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Gujarat High Court · body

2025 DIGILAW 1195 (GUJ)

State of Gujarat v. Kanabi Prabhuji Vajaji

2025-10-06

S.V.PINTO

body2025
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant-State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the impugned judgment and the order passed by the learned 4 th Additional Sessions Judge and Special Judge, District Banaskanthat at Deesa (hereinafter referred to as ‘the Trial Court’) in Special Case (Electricity) No.15 of 2013 dated 30.10.2015, whereby, the learned Trial Court has acquitted the respondent from the offence punishable under Sections 135(1)(b) of the ELECTRICITY ACT , 2003 (hereinafter referred to as ‘the Act’). 1.1 The respondent is hereinafter referred to as ‘the accused’ as he stood in the original case, for the sake of convenience, clarity and brevity. 2. The relevant facts leading to filing of the present appeal are as under: 2.1. On 07.03.2011, R.B.Ninama, Deputy Engineer, UGVCL, Palanpur and other team members had gone to village Moti Dugdol, Taluka Dhanera and had checked the electricity connection of the accused. They found that the accused was a consumer of electricity, but had changed the point of supply and had erected a new line and was using two motors of 37.5 HP. After the necessary procedure, it was found that theft of electricity of Rs.1,89.543.40 paisa was committed by the accused and the complainant Harishkumar Ratilal Kalaswa, Deputy Engineer, Danta filed a complaint under Section 135 of the ELECTRICITY ACT at the GEB Police Station, Sabarmati on 10.03.2011, which came to be registered as G.E.B, Sabarmati Police Station, II-C.R.No.537 of 2011. 2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the chargesheet came to be filed before the concerned jurisdictional Magistrate. As the case was exclusively triable by the Court of Sessions, after completion of the process under Section 209 of the Cr.P.C., the case was committed to the Sessions Court and the same was registered as Special (Electricity) Case No. 15 of 2013. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the papers were provided to the accused as per the provisions of Section 207 of the Code. 2.3. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the papers were provided to the accused as per the provisions of Section 207 of the Code. A charge was framed by the learned Trial Court at Exh.6 and the statement of the accused was recorded at Exh.7, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution examined 06 witnesses and produced 09 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP at Exh.38, the further statement of the accused under Section 313 of the Code was recorded wherein the accused denied the evidence. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order, acquitted the accused for the offence punishable under Sections 135(1)(b) of the Act. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the learned Trial Court is contrary to law, evidence on record and principles of justice. The learned Trial Court has erroneously came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The learned Trial Court has erred in acquitting the accused though there are ample and cogent evidence to connect the accused with the crime and the offence registered against him. The learned Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The impugned judgment and order of acquittal passed by the learned Trial Court is illegal, invalid, improper, perverse and bad in-law and the same deserves to be quashed and set aside. 4. Heard learned APP Ms.C.M.Shah for the appellant – State and learned advocate Mr.Ankit Bachani for respondent - accused. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. 4. Heard learned APP Ms.C.M.Shah for the appellant – State and learned advocate Mr.Ankit Bachani for respondent - accused. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms.C.M.Shah for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the the case and has successfully proved the case against the accused but the learned Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Trial Court is contrary to law, evidence on record and principles of justice. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence and impose maximum sentence on the accused. 6. Learned advocate Mr.Ankit Bachani the respondent – original accused has submitted that the learned Trial Court has appreciated all the evidence in true perspective and has not committed any error in acquitting the accused. Therefore, no interference of this Court is required in the impugned judgment and the order of acquittal passed by the learned Trial Court and has urged this Court to reject the appeal. 7. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the Trial Court, it appears that there are some manifest illegality of perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must. 8. PW-1 Harishkumar Ratilal Kalaswa examined at Exh.11 is the complainant and he has produced the complaint at Exh.12, the checking sheet at Exh.13, the calculation sheet at Exh.14, the report for the bill at Exh.16, the supplementary bill at Exh.17, notice given to the accused at Exh.18 and the gate pass by which the muddamal wire was deposited in the Sub- Division Store, Dhanera at Exh.19. The witness has fully supported the contents of the complaint, and in the cross- examination, has admitted that he had gone to the Sabarmati Police Station on 10.03.2011. The bill dated 08.03.2011 was given to the accused with Outward No.1922 dated 10.03.2011 and it was sent by R.P.A.D. and 7 days time was given to the accused to pay the bill. The complaint was filed before 7 days had concluded and the witness had not gone for checking at the place where the theft was committed. The witness does not know the procedure that was undertaken at the spot and who had prepared the check list and how it was prepared. The witness has stated that he does not know what HP connection the accused had and from the record it was found that the accused had 20 HP connection and had given an application for a further 10 HP connection on 29.04.2005. The witness has stated that he does not know what HP connection the accused had and from the record it was found that the accused had 20 HP connection and had given an application for a further 10 HP connection on 29.04.2005. The witness has admitted that an amount of Rs.38,345/- was paid by the accused as estimate cost and there was an application for increasing the load and a new transformer was also raised. 8.1. PW-2 Rajnikanth Bachubhai Ninama examined at Exh.22 is the Deputy Engineer who had gone for checking at the place of the accused and he has supported the case of the prosecution. The witness has produced the checking sheet at Exh.23 and has stated that at that time, two Meter Inspectors H.R.Jani and K.J.Prajapati were with him. In the cross-examination, the witness has admitted that he did not take any independent witnesses at the time of the checking and he had not prepared any Rojkam at the spot where the theft was taking place. He had disconnected the connection and the accused was residing at the same place but the checking sheet did not bear the signature of the accused. That no order was given by any Competent Authority to go for checking and the endorsement of copy received was not in the handwriting of the customer but in his own handwriting. 8.2. PW-3 Hareshbhai Rajnikanth Jani examined at Exh.24 was also present at the time of checking and has supported the case of the prosecution. During the cross-examination, he has stated that in his statement before the police, he did not mention that 50 mtrs. cable was deposited at the Dhanera Sub-Division. 8.3. PW-4 Kantilal Joitaram Prajapati examined at Exh.25 was working as a Meter Inspector and was also a member of the checking team that had gone to village Moti Dugdol. The witness has supported the case of the prosecution, but during the cross-examination, he has admitted that he did not mention in his statement before the police that a total of 75 HP was being utilized by the accused. 8.4. PW-5 Rehmankhan Mohammedkhan Belim examined at Exh.34 is the PSO, who has registered the complaint and the Investigating Officer, who has partly investigated the offence. 8.4. PW-5 Rehmankhan Mohammedkhan Belim examined at Exh.34 is the PSO, who has registered the complaint and the Investigating Officer, who has partly investigated the offence. In the cross-examination, the witness has admitted that at the time of filing of the complaint, the complainant did not submit any authority from any Competent Authority to file the complaint and the complaint was not filed within a period of 24 hours from the time that the offence was detected. 8.5. PW-6 Malaybhai Ratnabhai Desai examined at Exh.37 is the Investigating Officer, who has narrated the procedure undertaken by him during investigation. In the cross-examination, the witness has admitted that he did not get any report about where the electricity connection was and when it was changed. No muddamal was produced by the complainant in his presence and the witnesses did not state that they had disconnected the electricity connection and had cut the cable and the cable was seized. No panchnama of the place of offence was drawn by him during investigation and he did not visit the place of offence during investigation. 9. On minute appreciation of the entire evidence of the prosecution, the complainant PW-1 Harishkumar Ratilal Kalaswa has not gone to the place of incident and he has no personal knowledge about the offence that had taken place. He did not submit any permission to file the complaint given by any Competent Authority and in the entire evidence, no evidence that the place where the checking had taken place belonged to the accused has been produced on record. It appears that the checking had taken place on 07.03.2011, and thereafter, a supplementary bill dated 08.03.2011 was prepared and the bill along with the notice was sent to the accused by Outward No. 1922 dated 10.03.2011 and a time period of 7 days was given to pay up the amount but the complaint was filed on 10.03.2011, i.e. the same day that the bill was sent to the accused. Hence, without waiting for the accused to pay up the bill, the complaint has been filed. Moreover, there is no iota of evidence on record that the officers who had gone for checking had any authority to go for checking and the place where they had checked belonged to the accused. Hence, without waiting for the accused to pay up the bill, the complaint has been filed. Moreover, there is no iota of evidence on record that the officers who had gone for checking had any authority to go for checking and the place where they had checked belonged to the accused. No document regarding the ownership or possession of the place of offence was seized by the officers and it has also emerged on record that the accused had given an application for addition of load of electricity and had also paid the necessary amount and a new transformer was also put in place. There is no evidence that the accused was present at the place and the signature of the accused was not taken in the checking sheet. No panchanama of the place of offence was drawn by the Investigating Officer and the Investigating Officer did not record the statement of any independent witness. No muddamal was produced before the learned Trial court and no muddamal was seized in the presence of independent panch witness. No photography or videography of the checking is produced on record. 10. In view of the above, the trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The Trial Court has appreciated all the evidence and this Court is of the considered opinion that the Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 11. The judgment and the order passed by the learned Special Judge and 3rd Additional Sessions Judge, Jamnagar in Special Case (Electricity) No. 15 of 2013 order dated 30.10.2015 is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.