JUDGMENT : ANANYA BANDYOPADHYAY, J.: 1. This appeal is directed against the judgment and order dated 26.10.2005 passed by Learned Additional Sessions Judge, 2nd Court Purulia, in Electric G. R. Case No. 118 of 2004 convicting the appellant under Section 135(1)(a) of the Indian Electricity Act, sentencing the appellant i.e. Sk. Miktar to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default to suffer simple imprisonment for one month. 2. The Assistant Engineer, (O&M), Jhalda sub-division, West Bengal State Electricity Board (W.B.S.E.B) lodged a complaint being empowered by the Electricity Act of 2003 inter alia stating that the appellant committed theft of electricity under Section 135 of the Electricity Act 2003 read with Section 379 of the Indian Penal Code on 19.11.2004. The de-facto complainant along with (i) Sri Niranjan Mahato (ii) Smt. Moupali Mukhopadhya (iii) Sukhendu Bikas Maity entered the premises of the appellant and detected the theft of electricity as enumerated in the provision under Section 135(1)(a) of the Indian Electricity Act 2003 along with Section 379 of the Indian Penal Code. 3. Based on the aforesaid complaint Jhalda Police Station Case No. 90 of 2004, dated 20.11.2004 under Section 135(1)(a) of Electricity Act 2003 by 379 of the Indian Penal Code was instituted. At the end of the investigation, Charge Sheet No. 86/04 was submitted on 30.11.2004. Charges were framed to which the appellant pleaded not guilty and claimed to be tried. 4. The prosecution in order to prove its case cited 9 witnesses and exhibited certain documents. 5. The Learned Advocate for the appellant submitted the appellant to have been falsely implicated and the Learned Trial Judge failed to appreciate the evidence, the contradictions and erroneously convicted the appellants and the appeal shall be allowed. 6. The Learned Advocate for the State opposed the contention of the Learned Advocate for the appellant stressing the fact, that appellant had paid the penalty to justify the offence committed by him and accordingly the appeal shall be dismissed. Assessing the evidence of the prosecution it transpired that :- 7. PW-1 i.e. Sanjay Kumar the Complainant deposed on 19.11.2004 posted as Assistant Engineer Jhalda with other high officials of S.E.B he visited Kantadih under P.S. Jhalda. On arrival they found the accused running a shop by taking electricity, illegally by way of hooking. Assessing the evidence of the prosecution it transpired that :- 7. PW-1 i.e. Sanjay Kumar the Complainant deposed on 19.11.2004 posted as Assistant Engineer Jhalda with other high officials of S.E.B he visited Kantadih under P.S. Jhalda. On arrival they found the accused running a shop by taking electricity, illegally by way of hooking. PW-1 directed the linesmen to disconnect the line and seized other apparatus and prepared seizure list. He stated the accused fled after spotting them. During his cross examination he stated the accused was known to the complainant prior to the raid. No one had identified the shop of the accused. Seized articles were not found in Court. No seal or designation of the complainant was delineated in the complaint. Signatures of independent witness were not collected. 8. PW-2 i.e. Niranjan Mahato a Member of raiding party deposed on 19.11.2004 posted as Senior Manager (P&A), Purulia Distribution Circle with others he went to village Kantadih for “surprise inspection”. On arrival they found that the accused was running a shop by consuming electricity illegally by way of hooking. He stated that he had no role but he was all along with them. He signed on the seizure list prepared by the complainant. During his cross examination he stated that he was not examined by the police in connection with the instant case. They did not check any papers relating to the ownership of the shop. 9. PW-3 i.e. Moupali Mukhopadhyay a Member of raiding party deposed that on 19.11.2004 posted as Assistant Engineer, Computer Section, Purulia with other high officials of S.E.B., she visited Kantadih under P.S. Jhalda for “surprise inspection”. On arrival she found that a shop was consuming electricity illegally directly from the L.T. Line by way of hooking. She signed on seizure list prepared by the complainant. During her cross examination she stated that the accused was present on spot at the relevant time and disclosed himself as the owner of the said shop. Seized articles were not found in Court. She was not examined by the police in connection with the instant case. 10. PW-4 i.e. Sukhendu Bilash Maity a Member of raiding party deposed that on 19.11.2004 posted as Station Manager of Jhalda Group Electric Supply Office, S.E.B. with other high officials of S.E.B., he visited Kantadih under P.S. Jhalda for raid. Seized articles were not found in Court. She was not examined by the police in connection with the instant case. 10. PW-4 i.e. Sukhendu Bilash Maity a Member of raiding party deposed that on 19.11.2004 posted as Station Manager of Jhalda Group Electric Supply Office, S.E.B. with other high officials of S.E.B., he visited Kantadih under P.S. Jhalda for raid. On arrival he found electricity being consumed in a shop by way of hooking. He stated that the shop belonged to the accused. He signed on seizure list. During his cross examination he stated that the seized articles were not found in Court. He cannot remember the date when he was examined by the police in connection with the instant case. He stated that the accused deposited a sum of money, which in their assessment, was the loss of revenue caused to them and realized the same as penalty. 11. PW-5 i.e. Sk. Karim a neighbor of accused deposed, he was a business man and the accused was his neighbour. He had no knowledge whether S.E.B. personnel came to the said shop for inspection. He was not examined by the police in connection with the instant case. During his cross examination he stated that he denied making any statement to the police. 12. PW – 6 i.e. Sk. Gafur a Neighbour of accused deposed, he was a business man and the accused was his neighbour. He had no knowledge whether S.E.B. personnel came to the said shop for inspection at any point of time. During his cross examination he stated that he denied making any statement to the police. 13. P.W – 7 i.e. Jahar Mohammad a Local Coolie identified the accused in Court. Further examination was declined. 14. PW – 8 i.e. Debasis Pahari, the Investigation Officer deposed, on 20.11.2004 he was a Sub Inspector attached to Jhalda Police Station. He stated to have perused the FIR and seizure list and after recording the statements of the witnesses he submitted Charge Sheet. During his cross examination he stated that the seized articles were in open condition which were not present in Court. 15. He stated to have perused the FIR and seizure list and after recording the statements of the witnesses he submitted Charge Sheet. During his cross examination he stated that the seized articles were in open condition which were not present in Court. 15. PW – 9 i.e. Kinkar Kundu Officer-in-charge of Jhalda Police Station deposed that on 20.11.2004 he was in charge of Jhalda Police Station when he received a written complaint from S.E.B. personnel Sanjoy Kumar and registered a case being Jhalda Police Station Case No. 90/04 dated 20.11.2004 under Section 135(1)(a) of the Indian Electricity Act. Thereafter he endorsed the case to Debasis Pahari. During his cross examination he stated, that he admitted, there was no official seal of the complainant on the written complaint. 16. Section 135(1)(a) of the Indian Electricity Act 2003 as follows:- “Section 135. (Theft of Electricity): --- 1[(1) Whoever, dishonestly, -- (a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or (b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or (c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, (d) uses electricity through a tampered meter; or (e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:……………….” 17. The prosecution failed to prove the ownership of the shop. The seized articles were not produced before the Court. The penalty alleged to have been recovered from the appellant was not proved. 18. The prosecution did not prove the appellant to be a consumer consuming electricity with the installation of an electric meter. The prosecution did not disclose the basis of computing the penalty relating to the consumption of electricity. There are inconsistencies in the statements of the prosecution witnesses. 18. The prosecution did not prove the appellant to be a consumer consuming electricity with the installation of an electric meter. The prosecution did not disclose the basis of computing the penalty relating to the consumption of electricity. There are inconsistencies in the statements of the prosecution witnesses. 19. The illegal consumption of electricity by the appellant through “hooking” or “tapping” could not be proved by the prosecution. The prosecution did not describe the manner in which the “hooking” was accomplished. 20. The description of the source of “hooking” has not been explained as to whether it was overhead or underground etc. The linesmen directed to disconnect the line and to seize the apparatus were not examined. 21. In the opinion of this Court, the prosecution has failed to prove its case. Accordingly the appeal is allowed. 22. The Judgment and Order dated 26.10.2005 passed by Learned Additional Sessions Judge, 2nd Court Purulia, in Electric G. R. Case No. 118 of 2004 is set aside. 23. I record my appreciation for the able assistance rendered by Mr. Amartya Ghosh, Learned Advocate, as amicus curiae in disposing of the appeal. 24. Lower court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 25. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.