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2025 DIGILAW 946 (GUJ)

Rajnibhai Khimjibhai Chavda v. State of Gujarat

2025-09-01

GITA GOPI

body2025
JUDGMENT : GITA GOPI, J. 1. Criminal Appeal under Section 374 of the Code of Criminal Procedure , 1973 challenges the judgment and order of conviction and sentence dated 2.2.2008 passed by the Special Judge, Fast Track Court no.1, Surendranagar in Electricity Special Case no.154 of 2007, which was under Section 135 of the Electricity Act , 2003 (hereinafter referred to as “the Act” for the sake of brevity), whereby the appellant as an accused came to be convicted and sentenced to one year rigorous imprisonment with fine of Rs.1,93,431/- and with default stipulation to undergo six months simple imprisonment. The fine amount was ordered to be paid to PGVCL. 2. Learned advocate Mr. Satyen B. Rawal for the appellant has submitted that the observation of the learned Trial Court Judge is contrary to the evidence on record. The learned Judge has not followed the rules of burden of proof ignoring the very vital aspect going to the root of the matter, which reflects the lacunae in the prosecution case. 3. Advocate Mr. Rawal has submitted that the learned Trial Court Judge has not made any equitable analysis of the evidence on record and has merely reiterated the deposition of the complainant and further submitted that the Rojkam in checking sheet at Exhs.10 and 11 does not indicate as to who was present at the time of the alleged raid while the accused had clarified by way of his statement under Section 313 of the Code of Criminal Procedure , 1973 as well as the documents on record to suggest that on the date of the raid, the accused was not present at the place of the incident and that he was attending the marriage ceremony of his cousin brother and sister of Village Baldana and though the fact had come on record, the learned Trial Court Judge has failed to appreciate the same and failed by coming to erroneous conclusion of observing that the prosecution has proved the case while the accused could not bring any evidence to challenge the prosecution case. Advocate Mr. Rawal submitted that the provision of Section 135 of the Act has not been followed. Further, the evidence with regard to ownership of the house of Mr. Jaga Bharvad has not been brought on record, nor the relation of the accused as a tenant with Mr. Advocate Mr. Rawal submitted that the provision of Section 135 of the Act has not been followed. Further, the evidence with regard to ownership of the house of Mr. Jaga Bharvad has not been brought on record, nor the relation of the accused as a tenant with Mr. Jaga Bharvad has not been verified, nor any documentary evidence has been produced to prove the possession and occupation of the present accused. Learned advocate Mr. Rawal further stated that the raiding officer was required to give the complaint within twenty four hours of the disconnection of the electricity supply and the alleged Muddamal seized were required to be submitted before the police, which do not get reflected from the evidence of the complainant as well as from the evidence of the investigating officer. Advocate Mr. Rawal submitted that no evidence is produced on record to connect the accused for the alleged act of theft of electricity or for illegal tapping of the electricity from any of the electrical pole of the PGVCL. 4. Advocate Mr. Rawal further stated that the checking sheet does not name the person who was in the representative capacity of the accused, where the checking sheet as well as the Rojnama do not disclose or rather clarify that the accused was non-consumers and thus, stated that the checking sheet does not bears the signatures of any representative of the accused and further the checking list or Rojnama do not show any sketch to demonstrate the illegal method used for tapping of the electricity. Advocate Mr. Rawal submitted that non-examination of the owner of premises in question may be fatal in wake of the fact that the appellant was not present at the place during the time of the raid. Mr. Rawal further stated that the police witness does not depose that he had collected the seized articles, which are alleged to be black and red colour wire of 30 mtr., which has been alleged to be in direct connection with the low pressure electricity line and thus, submitted that the prosecution has failed to prove the case against the accused and therefore, submitted to set aside the conviction and sentence. 5. Per contra, Ms. 5. Per contra, Ms. Monali Bhatt, learned APP, referring to the checking list and the Rojnama, charge framed by the learned Trial Court along with the deposition of the complainant and the investigating officer, submitted that the complainant PW1 was authorized to conduct the raid and as per the Rojnama, the Helper – Chudasama was present and on the place of incident, the illegal electricity connection was found with the use of black and red colour 30 mtr. wire, which was attached to low pressure line and the electrical appliances as used and 540 watt theft was alleged. Learned APP further stated that the deposition of PW1 as the complainant was believed by the learned Trial Court Judge and nothing has come on record to counter the case of the prosecution and when the complainant had no reason to frame the accused, the conviction and sentence is required to be upheld. 6. The deposition of PW1–Bharatkumar Prathmeshkumar Shrimali shows that on 20.1.2006 under his duty at Joravarnagar Sub Division had visited the house of Jaga Bharvad, which was besides the house of Raiya Bharvad behind the railway station and according to the complainant, the present appellant - accused was residing there and while checking the place, the complainant found that there was no legal connection for the electricity supply of PGVCL and found illegal electricity line, which was tampered with black and red colour 30 mtr. direct connection and the illegal use of the electricity of tubelight, four fans and two lamps, with total theft of 580 watts was found by him and thus, he made Rojnama and the check list. According to the complainant, the female representative was present who denied to sign the check list and the neighbours though were called for as a Panch, none had remained present and therefore, they had no other option, but to record Rojnama, check list of the accused as non-consumer, but also records that the female representative was there who denied to sign the check list. The things which were observed to be seized from the place was black and red colour 30 mtr. wire. Apart from that, no other thing was seized from the place. The supplementary bill of Rs.64,470/- was computed and accordingly, the complaint was sent by RPAD. The witness was shown Exh.9. The complaint was sent by RPAD. The things which were observed to be seized from the place was black and red colour 30 mtr. wire. Apart from that, no other thing was seized from the place. The supplementary bill of Rs.64,470/- was computed and accordingly, the complaint was sent by RPAD. The witness was shown Exh.9. The complaint was sent by RPAD. The complainant has failed to produce the postal slip to substantiate that the complaint was sent by RPAD, nor the acknowledgment slip has been produced regarding the receipt of the complaint. The raid was conducted on 20.1.2006. The proviso to sub-section (1)(a) of Section 135 of the Act mandates the lodging of the complaint in writing relating to the commission of offence in the police station having jurisdiction within twenty four hours from the time of disconnection of the electricity supply. The complainant has not produced any record to fortify the fact that the complaint was given within twenty four hours of the disconnection. Exh.9 was sent by RPAD. It would be obvious that Muddamal would not have been sent with the complaint, which is alleged is 30 mtr. black and red wire. In absence of Muddamal and non-production of it would not shift the burden on the accused and no presumption could be drawn of such illegal tapping of electricity with low pressure electricity pole. Further, the check list does not show accused presence at the place of the incident, where the premises was in the occupation and possession of the accused has not been verified by the investigating officer. PW2– investigating officer – Navalkishore Bhikhalal Joshi on receiving RPAD, registered the complaint as II-CR no.346/06 under Section 135 of the Act and thereafter, states of recording the statement on 13.3.2006, the complainant and the Helper on that day, with the arrest of the accused as per the testimony. The investigating officer has not visited the place of incident, nor has he recorded statement of any independent person or any person from the neighbourhood, nor has he collected any evidence to verify that the accused was staying at the alleged premises, nor his identification parade was held. The investigating officer does not refer to any Muddamal in the form of the alleged wire. He affirms that he was not present during the time of the check list or when the Rojkam was drawn. The investigating officer does not refer to any Muddamal in the form of the alleged wire. He affirms that he was not present during the time of the check list or when the Rojkam was drawn. It is very strange to note that the complainant identifies the accused in the Court and there was no identification parade conducted, nor the complainant had any occasion to see the accused at the place of incident, further who was the representative at the place of incident has also not been verified or investigated by the investigating officer. The connection of the accused with the premises has not been proved. In further statement, the accused has produced a copy of the marriage invitation card to prima facie show on record that there was some marriage ceremony on 20.1.2006. It also becomes very strange to note that neither the complainant nor the investigating officer has brought on record the legal connection of the owner of the premises which in this case is Jaga Bharvad, whether he was consumer of PGVCL has not been proved. Further, Jaga Bharvad has not been examined as witness in the matter. Though there were glaring defects in the prosecution case as argued by learned advocate Mr. Raval, the learned Judge without entering into detailed examination of the evidence, has convicted the accused. The learned Judge has also failed to examine the matter as per Section 135 of the Act, where the complaint is mandated to be filed within twenty four hours. The raid was conducted on 20.1.2006, but the investigating officer states that he has received the written complaint on 4.2.2006. The delay has not been explained. The statement of the complainant was recorded after a long time and more specific to note as per the investigating officer on 13.3.2006. The raid as mandated under Section 135 of the Act, should be in presence of the occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list. Here the statement of Jaga Bharvad was not recorded, nor Jaga Bharvad was made to witness the raid in process, none of the neighbours have remained present, nor anyone was willing to witness the proceedings or to put their signature on the check list or the Rojkam. The representative was noted to be some lady, however, no name of the person who is alleged to be the representative has been recorded in check list more so the seized article as alleged that it was used for illegal tapping of the electricity with low pressure electricity pole has not been produced on record to prove the alleged act of the accused. 7. In view of the above observations and analysis of the evidence on record, this Court is of the opinion that the learned Trial Court Judge has been erroneous in reaching the conclusion to convict the accused. Consequently, the judgment and order of conviction and sentence dated 2.2.2008 passed by the Special Judge, Fast Track Court no.1, Surendranagar in Electricity Special Case no.154 of 2007 is set aside. The appeal is allowed. The appellant is acquitted of all the charges. Bail bond discharged. Registry is directed to send the record and proceedings back to the learned Trial Court, if received.