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2024 DIGILAW 1873 (GUJ)

STATE OF GUJARAT v. AJAY LALBHAI VADNAGARA

2024-10-09

HEMANT M.PRACHCHHAK

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JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. Present appeal is filed by the State of Gujarat under Section 378 of the Criminal Procedure Code against the impugned judgment and order dated 03.08.2011 passed by the learned Special Judge and 7th Additional Sessions Judge, 7th Additional District Court, Junagadh (hereinafter referred to as “the trial Court”) in Special (Electricity) Case No. 8 of 2005 whereby the trial Court has acquitted the respondents-accused from the charges levelled against them. 2. Brief facts of the present case, in nutshell, are as under: 2.1 It is the case of the prosecution that on 20.05.2004, the officers of the Gujarat Vij Company Shri Arifbhai Abdulbhai Ghanchi, Junior Engineer and others have carried out inspection at the premises of the accused and they found illegal electricity connection and, therefore, the accused had committed theft of electricity energy respectively. It is alleged that all the accused have jointly by suing the water motor committed theft of 3730 watts amounting to Rs.1,30,186.92 totaling to Rs.3,45,326.50 and, therefore, the supplementary bill of Rs.3,45,326.50 was issued in favour of the accused, which was not paid by them within stipulated time limit. 3. A complaint came to be registered as C.R. No. I-919/2004 at G.E.B. Police Station, Rajkot for the offence under Sections 135 of the Indian Electricity Act, 2003 (hereinafter be referred to as “the Act”). 4. After completion of investigation, as the sufficient evidence was found, the police has filed the charge-sheet against the accused before the Judicial Magistrate (First Class) wherein it was registered as Criminal Case No. 3142 of 2004. As the offence was triable by the Court of Sessions, the Judicial Magistrate (First Class) has committed the case under Section 209 of the Criminal Procedure Code to the Special Court wherein it has been registered as Special Criminal (Electricity) Case No. 8 of 2005. 5. The charge against the accused came to be framed by the learned Presiding Officer and Special Judge vide Exhibit 14 for the aforesaid offences. On being explained it to them, the accused pleaded not guilty to the charge and pleaded for trial. Hence, the case was tried by the learned Special Judge and Additional Sessions Judge. 6. 5. The charge against the accused came to be framed by the learned Presiding Officer and Special Judge vide Exhibit 14 for the aforesaid offences. On being explained it to them, the accused pleaded not guilty to the charge and pleaded for trial. Hence, the case was tried by the learned Special Judge and Additional Sessions Judge. 6. It appears from the records that the prosecution has examined the following witnesses: PW-1 Himanshubhai Kharod Exhibit 30 PW-2 Aarifbhai Abdulbhai Ghanchi Exhibit 35 PW-3 Hareshkumar Ramjibhai Chauhan Exhibit 42 PW-4 Sumanbhai Lalbhai Exhibit 47 PW-5 Lakhdhirsinh Verubha Rana Exhibit 48 7. In addition to this, the prosecution has also produced the following documentary evidence: S. No. Particular Exhibit 1 Complaint 31 2 Chart as per A.B.C.D. Formula 32 3 Supplementary bill of theft of electricity 33 4 Postal Window Slip 34 5 Checking sheet 36 6 Rojkam of place 37 7 Statement of Ketanbhai Sumabhai 38 8 Transcript of F.I.R. 43 8. After closure of the evidence, the statement of the accused under section 313 of the Criminal Procedure Code, 1973 has been recorded wherein they denied of having committed any offence and have stated that they are innocent. 9. After hearing both sides and considering the evidence on record, the trial Court by impugned judgment and order has acquitted the accused from all the charges levelled against them. 10. Heard Ms. Megha Chitaliya, learned Additional Public Prosecutor appearing for the appellant-State of Gujarat and Ms. Dhara Shah, learned counsel appearing for the respondent-accused at length. Perused the material on record. 11. Ms. Chitalya, learned Additional Public Prosecutor has submitted the same facts which are narrated in the memo of appeal and submitted that the accused have committed an offence of theft of electricity, for which supplementary bill was issued to the accused, however, the same was not paid by them. She has submitted that though the sufficient and relevant evidence produced by the prosecution, the trial Court has committed an error of facts and law in acquitting the accused for the alleged offence. She has submitted that the trial Court has failed to appreciate the oral as well as documentary evidence led by the prosecution in its true and proper perspective and thereby committed an error in acquitting the accused for the offence under Section 135 of the Act. She has submitted that the trial Court has failed to appreciate the oral as well as documentary evidence led by the prosecution in its true and proper perspective and thereby committed an error in acquitting the accused for the offence under Section 135 of the Act. She has submitted that the prosecution has examined the independent witness, but the trial Court has discarded and disbelieved the evidence of the independent witnesses. She has submitted that the prosecution has produced the Rojkam at Exhibit 36 and checking sheet at Exhibit 37, but the trial Court has not considered the said evidence in its true and proper perspective. She has submitted that the trial Court has committed an error of law and facts in disbelieving the case of the prosecution and in acquitting the accused from the charges levelled against them. She has submitted that the appeal deserves to be allowed and the impugned judgment and order deserves to be quashed and set aside. 12. Per contra, Ms. Shah, learned counsel has submitted that the trial Court was justified in passing the impugned judgment and order of acquittal and has not committed any error of law and facts in acquitting the accused as no offence was proved by the prosecution beyond reasonable doubt by leading cogent evidence. She has submitted that no perversity or illegality in the impugned judgment and order in the findings as the finding of fact recorded by the trial Court is based on documentary evidence placed on record of the trial Court and, therefore, no interference is required to be called for. She has submitted that it is well settled principle that while exercising the power under Section 378 of the Criminal Procedure Code, the Court can reexamine, re-appreciate and review the evidence of the witnesses and if ultimately, the Court finds and satisfies that there is any irregularity or perversity in the impugned judgment and order, then in that circumstances, the Court can certainly entertain the appeal. She has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order deserves to be quashed and set aside. 12.1 In addition thereto, Ms. She has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order deserves to be quashed and set aside. 12.1 In addition thereto, Ms. Shah, learned counsel has submitted that since the respondents have settled the dispute with regard to the supplementary bill issued by the complainant by paying an amount of Rs.1,38,130.60 paise along with Rs.10,000/- towards cost on 05.01.2013 for which the Board has issued receipt No. 319695. The copy of such communication was produced on record. 13. I have considered the submissions made on behalf of both the sides and oral as well as documentary evidence. I have also perused the impugned judgment and order and the record and proceedings of the case. 14. Before parting, I may refer to the depositions of the witnesses. 15. On perusal of the evidence of PW-1 Himanshubhai Kharoda examined at Exhibit 30, it appears that he was serving as Deputy Engineer in Electricity Board. He has deposed that on 20.05.2004, he along with the checking squad were on duty have raided the premises of one Jangalbhai and others and found that the accused have committed the theft of electricity as they were extracting the electricity by using illegal means. He has stated that as the accused were using illegal and unauthorized electricity by using electricity cable and other respirator which were produced before him and on the basis of that he has sent written complaint to the concerned police station. In the cross-examination, this witness has deposed that he has no personal knowledge about the material produced before him and he has sent the written complaint to the concerned police station for registration of the offence. He has admitted that he has not collected any material and not recovered anything from the place of offence. He has admitted that in the FIR, he has not stated that the electricity cable was produced before him and thereafter the same was produced in the divisional office. So the prosecution is unable to prove the case against the accused for the offence punishable under Section 135 of the Act. 16. On perusal of the evidence of PW-2 Aarifbhai Abdulbhai Ghanchi examined at Exhibit 35, it appears that he was serving as junior engineer in squad. So the prosecution is unable to prove the case against the accused for the offence punishable under Section 135 of the Act. 16. On perusal of the evidence of PW-2 Aarifbhai Abdulbhai Ghanchi examined at Exhibit 35, it appears that he was serving as junior engineer in squad. He has deposed that he visited Junagadh and along with the other persons of the department and raided the premises of the accused. In cross-examination, this witness has deposed that when he along with the others raided the premises, he found that the electricity appliance used by the accused by using the respirator and directly extracting the electricity from the electricity poll. He has deposed that when he visited the premises, he found that the accused were extracting the illegal electricity. He has deposed that on the basis of the statement of one Ketanbhai Sumabhai, they have raided the premises of the accused and due the dispute between the family members, he has given the complaint and earlier also, he has given similar complaint with regard to the electricity theft. In the cross-examination, this witness has deposed that upon instruction of the said Ketanbhai Sumabhai, he along with the raiding party have raided the premises and due to inter se dispute between the brother and family members, the complaint came to be lodged by Himanshubhai Kharod with regard to the theft of electricity. It is admitted that he had not checked as to whether respondents were using any extra load in addition to the load provided to them or not. From his deposition, the fact is very much clear that since he has not collected anything from the place of occurrence including the electricity wire etc., how this electric cable collected by the person of the board and produced before the PW-1 and in turned, PW-1 has stated that the said electric cable sent to the divisional office. On the contrary, it is revealed that earlier Ketanbhai Sumabhai has alleged that the respondents have committed theft and that, there was nothing found against the accused for the alleged offence. On the contrary, it is revealed that earlier Ketanbhai Sumabhai has alleged that the respondents have committed theft and that, there was nothing found against the accused for the alleged offence. He has admitted that he has not collected any evidence or material and in whose possession the raided premises but only because of the information given by Ketanbhai Sumabhai they have raided the premises and they have not personally verified the fact as to whether the said premises is in the name of the accused or not. Though the statement of Ketanbhai Sumabhai was recorded but he was not examined by the prosecution to prove the case. 17. On perusal of the material on record, it appears that the father of Ketanbhai i.e. PW-4 Sumabhai examined at Exhibit 47, but he has not supported the case of the prosecution and declared hostile. From the cross-examination of this witness, it reveals that the accused has legal electricity connection and he has also electricity connection in the agriculture field and after making allegation, they have taken electricity and there was nothing illegal and, therefore, on the basis of the information given by Ketanbhai Sumabhai, the premises was raided but father of Ketanbhai has not supported the version of the prosecution. 18. On consideration of entire evidence on record, it clearly transpires that the prosecution has miserably failed to prove the charges levelled against the accused beyond reasonable doubt. The Trial Court has appreciated the entire evidence by threadbare and has given cogent and convincing reasons for not believing the case of the prosecution and has properly acquitted the accused from the charges levelled against them. The impugned judgment and order of acquittal is sustainable on factual as well as legal aspects. 19. From the evidence of the police witness, it appears that nothing has been culled out against the accused and, therefore, the prosecution has miserably failed to prove the charge against the accused. Considering the aforesaid facts and circumstances of the case, this Court is of the opinion that the trial Court has not committed any error of law and facts while passing the impugned judgment and order of acquittal and the appeal being meritless deserves to be dismissed. 20. For the foregoing reasons, the appeal fails and deserves to be dismissed. Accordingly, the appeal is dismissed. 20. For the foregoing reasons, the appeal fails and deserves to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and order of acquittal passed by the trial Court is hereby confirmed. Bailable warrant, if any, stands cancelled. Record and proceedings be transmitted back to the concerned trial Court forthwith.