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2015 DIGILAW 464 (KAR)

Mohammed Gouse Khureshi v. State of Karnataka

2015-04-23

K.N.PHANEENDRA

body2015
JUDGMENT K.N. Phaneendra, J. 1. The present appeal is preferred against the judgment of conviction and order of sentence passed by the Special Judge and Additional District and Sessions Judge at Bidar in Spl. C.C. No. (Electricity) 27 of 2010, wherein the Trial Court has convicted the accused-appellant for the offences punishable under Sections 135 and 138(1)(b) of Electricity Act, 2003 read with Section 379 of Indian Penal Code, 1860 and sentenced him to pay fine of Rs. 1,95,720/- in default, to undergo simple imprisonment for a period of six months and the accused was given set of under Section 428 of the Criminal Procedure Code, 1973. I have heard the arguments of the learned Counsel for the appellant and also the learned High Court Government Pleader. 2. Learned Counsel for the appellant has strenuously contended that the Trial Court has erroneously convicted the accused for the above said offences even in the absence of sufficient evidence on record. The Court has not properly appreciated the oral and documentary evidence on record and not given the benefit of reasonable doubts arising out of the evidence of the prosecution witnesses. The Court has also erroneously drawn presumption under Section 135 of the Electricity Act, though the prosecution has not proved the guilt of the accused on facts under Section 135 of the Act, in order to draw such presumption. Further he contended that the sentence passed by the Trial Court is exorbitant, therefore, the judgment and sentence passed by the Trial Court deserves to be set aside. 3. Per contra, The learned High Court Government Pleader strenuously contended that once it is shown to the Court that the appellant is the consumer of the electricity under the respondent-Electricity Board and that there was tampering of meter and seal which was appended to the meter and that itself is sufficient to draw a presumption under Section 135 of the Act in order to hold that the meter was tampered only for the purpose of abstracting electrical energy. No person can get rid off the liability by taking undue advantage of his own wrong. It is also contended by the learned High Court Government Pleader that the Trial Court has properly appreciated the oral and documentary evidence on record and justified in recording the judgment of conviction and sentencing the accused in accordance with law. No person can get rid off the liability by taking undue advantage of his own wrong. It is also contended by the learned High Court Government Pleader that the Trial Court has properly appreciated the oral and documentary evidence on record and justified in recording the judgment of conviction and sentencing the accused in accordance with law. Therefore, he submits that there is no room for interference with the judgment and sentence passed by the Trial Court. On the basis of the above said rival contentions of the parties, then points that arise for consideration by this Court are: (i) Whether the Trial Court has committed any error in appreciating the oral and documentary evidence on record? (ii) Whether the Trial Court has committed any error in convicting and sentencing the accused as noted above? (iii) What order? 4. My answer to the above said point is in the affirmative for the following reasons: 5. Before adverting to the grounds urged by the respective parties, it is just and necessary to bear in mind, the brief factual matrix of the case, which are as under: 6. One Sripathi Rao-C.W. 1 (P.W. 4) working as an Assistant Executive Engineer, Bidar, on 10-3-2010 at about 4.15 p.m. raided the flour mill of the appellant situated near Naya Kaman, Bidar and he found that the main cover of the meter was tampered and the appellant has interfered with the installation of the meter by tapping the energy illegally and thereby extracted the electricity and committed theft of electric energy from the installation RR No. 555.P and dishonesty committed theft of electric energy and caused loss to the KPTCL to the extent of 65,240/- (Back billing charges). Making such allegations, it is stated that he conducted raid in presence of the panch witnesses and he examined the tampered meter and ultimately he handed over the investigation to the jurisdictional BESCOM Police and after due investigation, the charge-sheet came to be filed. The accused in fact was enlarged on bail and contested the proceedings. 7. The Court after hearing the accused framed the charges under Sections 135 and 138(1)(b) of the Electricity Act, 2003 read with Section 379 of IPC. As the accused pleaded not guilty, he was claimed to be tried, as such he was put on trial. 8. The accused in fact was enlarged on bail and contested the proceedings. 7. The Court after hearing the accused framed the charges under Sections 135 and 138(1)(b) of the Electricity Act, 2003 read with Section 379 of IPC. As the accused pleaded not guilty, he was claimed to be tried, as such he was put on trial. 8. The prosecution in order to bring home the guilt of the accused examined as may as six witnesses viz., C.Ws. 1 to 6 and got marked Exs. P. 1 to P. 5 and M.Os. 1 and 2. After analyzing the evidence on record, the Trial Court has come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt and therefore, convicted and sentenced the accused accordingly. 9. The prosecution in fact mainly relied upon the evidence of P.W. 4, who is the star witness to the prosecution. He is the person who raided the premises of the accused and conducted the investigation and subsequently after having found that the accused has committed such an offence, he handed over the investigation to P.W. 3-Mr. Uday Kumar, who was working as a Police Inspector, GESCOM, Bidar, who registered the Crime No. 388 of 2010 and submitted the FIR to the jurisdictional Court as per Ex. P. 1 and thereafter, he collected all the materials and submitted the charge-sheet against the accused along with the seized articles M.Os. 1 and 2. 10. Before discussing the evidence of other witnesses, it is just and necessary to go through the evidence of P.W. 4-Sripathirao, who has categorically stated that he was working as a Section Officer, Usman Gunj, Bidar. The accused is having flour mill in Naya Kaman, Bidar, having installation RR No. CTGP 555. So far as this aspect is concerned, there is no dispute. The accused has not denied that he was not the owner of the said installation. It is stated that on 10-3-2010, when he visited the said premises along with panchas under the scheme of Mass Raid, they found that the accused was present in the flour mill and the said flour mill was running. The accused has not denied that he was not the owner of the said installation. It is stated that on 10-3-2010, when he visited the said premises along with panchas under the scheme of Mass Raid, they found that the accused was present in the flour mill and the said flour mill was running. He has checked the meter and found that the main cover seal of the meter was tampered and tapping of energy illegally and he inspected the meter and has taken the said meter out of the service board along with the wire and prepared panchaname. It is stated that on the next day, he filed a complaint before P.W. 3-Udayakumar. Ex. P. 5 is the test report and it is an important document, which is alleged to be meter testing report. Even analysing the evidence of this witness, except stating that there was tampering of the seal of the meter, he is in cross-examination has not stated as to in what manner the electricity was abstracted and what was the exact artificial means or device used by the accused for abstraction of the electric energy and mere tampering of the seal of the meter, whether it suffice to show that the electricity was abstracted is nowhere stated by this witness in his examination-in-chief. In the course of cross-examination, he has stated that he has recorded the meter reading and the said meter was having III Phases and he admitted that there was three seals, one is company seal, another is M.T. seal and other one is terminal seal. It was specifically stated in the examination-in-chief that, out of these three seals, which was the exact seal that was tampered. It was also admitted in the course of cross-examination that he cannot say the company seal and M.T. seal numbers which were fixed to the meter. It is quite surprising to note here that he admitted that, when he visited the spot the meter was recording the energy used by the accused. I fail to understand as to how the officer has come to the conclusion that the accused was abstracting the electrical energy and on what basis he could say that he committed theft of the electrical energy when the meter was in running position. He further admitted that there was only tampering of MT seal and therefore, he seized the meter. He further admitted that there was only tampering of MT seal and therefore, he seized the meter. He never said either in the cross-examination or in examination-in-chief that tampering of M.T. seal itself is sufficient to constitute commission of theft of electrical energy, he never stated that the accused has used any artificial device or method to open the meter and to tamper the disc in the meter. It is nowhere stated in the examination-in-chief that the accused has prevented the disc inside the meter from rotating and recording the electrical energy and thereby committed the theft of electrical energy. It is conspicuously absent in the examination-in-chief as to how and in what manner the accused has abstracted the electrical energy except even admitting that there was some tampering of M.T. Seal. It is further admitted in the course of cross-examination that they have removed the meter and the meter was correct, when it was disconnected, when it is said that the meter was proper and correct and that they have seized the same, how they can say the meter was tampered. Except stating that the seal was tampered, nothing has been proved, therefore, in my opinion, it is not sufficient to hold that the accused has used any device in order to block the disc inside the meter in order to prevent the meter from recording the reading of the electrical energy. He further deposed before the Court that prior to the incident, he visited the flour mill of the accused several times and he had checked the meter. When he visited the flour mill and checked the meter, then it was correct. It was admitted that the accused has been paying the bills regularly as demanded by the office. It is also admitted that he has produced the meter testing report in the file. But they have not taken the meter testing machine to the spot and there is no material even considering Ex. P. 5 that except he himself stated that he has tested the meter, it appears it is not sent to the laboratory and the meter was tested by lab technician. But they have not taken the meter testing machine to the spot and there is no material even considering Ex. P. 5 that except he himself stated that he has tested the meter, it appears it is not sent to the laboratory and the meter was tested by lab technician. In the absence of testing the meter, nobody can imagine or assume or presume that what happened inside the meter whether there was any artificial device used inside the meter and whether there was any defect in the meter itself so that without opening the meter anybody can reverse the disc inside the meter. These are all the important aspects that ought to have been explained by the experts. P.W. 4 himself admits that he is an expert in the field as he has been working as Assistant Executive Engineer. So, he could have explained to the Court as to how the accused has abstracted the Electrical Energy. Simply by means of tampering the seal appended to the meter, in the absence of such materials, in my opinion, no presumption could have been drawn under Section 135 of the Electricity Act that the electrical energy was abstracted by the accused. 11. It is further admitted in the cross-examination that before drawing panchanama, the M.T. Engineer tested the meter with the help of a machine, which shows at one breath, in the cross-examination, he says that no meter testing machine was taken to the spot. But, on the other hand, he further stated that Mr. Chandrashekar has tested the same with the machine. The admitted fact is that the meter was not sent to the laboratory for testing. He is not prepared to explain all these aspects, but in fact he has not stated anything with regard to the exact mode or device used by the accused for abstracting or extracting the electric energy. 12. Mr. Kumaraswamy-P.W. 1 was examined. He admitted that he was working as Overseer in GESCOM, Bidar and on that particular day, he also went along with the complainant-Sripathirao (P.W. 4) and he has also observed that the flour mill was not running at that time. 12. Mr. Kumaraswamy-P.W. 1 was examined. He admitted that he was working as Overseer in GESCOM, Bidar and on that particular day, he also went along with the complainant-Sripathirao (P.W. 4) and he has also observed that the flour mill was not running at that time. This clearly contradicts the evidence of P.W. 4, wherein he has categorically stated that the flour mill was running and the meter was also recording the electric energy on that particular day and this witness has stated that the seal of the meter was tampered, but as to how it was tampered is not stated. He assumed by saying that the recording disc of the meter was reversed and committed theft of electricity; this is the peculiar sentence stated by P.W. 4. He neither said that he tested the meter he being an expert in testing the meter nor he stated that he was competent to state that the meter disc was reversed by the accused. It is quite notable point that P.W. 4 himself has not stated this factum in his evidence that the accused has reversed the disc in the meter and committed theft of electrical energy. Therefore, there is serious contradiction in the evidence of these two witnesses which go to the root of the case. In fact, on that day, electric connection was disconnected and the articles were seized. In the course of cross-examination, he also admitted that the accused has paid entire electricity charges regularly and it is also admitted that they used to check the meter every month and record the reading. It is admitted that meter was containing only one seal and he do not know the seal number and meter recording number, etc. This also clearly contradicts the version of P.W. 4. He has stated that there are three seals to the meter this witness says that only one seal present. Therefore, there is a lot of confusion as to which one of the seal was tampered by the accused and in what manner. P.W. 2 is another Junior Engineer attached to the MT Division, GESCOM, Bidar. He also accompanied P.W. 4 on that day and he has stated that the accused has tampered the seal. But, the accused was not present on that day, but his son was present. Very peculiarly P.W. 4 has stated that the accused was present on that particular day. He also accompanied P.W. 4 on that day and he has stated that the accused has tampered the seal. But, the accused was not present on that day, but his son was present. Very peculiarly P.W. 4 has stated that the accused was present on that particular day. Thereafter, they disconnected the energy. He never stated as to in what manner the electricity was abstracted by the accused. Therefore, there are material contradictions in the evidence of P.Ws. 1, 2 and 4 and they create serious doubt whether actually these two witnesses viz., P.Ws. 1 and 2 had been to the spot on that particular day because P.W. 4, who visited the spot has totally deviated with regard to running of the flour mill and running of the meter and presence of the accused at the spot. 13. P.W. 5-Shanmukh is the panch witness to Ex. P. 3. He turned hostile to the prosecution and he never stated that he was present at that time and in his presence M.Os. 1 and 2 were seized by the GESCOM Officers. P.W. 6-Syed Zaheer is the Police Constable (PC) who in fact also came to know regarding tampering of the meter by the accused and he went there. He states that the accused was present in flour mill and the mill was running and the seal of the meter was tampered unlawfully for abstracting the electric energy. The complainant has prepared the panchanama and inspection report and seized M.OS. 1 and 2; he is not the panch witness P.W. 5 is the panch witness who has turned hostile. As I have already narrated there are doubtful circumstances with regard to the presence of P.Ws. 1 to 3 and in the absence of the substantive evidence by the panch witnesses with regard to the seizure of the articles, in my opinion, only on the basis of the evidence of P.W. 4 it cannot be said that prosecution has proved the electrical energy was illegally abstracted by the accused. Even at the cost of repetition I may say that P.W. 4, who is the Competent Authority, has never stated in his examination-in-chief that whether mere tampering of the seal is sufficient to hold that there was theft of electric energy, without explaining as to how a person can abstract the electricity on the basis of mere tampering one of the seal on the meter. More over as could be seen from the judgment of the Trial Court records, M.O. 1 seized which was the meter, M.O. 2 is service wire. Meter was only produced before the Court and in the examination-in-chief or in the cross-examination they have not explained about the seal and how it was tampered. It was incumbent upon the Electricity Department to produce the original model seal before the Court to establish that the seal which was seized in this case was tampered. When there being no original model seal before the Court, no Court can draw an inference that the seal was tampered. Be that as it may, the seal itself was not produced before the Court. 14. Looking from the above said circumstances, it is just and necessary to look into a decision cited by the learned Counsel in this regard in Ram Chandra Prasad Sharma and Others vs. State of Bihar and Another, AIR 1967 SC 349 : 1967 Cri. L.J. 409 (SC), wherein the Apex Court has observed that: "Before raising a presumption under Section 39 of the Electricity Act that there is a dishonest abstraction of energy, the presence of a perfected artificial means which will render abstraction of energy possible has to be established by the prosecution. It is further necessary to show that there was a dishonest abstraction, consumption or use of electrical energy by the accused person." In another ruling in Subramaniam vs. State represented by Sub-Inspector of Police, Erode 1992 Cri. L.J. 3501 (Mad.), it has been held that: "No evidence that accused had used artificial means for extracting electricity -- No evidence that accused tampered with meter -- Original seal alleged to have been tampered with not found -- Prosecution failing to establish charge of theft of electricity -- Conviction illegal." The above said two decisions are aptly applicable to the present set of facts and circumstances of this case. Here in this case also no exact devise used by the accused has been put forward by the complainant to show that the accused in what manner abstracted the electrical energy except stating that the meter was tampered and the very seal which was alleged to have been tampered has not been found and it was not produced before the Court and demonstrated as to how the meter was tampered and the sealed meter can be opened or meter can be tampered. Moreover, it was not stated by P.W. 4 as to how and in what manner the meter was stopped or the meter was opened in order to prevent the disc from recording reading. In the absence of such material information, in my opinion, the judgment of conviction and sentence recorded by the Trial Court is not sustainable. 15. The learned HCGP has also relied upon a decision of the Gujarat High Court in Ramjibhai Harijibhai vs. Gujarat Electricity Board and Another, AIR 2000 Guj. 225 , wherein at para 14, the Court has observed that: "Mere not sending the meter for recording theft of electricity, is not sufficient to discard the evidence of the prosecution and such a position cannot be countenanced by the Court of law. Again, it is settled principles of law that a person cannot take undue advantage of his own wrong. In an illustration referred to hereinabove, only with a view to avoid the liability to which a customer is otherwise bound, mischief can be committed by him. No person can get rid of such liability by taking law in his hand and by taking undue advantage of the situation created by him contrary to law." The above said decision is partially applicable so far as this case is concerned. It is not only on the ground that the meter was not sent for testing to the lab, but this Court has to set aside the order of the Trial Court on the ground of insufficiency of evidence on the part of other witnesses and no explanation is adduced by the witnesses as to how actually the electrical energy was abstracted by the accused. Therefore, I am of the opinion that not sending the meter for testing itself cannot be a sole criteria for the purpose of setting aside the judgment of the Trial Court, but as I have stated, the evidence itself is insufficient. There is a lot of contradiction and the omission in the evidence of the P.Ws. 1 to 4 and those contradictions and omissions creates serious doubt with regard to the presence of the witnesses. In this background, the admission on the part of P.W. 4 also, in my opinion, play a dominant role. It is stated that there was a direction from the Managing Director of the Company that they have to register 10 cases at least in a month. This must have prompted or persuaded P.W. 4 in conducting mass raids and in that context, he might have raided the installation of the accused. But he could not get anything with regard to artificial device used by the accused. Looking to the above said facts and circumstances, I am of the opinion that the Trial Court has not bestowed its attention to the above said important aspects, but it merely swayed away by the presumption under Section 135 of the Electricity Act and on that basis convicted the accused, which is erroneous and the same is liable to be set aside by this Court. Hence, I answer the points formulated in the affirmative and proceed to pass the following: The appeal is allowed. Consequently, the judgment of conviction and sentence passed by the learned Special Judge, Bidar, against the accused under Sections 135 and 138(1)(b) of the Electricity Act, 2003 read with Section 379 of IPC and the sentence passed thereunder is hereby set aside. If any amount of fine has already deposited by the accused, is ordered to be refunded to the appellant. Appeal Allowed.