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Madhya Pradesh High Court · body

2017 DIGILAW 1174 (MP)

M. P. State Electricity Board v. Modern Plast

2017-11-16

ATUL SREEDHARAN

body2017
ORDER 1. The present revision has been preferred by the petitioner, aggrieved by the order dated 18.10.2010 passed by the learned Special Judge, High Court of Madhya Pradesh (Electricity Act), Bhopal in Special Trial No.93/2005 by which an application moved by the petitioner herein under section 311 CrPC was dismissed. 2. Vide order dated 26.11.2010, this Court, by way of interim relief had directed that the trial Court shall not deliver the judgment in this proceeding pending before it. 3. None appears on behalf of the respondent, though served. Earlier orders of the year 2011 reflect that counsels have been appearing for the respondent. The petition was admitted for final hearing vide order dated 10.3.2011. 4. A short resume of facts essential to appreciate the instant case are as follows. The petitioner Company is stated to have inspected the premises of the respondent on 7.4.2005 and it is alleged to have uncovered an illegal act on the part of the respondent who is stated to have tampered with the electronic meter to stop two phases by inserting a direct electric line before the connection of the electronic meter and thereby committed theft of electricity which is punishable under section 135 of the Electricity Act, 2003. The petitioner Company High Court of Madhya Pradesh issued a notice to the respondent giving its assessment of theft of electricity to the tune of Rs.13,44,061/- which was to be deposited by the respondent within a period of 7 days. As the respondent failed to deposit the aforesaid amount a complaint case was filed by the petitioner for an offence under section 135 of the Electricity Act of which cognizance was taken by the learned Court below and process issued. 5. The trial against the respondent proceeded and the petitioner, being the prosecution, recorded the statement of its witnesses and closed its evidence on 28.3.2006 and thereafter the trial was fixed for the evidence of the defence. Instead of furnishing evidence, the respondent is stated to have filed an application under section 315 CrPC dated 17.1.2007 to bring documents on record to show that the respondent was not in India on the date of the offence. 6. The petitioner Company submitted its reply to the aforesaid application moved by the respondent on 15.5.2007 along with the MRI report. 6. The petitioner Company submitted its reply to the aforesaid application moved by the respondent on 15.5.2007 along with the MRI report. According to the petitioner the MRI report was a material evidence relating to the tampering of the electronic meter. 7. The petitioner Company preferred an application under section 311 CrPC on 6.8.2010 to recall its witness Mr. Bhogal (PW1) to prove the notice issued to the respondent dated 13.4.2005 and also the MRI report regarding the memory of the electronic meter to prove the theft by the respondent. A copy of the said application under section 311 CrPC is marked and annexed to the petition as Annexure-6 at page No.72 of the petition. It is the dismissal of this application by which the petitioner is aggrieved by and has preferred the instant revision petition against the impugned order dated 18.10.2010. 8. A perusal of the application under section 311 CrPC reveals that the said application is extremely perfunctory and the relevant paragraph 2 of the application reads thus : “that, the complainant wants to call again its witness Mr. Bhogal S.E. as some material questions which are related to the complaint are yet to be recorded before the Honourable Court.” Further, paragraph 3 of the application reads as follows : “that the complainant witness Mr.Bhogal further wants to submit documents which are necessary for the fair disposal of the complaint and they are related to the complaint.” 9. The said application was dismissed by the learned Court below vide order dated 18.10.2010. While doing so the learned Court below has rightly appreciated the powers of the Court under section 311 CrPC, in the appreciation of which, the learned Court has observed that the power exists with the trial Court to recall or examine any person as a witness where it is apparent that such examination of the witness is essential in the interest of justice and for a fair decision of the case. It has further observed that under section 311 CrPC there is no provision for taking on record additional documents. The Court has also further observed that the petitioner herein failed to disclose the reason why the power under section 311 CrPC ought to be exercised by the learned Court below as no reasons were given in the application showing the necessity for calling Mr.Bhogal as a witness. 10. The Court has also further observed that the petitioner herein failed to disclose the reason why the power under section 311 CrPC ought to be exercised by the learned Court below as no reasons were given in the application showing the necessity for calling Mr.Bhogal as a witness. 10. Heard the learned counsel for the petitioner and perused the documents filed along with the petition. 11. The application filed by the petitioner before the learned trial Court under section 311 CrPC as stated hereinabove earlier is perfunctory. It has not been pleaded therein as to necessity for further examining Mr. High Court of Madhya Pradesh Bhogal as a witness. The application also does not elaborate as to what points Mr.Bhogal was to establish upon being called to give further evidence under section 311 CrPC. The application being deficient in material particulars has rightly been dismissed by the learned Court below. This Court also cannot fault the finding of the learned Court below that documents cannot be brought into and exhibited by exercising jurisdiction under section 311 CrPC, which is very specific and precise that it can only record the testimony of a person and not exhibit documents which are to be additionally placed on record having not placed the same with the original complaint itself. 12. Under the circumstances, this revision fails and is dismissed. Interim order dated 26.11.2010 consequently stands vacated and the learned trial Court is requested to proceed and complete the trial and pass the judgment in this case. A copy of this order be conveyed to the learned Court below for necessary action.