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2022 DIGILAW 449 (KAR)

S. KUMAR v. STATE OF KARNATAKA

2022-04-01

MOHAMMAD NAWAZ

body2022
JUDGMENT : Mohammad Nawaz, J. 1. The accused in Special Case No. 15/2004 on the file of the Court of I Additional Sessions and Special Judge at Mysuru has preferred this appeal challenging the judgment and order dtd. 17/4/2010, wherein he has been convicted and sentenced for offences punishable under Ss. 39 and 44 of the Indian Electricity Act. 2. Heard both side and perused the material on record. 3. The case of the prosecution is that on 17/7/1998, PW.1-working as Assistant Executive Engineer, KEB (Vigilance) squad, Mysuru along with his staff inspected the installation of meter bearing R.R. No. P.8022 belonging to accused and found that he was dishonestly abstracting the electric energy by cutting the sealing wire put to the meter and fixing it to the seal by using adhesive and he had tampered the electric energy and thereby committed offences punishable under Ss. 39, 39A and Sec. 44 of Indian Electricity Act, 1910 and Sec. 379 of IPC. 4. The learned Sessions Judge vide impugned judgment acquitted the accused of the offence punishable under Sec. 39A and convicted him for offences punishable under Ss. 39 and 44 of Indian Electricity Act. Insofar as Sec. 379 of IPC is concerned it was observed in the body of the judgment that the charge framed under Sec. 379 IPC is superfluous and does not call for any finding, as the dishonest obstruction of electricity mentioned in Sec. 39 of Indian Electricity Act, 1910, cannot be an offence under the penal code, as the offence under the Indian Electricity Act, 1910 is created by raising a fiction which specifically creates the offence and provides specific punishment thereto. 5. Before the trial Court, the prosecution has got examined 8 witnesses and got marked Exs.P1 to P7 and MOs.1 to 3. The defence got examined DW.1 and DW.2 and got marked Exs.D1 to D8. 6. PW.1 is the Assistant Executive Engineer and he is the complainant. He has visited the spot on 17/7/1998 along with PWs.2 and 3 and other staff. He has conducted the spot mahazar as per Ex.P2 and seized MOs.1 and 2 i.e. the meter as well as the main cover seal, plastic and lead seal put to the meter box. The evidence of PWs.1 to 3 would reveal that they have visited the spot at 12.00 noon and at that time the accused was present. He has conducted the spot mahazar as per Ex.P2 and seized MOs.1 and 2 i.e. the meter as well as the main cover seal, plastic and lead seal put to the meter box. The evidence of PWs.1 to 3 would reveal that they have visited the spot at 12.00 noon and at that time the accused was present. They inspected the meter box and found that it was tampered. PW.1 has stated that, he inspected the records and found that the accused had used an average of 5,500 units of electricity per month. From the department 75 HP of electricity was sanctioned to his unit and he was of the opinion that the accused had unauthorisedly used electricity and caused loss to the department to the tune of Rs.4,28,627..00 His evidence is corroborated BY the evidence of PWs.2 and 3. There is nothing elicited in the cross-examination to disbelieve their evidence. 7. PW.4 was working in the meter testing division. He has stated that after testing the meter and seal sent to him he has given a report as per Ex.P3. His evidence also goes to show that there was tampering of the meter. 8. PWs.5 and 6 have calculated the back billing charges and given report as per Ex.P5. They have arrived at a figure of Rs.4,28,627,.00 which was due by the accused. 9. PW.7 is the lineman who has disconnected the electricity supply to the unit of the accused and PW.8 is the Deputy Electricity Engineer, who has issued Ex.D1 i.e. copy of the sealing Registrar. 10. The accused has examined himself as DW.2 and he has examined one more witness namely the Assistant Executive Engineer as DW.1. However, their evidence is not sufficient to disbelieve the case of prosecution. The fact that PW.1 and other officials have visited the spot and inspected the meter installed to the unit of the accused and the accused having tampered the meter and caused loss to the tune of Rs.4,28,627.00 as per Ex.P5 has been established by the prosecution. Even in the charges framed it is specifically stated that accused has extracted the electricity by tampering the meter and committed theft of 60.370 units of electricity amounting to Rs.4,28,627.00. 11. Even in the charges framed it is specifically stated that accused has extracted the electricity by tampering the meter and committed theft of 60.370 units of electricity amounting to Rs.4,28,627.00. 11. Learned counsel for appellant has filed a memo along with the letter dated on 1/10/2005 of the Assistant Executive Engineer (Vigilance) CHESCOM, V.V. Mohalla, Mysuru, wherein, it is stated that the entire sum of Rs.4,28,627.00 has been paid by the accused. It is seen that the said amount was paid prior to 1/10/2005. 12. The incident is of the year 1998. The accused has paid the entire amount in the year 2005 itself. In that in view of the matter and in the facts and circumstances of the case, the sentence of imprisonment imposed against the accused by the trial Court for the offences punishable under Ss. 39 and 44 of the Indian Electricity Act can be set aside. Accordingly, the following: ORDER: Appeal is allowed in part. The conviction of the appellant for offences punishable under Ss. 39 and 44 of the Indian Electricity Act is hereby confirmed. The sentence of imprisonment imposed against the appellant for offences punishable under Ss. 39 and 44 of the Indian Electricity Act is hereby set aside. The sentence of fine imposed for the said offences is confirmed.