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Gujarat High Court · body

2025 DIGILAW 596 (GUJ)

State Of Gujarat v. Rajubhai Makanbhai Sachariya

2025-06-30

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 09.08.2012 in Special (GEB) Case No.31 of 2009 passed by the learned Special Judge, Jamnagar (hereinafter referred to as ‘the learned trial Court’), whereby, the learned trial Court has acquitted the respondents from the offence punishable under Section 135 of the ELECTRICITY ACT , 2003 (hereinafter referred to as ‘the Act’). 1.1 The respondents are hereinafter referred to as ‘the accused’ in the rank and file as they 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. The accused were the consumers of GEB and had consumer No. 87101/55091/6 in their business establishment known as Tulsi Enterprise. On 26.08.2004, the Deputy Engineer- I/c Jamnagar - Mr. J. J. Bhatt and other officers checked the electricity connection of the accused in Tulsi Enterprise and found that they had taken a wire from all the three phases and bypassed the meter and were committing theft of electricity. The due procedure was followed and it was found that theft of electricity of Rs.1,64,179.12/- was committed and on 04.10.2004, the complainant Chandrakant Ramjibhai Patel, Deputy Engineer of Jamnagar Industrial Sub Division filed the complaint under Section 135 of the Indian ELECTRICITY ACT , 2003, which was registered at G.E.B. Police Station being II-C.R.No.1121 of 2004. 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, therefore, after completion of process under Section 209 of the Cr.P.C., the case was committed to the Sessions Court and the same was registered as Special (GEB) Case No.31 of 2009. 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. 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.4 and the statements of the accused were recorded at Exh. 5 and 6, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.4. The prosecution produced four oral evidences and six documentary evidences to bring home charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis at Exh. 27, the further statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein, the accused denied all the evidence of the prosecution on record. The accused refused to step into the witness box or examine witnesses on their behalf and stated that a false case has been filed against them. After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order was pleased to acquit the accused from all the charges levelled against them. 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. That the judgment and order of acquittal passed by the learned trial Court is based on inferences, not warranted by facts of the case and also on presumptions not permitted by law. The learned trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. 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 them. 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 them. The learned trial Court has 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 learned trial Court has acquitted the accused. 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. Chetna Shah for the appellant – State. Though served to the respondents, they have not appeared either in person or through an advocate. Perused the impugned judgment and order of acquittal and has 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 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 Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by Judge is based on inferences, not warranted by facts of the case and also on presumption, not permitted by law. 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. 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. 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) …….. 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, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, re-striction or condition on exercise of such power and an appel- late 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 rea-sons', 'good and sufficient grounds', 'very strong circum-stances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (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 available 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 acquittal, the presumption of his innocence is further reinforced, 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 Prosecution Witness No. 1 Chandrakantbhai Ramjibhai Patel at Exh. 12 and the witness is the complainant, who has stated that on 26.08.2004, Deputy Engineer - Mr. J.J. Bhatt and Junior Engineer Mr. A.J. Dave and other members of the line staff had gone for checking and had checked the electricity connection of Tulsi Enterprise. They found that the main service line was cut and a red colour copper wire was joined, which was joined to the load side and the meter was bypassed and theft of electricity was being committed. The Checking Sheet produced at Exh.13 prepared and the calculation sheet, which is produced at Exh.14 were prepared and accordingly it was found that theft of electricity of Rs.1,64,179.12/- was committed by the accused. The bill produced at Exh.15 was given to the accused and the amount was not paid by the accused, hence, the complaint at Exh.16 was filed by the complainant on 4.10.2004 before the Rajkot GEB Police station. During the cross-examination by the learned advocate for the accused, the witness has stated that the alleged theft had occurred on 26.08.2004 and the complaint was filed on 04.10.2004. However, there is no explanation for delay in filing the complaint mentioned in the complaint, produced at Exh.16. No permission for filing the complaint has been taken from any competent authority and the Investigating Officer was not informed to seize the muddamal. No panchnama was drawn in the presence of independent panch-witnesses and there is no evidence seized by any officer regarding the ownership of the place, where the theft was being committed. In the document produced at Exh.15, which is the bill, no officer has signed and even in the documents, there is no mention regarding the ownership of the place where the checking had taken place. In the document produced at Exh.15, which is the bill, no officer has signed and even in the documents, there is no mention regarding the ownership of the place where the checking had taken place. 8.1 The prosecution has examined Prosecution Witness No. 2 Jaydeepbhai Jayantkumar Bhatt at Exh.17 and the witness was working as a Deputy Engineer on 26.08.2004 and he has stated that he and other Junior Engineer Ashok Jayram Dave and other staff members had gone for checking the electricity connection of Consumer No. 87101/55091/6 at Tulsi Enterprise. They found theft of electricity being taken place and the necessary documents were prepared and the Checking Sheet was prepared by Junior Engineer Mr. Ashok Jayram Dave. During the cross examination by the learned advocate for the accused, the witness has stated that they had not taken any permission from any competent authority for checking and the muddamal was not taken by any panchnama in the presence of independent panch witnesses. No statements of any neighbors were recorded and no documents regarding the ownership of the property were taken by them. 8.2. Prosecution Witness No. 3 Prahaladray Govindaram Valera examined at Exh.18 was working as a PSO at the GEB Police Station on 06.10.2004 when the complaint of the complainant Chandrakantbhai, Ramjibhai Patel was received by post and the complaint was registered at Rajkot GEB Police Station being II -C.R.No.1121 of 2004. During the cross examination by the learned advocate for the accused, the witness has stated that no documents and no muddamal were sent along with the complaint. Moreover, there was no explanation for delay in filing of the complaint. 8.3. Prosecution Witness No. 4 Pravinsinh Nanbhai Jethva examined at Exh. 26 6 is the Investigating Officer, who has narrated the procedure undertaken by him during investigation. The witness has stated that as there was sufficient evidence, he has filed the charge sheet. During the cross-examination by the learned advocate for the accused, the witness has stated that he did not seize any muddamal during investigation and has not drawn any panchnama of the place of offence in the presence of any panch witnesses. No statements of any witnesses were recorded and the complainant did not take any permission from any competent authority to file the complaint and no such authority was produced along with the complaint. No statements of any witnesses were recorded and the complainant did not take any permission from any competent authority to file the complaint and no such authority was produced along with the complaint. Moreover, he was not present at the time of the checking and does not know what procedure was undertaken by them at the time of the checking and during investigation no document regarding the ownership of the place, where the alleged theft was being committed, was seized by him. 9. On minute appreciation appreciation of the entire evidence of the prosecution, the evidence that has come on record is that the complainant Chandrakantbhai Ramjibhai Patel was not a member of the raiding party and he had not gone for checking at Tulsi Enterprise and hence was unaware about the procedure undertaken by the checking team at the time of checking. Moreover, as per the complaint, the checking was undertaken on 26.08.2004 but the complaint dated 04.10.2004 was sent by post to the Rajkot GEB Police Station and it was received at the Police Station on 06.10.2004 and the FIR was registered at 06.10.2004 at 11:00 hours. In the complaint produced at Exh.16, there is no explanation regarding the delay in filing the complaint and as per the case of the prosecution, the theft was being committed in Tulsi Enterprise belonging to the accused but no documentary evidence that the premises or Tulsi Enterprise belonged to the accused, has come on record. Admittedly, the place is a public place and independent witnesses would be available, but no evidence of any independent witnesses has been brought on record. The investigation officer has stated that he did not record the statements of any witnesses and it is the case of the prosecution that the wires were tapped into and a red colour copper wire was used to join the main line and bypass the meter but no such wire was seized as muddamal by the Investigating Officer. Moreover, there is no panchnama of the place of offence that is produced on record and the procedure that was undertaken by the checking party i.e. whether they had seized the muddamal and where was the muddamal preserved has not come on record. Moreover, there is no panchnama of the place of offence that is produced on record and the procedure that was undertaken by the checking party i.e. whether they had seized the muddamal and where was the muddamal preserved has not come on record. Moreover, Prosecution Witness No. 2- Jaydeepkumar Jayantkumar Bhatt examined at Exh.17 has stated that he was a member of the checking squad and had gone along with the other officers who were checking, but there is no documentary evidence produced on record that they had taken the permission from the competent authority to go for checking or that he and any other of his colleagues had actually gone for checking at the place of the accused. As per Section 151 of the Act, the complaint must be made in writing by the appropriate government or appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector but there is no evidence that the complainant was authorized in any manner to file the complaint. 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 levelled 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 impugned judgment and the order dated 09.08.2012 in Special (GEB) Case No.31 of 2009 passed by the learned Special Judge, Jamnagar is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.