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2025 DIGILAW 573 (GUJ)

State Of Gujarat v. Bodubhai Abdulbhai Khafi

2025-06-26

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 judgment and the order dated 02.01.2017 in Special (Electricity) Case No.12 of 2012 passed by the learned Special Judge and 7 th (Ad-hoc) Additional Sessions Judge, Jamnagar (hereinafter referred to as ‘the Trial Court’), whereby, the Trial Court has acquitted the respondent from the offence punishable under Sections 135 and 150 of the ELECTRICITY ACT , 2003 (hereinafter referred to as ‘the Act’). The respondents are hereinafter referred to as ‘the accused’ as they stood in the rank and file 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. The accused No.2 was the owner of a house situated in Shankar Takeri area in Bapa Sitaram Chowk, opposite the lane of Shaikh Floor Mill and the accused No.2 had given the property on a monthly rent of Rs.1000/- to the accused No.1. The accused No.1 had started an electric furnace for making brass parts, and even though, the accused no.1 was not a consumer of electricity, he had directly taken an electricity line from the pole and the wiring was done by absconding accused Kamlesh Mohanal Nimawat. A III- phase power line was taken and the electric furnace was being used and 18.1 kilo watt of electricity was illegally used by the accused No.1. On 27.08.2005, a checking squad of the Gujarat Electricity Board had checked the place and found that the theft of electricity of Rs.5,02,590.06/- was committed by the accused, and hence, a complaint was filed by the complainant Jaydeep Jayantkumar Bhatt, Deputy Engineer, Gujarat Electricity Board at the PGVCL Police Station, Rajkot, which was registered as II-CR No.734 of 2005 under sections 135 and 150 of the Indian ELECTRICITY ACT 2003. 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. 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.12 of 2012. 2.3. The accused were duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police 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.3 and the statement of the accused was recorded at Exhs.4 and 5, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has examined six witnesses and has produced 13 documentary evidences in support of the case. 2.4. After the closing pursis was submitted by the learned APP, the further statement of the accused under Section 313 of the Code was recorded. 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, has acquitted the accused for the offence punishable under Sections 135 (1) and 150 of the ELECTRICITY ACT , 2003. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Trial Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order passed by the Trial Court is contrary to law, evidence on record and principles of justice. The Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The learned Trial Court has erroneously came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The 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 them. The learned Trial Court has erroneously came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The 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 them. The Trial Court has erroneously come to the conclusion that the accused was causing damage to electricity company by tampering with the meter from outside device so that meter reading could not be done and also caused damage to the electrical substance and also caused financial damage to the company. The learned Trial Court has not appreciated the fact that the accused were using electricity illegally by cutting wire and caused damage to the electricity company. That the learned Trial Court also committed an error in arriving at the conclusion that though the complainant and the prosecution witnesses have fully supported the case of the prosecution and there are no material contradictions, the Trial Court has acquitted the accused. The impugned judgment and order of acquittal passed by the 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.Chetna Shah for the appellant – State and learned advocate Mr. Nasir Saiyed for the respondent No.2. Though served, the respondent No.1 has not appeared either in person or through a lawyer to make submissions. 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.Chetna Shah for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the 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 Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Judge 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. The judgment and order of acquittal passed by learned Judge 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. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused. 5.1. Learned advocate Mr.Nasir Syed for the respondent No. 2 has submitted that the learned Trial Court has appreciated the entire evidence and has passed the impugned judgment and order and no interference of this Court is required. Hence, the appeal may be rejected. 6. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415 , the Apex Court has observed as under: Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 : AIR 2006 SC 831 , this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) …….. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) …….. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;] (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of ac-quittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong cir- cumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an ap- pellate Court in an appeal against acquittal. Such phrase- ologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to in- terfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own con-clusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence avail- able to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquit- tal, the presumption of his innocence is further rein-forced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 7. Secondly, the accused having secured his acquit- tal, the presumption of his innocence is further rein-forced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 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. 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. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Jaydeepbhai Jayantkumar Bhatt at Exh.10 and the witness has stated that on 27.09.2005, he was working as a Deputy Engineer in the Checking Squad and he along with Deputy Engineer B.K.Dave and Deputy Engineer C.K.Patel and other staff members had gone to the Shankar Tekri area in Jamnagar in the Bapa Sitaram Madhuli Street and had checked the electric furnace of the accused. They found that the accused were not the consumers of electricity and there was no meter at that place, but two twin wires were taken with a 32 ampere fuse watt and the furnace of 18 kilo watts and one lamp of 100 watts were being used and theft of electricity was taking. A III-phase line was taken and they had prepared the checking sheet, which is produced at Exh.11, the Rojkam is produced at Exh.12, the Seizure Memo is produced at Exh.13, photographs of the place at Exh.14 and the muddamal was seized from the place. During the cross- examination by the learned advocate for the accused, the witness has stated that they did not have any authorization for conducting the checking and no panchanama of the muddamal seized was prepared in the presence of any panch witnesses. There were many people around, but none of their statements was recorded and no document to show that the place where they had checked was in the possession and ownership of the accused was seized. The muddamal that they had seized was easily available in the market and no bills of the photographs produced at Exh.14 have been produced on record. The photographs have not been given to the Investigating Officer during investigation. 8.1. The prosecution has examined P.W.-2 Bharatbhai Khelshankar Dave at Exh.15 and the witness was working as a Deputy Engineer and was a member of the Checking Squad on 27.09.2005. The witness has stated that he, along with Deputy Engineer J.J.Bhatt and Deputy Engineer C.K.Patel and other staff members, had gone and checked the property of the accused and they had found theft of electricity taking place. The witness has identified the documents produced at Exhs.11, 12 and 13 and the photographs at Exh.14. During the cross-examination by the learned advocate for the accused, the witness has stated that they did not have any authority in writing for conducting the checking and they have not prepared any panchanama of the muddamal seized in the presence of any panch witnesses. They have not recorded the statements of any neighbours and no document about the ownership and possession of the property has been seized by them. The muddamal that they had seized was easily available in the market. 8.2. They have not recorded the statements of any neighbours and no document about the ownership and possession of the property has been seized by them. The muddamal that they had seized was easily available in the market. 8.2. The prosecution has examined P.W.-3, Ashokbhai Jayrambhai Dave at Exh.17 and the witness has stated that he was a member of the Checking Squad along with Deputy Engineer J.J.Bhatt and Deputy Engineer P.K.Dave. At that time, on 27.09.2005, he was working as a Junior Engineer and they had gone to the place and had conducted the raid and the witness has fully supported the case of the prosecution. During the cross examination, the witness has stated that they did not have any authorization to do the checking and they have not recorded the statements of any neighbours and have not drawn any panchanama of the muddamal seized in the presence of any panch witnesses. They did not collect any documents to show the ownership or possession of the property where the theft was being committed and the muddamal that was seized was easily available in the market. 8.3. The prosecution has examined P.W.-4 Jayeshbhai Ramniklal Maradiya at Exh.19 and the witness was working as a Junior Engineer in the Vigilance Branch of GEB on 27.09.2005 and was also a member of the Checking Squad and has fully supported the case of the prosecution. During the cross examination, the witnesses stated that they did not have any authorization for checking and they have not drawn any panchnama of the muddamal that was seized in the presence of any panch witnesses. That they have not recorded the statements of any independent witnesses and no document about the property was seized by them. 8.4. The prosecution has examined PW-5 Chandrakantbhai Khodidas Patel at Exh.22 and the witness was working as a Deputy Engineer in the Khambhaliya Gate Sub-Division, Gujarat Electricity Board on 27.09.2005. The witness has stated that the Checking Squad had found theft of electricity being committed and he was a member of the Checking Squad along with the others and they had brought the muddamal and had deposited the same in the Sub Division. He had prepared the gate pass for the Maddamal, which is produced at Exh.23. The witness has stated that the Checking Squad had found theft of electricity being committed and he was a member of the Checking Squad along with the others and they had brought the muddamal and had deposited the same in the Sub Division. He had prepared the gate pass for the Maddamal, which is produced at Exh.23. The witness has stated that the calculation sheet, which has produced at Exh.24 was prepared and the notice produced at Exh.25 was sent to the accused. The bill of theft of electricity of Rs.5,02,590.66/-, which is produced at Exh.26, was sent to the accused and he had sent the complaint to the GEB Police Station, Jamnagar Road, Rajkot, which is produced at Exh.27. The FIR is produced at Exh.30 and the offence was registered as II-C.R.No.743 of 2005 on 01.10.2005. During the cross-examination by the learned advocate for the accused, the witness has stated that they did not have any authorization in writing for the checking and they had not drawn any panchnama in the presence of any panch witnesses regarding the muddamal that was seized. They did not record the statements of any witnesses, and they had not seized any document to prove the ownership or possession of the property which they had checked. The muddamal that was seized was easily available in the market. 8.5. The prosecution hss examined P.W.-6 Gajendrsinh Kalubha Vala at Exh.28 and the witness is the Investigating Officer who has investigated the offence. The witness has narrated in detail the entire procedure that was undertaken by him during investigation. During the cross-examination, the witness has stated that no panchnama of the place of offence was drawn either by him or by the previous Investigating Officer, Police Inspector A.H.Jadeja and no muddamal was seized by them during the invesetigation. That the no statements of any independent witnesses were recorded either by him or by Police Inspector, A.H.Jadeja. 9. During the cross-examination, the witness has stated that no panchnama of the place of offence was drawn either by him or by the previous Investigating Officer, Police Inspector A.H.Jadeja and no muddamal was seized by them during the invesetigation. That the no statements of any independent witnesses were recorded either by him or by Police Inspector, A.H.Jadeja. 9. On minute appreciation of the entire evidence of the prosecution, it is the case of the prosecution that the property where the furnace for brass parts was being run, which was situated in Shankar Tekri Area in the lane opposite Shaikh Floor Mill in Bapa Sitaram Chowk in Jamnagar was in the ownership of the accused No.2 and he had given it on on a monthly rent of Rs.1000/- to the accused No.1 and the theft of electricity was being committed in that property. There is no document on record to show that the property that was raided was in the ownership or possession of the accused No.1 or the accused No.2 and that any electric furnace for brass parts was being run in that place. It is the case of the prosecution that the officers of the Checking Squad had gone to raid the place and they found that a twin wire was directly taken from the electricity pole and a III- phase power was being used and a load of 18.1 K.W. was illegally being utilized, even though, the accused were not a consumer of electricity and there was no meter at that place. During the entire trial before the learned Trial Court, no muddamal has been produced, and the Investigating officer has not seized any muddamal during investigation. There are no independent witnesses, who have been examined before the learned Trial Court and the members of the checking squad have all stated that they did not have any authority to go for checking at the place. They did not seize any documents regarding the ownership or possession of the property where the theft was being committed and there is no evidence on record to show that the theft was being committed by the accused. 10. In view of the above, the learned 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. 10. In view of the above, the learned 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 learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned 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 impugned judgment and the order dated 02.01.2017 in Special (Electricity) Case No.12 of 2012 passed by the learned Special Judge and 7 th (Ad-hoc) Additional Sessions Judge, Jamnagar is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.