IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MRS.JUSTICE RATHNAKALA CRIMINAL APPEAL NO.776/2009 BETWEEN:
D.GOPINATH REDDY SON OF D.THIMMI REDDY AGED ABOUT 38 YEARS RESIDING AT NO.57, 3RD MAIN VTH CROSS, B.S.K. 3RD STAGE BANGALORE – 560 085. …APPELLANT (BY SRI S.SHANKARAPPA, ADV.) AND:
STATE OF KARNATAKA-REPRESENTED- BESCOM (VIGILANCE) KOLAR REPRESENED BY S.P.P.
HIGH COURT BUILDING BANGALORE. …RESPONDENT (BY SRI NASRULLA KHAN, HCGP.) THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 5.9.2009 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, KOLAR IN E.A.C.C. NO.41/2008 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 135 OF ELECTRICITY ACT, 2003 AND SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR ONE YEAR SIX MONTHS OR TO PAY FINE OF RS.17.01.771=00 (RUPEES SEVENTEEN LAKH ONE THOUSAND SEVEN HUNDRED AND SEVENTY ONE ONLY).
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant (A-2) is convicted by the Trial Court for the offence under Section 135 of the Electricity Act, 2003. The FIR is of the year 6.5.2008.
2. Learned counsel for the *appellant submits that the offence under Section 135 of the Electricity Act, 2003 is punishable with imprisonment for a term which may extend to 3 years or with fine or with both. Since the prosecution has not adduced evidence to assess the loss and PW-5 who had assessed the loss was not tendered for cross examination, the sentence may be mitigated to fine instead of imprisonment as ordered by the Lower Appellate Court.
3. The learned Government Pleader submits that in case conviction is maintained, modification of the sentence shall commensurate to the loss caused by the alleged offence. As per the case of the prosecution, 66,644 units of electricity is the loss caused. Cost of each unit is Rs.4.05 and thus the loss caused is Rs.2,69,908/- and the punishment as per Section 135(1) proviso of the Electricity Act, 2003 shall be not less than three times of the financial gain i.e. Rs.8,09,724/-.
4. Perused the lower Court records. By working out the financial loss at 3 times of the value of the electricity units stolen, the BESCOM had demanded Rs.5,67,257/- plus compounding charge at Rs.3 lakhs, which the *appellant, conveniently shut eyes.
5. The Special Judge vide judgment impugned has imposed imprisonment of one year six months or a fine amount of Rs.17,01,771/-. No purpose would be served at this length of time by sending him behind bars if a fine amount which commensurate with the gravity of offence can be imposed. While complying with the interim order of this Court, he has deposited Rs.7,50,000/- in the Court. The offence is of the year 2008 and now he is giving up challenge to the judgment of conviction and seeking modification of the order of sentence.
6. Having regard to the above circumstance, the *appeal is allowed in part. While maintaining the judgment of conviction passed by the I Addl. Sessions Judge, Kolar, dated 5.9.2009 in EACC No.41/2008, the punishment is modified by imposing fine of Rs.9,00,000/- only. The punishment of imprisonment for one year six months is set aside. The amount of Rs.7,50,000/- in deposit before the Special Court shall defray the fine amount and difference of fine amount shall be paid by the *appellant within 30 days, in default, he shall undergo simple imprisonment for a term of three months.
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JUDGE * Corrected vide chamber order Dated 7/9/2017.