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2024 DIGILAW 1905 (GUJ)

State Of Gujarat v. Kasamsha Sidisha Shahmadar

2024-10-14

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : Hemant M. Prachchhak, J. 1. The present appeal is filed by the appellant – State of Gujarat (original complainant) under Section 378 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) against the judgment and order of acquittal dated 23/04/2009 passed by the learned Special Judge, Jamnagar (hereinafter referred to as “the trial court”) in Special (G.E.B.) Case No.87 of 2006, whereby, the learned Trial Judge has acquitted the original accused respondent herein for the offence punishable under Section 135 of the Indian Electricity Act, 2003 (for short “the Act”) . 2. The brief facts giving rise to the present appeal are that, on 19/12/2003, the complainant carried out checking with his checking staff in area in Fatepura, Dhro and they found that present respondent accused had tempered the meter by breaking plastic seal of the meter and used the electricity directly and therefore, accused was caught red handed by the checking team, and meter was seized and sent to the laboratory. After report of the laboratory, the complainant made supplementary bill of Rs.19,136.25/- and was given to the respondent accused. That, on non payment of the said bill by the respondent accused, on 26.02.2004, complaint was lodged before Gujarat Electricity Board, Police Station, Rajkot vide Cr.No.II.438/2004. On the basis of the said complaint, investigation was initiated and after thorough investigation as there was sufficient evidence against the present respondent-accused, charge sheet was filed against him, before the learned Judicial Magistrate First Class, Dhrol. However, as the case was sessions triable by the Special Elec. Court, the learned Judicial Magistrate First Class, committed the said case to the Sessions Court as per the provisions of 209 of Criminal Procedure Code and the same was registered as Special Elect. Case No.87 of 2006. Thereafter, charge was framed against the respondent accused for the offences punishable under Section 135 of Indian Electricity Act,2003. The accused person pleaded not guilty to the charges and claimed to be tried. The prosecution therefore, laid evidence. Case No.87 of 2006. Thereafter, charge was framed against the respondent accused for the offences punishable under Section 135 of Indian Electricity Act,2003. The accused person pleaded not guilty to the charges and claimed to be tried. The prosecution therefore, laid evidence. 2.1 In order to bring home charge, the prosecution has examined as many as 4 witnesses and also produced several documentary evidence before the trial court, which are as under :- oral evidence : Witness No. 1 Nitinbhai Damjibhai Dhameliya Complainant and Deputy Engineer, Sub-division, Dhrol Exhibit 10 Witness No. 2 Sureshbhai Chhotubhai Patel Junior Engineer, G.E.B. Checking Squad, Valsad Circle and member of the raiding party Exhibit 15 Witness No. 3 Kishor Nandalal Dhanvani Tested meter in the laboratory as a Meter Tester at Meter Testing Laboratory, Jamnagar Rural Division Exhibit 18 Witness No. 4 Prahladray Govindram Valera P.S.O. at G.E.B., Police Station, Rajkot Exhibit 20 Documentary Evidence : (1) Original complaint of the complainant Exhibit 11 (2) Photocopy of a supplementary bill Exhibit 12 (3) Photocopy of the statement of customer Exhibit 16 (4) Photocopy of the laboratory rojkam of meter of the accused Exhibit 19 (5) F.I.R form Exhibit 21 (6) A true copy of station diary entry No. 14 Exhibit 22 2.2 At the conclusion of the trial, the learned Special Judge, Jamnagar, acquitted the respondent accused from the offences punishable Section 135 of the Indian Electricity Act vide impugned judgment and order dated 23/04/2009. 2.3 Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant – State of Gujarat has filed the present appeal under Section 378 of the Code of Criminal Procedure, 1973. 3. Heard learned Additional Public Prosecutor Ms.Jyoti Bhatt, appearing on behalf of the appellant - State. Though served, none has remained present on behalf of the respondent accused. 4. Learned APP Ms.Bhatt led this Court to the oral evidence of the four witnesses and emphasizing upon the evidence of the witnesses, has submitted that though the prosecution was able to establish the case against the present respondent accused by leading oral as well as documentary evidence, the trial court had failed to appreciate all these evidence in its true and proper spirit while passing the impugned judgment of acquittal. She has further submitted that though the prosecution witness namely, Nitinbhai Damjibhai Dhameliya (PW-1-complainant) at Exh.-10, being a Deputy Engineer at Dhrol Sub-Division, has supported the case of the prosecution in toto, however, his evidence was not considered by the trial court and the trial court overlooked the evidence of PW-1 at the time of passing of the impugned judgment and order of acquittal. She has submitted that PW-2 – Sureshbhai Chhotubhai Patel at Exh.-15, being a Junior Engineer and member of the raiding party, serving at Valsad, who is an independent witness, has supported the case of the prosecution. She has further submitted that the prosecution has produced the documentary evidence in the form of meter testing report (Exh.-19) conducted at Jamnagar Laboratory in the presence of representative of the respondent accused, wherein, it was found that meter was tampered and the body seal was also found tampered and in meter, there was some loop by using some artificial means and thereby, the respondent accused was by-passing the electric energy and that was how the respondent accused was committing theft of electricity. She has submitted that though the prosecution had proved the said aspect before the trial court, the trial court has discarded the evidence of the said witness and passed the impugned judgment and order of acquittal, which is erroneous, illegal and unjust and the same is required to be quashed and set aside and the present appeal is required to be allowed. 5. Though the notice is served upon the respondent accused, he has chosen not to remain present before the Court, however, the Court has proceeded further by perusing the record and proceedings of the trial court. 6. I have heard the learned APP Ms.Bhatt, appearing on behalf of the appellant State. On perusal of the record and proceedings, the fact reveals that the checking was conducted on 19/12/2003 and the FIR was registered before the G.E.B. Police Station Rajkot on 12/04/2004 on receipt of written complaint from the Deputy Engineer (complainant), i.e. after a period of almost four months from the date of conducting checking. It is also relevant to note herein that, the offence was registered under Section 135 of the Indian Electricity Act, 2003, on 12/04/2004. It is also relevant to note herein that, the offence was registered under Section 135 of the Indian Electricity Act, 2003, on 12/04/2004. At that relevant point of time, the new Act had not come into force and it was not in existence, however, still, the offence was registered under the new Act. In fact, originally, the offence was under Section 39, however, it was registered under the new Act and the same was considered by the trial court while dealing with the contentions. Even it is a judicial pronouncement of this Court, whereby, the new Act came into force only on 10/12/2004 under the provisions of Section 172 of the Act as per the notification issued by the Central Government on 10/12/2003, therefore, on the date of registration of the offence under Section 135, the Act itself was not in force, however, the offence was registered under the Act, 2003. Whether the appellant was empowered to register an offence under the new Act and for that, whether there was any power under Section 155 given or not has not come on record and the prosecution had failed to establish this fact beyond reasonable doubts. Even while preparing Rojkam at the place of checking, they had not obtained any signature of any of the independent witness on the Panchnama of Rojkam. Even at the time of checking of meter and testing of meter in the laboratory, whether they had complied with the formalities or not, whether they had given any intimation to remain present at the time of testing or not, all these facts have not come on record, therefore, under such circumstances and the circumstances enumerated by the trial court while dealing with the contentions in paragraph 13 onwards, after considering all these aspects the trial court has passed the impugned judgment and order of acquittal, which is in consonance with the settled principles of law and there is no any infirmity or any illegality found in the findings recorded by the trial court. 6.1 While passing the impugned judgment and order of acquittal, the trial court has referred and relied upon the judgment of this Court in case of Modern Terry Towels Ltd. v. Gujarat electricity Board, Vadodara and Others, reported in [2003] 4 GLR 3122 = AIR 2003 Gujarat 63. 6.1 While passing the impugned judgment and order of acquittal, the trial court has referred and relied upon the judgment of this Court in case of Modern Terry Towels Ltd. v. Gujarat electricity Board, Vadodara and Others, reported in [2003] 4 GLR 3122 = AIR 2003 Gujarat 63. Infact, the very contention was answered by this Court that it is the Electricity Board to prove that the consumer has committed an offence of theft of electricity by using any artificial means or any electric apparatus. Merely because the seal was tampered, the prosecution cannot establish that the theft of electricity has been committed. The relevant observations made by this Court in paragraphs 23 to 27 are reproduced hereunder : “(A) Electricity Act (9 of 1910), Ss. 39, 26, 44 – theft of energy – Onus to prove – Fact that meter recording consumption of electricity was located within premises of consumer – Would not require consumer to show that he has not committed any theft. 23. The contention raised on behalf of the Board that as the meter which records consumption of electricity is situate within the premises of consumer it is for the consumer to show that he has not committed any theft of power requires to be stated only to be rejected. Section 26 of the Indian Electricity Act, 1910 as is relevant for the present reads as under : 26. Meters.- (1) In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a a correct meter, and the licensees shall, if required by the consumer, cause the consumer to be supplied with such a meter : Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter. (2) Where the consumer so enters into an agreement for the hire of a meter, the licensee shall keep the meter correct, and , in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter. (2) Where the consumer so enters into an agreement for the hire of a meter, the licensee shall keep the meter correct, and , in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter. (3) Where the meter is the property of the consumer, he shall keep the meter correct and in default of his doing so, the licensee may, after giving him seven days' notice, for so long as the default continues, cease to supply energy through the meter". xxx xxx xxx "Explanation - A meter shall be deemed to be 'correct' if it registers the amount of energy supplied, or the electrical quantity contained in the supply, within the prescribed limits of error, and a maximum demand indicator or other apparatus referred to in sub-section (7) shall be deemed to be 'correct' if it complies with such conditions as may be prescribed in the case of any such indicator or other apparatus." The Section which deals with meters provides that the licensee i.e. the respondent Board herein, shall supply the consumer with meter and the consumer shall give security for the price of the meter. The meter will be supplied by entering into an agreement for hire thereof unless the consumer opts to purchase the meter. However, sub-section (2) specifically states that it will be obligation of the licensee to keep the meter correct and in case the licensee defaults in doing so the consumer shall be entitled to desist from paying hire charges till the default continues. In contrast sub-section (3) provides that where the meter is the property of the consumer the obligation to keep the meter correct will be of the consumer and upon the consumer committing a default in doing so , the licensee may, after due notice cease to supply energy through the meter. The Explanation provides as to how the meter shall be deemed to be correct. Therefore, the submission on behalf of the respondent that it is for the consumer to show that he has not committed any theft of power because the meter is located within the premises of the consumer cannot be sustained. 24. There is one more aspect of the matter. Therefore, the submission on behalf of the respondent that it is for the consumer to show that he has not committed any theft of power because the meter is located within the premises of the consumer cannot be sustained. 24. There is one more aspect of the matter. Condition No.22 of the Conditions provides for entering into a formal contract or a deemed contract once the supply of electricity has commenced. The respondent Board cannot lay down any term in such agreement which is contrary to the statutory provisions under the Act and the Rules. Therefore, onus to show that no theft of power is committed by the consumer cannot be shifted by virtue of an agreement on the consumer on the basis of the location of the meter. As already stated the onus will have to be prima facie discharged by the respondent Board. 25. The Board may, in a given situation, be able to raise a prima facie presumption against consumer by virtue of the location of the meter, but nonetheless onus to show that the consumption is dishonest has to be discharged by the Board. The appellate committee is necessarily required to bear this aspect in mind while deciding the appeals of the consumer before it. It is necessary for the appellate committee to appreciate that by virtue of such charge levelled against a consumer the consequences that flow therefrom are : disconnection of power supply, the consumer being charged at a higher rate, claiming compensation by way of reconnection charge etc. which are by their very nature harsh and may lead to financial ruin in case of commercial consumers. Furtheremore, as stipulated in Condition No.34 of the Conditions a consumer is not entitled to appeal before making pre-deposit of the stipulated sums of the supplementary bill. In other words, the right of appeal is hedged by pre-requisite condition of pre-deposit. 26. The Indian Electricity Rules, 1956 have been framed in exercise of the powers conferred by Section 37 of the Indian Electricity Act, 1910. Rule 56 of the said Rules deals with sealing of a meter and cut outs and reads as under : 56. Sealing of meters and cut-outs. 26. The Indian Electricity Rules, 1956 have been framed in exercise of the powers conferred by Section 37 of the Indian Electricity Act, 1910. Rule 56 of the said Rules deals with sealing of a meter and cut outs and reads as under : 56. Sealing of meters and cut-outs. - (1) A supplier may affix one or more seals to any cut-out and to any meter, maximum demand indicator, or the apparatus placed upon a consumer's premises in accordance with Section 26, and no person other than the supplier shall break any such seal. (2) The consumer shall use all reasonable means in his power to ensure that no such seal is broken other wise than by the supplier". Rule 138 prescribes penalty for breaking seal and reads as under : 138. Penalty for breaking seal. - Where, in contravention of Rule 56 any seal referred to in that rule is broken – [a] the person breaking the seal shall be punishable with fine which may extend to two hundred rupees; and [b] the consumer when he has not himself broken the seal shall be punishable with fine which may extend to fifty rupees unless he proves that he used all reasonable means in his power to ensure that the seal should not be broken." On going through these Rules it is apparent that the findings about broken seal would lead to the penalty as prescribed under Rule 138. The first requirement as prescribed by Rule 56 is that a consumer is expected to use all reasonable means in his power to ensure that no seal affixed by the Board is broken. Rule 138 prescribes the penalty under clause (a) wherein the person breaking the seal is known; while clause (b) stipulates a situation wherein, even if the consumer himself has not broken the seal he becomes liable to the prescribed fine unless the consumer proves that he had used all reasonable means in his power to ensure that the seal should not be broken. Thus, this is one more factor which requires consideration before a charge of theft of energy is fastened on consumer. Merely by stating that the seal wires are broken or the seal wires of different seals differ from each other would not be sufficient by itself to establish that theft of energy had been committed by the consumer. Thus, this is one more factor which requires consideration before a charge of theft of energy is fastened on consumer. Merely by stating that the seal wires are broken or the seal wires of different seals differ from each other would not be sufficient by itself to establish that theft of energy had been committed by the consumer. The onus to ensure that the seal is not broken after having taken all reasonable care is on the consumer and failure to discharge such onus can be visited with the prescribed fine. Therefore, the Scheme of the Act of 1910 read with the relevant Rules specifically provides that factum of broken seals is not equivalent to establishment of theft of energy. At best, such broken seals may be a relevant factor, but without anything more, cannot be conclusive. 27. It is not necessary for this Court to enter into an elaborate discussion as to what would constitute theft of energy by existence of artificial means or otherwise, but one can get a clue from the decision of this Court in the case of Patel Parshottamdas Vanmalidas vs. Gujarat Electricity Board and Another, reported in AIR 1987 188 wherein it was found that the consumer had been able to stop the running of the meter by inserting a plastic strip. This is only an illustration. Similarly in the case of Jagannath Singh (supra) this is what the Court stated while drawing distinction between provisions of Sections 39 and 44 of the Electricity Act,1910: "(8) An exposure of a stud hole on the meter cover is an artificial means for preventing the meter from duly registering. For the purpose of Section 44, the existence of this artificial means gives rise to the presumption that the meter was prevented from duly registering, but this presumption cannot be imported into S.39. A meter with an exposed stud hole without more is not a perfected instrument for unauthorised taking of energy, and cannot be regarded as an artificial means for its abstraction. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. To make it such an artificial means, the tampering must go further, and the meter must be converted into an instrument for recording less than the units actually passing through it. A check meter affords an easy method of proving that the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. To bring home the charge under S.39, the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy". Therefore, merely because there is an exposure of a stud hole without more, a presumption cannot be raised against the consumer that there was unauthorised user of energy by employing artificial means. These are the aspects which have to be taken into consideration by the authority while adjudicating a case before it. The standard of proof need not be of the nature as required in criminal proceedings but has to be akin to that required in civil proceedings i.e. based on preponderance of probabilities.” 6.2 The learned trial Judge has considered all the relevant material produced by the prosecution and after considering the facts of the case, the trial court was justified in passing the impugned judgment and order acquitting the present respondent accused. It is also now well settled that while exercising powers under Section 378 of Cr.P.C., if the trial court while passing the order has committed any illegality or any perversity or has exceeded the jurisdiction, unless and until such facts come on record, the Court is very slow while dealing with an acquittal appeal. The Hon’ble Apex Court has in a series of judgments enunciated the principles while exercising jurisdiction under Section 378 against acquittal, the power of the Appellate Court is inasmuch as re-appreciate the evidence, view or re-consider the evidence and if the Court is satisfied and finds that there is any illegality or any irregularity in the judgment then in that case only, the Court has power to entertain the appeal and interfere with the order of acquittal. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 , more particularly paragraphs 42 and 43, which was subsequently re-affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Hence, I am in complete agreement with the findings recorded by the trial court. 7. For the foregoing reasons, the present appeal fails and is hereby dismissed. The judgment and order of acquittal dated 23/04/2009 passed by the learned Special Judge, Jamnagar in Special (G.E.B.) Case No.87 of 2006 is hereby confirmed. Bail bond, if any, furnished by the respondent accused stands cancelled. 7.1 Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.