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2025 DIGILAW 983 (GUJ)

Dulabhai Nagjibhai Kakadiya v. State of Gujarat

2025-09-04

GITA GOPI

body2025
JUDGMENT : GITA GOPI, J. 1. The appellant has given challenge to the impugned judgment under Section 374 of the Code of Criminal Procedure, 1973 , (for short ‘ Cr.P.C .’), who is an accused convicted on 05.05.2012 by the Second Additional Sessions Judge, Surat in Special Electricity Case No.120/2010 for the offence punishable under Section 135 (1) of the Electricity Act, 2003 , and was sentenced to six months simple imprisonment and was ordered to pay a fine of Rs.1,65,000/- with default stipulation to undergo three months simple imprisonment in non-payment. 2. The facts of the case, as could be noted that the complainant – Hasmukhbhai Bhikhabhai Modi along with Mr. Umeshkumar Gulsanbhai Patel, Deputy Engineer of Ankleshwar Division and Mr. Arvindbhai Narsinhbhai Galchar, Junior Engineer, Ankleshwar Division in Gujarat Electricity Board visited the agriculture premises at village Dinod, Taluka Mangrol on 20.10.2004 and found the appellant illegally using electricity by using three core wire passing through opening the M.M.B. Box and by-passing the meter had made a joint with incoming as well as outgoing cable with the wire applying a tape, and thereby was found to be in theft of electricity. 2.1 The complainant stated that the checking sheet was prepared by the officer of the Electricity Company and the Deputy Engineer, Kosamba (Rural) Sub-division had issued supplementary bill for the amount of Rs.81,879/-. The complaint came to be registered as C.R. No.II-102/2004. 3. Learned advocate Mr. Rutvij S.Oza for the appellant submitted that the impugned judgment and order of the learned Trial Court is not consistent with the evidence on record and suffers from infirmity, conjunctures and surmises. The complainant himself was not sure about the place of offence, who admitted of preparing the check list, however, failed to prepare any panchnama for the recovery of alleged muddamal, which had stated to be illegal use by the appellant. 3.1 Advocate Mr. Oza submitted that the prosecution witness though, admits of taking the cable wire and other material from the place of incident, had not sent it to the police station to be made as Muddamal for trial, and in absence of the alleged articles, learned advocate Mr. Oza submitted that the offence cannot be said to be proved. 3.2 Mr. Oza submitted that the prosecution witness though, admits of taking the cable wire and other material from the place of incident, had not sent it to the police station to be made as Muddamal for trial, and in absence of the alleged articles, learned advocate Mr. Oza submitted that the offence cannot be said to be proved. 3.2 Mr. Oza, learned advocate submitted that the checking list, calculation sheet and the supplementary bill though, have been produced, would not substantiate the fact of alleged offence in absence of panchnama since, no independent person would have verified the act of the prosecution witnesses. 3.3 Advocate Mr. Oza submitted that the prosecution case is that the appellant had committed theft by, by-passing the installed meter situated in the room at the agriculture premises, but the testimony of the prosecution witnesses would not clarify the fact whether, actually the meter was installed. Mr. Oza submitted that the noticeable fact also comes on record that the appellant himself had addressed a letter dated 06.08.2003 to the office of the Electricity Board informing of the meter being burned and for installing a new meter, and the letter had been produced on record as Mark-A, however, no cognizance was taken by the Electricity Board and suddenly without any reason a raid had been conducted, which Mr. Oza submitted would appear as a motivated inspection. 3.4 Learned advocate Mr. Oza further submitted that being an agricultural land it would be in open place, and the connections would be of various agricultural land owners, with electricity pole and therefore, it was very much necessary to record the statements of the neighboring agriculturists, and in absence of the said fact the act of prosecution witnesses could not be proved since, the F.I.R. denotes the place of incident as Dinod, while the deposition of the witnesses would state the place as Boridra, and when no documentary evidence with regard to ownership of the agricultural land had been procured during the inspection or by the Investigating Officer, it cannot be proved beyond reasonable doubt that the raid was conducted on the agricultural land of the accused. 3.5 Learned advocate Mr. 3.5 Learned advocate Mr. Oza further stated that the evidence of prosecution witness No.4 suggests that they had entered the agricultural premises on some telephonic instruction of the superior, where there was actually no written order to go for inspection and thus, submitted that the raid should be considered as illegal. 3.6 In absence of direct connection of the appellant by way of ownership of the land and even when the witnesses could not specify the village and when the muddamal had not been produced during the trial by way of any recovery panchnama, and in absence of independent witnesses, learned advocate Mr. Oza submitted that the conviction is required to be set aside. 4. Countering the arguments, learned APP Mr. Rohan Kumar Raval submitted that the charge was to the effect that on 20.10.2004, the appellant was found red handed by the complainant and witnesses of electricity theft, which was noted that the accused though was a non-consumer of the G.E.B. by-passing the meter, he was found in theft of the electricity valued as Rs.81,879/-, hence, thus was to be tried under Section 135 (1) of the Electricity Act. 4.1 Learned APP Mr. Raval referring to the complaint submitted that the complainant as well as witnesses had found in village Dinod, while checking that the Agricultural Connection No.13513/60046/1 50 Hrs. Power in a room M.M.B. was fit and therein three phase wire was set with Serial No.442191 of Alimore Company, and on removing the lid of M.M.B., as noted in the checking list and as per the diagram No.B.R.H.A.O.L.T. No.955, there was no wiring from the meter terminal block and the incoming cable was of yellow colour, whose three phase wires and outgoing wires which was of load size, had a direct connection. 4.2 Learned APP Mr. Raval submitted that M.M.B. was joined and the yellow colour tape was used by-passing the meter and thereby the electricity theft was noted and adopting the formula for calculation of the electric theft, the bill to the tune of Rs.81,879/- was accounted. Mr. Raval further stated that merely paying the fine amount would not exonerate the person from the offence and the presence of the accused at the place of raid itself would prove the ownership and therefore, submitted that no separate document would be required. 5. The prosecution examined the complainant – Hasmukhbhai Bhikhabhai Modi along with Mr. Mr. Raval further stated that merely paying the fine amount would not exonerate the person from the offence and the presence of the accused at the place of raid itself would prove the ownership and therefore, submitted that no separate document would be required. 5. The prosecution examined the complainant – Hasmukhbhai Bhikhabhai Modi along with Mr. Umeshkumar Gulsanbhai Patel, Deputy Engineer as P.W.4, Mr. Arvindbhai Narsinhbhai Galchar, Junior Engineer, as P.W.5 and P.S.O. - Laxmanbhai Bankarbhai as P.W.2. The Investigating Officer was Sakharambhai Dhondubhai (P.W.3). 6. The deposition of the complainant notes that he was Deputy Engineer at Kosamba Sub-division and on 20.10.2004 along with officers of the Company had gone at village Dinod, Kosamba Sub-division, while inspecting the agricultural connection of Bhulabhai Nagjibhai, they found three core wire set opening the lid of the M.M.B. box, and straight connection of the incoming and outgoing wire by-passing the meter, thus theft of electricity was noted. Therefore, by cutting the cable wires and removing the meter, they further initiated the proceeding and the witness stated that cable and the wires were deposited before the Kosamba Sub-division and a complaint was given on 21.10.2004 with G.E.B. Police Station. 6.1 The witness has referred to the checking list, electricity bill and by referring to Exh.13 stated that at the place by paper seal the meter was seized. The paper seal bears his signature as well as signature of the customer. He has also referred to Exh.14 as checking list, stating that accused had already paid the bill amount. 6.2 In the cross-examination, the witness has affirmed that if for any reason accidentally the meter gets burned, then the internal wire would ultimately get burn. He denied of knowing that accused had informed about the meter burning by addressing a letter dated 06.08.2004. The witness was shown the letter, however, in absence of endorsement of their office and as the letter was not having any signature of the officer, it could be produced as Mark-A, but could not be adduced in evidence. The witness deposition notes that bill given was for considering theft for the period of six months. Hence, affirmed that no statement of the neighbouring agriculturist was recorded and has also affirmed that no panchnama was drawn for recovery of wire as well as meter. The witness deposition notes that bill given was for considering theft for the period of six months. Hence, affirmed that no statement of the neighbouring agriculturist was recorded and has also affirmed that no panchnama was drawn for recovery of wire as well as meter. In the cross-examination, the witness has further stated that they had not seen on their own of any person applying wires for the purpose of theft. 6.3 The complaint was given to P.S.O. (P.W.2), who had affirmed of registering the same on 28.10.2004 and Entry No.7 was recorded, and further the investigation was handed over to A.S.I. 7. Section 135 of the Electricity Act mandates under proviso to sub-section (1A) that the complaint has to be registered within a period of 24 hours of disconnection. The complainant does not state in his evidence that he had personally gone to the G.E.B. Police Station with the complaint. P.S.O. does not state that on 21.10.2004, the complainant had come with the complaint along with check list. The Station Diary Entry No.7 placed on record by the witness, notes the date of giving information as 28.10.2004, which is at Exh.19. Thus, the very fact clears that though the complainant stated that it was of 21.10.2004, Exh.19, clarifies that the information of the incident was given only on 28.10.2004 at 14:30 hours. The place of incident is shown as Dinod village, thus, the complaint itself gets hit by the provision of Section 135 of the Electricity Act. 8. P.W.3 is Investigating Officer, who also states that he had received the complaint on 28.10.2004, which was registered by P.S.O. - Laxmanbhai Bankarbhai (P.W.2) and on 29.10.2004, he had gone to sub-division and recorded the statement of Hasmukhbhai Bhikhabhai Modi, Mr. Umeshkumar Gulsanbhai Patel and witness Mr. Arvindbhai Narsinhbhai Galchar and arrested the accused on 04.11.2004 to be produced before the Court. 9. In the cross-examination, the witness as Investigating Officer had admitted that neither he had drawn panchnama of the place of offence, nor he seized any muddamal for the trial, nor he had recorded the statement of any neighbours. Except the statements of the employees of G.E.B, he has not recorded the statement of other individual, and he had no any material to show his visit to the place of incident. Except the statements of the employees of G.E.B, he has not recorded the statement of other individual, and he had no any material to show his visit to the place of incident. The Investigating Officer had affirmed that he had not secured report of laboratory regarding the meter theft, which is an important component in the present matter, where the allegation is non-use of the meter. 10. P.W.4 is Deputy Engineer, who affirmed that he had gone at the place of incident on telephonic instruction, where too he had stated about by-passing the meter and taking electricity connection and observed electric theft. However, learned advocate Mr. Oza has drawn the attention of the Court to the statement of P.W.4, who does not state of Dinod village, but he stated that they had gone for checking at village Boridra. He had referred to the checking sheet, which was in the hand writing of Arvindbhai. He had also referred in his deposition about the sketch, which was drawn and of the paper seal, where there were signatures of the complainant as well as accused. They had gone under the oral instruction of the superior officer. It appears from the cross-examination that they had gone only on that day for checking of village Boridra, and that too according to him, was only for the present appellant as an accused. The witness stated that they had gone as a special work on that day. However, they did not find it fit to keep police with them nor they had informed the police. The witness does not recollect about the meter room nor does he recollect about the usage of the electricity while checking, nor had they noted about any such thing in the checking sheet. 10.1 P.W.4 stated that he had not given any statement before the police regarding supply of the electricity on that day. They had taken along with them a helper. He had also affirmed that panchnama had not been drawn. The sketch, which had been drawn in the checking sheet was a technical aspect. The witness stated that they had not examined the meter on that spot and had not verified whether the meter was in working condition or was damaged. The difference of the signature of the accused, which is in full form as well as initial was brought to the notice of the witness. 11. The witness stated that they had not examined the meter on that spot and had not verified whether the meter was in working condition or was damaged. The difference of the signature of the accused, which is in full form as well as initial was brought to the notice of the witness. 11. P.W.5 also could not state that it was the inspection at village Dinod. While, according to him, he along with other witness and the complainant had gone to village Boridra. The witness stated that there was no wiring in the meter. The cable connection was not joined with the meter to note any power supply. After recording the check list and by taking the signature of the accused and the signature of all the officers, the witness stated that the electric connection from the electric pole was disconnected and the cable wire, meter box and the meter were seized and on the meter box there a paper seal. 11.1 The cross-examination could bring the fact on record that his statement does not reflect the time of raid nor has stated of any electric supply in progress at the time of checking. The witness had not verified, as to who had done the electricity connection and the plastic seal was placed on the box. The witness had no information, as to who had received the custody of the meter and the wire. The witness had stated that he studied for drawing sketch and had also affirmed of not drawing the panchnama and not taking the statements of the neighbouring agriculturists. 12. The overall analysis of the evidence would suggests that no written instruction of the superior officer has been placed on record. The complaint has not been filed within 24 hours of disconnection of the electric supply. The witnesses as Deputy Engineer (P.W.4) and Junior Engineer (P.W.5) are not even sure of the village, where they had conducted the inspection. No documentary evidence has been placed on record to show ownership of the agricultural land of the accused. 13. The cable wire as well as meter, which were seized had not been produced as muddamal during the trial. No documentary evidence has been placed on record to show ownership of the agricultural land of the accused. 13. The cable wire as well as meter, which were seized had not been produced as muddamal during the trial. No presumption could be drawn against the accused since such alleged instruments had not been made a part of the trial and when the alleged muddamal as were procured, and if it does not become the muddamal during the trial, then the burden would not shift on the accused to rebut any such presumption of electricity theft. In absence of independent witnesses from the neighbourhood and the failure of the prosecution witnesses to draw recovery panchnama, it cannot be said that the prosecution has proved the case against accused beyond reasonable doubt. The electricity theft has to be proved by way of producing muddamal as well as by proving the ownership of the accused to the alleged land in question. 14. In absence of the evidence on record and on analysis of the documentary evidence and ocular evidence of the witnesses, this Court considers that the learned Trial Court Judge has committed an error in convicting the accused, and merely on assumption, the conviction has followed. 15. In the result, the appeal is allowed. The conviction and sentence of the accused passed by the Second Additional Sessions Judge, Surat vide judgment and order dated 05.05.2012 in Special Electricity Case No.120/2010 is set aside. The appellant is acquitted from all the charges. Bail bound stands discharged. Registry is directed to send Record and Proceedings back to the concerned Trial Court forthwith. 16. It is further ordered that if the electricity bill amount is not paid, then the fine, as ordered of Rs.1,65,000/-, be appropriated against that. In that case, G.E.B. is entitled to claim the money. However, if the accused has paid the electricity bill amount, then the fine amount, noted to have been deposited as Rs.1,65,000/- be returned back to the appellant-accused.