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2015 DIGILAW 644 (GUJ)

Ramkishan Mulchand Mundhada v. State of Gujarat

2015-06-29

S.G.SHAH

body2015
JUDGMENT S.G. Shah, J. 1. Heard learned advocate Mr. Viral Shah for the appellant and Mr. KL Pandya, Ld. APP for the respondent State. 2. The appellant has challenged his conviction by impugned judgment and order dated 16/12/2005 rendered in Special Electricity Case No. 4/2004 by Special Judge [Electricity] and Presiding Officer, FTC No. 9, Bharuch. The appellant has been convicted under section 135[1] [b] of the Indian Electricity Act, 2003 [hereinafter referred to as 'the Act'] and sentenced to undergo six months simple imprisonment and to deposit Rs. 22,23,831/- as fine with a direction that if fine is not paid, he has to undergo additional imprisonment of six months. Though charge is under section 138 [1][a] of the Act also, the appellant has been acquitted for the offence under such section. 3. I have perused the available record and impugned judgment. Since the impugned judgment cannot sustain on its face because of the fact that though the incident of alleged theft is prior to the application of the section of Indian Electricity Act, 2003 came into force and thereby though if at all the appellant is to be convicted, he is to be tried and convicted under the old Act, the trial Court has convicted him under the Act and section which was not in force on the date of the incident and, therefore, irrespective of factual details and evidence on record, the appellant is certainly entitled to the benefit of decision on such issue by the Division Bench of this High Court in Criminal Misc. Application No. 9611/2009 in Criminal Appeal No. 1473/2009 decided on 2/3/2010 between State of Gujarat v. Kishorbbai Ramjibhai Gohel. 4. Considering such legal position as aforesaid, I do not intend to enter into factual details since the same is well described in the impugned judgment itself except referring the material facts required for determination of issue as raised hereinabove. Application No. 9611/2009 in Criminal Appeal No. 1473/2009 decided on 2/3/2010 between State of Gujarat v. Kishorbbai Ramjibhai Gohel. 4. Considering such legal position as aforesaid, I do not intend to enter into factual details since the same is well described in the impugned judgment itself except referring the material facts required for determination of issue as raised hereinabove. If we peruse the record and proceedings as well as the impugned judgment, it is undisputed fact that the appellant is consumer of electricity and alleged incident of theft of electricity was noticed by the officers of the electricity company/GEB when they conducted raid on the premises of the appellant and prepared a panchnama and report of investigation wherein it is stated that it is a case of theft of electricity because of tampering with the seal of the meter for recording consumption of electricity. Based upon the inspection of the meter in question and relying upon the condition of supply of electricity having 120 HP, the GEB had calculated the theft of electricity to the tune of Rs. 7,41,276/-. The deposition of PW No. 1 at exh. 27, namely Hasmukhbhai Bhikhabhai Modi, Deputy Engineer of GEB, has while confirming the above facts, admitted that out of such alleged amount of theft, on issuance of supplementary bill for the said amount, the appellant has deposited 50% of such bill i.e. Rs. 3,70,638/-, but on getting permission from higher authorities, he has lodged the complaint and thereafter, he proved relevant documentary evidence on record. In cross-examination, he has to admit that theft was noticed on 4/2/2004, whereas complaint was lodged on 6/3/2004 i.e. after 3 weeks and that supplementary bill was issued after 2 days. He has also admitted the contents of letter dated 7/4/2005 issued by GEB confirming that the appellant has paid 50% amount of the supplementary bill and that as per decision in the appeal, remaining amount of Rs. 1,22,681/- is paid by the appellant on 1/12/2004 and thereafter, balance amount to be paid by the appellant is nil. Therefore, practically out of the supplementary bill of Rs. 7,41,276 : 93 ps., appellant has already paid Rs. 4,93,319 : 91 ps. 5. The remaining witnesses are not much material at present since they are concerned with the investigation and reporting of the theft and they have proved their activity. However, as rightly pointed out by the Ld. Therefore, practically out of the supplementary bill of Rs. 7,41,276 : 93 ps., appellant has already paid Rs. 4,93,319 : 91 ps. 5. The remaining witnesses are not much material at present since they are concerned with the investigation and reporting of the theft and they have proved their activity. However, as rightly pointed out by the Ld. Advocate for the appellant, irrespective of such evidence, it becomes clear that when the appellant has already paid substantial amount of the supplementary bill as aforesaid, the trial Court has erred in imposing penalty of more than Rs. 22 lacs without considering the payment made by the appellant as only Rs. 4,93,319.91 ps., and calculating the amount of fine based upon the total amount of theft being Rs. 7,41,276/-, though in the departmental appeal, the appellate board has reduced the amount of supplementary bill and thereby reduced the quantum of alleged theft of electricity. To that extent, there is certainly non-application of mind and manifest error in the impugned judgment and, therefore, in any case, it requires to be interfered with and set aside. In addition to such factual error, the trial Court has also committed grave error of law in convicting the appellant under section 135[1] of the Act of 2003 when incident of theft was noticed on 14/2/2004 because on 14/2/2004 though it is of the year 2004, the relevant provisions of the Act of 2003 was not in force at all. To ascertain such situation, the appellant has relied upon the Government notification dated 31/3/2005 which confirms that the Electricity Act 2003 has come into force in the State of Gujarat with effect from 10/12/2004. Unfortunately, only because the charge was framed in the year 2005, neither the prosecutor nor the GEB or the trial Court has ever bothered to see that charge cannot be framed under the Act which came into force in December 2004 only, when incident of theft is certainly for the month of February 2004 and, therefore, in any case, the trial or conviction should be under the old Act. Even in new Act the FIR is to be lodged within 24 hours, whereas in this case there is delay of 3 weeks for which there is no explanation. 6. Even in new Act the FIR is to be lodged within 24 hours, whereas in this case there is delay of 3 weeks for which there is no explanation. 6. So far as applicability of the provisions of the Act are concerned, learned advocate for the appellant is relying upon the decisions of this Court in following cases: "I Plasto Processors v. Gujarat Electricity Board reported in 2005 [3] G.L.H. 184 II Torrent Power AEC Ltd. v. Gayatri Intermediates Pvt. Ltd., reported in 2006 [2] G.L.H. 375 III Ora order passed in the case of State of Gujarat v. Kishorbhai Ramjibhai Gohel in Criminal Misc. Application No. 9611 of 2009 in Criminal Appeal No. 1473 of 2009 decided on 2/3/2010." 7. The perusal of all above judgments makes it clear that though the new Act came into force on 10/12/2004, the provisions of the old Act were continued for certain eventualities till 10/12/2004, from which date the new Act came into force in its totality. In Torrent Power [supra] the Division Bench has classified the theft cases with reference to the period during which it was registered, which makes it clear that there are different provisions of law for the cases where theft was detected prior to 10/12/2004 and cases where theft was detected after 10/12/2004 till 30/3/2005 and again between 31/3/2005 till 13/12/2005. In addition to new cases where theft was detected on or after 14/12/2005 thereupon it is made clear in para. 19.3 that the cases where theft was detected prior to 10/12/2004, the matters will be governed by the Conditions of Supply and Miscellaneous Charges for Supply of Electrical Energy framed by the GEB or AEC, as the case may be, making it clear that since during such period, the consumers were governed by the Conditions of Supply and Miscellaneous Charges and not by the provisions of the new Act. Though such discussion and decision is on civil side regarding jurisdiction of the Civil Court in particular type of cases, the fact remains that so far as applicability of the new Act is concerned, the Division Bench has specifically held that in case of incident before 10/12/2004, provisions of old Act only shall apply. 8. Though such discussion and decision is on civil side regarding jurisdiction of the Civil Court in particular type of cases, the fact remains that so far as applicability of the new Act is concerned, the Division Bench has specifically held that in case of incident before 10/12/2004, provisions of old Act only shall apply. 8. Whereas in the unreported case of Kishorbhai Ramjibhai [supra], the Division Bench has confirmed that when date of offence is 17/12/2003 and when the new Act has come into force in the State of Gujarat only on 10/12/2004, the case cannot be entertained under the new Act of 2003 for the offence under section 135 of the Act and thereby agreed with the view taken by the Special Judge granting benefit to the accused and acquitting him while rejecting the appeal of the State against such acquittal. 9. In view of above settled legal position, there is substance in the appeal. Though it would be too late, it would be for the prosecution and GEB to take necessary steps in view of the above decision, if law permits, but purely in accordance with law. However, at present it is clear and obvious that Ld. Special Judge has failed to realize that when the alleged offence is prior to February 2004 and when relevant provisions of the new Act were not in force on such date, the accused cannot be held guilty as per the provisions of the new Act and thereby he cannot be convicted under the new Act. This has vitiated entire trial and thereby conviction and sentence needs to be quashed and set aside. Thereby the appeal is allowed. The impugned judgment is quashed and set aside, which results into acquittal of the appellant.