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2015 DIGILAW 542 (GUJ)

State of Gujarat v. Sureshkumar Chhotalal Vyas

2015-05-04

Z.K.SAIYED

body2015
JUDGMENT : Z.K. Saiyed, J. The present acquittal Appeal has been filed by the appellant - original complainant, State of Gujarat under Section 378 of the Cr. P.C., against the Judgment and order dated 20.10.2014 rendered by the learned Special Judge (GEB) and Additional Sessions Judge, Bhavnagar, in Special (GEB) Case No.325 of 2009. The said case was registered against the present respondent original accused for the offence under Sections 135 of the Indian Electricity Act. 2. According to the prosecution case, respondent - accused is not a regular customer of PGVCL in spite of that he has tempered with electric meter installed by PGVCL and thereby committed theft of electricity of Rs.60,334.03 paise and, therefore, offence under Section 135 of the Indian Electricity Act, 2003 was registered. The complaint was filed before Bhavnagar PGVCL Police Station, vide CR No.II/1753 of 2006 for the alleged offence under Section 135 of the Indian Electricity Act. 3. On the basis of above allegations, charge was framed, readover and explained to the accused for the offence punishable under Section 135 of the Indian Electricity Act, 2003. The accused pleaded not guilty to the charge and claimed to be tried. 4. Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him. 5. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent - accused. 6. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 20.10.2014 rendered by the learned Special Judge (GEB), Bhavnagar, in Special (GEB) Case No.325 of 2009, the appellant - State has preferred the present appeal before this Court. 7. Heard Ms.Hansa Punani, learned APP for the appellant - State. She has read contents of the complaint and the panchnama and contended that from the complaint and oral evidence, prosecution has proved contents of the panchnama. She has contended that prosecution has examined witnesses and produced documentary evidence in the Court in support of its case. However, the learned Judge has not properly appreciated these oral as well as documentary evidence available on the record of the case. 8. She has contended that prosecution has examined witnesses and produced documentary evidence in the Court in support of its case. However, the learned Judge has not properly appreciated these oral as well as documentary evidence available on the record of the case. 8. She has contended that the learned Judge has not properly appreciated evidence of P.W. No.1 complainant - Pareshbhai Ghanshyambhai Parikh at Ex.13, wherein he has clearly deposed that on 17.10.2006 he was performing his duty with Diamond Chowk Sub-Division, Bhavnagar as Dy. Engineer. According to this witness, area named Swastik Society fall under this Division and, therefore, complaint with regard to theft of electricity in this area was lodged by this witness. The meter of the respondent was replaced and old meter was sent to laboratory for inspection. The inspection was carried out and during the inspection it was noticed that meter seal, terminal cover, seal of metal meter box were found tempered. 9. She has contended that the learned Judge failed to appreciate evidence of P.W. No.2 Nikitaben Umeshbhai at Ex.21. She is Dy. Engineer in PGVCL City Division. This witness has carried out inspection of TCMMD seal and during her inspection it was noticed that seals were tempered. This prosecution witness has verified terminal block of meter and same was also found tempered. She has stated in her evidence that counter gear of meter was found as 1500 instead of 600 and as such counter gear of meter was found to be changed. This witness has sent inspection report at Ex.17 and identified her signature on the said report. 10. She has contended that the learned Judge failed to appreciate evidence of P.W. No.3 Chetanbhai Bharatbhai Jani at Ex.25. According to this witness, respondent was using eight bulbs of 60 Votts, two lamps of 15 Votts, five fans, five tube light, one T.V., one fridge, one A.C. of one tonne, one flouring machine and one electric motor of half H.P. for water. He has stated that as per instructions given by superior officer he has changed meter and new meter was affixed. He has fully supported the prosecution case. She has contended that the learned Judge has erred in holding that incident took place on 30.8.2006 in spite of that complaint was filed on 17.10.2006 and as such there is a delay of one and half month for lodging complaint. He has fully supported the prosecution case. She has contended that the learned Judge has erred in holding that incident took place on 30.8.2006 in spite of that complaint was filed on 17.10.2006 and as such there is a delay of one and half month for lodging complaint. Lastly, she has read the observations of the learned Judge and contended that observation of the learned Judge is not proper in eye of law and therefore, judgment and order of the learned Judge is required to be set aside. 11. Notice is served to the other side. Mr. Viral Vyas, learned advocate appearing for Mr. A.M.Dagli, learned advocate respondent No.1. 12. Heard Mr. Vyas, learned advocates appearing for the respondent. He has contended that prosecution could not explain delay of one and half months. He has contended that no panchnama was prepared. He has supported the judgment and order passed by the learned Judge and contended that no interference is required in the present Appeal. 13. Heard learned advocates for both the parties. I have gone through the impugned judgment and order passed by the learned trial Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness complainant and also perused the charge framed against the accused. I have also considered the submissions advanced by the learned advocates for the respective parties. 14. The learned Judge has rightly considered that prosecution could not explain delay of one and half months in filing of the complaint. From Ex.16 it is clear that in the form of meter replacement there is no mentioned about meter seal of body. It is not on record that the same meter which was sealed from the spot was sent for testing in the laboratory, because there is difference of number of meter in both the documents i.e. Ex.16 and Ex.17. From the evidence of witness Chetanbhai Jani, who is examined at Ex.25, he has deposed that seal of the meter box was broken and meter was taken out and, therefore, question of tempering with the meter is doubtful. From the evidence of witness Chetanbhai Jani, who is examined at Ex.25, he has deposed that seal of the meter box was broken and meter was taken out and, therefore, question of tempering with the meter is doubtful. In view of above observations the learned Judge has rightly observed that panchas have not disclosed any contents in support of the prosecution case and when theft of electricity is not proved beyond reasonable doubt the learned Judge has rightly considered that prosecution could not prove its case beyond reasonable doubt. 15. In a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran & Anr. Reported in (2007)3 SCC 755 , the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under: "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 16. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 17. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 17. It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to rewrite the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent - accused and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed. 18. In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 20.10.2014 rendered by the learned Special Judge (GEB) and Additional Sessions Judge, Bhavnagar, in Special (GEB) Case No.325 of 2009, acquitting the respondent - accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal Dismissed.