JUDGMENT : GITA GOPI, J. 1. The appellant is the accused convicted under section 135 of the ELECTRICITY ACT , 2003 and sentenced to 1 year simple imprisonment and fine of Rs.5,000/- and in default of payment of fine is sentenced to further 3 months simple imprisonment by an order dated 31.01.2006 passed by Additional Sessions Judge, Rajkot in Special Criminal Case No.1 of 2004 (G.E.B.). 2. Being aggrieved and dissatisfied by the judgment and sentence, challenge has been given by filing the present criminal appeal under section 374 of the Code of Criminal Procedure. 3. The complaint was filed by Jentilal Manjibhai Jivani, Deputy Engineer of Sub-Division, Gujarat Electricity Board (Rural) at Gondal. As per the complaint on 22.06.2004, he along with other officers at Kotda Sangani Taluka, Aadamtala GIDC, made a checking at a factory known as Harsiddhi Enterprise. At that time, they found a direct cable connection with the factory for the electricity supply from the pole of L.T. line of Gujarat Electricity Board. The electricity supply was illegal and therefore, it was found to be a case of theft of electricity. The checking was done in presence of the representative of the factory of Harshiddhi Enterprise. The Electricity checking report and the Rojnama was prepared. The accused was running the factory who had remained present later on and he had thereafter put his signature. 4. The complainant has stated that a G.E.B. connection as a customer was given to Harshiddhi Enterprise and on 15.01.2004, checking was done where the theft of electricity was found and since no payment of the bill was done, the connection was cut and the meter was removed from the place. Thereafter, on 22.06.2004 when they found that there was theft of electricity by the accused, a complaint was filed by G.E.B at the police station and on the basis of the complaint, the offence was registered and the investigating officer thereafter recorded the statements of the concerned witnesses. 5. Learned advocate Mr. Shakeel Qureshi for the appellant referring to the depositions of both the witnesses i.e. the complainant PW-1 - Jentilal Manjibhai Jivani and the I.O. PW-2 Atmaram Panduram Pawar submitted that the ownership of the factory as that of Harsiddhi Enterprise and the accused being the owner or the partner or any other authorized person has not been proved. Shakeel Qureshi for the appellant referring to the depositions of both the witnesses i.e. the complainant PW-1 - Jentilal Manjibhai Jivani and the I.O. PW-2 Atmaram Panduram Pawar submitted that the ownership of the factory as that of Harsiddhi Enterprise and the accused being the owner or the partner or any other authorized person has not been proved. The checking was on 22.06.2004 while the complaint was filed on 17.09.2004 which is contrary to the provisions of Section 135 of the ELECTRICITY ACT , 2003. 6. Learned advocate Mr. Qureshi submitted that it is the case of tapping of the electricity illegally drawn against the accused, however, there is no recovery of the alleged cable wire through which the theft was alleged to have been done. Learned advocate Mr. Qureshi stated that the presence of the accused was not found when the Rojnama was drawn and the delay in the complaint itself suggest that later on the signature of the accused was procured. Mr. Qureshi further stated that the reliance of the document at Exh-20 in the form of Kabulatnama by the learned Judge itself is faulty since the document at Exh. 20 could not be termed as a Kabulatnama rather it was an assurance of payment of money which is required to be made if the electricity supply is to be restored. Mr. Qureshi further stated that the evidence suggest that on 15.01.2004, the checking was done and the meter was removed and it is alleged that the amount was not paid. Referring to the receipt dated 19.06.2023, Mr. Qureshi submitted that the amount has been paid in the civil case where in the civil action the dispute was raised regarding the amount to be paid. Mr. Qureshi further stated that had the theft being actually noted on 15.01.2004 then immediately within 24 hours the complaint ought to have been filed which has not been done. Mr. Qureshi further stated that the document dated 15.01.2004, refers to signature of one Ramolia who has not been made an accused in the matter and further on 22.06.2004, the signature was of Ajay Keshabhai Patel and as per the admission itself of the complainant, the signature of the present accused was procured later on. Mr. Mr. Qureshi further stated that the document dated 15.01.2004, refers to signature of one Ramolia who has not been made an accused in the matter and further on 22.06.2004, the signature was of Ajay Keshabhai Patel and as per the admission itself of the complainant, the signature of the present accused was procured later on. Mr. Qureshi further stated that Exh.-20 cannot be considered as a conclusive proof of an admission of such allegation of theft where the law does not provide for any such statement of the accused, thus such statement could not have been read in evidence and could at the most be considered as an acknowledgment of the payment of the electricity bill. Mr. Qureshi further stated that Exh-20 is not in the handwriting of the accused himself, therefore too, the learned Judge ought not to have placed reliance on it to pass an order of conviction and further stated that only on the presumption, the conviction has been drawn. 7. Learned advocate has relied upon the Judgment in the case of State of Gujarat Vs. Mansukhbhai Amarshibhai Makwana reported in 2024(0) AIJEL-HC 249534 where the learned advocate has placed reliance on para 5 as under: “(c) Code of Criminal Procedure, 1973 – S. 319 – addition of accused – failure by prosecution to add owner of premises as co-accused despite allegations against him for same offence under Section 135 – This court highlighted procedural lapses by prosecution in failing to include relevant parties in charge-sheet which further weakened its case against the respondent; such omissions contributed to trial court’s decision to acquit. (Paras 5)” to contend that the owner of the premises were required to be joined as a co-accused for the offence under section 135 and also has placed reliance on the judgment of State of Gujarat Vs. Chaudhary Ambalal Govabhai reported in 2025(0) AIJEL-HC 251017 , as no independent witnesses were examined to satisfy the act of raid, and no documentary evidence were produced to establish the ownership and possession of the premises checked and the alleged wire for the theft was not ceased or produced before the Investigating Officer and has also placed reliance on the judgment of State of Gujarat Vs. Vipulbhai Jaysukhbhai Shah reported in 2024(0) AIJEL- HC 248717 to submit that the delay in filing the complaint undermines the case against the accused. 8. Countering the argument, learned APP Ms. Vipulbhai Jaysukhbhai Shah reported in 2024(0) AIJEL- HC 248717 to submit that the delay in filing the complaint undermines the case against the accused. 8. Countering the argument, learned APP Ms. Monali Bhatt specifically placed reliance on document Exh.9 and submitted that the details are written in the format, in the printed form of the inspection report of the Gujarat Electricity Board. The facts of direct cable connection for illegal tapping of electricity was noted and on that day the Rojnama was drawn. The cable was cut from the pole and was removed from the lane and was taken in custody which was also seized and as per the rules, the bill of electricity theft was given to the accused and the accused has signed the same. Learned APP, Ms. Monali Bhatt further stated that Exh-9 should be considered as an admissible evidence since the accused had not raised any objection with regard to the document Exh.-9 where the source of illegal connection to Harsiddhi Enterprise and the illegal method has been drawn as a sketch in the inspection report which itself is a proof of the theft of electricity by the accused himself. The signatures of the officers who were present on that day are on the checking form and there is an endorsement of giving the bill of electricity theft to the non-consumer at Exh.-9. Learned APP Ms. Bhatt submitted that the observation of the learned Judge is on appreciation of evidence on record and the document Exh.- 9 as well as Exh.- 20 are sufficient proof to the theft as contemplated under Section 135 of the ELECTRICITY ACT and therefore submitted that the conviction is just and proper which requires no interference of this Court. 9. Perused the documents and the report on the submission of learned advocates from both the sides. The complainant in his evidence stated that he had done the checking of the factory of Harshiddhi Enterprise and found direct connection from the electricity pole with the cable and the electricity supply was in progress when he had gone for the electricity checking. Initially he was alone and thereafter another 2 junior engineers had come there and other employees of the G.E.B. were the line staff. The complainant stated that at that time accused Kishorbhai was not present there but had come later on after some time. Initially he was alone and thereafter another 2 junior engineers had come there and other employees of the G.E.B. were the line staff. The complainant stated that at that time accused Kishorbhai was not present there but had come later on after some time. According to the complainant, Kishorbhai, the accused is the owner of the factory and the theft of the electricity was found and 22.75 horse powers electricity supply was being used. As per the complainant initially the electricity connection was legally given but prior to the present incident, earlier too were caught for the theft of the electricity and therefore, meter as well as the electricity connection wire were removed. 10. The complainant stated that when the electricity theft was done, on that day for the present case Harsiddhi Enterprise was not the legal customer. After the checking, they had filled up the checking sheet, Rojnama was drawn and the confession of Kishorbhai was received. The complainant produced in evidence the checking report in the hand writing of junior engineer identifying the signature of other witnesses in Exh-9. According to him, three copies were prepared of the checking sheet and one copy was given to the accused Kishorbhai. The Rojnama was prepared in two copies. The said Rojnama he produced in evidence at Exh-10. According to the complainant, at that time when the Rojnama was drawn, Ajaybhai Keshabhai was present and when they had gone there, Kishorbhai was not present there. Therefore as a representative of Kishorbhai, the signature of Ajaybhai Keshabhai Patel was taken. The witness also referred to the Kabulatnama of Kishorbhai. The Kabulatnama was put in evidence at Mark ‘A’ as the objection was raised to Exhibit the document. 11. The complainant further stated that while checking they had removed and had seized the wire through which directly the electricity supply was taken from the line and according to the documents they filed a police complaint. The complaint at Exh.11 was placed in evidence. As per the witness, there was an electricity theft of Rs.4,79,193.94 Ps. The bill was given to the accused. The consolidated sheet and the forwarding letter of the bill was produced in evidence at Exh. 12. 12. The complaint at Exh.11 was placed in evidence. As per the witness, there was an electricity theft of Rs.4,79,193.94 Ps. The bill was given to the accused. The consolidated sheet and the forwarding letter of the bill was produced in evidence at Exh. 12. 12. The witness produced evidence Exh-13, the checking sheet wherein he categorically stated that it does not bear the signature of the accused while the name of the consumer of the electricity supply is Harshiddhi Enterprise and the consumer’s signature was of Ramoliabhai. The said checking sheet he produced in evidence at Exh.-13. 12.1 The complainant PW-1 further stated that when he had gone for checking, he was all alone, Kishorbhai was not present there and when he had gone there the machineries were not in a working condition. However, the complainant voluntarily stated that when he put on the switch, all the machineries were found working. The handwriting in the Kabulatnama he stated was of Khut Saheb. During the course of cross-examination, the witness was put to the question whether they seek any permission of the superior officer prior for conducting any raid or for any electricity checking. The witness stated that it was not necessary. He further stated that he had not recorded in the checking sheet about the business of Harsiddhi Enterprise. 12.2 The cross-examination further notes that on 15.01.2004, there was a raid and again on 22.06.2004, a raid was conducted. No complaint was filed in connection with the raid of 15.01.2004. He denied the suggestion that since no complaint could be filed of the checking dated 15.01.2004 and therefore false checking was shown of 22.06.2004 for a false complaint. He also stated that no time has been shown in the complaint regarding the checking and also stated that no machinery was seized from the place. The checking area is not falling in the G.I.D.C. but it is the industrial area and there are many factories surrounding Harsiddhi Enterprise which were working for 24 hours. He had not kept present the persons of the surrounding place at the time of Rojkaam and he confirmed that the L.T. line from which the connection was given for the electricity supply, it was from that line, the electricity supply was given to other factories. He further stated that their employees are given 24 hours duty to repair the defect in the electricity supply line. He further stated that their employees are given 24 hours duty to repair the defect in the electricity supply line. The witness was put to question whether the lineman could get the knowledge of the illegal connection of electricity supply and that they would inform them for which he answered in affirmative. He was also put to question that the line man on duty has not been named in the complaint, to that, the complainant stated that it was not on the basis of some information of the helper or the lineman that the checking was done. He himself has done the checking and therefore no name of the lineman has been noted. 12.3 The witness further stated that he had not given the custody of the cable which he had seized from the place to the police and clarified that the cable is still in his custody and affirmed that such kind of cables are easily available from the market. He denied the suggestion that at the time of checking there was no raw-material found in the factory and has stated that he has not made any reference of the raw material in the complaint. Even no reference has been made in the Rojnama of any such raw material. He denied the suggestion that unless and until there is inspection of the machinery from the laboratory, it could not be said of the amount of usage of the horse power. He denied the suggestion that at the time of the checking, though accused was not present there, his signature was forged and a false complaint along with false Rojnama has been drawn to show his work. 12.4 The Investigating Officer, PW-2 – Atmaram Pawar has stated that he received the complaint on 17.09.2004 from P.S.O, Shri Javani who had registered the complaint. The complainant Jentibhai Maganlal Javani, Deputy Executive Engineer, Gondal, complaint dated 22.06.2004 was received. He found the case of electricity theft with the direct connection in the L.T. line to the factory, and he also refers to the Rojnama and the further statement of the complainant dated 29.09.2004. He had also recorded the statement of various other witnesses who were connected with the electricity board and also referred to the bill. The Investigating Officer had visited the place of offence and he found sufficient evidence and therefore had filed the charge-sheet. He had also recorded the statement of various other witnesses who were connected with the electricity board and also referred to the bill. The Investigating Officer had visited the place of offence and he found sufficient evidence and therefore had filed the charge-sheet. In the cross-examination, the Investigating Officer stated that he had not seized or taken any documentary evidence with regard to the ownership and possession of the accused for the factory in the name of Harsiddhi Enterprise. He also stated that the cable which was stated to have been seized from the place was not seized by him nor was given to him. 13. On appreciation of the evidence of both the witnesses, it could be noted that earlier the raid was conducted on 15.01.2004 of the same Harsiddhi Enterprise. At that time, the checking sheet did not bear the signature of the accused Kishorbhai while the customer who signed the checking sheet of Harsiddhi Enterprise was one Ramoliabhai. Mr. Ramolia has not been made an accused in the present matter. In these facts and circumstances, it was very much incumbent on the Investigating Officer to have received the documents of ownership of the factory of Harsiddhi Enterprise which was raided on 22.06.2004. 14. The learned Judge has placed reliance on the document Exh-20 to consider it as a confession. The complainant himself stated that the said document was in the hand-writing of Shri Khant. So, the voluntariness of the document becomes doubtful. Further, Exh.-20 does not admit to the theft of electricity. It would be considered as an acknowledgment for the payment of the amount as noted to be of electricity theft bill. 15. Section 135 of the ELECTRICITY ACT makes a proviso in sub section 1-A that the complaint has to be lodged in writing relating to commission of such offence in the police station having jurisdiction within 24 hours from the time of such disconnection. The raid was conducted on 15.01.2004. At that time, the electricity supply was disconnected. No complaint was filed on the basis of that raid. The illegal tapping of the electricity was found and the accused has been alleged of dishonest tapping with the cable wire joined to the electricity pole. However, the said cable wire has not been produced as an evidence on record. At that time, the electricity supply was disconnected. No complaint was filed on the basis of that raid. The illegal tapping of the electricity was found and the accused has been alleged of dishonest tapping with the cable wire joined to the electricity pole. However, the said cable wire has not been produced as an evidence on record. The presumption of the guilt of the unauthorised connection could be found only on the basis of such evidence brought on record. The burden would then shift on the accused to prove the defence regarding such electricity theft. No such cable wire though said to be taken in custody is produced on record. The burden therefore would not have been shifted on the accused, without the primary evidence brought on record of illegal tapping of the electricity. The raid of 15.01.2004 showed the owner of Harsiddhi Enterprise one Ramoliabhai. In that circumstances, the complainant was required to prove the ownership of the present accused of the factory of Harsiddhi Enterprise. The person who was present there was Ajay Keshabhai on 22.06.2004. No statement of Ajay Keshabhai has been recorded nor Ajay Keshabhai has been examined as a witness to contradict the possession of the factory. The learned Judge relies on the confession at Exh-20. It is obvious that it is in the handwriting of officer Shri Khant. The signatures on the Rojnama as well as document Exh. 20 could be assumed to have been taken later on, as the complainant himself states that the accused was not present there. This fact further becomes clear as the complaint was filed before the police only on 17.09.2004 i.e. after a delay of almost three months where the provision mandates the complaint to be filed within 24 hours of such detection of theft of electricity. The prosecution had failed to prove the case against the present appellant beyond all reasonable doubt. The accused being the owner or in occupation or the Manager of the Harsiddhi Enterprise had not been proved. Further, no complaint has been filed with regard to the raid which was conducted on 15.01.2004. On 22.06.2004, the accused was not actually the consumer of the electricity board, then it was very much necessary to prove his connection with the Harsiddhi Enterprise by some reliable documents to connect him with the premises. Further, no complaint has been filed with regard to the raid which was conducted on 15.01.2004. On 22.06.2004, the accused was not actually the consumer of the electricity board, then it was very much necessary to prove his connection with the Harsiddhi Enterprise by some reliable documents to connect him with the premises. On appreciation of the evidence, the Court considers that the prosecution has failed to prove the case. 16. In the result, the appeal is allowed. The judgment and order of conviction dated 31.01.2006 passed by the learned Additional Sessions Judge, Rajkot in Special Criminal Case No.1 of 2004 is set aside. The appellant is acquitted. Record and Proceedings be sent to the concerned Court.