the mere parroted testimony, the prosecution could not be said to have established its case beyond all reasonable doubt, especially in view of the inconsistency even insofar as the evidence of the official witnesses was concerned. In that, it is alleged that the appellant had tampered the meter by disconnecting one of the service wires out of the 4, connected to the low tension line and it was inconsistently claimed that, a hole had been punched on the top of the meter and a wire had been inserted to stop the disc from recording the consumption. This was an inconsistent allegation insofar as the tampering of the meter is concerned. In that, while one witness has claimed that, there was tampering to slow down the disc rotating within the meter, the other witness had claimed that, it was stopped altogether by drilling a hole and the meter itself, which was produced as a material object did not contain any such hole. Therefore, to establish that there was disconnection of one of the service wires was imperative and since the meter itself has been seized and removed along with all the service wire connections, it was not possible for the prosecution to contend that there was tampering of the meter, in the absence of independent witnesses, especially of the witnesses who supported the case of the prosecution. 6. It is further pointed out that, insofar as Ex.P8 is concerned, it is a calculation sheet, on the basis of which a back billing charges were sought to be imposed, is a hypothetical calculation of the back billing of the electricity consumed. It is not a calculation sheet of the actual consumption of electricity, as there was no such reading, on the basis of which the charges could have been imposed. It is not a calculation sheet of the actual consumption of electricity, as there was no such reading, on the basis of which the charges could have been imposed. The learned Counsel would submit that, the charges are calculated on a presumption that, the appellant had consumed the said number of units over a period of time, only on a rough estimation. Hence the imposition of charges is without any basis. 7. It is further contended that, complaint was lodged with reference to Sections 39 and 40 of the Indian Electricity Act, 1910 (hereinafter referred to as 'the 1910 Act', for brevity), whereas the punishment that is imposed is with reference to Section 135 of the 2003 Act, which is again inconsistent and inexplicable. The Court below has also convicted the accused with reference to Sections 39 and 40 of the 1910 Act, which has been repealed by the 2003 Act, while it has also inconsistently proceeded to impose penalty with reference to Section 135 of the 2003 Act and hence he would submit, that the judgment of the Court below is not sustainable, having regard to the inconsistency and the infirmity that it is evident, not only with reference to the findings of fact, but also in the application of the law that is applicable. Therefore, he would contend that the judgment is vitiated and would require to be set aside. 8. While the learned Government Pleader would seek to justify the judgment and would point out, that the offence committed by the appellant is as on 06.06.2003, whereas the 2003 Act had come into force on 10.06.2003. Therefore, the complaint having been allowed with reference to Sections 39 and 40 of the 1910 Act and the punishment having been imposed with reference to Section 135 of the 2003 Act, cannot be said to be inconsistent. Even if the charges have been framed with reference to Sections 39 and 40 of the 1910 Act and the penalty having been imposed under the 2003 Act and there is no inconsistency insofar as the offences alleged under Sections 39 and 40 of the 1910 Act are encompassed under the provisions of Section 135 of the 2003 Act. Hence there is no inconsistency insofar as the penalty imposed as on the date of judgment before the 2003 Act, that was in force and it was applicable, since the 1910 Act was repelled. Hence there is no inconsistency insofar as the penalty imposed as on the date of judgment before the 2003 Act, that was in force and it was applicable, since the 1910 Act was repelled. Hence contends that, there is inconsistency insofar as the law is concerned is not tenable. 9. On findings of fact, it is sought to be highlighted that, mere fact that PWs. 4 and 5 had turned hostile is immaterial as the evidence of PWs. 3, 6, 7, 8 and 9 is consistent and the allegations that, they are official witnesses and therefore could not be relied on is not tenable. There is no law which prohibits the Court from arriving at finding of fact, on the basis of official witnesses, in the absence of any mala fides alleged against such witnesses or proved insofar as the said evidence not being tenable. In the absence of any such circumstances of mala fides alleged against the said witnesses, their evidence could not be discarded. The Court below having relied on the same cannot be said to be opposed to law. 10. Insofar as the alleged inconsistency of a manner, in which the meter had been tempered with, is again not tenable. There is a categorical evidence to state that, tampering of the meter was on disconnection of one of the service wires connecting the meter to the low tension line and that having been established by the prosecution witnesses, the same could not be faulted. As far as the calculation made, insofar as the back billing charges and the penalty imposed is certainly with reference to the calculation sheet produced at Ex.P8. The same not having challenged by the appellant in the course of cross-examination of the witnesses, with reference to the documents produced and relied on, it is not open for the appellant to dispute the calculation done therein and hence he would submit that there is no substance in the present appeal and that back billing charges are nominal and on average consumption of electricity over a period of time by the appellant and therefore, is reasonable and is in accordance with law, which the Court below has rightly accepted and hence would seek dismissal of the appeal. 11. 11. Given the above facts and circumstances and the material on record, insofar as the finding of fact whether there was tampering of the electricity meter is concerned, it is not tenable for the appellant to contend that the witnesses PWs. 3, 6, 7, 8 and 9 are official witnesses and that their evidence cannot be relied on. There is no allegation of mala fides, nor it is established insofar as their evidence is concerned. Hence the Court below having acted upon the same cannot be said to be illegal. There is no inconsistency forthcoming in their evidence. 12. Insofar as the charges and the findings with reference to 1910 Act and the conviction being made with reference to the 2003 Act being infirmity is also not tenable. As rightly pointed out by the learned Government Pleader, the 2003 Act has come into force after the alleged incident, when the tampering of the meter was discovered. The subsequent framing of the charges with reference to the 1910 Act to have made conviction under the 2003 Act, does not lead to any incongruity for the offences alleged, and the same no doubt contained in Sections 39 and 40 of the 190 Act, but consolidated under Section 135 of the 2003 Act and the punishment prescribed would certainly be under the law applicable as on the date of judgment and that has been made with reference to 2003 Act. 13. Therefore, both on the finding of fact and the application of law, there cannot be said to be any infirmity. But insofar as the calculation of the back billing charges and the penalty imposed is concerned, it is certainly made on the basis of presumption that there was certain extent of consumption of electricity, though that is the gray area, which may result in a miscarriage of justice. Since it is only a rough estimate, if the same is multiplied by three would certainly run its onerous on the appellant. Therefore, the question whether such punishment is disproportionate to the findings alleged, would certainly have to be answered infavour of the appellant. But then the measure of such penalty would again pose a difficulty. Therefore, in the interest of justice and to uphold the law, it would be necessary to balance the two. Therefore, the question whether such punishment is disproportionate to the findings alleged, would certainly have to be answered infavour of the appellant. But then the measure of such penalty would again pose a difficulty. Therefore, in the interest of justice and to uphold the law, it would be necessary to balance the two. Hence, while back billing charges, which have been calculated having been imposed three times over resulting in a total penalty of Rs. 2,02,522/- shall be reduced by half which comes to Rs. 1,01,261/-. Hence the penalty payable shall be Rs. 1,01,261/-, out of which Rs. 67,507/- shall be paid to the complainant as back billing charges and the remaining amount shall be retained by the State as fine. With that modification, the judgment of the Court below is set aside in part.