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2016 DIGILAW 1338 (GUJ)

Rathod Dalpatsinh Pruthvisinh v. State of Gujarat

2016-07-15

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. The present appeal, under section 374 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') is directed against the judgment and order dated 29/07/2011, passed by the learned Special Judge, Mahesana, in Special Electricity Case No. 4 of 2010, whereby the appellant herein - original accused has been convicted for the offence punishable under Section 135(1)(a) of the Indian Electricity Act, 2003 (for brevity, 'the Act') and sentenced to undergo simple imprisonment for six months and a fine of Rs.3,000/- and in default of payment of fine, to undergo, further simple imprisonment for 15 days. 2. Facts in nutshell of the prosecution case are that on 07/08/2009, while checking done at the residence of the appellant herein - original accused, situated at Shankhpur, Taluka: Vijapur, he was allegedly found to have been committing theft of electricity, though he was not the registered consumer of the Uttar Gujarat Vij Company (for brevity, 'the electricity company'), from a low pressure line from pole No. M.V.R.R.N.A. 190102115 with a loop of a 1/18 measured wire and thereby, committed the electricity theft of Rs.419/36ps. for which a complaint for the offence punishable under Section 135(1) of the Act was lodged against him. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Special Court, it was committed to the Special Court. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:- ORAL EVIDENCE S/n. Name of Witness of the Prosecution Exh. 1 Mukeshkumar Hargovinddas Patel, complainant 9 2 Rameshkumar Bhailalbhai Suthar 18 3 Dahyabhai Hembhai Solanki, PSO 19 4 Amrutlal Ambaramdas Patel 22 5 Ramanbhai Joitabhai Patel 26 6 Kiritsinh Kalubha Rana, IO 30 S/n. Name of Witness of the defence Exh. 1 Dahyabhai Manabhai Chamar 41 DOCUMENTARY EVIDENCE S/n. Document produced by the prosecution Exh. 1 Mukeshkumar Hargovinddas Patel, complainant 9 2 Rameshkumar Bhailalbhai Suthar 18 3 Dahyabhai Hembhai Solanki, PSO 19 4 Amrutlal Ambaramdas Patel 22 5 Ramanbhai Joitabhai Patel 26 6 Kiritsinh Kalubha Rana, IO 30 S/n. Name of Witness of the defence Exh. 1 Dahyabhai Manabhai Chamar 41 DOCUMENTARY EVIDENCE S/n. Document produced by the prosecution Exh. 1 Examination Report 10 2 Copy of Annexure 'C' 11 3 Copy of Forwarding letter 12 4 Copy of supplementary bill 14 5 Complaint 15 6 Copy of muddamal receipt 16 7 Copy of Police Station Diary 20 8 Depute Order 21 9 Examination Report of Earlier theft of electricity 23 10 Copy of Annexure 'C' 27-A 11 Copy of supplementary bill 28 12 Copy of forwarding letter 29 S/n. Document produced by the defence Exh. 1 Assessment sheet 42 2 Copy of Panchayat Tax Receipt 43 3 Copy of Panchayat Tax Receipt 44 2.3 At the end of the trial and after recording the Further Statement of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid, by the impugned judgment and order, giving rise to prefer the present appeal. 3. Heard Mr. Rajesh K. Shah, the learned advocate for the appellant-original accused and Mr. K.L. Pandya, the learned Additional Public Prosecutor for the respondent-State. 3.1 The submissions made by Mr. Shah, the learned advocate for the appellant-accused, are dealt with in the following paragraphs. 3.2 As against that Mr. Pandya, the learned Additional Public Prosecutor for the respondent-State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the appellant-accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. It is submitted that the prosecution has successfully proved the case against the appellant-accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. The learned Additional Public Prosecutor has relied upon a decision of this Court in the case of Gopalbhai Chandubhai Rana v. State of Gujarat, reported in 2008 (3) GLR 2026 , more particularly, para 11 of the same, relevant part of the same reads as under: "Merely because procedure under Chapter VII of the Criminal Procedure Code Section 99 to 101 is not followed by PW 4 Mr. Bhalsod, it cannot be said that the whole case of the prosecution is false and only on this sole ground, the prosecution case should be thrown out. This lapse can be said to be merely an irregularity committed by the officer and when the evidence of PW 4 is found to be trustworthy and inspiring confidence which is corroborated by the documentary as well as by the oral evidence, then only on the ground of irregularity committed by this witness of not following the procedure as stated above, the prosecution case cannot be thrown out. PW 4 Mr. Bhalsod the premises in question in his capacity as officer on duty and not in the capacity of Investigating Officer and so it is not required to follow the procedure laid down in Chapter VII Cr.P.C. Sections 99 to 101. Even assuming that the said procedure is required to be followed, then also it can be said to be mere irregularity and by that no serious prejudice can be caused to the interest of the accused or the prosecution case." 4. I have considered the rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same as per the latest decisions of the Hon'ble Apex Court. It has been vehemently submitted by the learned advocate for the appellant-accused that alleged incident of theft of electricity had been found while checking done at the place of the appellant-accused on 07/08/2009, however, the complaint had been filed by the complainant on 21/08/2009, and for the said delayed complaint, no explanation has been forthcoming on record. It has been vehemently submitted by the learned advocate for the appellant-accused that alleged incident of theft of electricity had been found while checking done at the place of the appellant-accused on 07/08/2009, however, the complaint had been filed by the complainant on 21/08/2009, and for the said delayed complaint, no explanation has been forthcoming on record. 4.0.1 It is not under dispute that after the checking done on 07/08/2009, a supplementary bill was issued on 08/08/2009, produced on record vide exh. 14 and as mentioned in the Appeal Memo, the appellant-accused has made the payment towards the same on 17/08/2009 and thereafter, the complaint in question was filed on 21/08/2009. Hence, it cannot be said that as the appellant-accused had deposited the amount of supplementary bill, the electricity company had no authority to file the complaint against the appellant for the theft of electricity under the Act. Moreover, referring to the complaint dated 21/08/2009, exh. 15, it appears that the same was lodged before the Police Inspector, Uttar Gujarat Vij Company Limited Police Station, Sabarmati, Ahmedabad and under the circumstances, it cannot be said that the complaint dated 21/08/2009 was the delayed complaint. 4.1 The learned advocate for the appellant-accused has further vehemently submitted that the learned trial Judge has solely placed reliance on the deposition of PW-1 Mukeshkumar Hargovinddas Patel, the complainant, exh. 9, the deposition of PW-4 Amrutlal Ambaramdas Patel, exh. 22 and the deposition of PW-5 Ramanbhai Joitabhai Patel, exh. 26 and submitted that they are the employees of the electricity company and all the witnesses are working under the Deputy Engineer that is the complainant herein and accordingly, they have given depositions against the appellant and thus, all the witnesses are interested witnesses. 4.1.1 On careful perusal of the depositions of the aforesaid witnesses the same appear to be trustworthy and as such, nothing has come on record that the witnesses examined by the prosecution have any grudge against the appellant herein. 4.1.1 On careful perusal of the depositions of the aforesaid witnesses the same appear to be trustworthy and as such, nothing has come on record that the witnesses examined by the prosecution have any grudge against the appellant herein. An attempt has been made by the learned advocate for the appellant by raising a defence that earlier one pole had fallen down for which, a representation had been made by the appellant herein and due to said action of the appellant, they have kept grudge against the appellant but there appears no substance in the said submission, more particularly, for the reason that nothing has come on record to show as to on which date, the said representation, whether oral or written, was made by the appellant and the details of pole and at which place the same had fallen down, etc. Moreover, this aspect has been dealt with by the trial Court at length in para 11 of the impugned judgment and order specifically observing that, if for the sake of argument, any pole had been fallen and if any representation had been made by any person, then that action of the said person is, as such, helpful to the electricity company and accordingly, there is no reason to have any grudge against the present appellant. Nothing substantial has been shown by the learned advocate for the appellant against the said observation and I find myself in complete agreement with the same. 4.2 It has also been submitted by the learned advocate for the appellant-accused that right from the beginning, the appellant is the consumer of the electricity company having consumer No. 217150038012 and accordingly, one line was taken in the Vada (cattle field) and 40 watts' bulb was being lit in the said Vada where the cows and buffaloes were being kept and by the said action of the appellant, it cannot be said that the appellant had made any theft of electricity. 4.2.1 Referring the document at exh. 10, the Examination Report as well as the Annexure 'C', the Proforma 'A', exh. 4.2.1 Referring the document at exh. 10, the Examination Report as well as the Annexure 'C', the Proforma 'A', exh. 11, by which, the Vijapur division had made assessment of supplementary bill for the case which had been detected under Section 135 of the Act, prima facie, the theft of the electricity has been proved by the electricity company as noted in the same that, 'on the day of checking i.e. 07/08/2009 it was found that from the two lines of S.T. Pass No. mvarna - 190102115, 1-9, by way of illegal connection by looping of 1/18 sized two wires and thereby, using load, the theft of electricity was being done and those additional wires of 1/18 size have been seized'. 4.3 Further, referring to the deposition of PW-2 Rameshkumar Bhailalbhai Suthar, the helper, exh. 18, it has been submitted by the learned advocate for the appellant-accused that this witness, as such, has admitted in his deposition that the wire was of 10 meters only and the said wire, which alleged to have been connected from the pole, was at the distance of 15 meters and thus, it cannot be said that it was practically feasible to connect the said black wire with the said electric pole. 4.3.1 This issue has also been dealt with by the learned trial Judge. Referring the document at exh. 16, the copy of muddamal receipt, it is clear that in all, the said black wire of 1/18 was 16 meters and when the same has been, as such, taken care of during the course of investigation, it cannot be said that simply because the helper had admitted in the cross-examination regarding wire, which fact, as such, appears against the documentary evidence forthcoming on record and hence, there is no substance in the said submission of the learned advocate for the appellant. It is also important to note that earlier also, on 07/03/2006, during checking, the appellant herein had made the theft of electricity and the documents at exhs. 27, 28 and 29 are on record as regards the earlier theft and after considering the theft of additional units of 668, a supplementary bill was issued by the electricity company and it is an admitted fact that the same had been paid by the appellant herein. 27, 28 and 29 are on record as regards the earlier theft and after considering the theft of additional units of 668, a supplementary bill was issued by the electricity company and it is an admitted fact that the same had been paid by the appellant herein. Thus, it can be said that the present case against the appellant herein is the second one for which, the electricity company is supposed to impose penalty of six times the amount of alleged theft. 4.4 Moreover, the appellant has also examined a witness viz. DW-1 Dahyabhai Manabhai Chamar, exh. 41 who has produced the document at exhs. 43 and 44. Referring the said documents, it appears that vide property No. 792, the constructed property of the appellant is situated and vide property No. 797, the Vada of the appellant is situated. Nothing substantial has come on record by examination of the said witness but in my view, on the contrary, the case of the prosecution to the effect that the pole which had been situated near the Vada, the illegal connection joining black coloured wire was made by the appellant herein and thus, the said case of the prosecution related to Vada is, as such, justified by the said documents. 5. Thus, I am of the considered opinion that the findings recorded by the trial Court in convicting the appellant-accused of the charge leveled against him are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am in complete agreement with the reasoning’s given and the findings arrived at by the trial Court. Further, learned advocate for the appellant-accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, I am of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 6. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order dated 29/07/2011, passed by the learned Special Judge, Mahesana, in Special Electricity Case No. 4 of 2010, is hereby confirmed. The accused is reported to be on bail. 6. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order dated 29/07/2011, passed by the learned Special Judge, Mahesana, in Special Electricity Case No. 4 of 2010, is hereby confirmed. The accused is reported to be on bail. His bail bonds shall stand cancelled and he is directed to surrender to custody within a period of 12 weeks from today failing which, the concerned investigating agency shall take necessary actions, in accordance with law. Registry to return the R&P to the trial Court forthwith.