IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1153 OF 2010 BETWEEN:
Sri. K.V.Shekar S/o. Late Venkataramanashetty, Age:40 years, R/o. Kanagalu Village, Periyapatna Taluk, Mysuru District. ...Appellant (By Sri. P.Chandrashekar, Advocate) AND:
The State of Karnataka, (through CESC(Vigilance), Mysuru) Represented by its State Public Prosecutor, High Court of Karnataka, Bengaluru. ...Respondent (By Sri. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order of conviction and sentence dated:07.09.2010 passed by the I Addl. Sessions & Spl. Judge, Mysuru in Spl.C.No.23/07-convicting the appellant/accused for the offence punishable under Section 135 and 138 of Electricity act. The appellant/accused is sentenced to undergo S.I. for one year and pay a fine of Rs.5,000/- in default of payment of fine he shall undergo S.I. for six months – for the offence punishable under Section 135 of Electricity Act. The appellant/accused is sentenced to undergo S.I. for one year and pay a fine of Rs.5,000/- in default of payment of fine he shall undergo S.I. for six months –for the offence punishable under Section 138 of Electricity Act. The period of substantive sentence of imprisonment awarded to accused shall run concurrently. The appellant/accused prays that he be acquitted.
This Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The present appellant who was accused No.1 in Special Case No.23/2007 before the learned I Additional Sessions and Special Judge at Mysuru (hereinafter for brevity referred to as ‘Special Court’) has challenged the judgment of the said Court dated 07.09.2010, wherein the Special Court has convicted him for the offences punishable under Sections 135 and 138 of the Electricity Act, 2003 (hereinafter for brevity referred to as ‘Electricity Act) and sentenced him accordingly.
2. The summary of the case of the prosecution is that on 14.03.2006, Sri.Aftab Ahmed, then Assistant Executive Engineer of Vigilence, Chamundeshwari Electrical Supply Company (hereinafter for brevity referred to as ‘CESC’), Mysuru along with his squad and panchas visited an establishment by name Sri Venkatehwara Rice Mill situated at Kanagala village within his jurisdiction and owned and run by the present appellant / accused No.1. After verification of the electrical installation, there he noticed that the said rice mill was running with a connected load of 65 HP and load of 200 Watts and using CESC electricity. It was also noticed that the power supplied to the said rice mill was unauthorisedly extended by energising 11 KV newly erected line by providing fuses, wires and closing the G.O.S of 100 KVA Transformer and the power supply was extended from the unauthorisedly charged transformer to the installation through the underground cable of length of 175 feet with three phase connectivity.
It is also the summary of the case of the complainant that accused No.1 being the owner of the said installation ie., the rice mill had made his application for supply of 66 HP electricity to his rice mill to CESC. In that connection, an estimation was done and line was drawn and the transformer was installed. However, energising of the transformer and installation of the meter in the premises of accused No.1 was not yet done. The accused with the aid of electrical contractor had illegally charged the transformer, energised the line, extended power supply and illegally utilisaing the same by unauthorised direct connection and thereby committed the theft of electricity of 3652 units valued at `23,480/- approximately. The respondent – police (Vigilence Police Station of CESC) registered the said complaint given by PW8, in their station Crime No.56/2006 for the offences punishable under Sections 135, 138 and 150 Electricity Act. After completion of the investigation, the respondent - police filed charge sheet against four accused for the offences punishable under Sections 135, 138 of Electricity Act.
3. The Special Court framed the charges against all the four accused for the offences punishable under Sections 135 and 138 of the Electricity Act r/w Section 34 of Indian Penal Code, 1860 (hereafter for brevity referred to as ‘IPC’).
4. Since, the accused pleaded not guilty, trial was held, wherein the prosecution in order to prove the alleged guilt against the accused examined 11 witnesses from PWs.1 to 11 and got marked documents from Exs.P1 to P9 and material objects at MOs.1 to 3. Neither any witness was examined nor any documents were marked as exhibits from the accused side. During the pendency of the matter in the Special Court, accused No.2 – Eranna was reported to be dead, as such, the case against him stood abated. The Special Court by its impugned judgment acquitted accused Nos.3 and 4 of the alleged offences. However, it convicted accused No.1 for the offences under Sections 135 and 138 of the Electricity Act and sentenced him accordingly. Challenging the said judgment of conviction and order on sentence, accused No.1 has preferred this appeal.
5. Learned counsel for the appellant in his argument as a first point submitted that admittedly, the information about the alleged crime was lodged by PW8 before the vigilance police station, as such, the information was given to a police authority and investigation was conducted by them which resulted them filing a charge sheet against the accused which is against Section 151 of the Electricity Act. He further submitted that since the proviso to said section was added by an amendment with effect from 15.06.2007 and alleged incident in the instant case was taken place on 14.03.2006 which was much prior to the said amendment, the entertainment of the application or the complaint by the police officer and the investigation conducted by him and filing of the charge sheet under Section 173 Cr.P.C is bad in the eye of law.
6. Learned High Court Government Pleader in his argument relied upon a decision of the Hon’ble Apex Court in the case of Vishal Agrawal Vs. Chhattisgarh SEB reported in (2014) 3 SCC 696 and submitted that the amendment of the said Section in the form of addition of proviso was only clarificatory in nature as held by the Hon’ble Apex Court, the implementation of the said proviso is retrospective in nature, as such, the argument of the learned counsel for the appellant on the point is not acceptable.
7. Section 151 of the Electricity Act prior to the amendment which is with effect from 15.06.2007 read as below:
“151.Cognizance of offences – No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose;”
8. By virtue of amendment in the form of insertion with effect from 15.06.2007, the following two provisos were added to the said section which adds as below:
“Proviso 1: Provided that the Court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973;
Proviso 2: Provided further that a special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.”
9. In the absence of the proviso, though from a bare reading of the Section it gives an impression that the complaint in writing by an authorised person is a requirement, but a careful reading of the said section would go to show that said section is not taking away the general power of the police officer to investigate into the matter involving cognizable offence. When a similar question came up before the Hon’ble Apex Court in Assistant Executive Engineer Vs. Satyendra Raj reported in (2014) 4 SCC 513, the Hon’ble Apex Court was pleased to hold that the amendment to Section 151 of the Electricity Act in the form of insertion of first proviso was brought in the year 2007 with effect from 15.06.2007 enabling the Court to take cognizance of the offences punishable under the Electricity Act upon police report filed under Section 176 of Cr.P.C, still the said proviso is clarificatory in nature. The Hon’ble Apex Court also observed that the said proviso applies even to pending matters and with retrospective in the pending matters.
10. Referring to the said judgment in Satyendra Raj’s case (supra), the Hon’ble Apex Court in its subsequent judgment in Vishal Agraval’s case (supra) observed that not withstanding the provisions of Section 151 of the Electricity Act, FIR could be filed with the police. It also held as observed in Sathyendra Raj’s case (supra) that the first proviso to Section 151 of the Electricity Act is retrospective in nature.
11. Since, these two judgment of the Hon’ble Apex Court have settled the question of law involved on the point, the first point of argument of learned counsel for the appellant that the police officer had no authority to file a report under Section 173 of Cr.P.C. is not acceptable.
12. The other points of argument of learned counsel for the appellant is that the prosecution has failed to prove that there was any theft of electricity and there was any charging of transformer which was on the other side of the road. He also submitted that the alleged energising of transformer is also not proved. For that aspect, the evidence led before the Special Court by the prosecution witnesses may be required to be looked into.
13. According to the prosecution, among the 11 witnesses examined, in which the raiding team consisted of PWs.1, 2, 3, 8, 9 and 11.
14. PW8 – Aftab Ahmed, then Assistant Executive Engineer of Vigilance Section in CESC, in his evidence has stated that on 14.03.2006 joined by his vigilance team including Police Constable Sri.Govindaraju inspected the rice mill installation of accused No.1 at Kanagalu village and inspected the electrical installation there. Even though the said industrial installation was not given official electric supply, still the said unit was running unauthorisedly drawing a direct electrical connection. There was no installation of electric meter in the unit. PWs.1, 2, 3 were also accompanied in the said raid.
15. The witness has further stated that when they opened a box like structure with inverted T shape fixed in the unit, they noticed that an unauthorised connection was given to Bus Bar Box and then through distribution box. From the said distribution box, the machineries including two paddy polisher each of 20 HP capacity, one rubber sheller of 10 HP, four elevator Motors each of 1 HP, two blowers, two spencer, one paddy cleaner and one de stoner were electrically connected with. The total load of all these machineries were coming to 65 HP. The unit also had five tube lights. There was storage of paddy and rice amounting to 300 bags in the mill.
Witness further stated that when they inspected about the electrical supply to these machineries they noticed that they had drawn an underground cable from an 100 KV transformer which was newly installed on the opposite side of the rice mill across the road at a distance of 175 feet. From there they had drawn the electricity to their unit to all those machineries. Even though the said rice mill unit had an authorised electrical supply that was a single phase with RR No.KGL-12118 only for a lighting purpose, however, for running the rice mill it was requiring three phase electrical connection with 100 KVA capacity transformer. Though accused No.1 had applied for such a connection but before sanctioning and commissioning of such a connection, he had illegally drawn the electricity.
16. According to PW1, to enable such an illegal connection to his rice mill, accused No.1 made use of electrical contractors who were accused Nos.1 and 2.
17. PW8 has also stated that the installation of 100 KVA transformer and drawing of power lines till such point were all completed by their Department. However, charging the transformer and energising the line upto the mother board in the unit of accused No.1 was pending. However, accused No.1 even prior to the official supply of electricity had drawn illegal cable underground connection and also had got the transformer charged by installing a jumper from the main line of the transformer for charging it. Witness also identified the compliant said to have been lodged by him at Ex.P5, stating that he had also drawn the inspection report, he has identified it at Ex.P6. The witness has also identified the mahazar said to have been drawn in the spot at Ex.P1 and the four wooden planks with the four channel cutouter, bar box said to have been used in the commission of alleged crime and said to have been seized, at MOs.1 and 2 respectively. This witness was subjected to a detailed cross examination wherein he adhered to his original version.
18. PW1 – Sri.M.K.Somashekara, then Assistant Executive Engineer of CESC, Periyapatna Sub Section and PW2 – Lakshminarayana, Junior Engineer in Periyapatna Sub Section of CESC have also led their evidence on the line of what PW8 has stated. Both these witnesses have stated that at the telephonic instruction of PW8, their Assistant Executive Engineer, both these persons also joined the raiding team and conducted the raid at the rice mill unit of accused No.1 about the installation of machineries and drawing an unauthorised, illegal electrical connection through underground cable from a transformer that was installed on the other side of the rice mill after charging the said transformer and also unauthorisedly and energising the cable line. The evidence of these witnesses have come on par with that of PW8.
19. Both these witnesses have also identified the mahazar said to have been drawn by them in the spot as per Ex.P1. All these three witnesses ie., PWs.1, 2 and 8 have also stated that the said rice mill was belonging to accused No.1 and he was running the rice mill. Both these witnesses were subjected to a detailed cross examination from the accused side wherein they adhered to their original version. These witnesses have also stated that they had got the entire sequence vidoegraphed by a videographer Sri.Vinodkumar – PW9.
20. PW3 – Krishnamurthy, a line man of CESC at the relevant point of time has also stated that at the instructions of PW2, he also joined the raiding team and went to the rice mill in question. They noticed that the rice mill was running and by inspection, it was revealed that it was being run with unauthorised electrical supply drawn to the unit from CESC line, without the same being officially commissioned and also without any installation of electrical meter in the unit. At the instruction of his superior he got the main line cut, as such, the raiding team could able to inspect the unit in detail and draw a mahazar, which mahazar he identified at Ex.P1. He has also said that under the said mahazar the police have seized the channel cut out and bus bar which he had identified at MOs.1 and 2.
21. In his cross examination, he has given more details as to the alleged raid. He has stated that illegal electricity connection was drawn from the transformer to the electrical cut out from MO.1 and said electrical cut out which was connected to Transformer and he himself has cut those unauthorised connections and handed over the wires to the police. The witness has stated that the transformer was installed 70 meters away from the rice mill and from the said transformer, an under ground cable was drawn to the unit.
22. PW4 - Sri.V.K.Narayana, an Assistant Engineer in the CESC at the relevant point of time, has stated that as on the date of alleged incident the file requesting the electrical connection to the unit of accused No.1 which is the rice mill was pending with the Department.
23. PW5 – Sri.Mashesh, another Junior Engineer has said in continuation of processing of the request of accused No.1 for supply of electricity to his rice mill unit, the drawing of electrical line and installation of transformer were all done and he had supervised those work. However, the said transformer was yet to be charged. In his cross examination this witness has stated that the cable wire used in the unauthorised connection of electricity by the accused were available in the market.
24. PW6 – Smt.Geetha, the Labour Inspector has stated that Venkateshwara rice mill is owned by accused No.1 and it is situated at Kanagala village and the documents maintained with the Labour Department by the accused mill reveals those details including the details of the Labours working in the said mill. She has also stated that one Sri.Suresh was working at that point of time as a driver of the said rice mill.
25. PW7 – Sri.Sukumar, the Secretary of Grama Panchayath of Kanagalu village has stated that as per the panchayath records which he had furnished to the complainant at Exs.P3 and 4, the resident certificate and assessment of tax extract go to show that rice mill is within their panchayath limits.
26. PW9 – Sri.Vinod Kumar, the cable operator has stated that he has made the videograph at the request of Junior Engineer of the Electricity Department made to his master. He was sent by his master to accompany the raiding team to videograph the raid conducted in the rice mill. Accordingly, he has videographed the said raid conducted by the team and putting the said video in a compact disk, he has handed over the said disk to the police which he had identified in the Court after its play at MO3.
27. PW10 – Sri.Vyramudi, then Chief Executive Engineer of CESC has stated about he issuing a document about the payment of the inspection fee to the Electrical Inspector of the company of the accused as per Ex.P8.
28. PW11 – Sri.Puttaswamy, though was projected as a pancha to the mahazar said to have been drawn as per Ex.P1 in the spot at the time of the raid has not supported the case of the prosecution.
29. From a perusal of the evidence of these witnesses it can be noticed that in the cross examination of all the above witnesses from PWs.1 to 10 made from the accused side, the evidence given by these witnesses in their examination-in-chief could not be shaken.
Evidence of PWs.1, 2 and 8 regarding the manner and mode about the alleged illegal drawing of electricity was made by the accused installing a jumper from the 11 KVA line to the transformer for the purpose of charging it and from the transformer to the machineries in the rice mill illegally drawing the cable under ground to a length of 175 feet and energising it has come out uniformly.
30. All these witnesses have stated that the said under ground cable was illegal drawing of the cable made by the accused only to draw electricity unauthorisedly without there being any official supply of electricity to them. PW1 though in his examination-in- chief has stated that when they asked to run the machinery it did not run with the electrical connection, on the other hand remaining witness PWs.2, 3, 8 and 9 have stated that when they visited the rice mill it was running through electricity, the said variation is not a major variation for the reason that the say of PW1 as to how the rice mill was running when they visited has been clarified by him in his cross examination.
31. Evidence of all these material witnesses is that the said rice mill machineries were being run by the use of electricity not with the generator. In that regard in the cross examination of PW9 – the vidographer though a suggestion was made to the witness that the sound was coming from the generator room installed in the rice mill, the witness has not admitted the said suggestion as true. Thus, apart from Departmental witnesses even independent videographer also stated that the generator was also not in operation at the time of raiding but running only through electricity which electricity was drawn by accused No.1 illegally by charging the said transformer unauthorisedly, even in the absence of official commissioning of electrical supply to his unit.
32. In the above background, when the fact that Sri.Venkateshwara Rice Mill at Kanagala village stands in the name of accused No.1 which is further evidenced by residential certificate and demand tax register extract issued by PW7 and also the information letter at Ex.P2 issued by the Labour Inspector (PW6) it remains undisputed that Sri.Venkateshwara Rice Mill at Kanagala village was owned, controlled and operated by accused No.1 and that there was illegal use of electricity to run the machineries installed in the said rice mill.
33. Section 135 of the Electricity Act defines the electrical lines and materials.
Section 135(1)(a) reads as follows;
“135.Theft of electricity- (1) Whoever, dishonestly-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be;”
34. In the case on hand, the evidence of the above witness clearly go to prove that accused No.1 had charged 100 KVA transformer unauthorisedly by installing a jumper from the 11 KVA to the transformer and thus, he had made the theft of electricity from its main line to the transformer and before the transformer could be officially commissioned through the Department. Apart from charging the transformer, he had also drawn a line from the said transformer to his installation and even in the absence of installation of electricity meter and allotment of RR number to it, he had directly given connection to the machineries installed in his unit which clearly comes within the proviso of Section 135 of the Electricity Act, as such, there is theft of electricity.
35. Another point of argument of learned counsel is that it is not made clear in the evidence of prosecution witnesses as to who summoned the raiding team. A reading of the evidence of prosecution witnesses clearly go to show that it was PW8 - the Assistant Executive Engineer who was the head of the raiding team had asked PW1 another Assistant Executive Engineer to join the raiding team and which, PW1, inturn had asked PW2 Junior Engineer also to be a part of the raiding team. Said PW2 Junior Engineer inturn had asked PW3 Line Man to join them and PW9 – Videographer had joined the raiding team upon the instruction of his master, which master inturn was requested by CESC Engineer to send the videographer to make a videograph coverage. Thus, the constitution of raiding team had also been explained by these witnesses in their evidence giving no scope for any doubt.
36. Last argument of the learned counsel for the appellant is that since the co-accused are acquitted of the alleged offences, accused No.1 alone could not be held guilty of the alleged offences. The said argument of the learned counsel for the appellant is also not acceptable for the reason that the charge made against the accused are for the offences under Sections 135 and 138 of the Electricity Act r/w Section 34 of IPC.
37. The case against accused No.2 stood abated due to his death during the pendency of the matter in the trial Court. Accused Nos.1 and 3 were acquitted since they were shown as contractors who helped accused No.1 in drawing the cable from the transformer to the installation and other logistic work to draw electricity. However, the fact remains that the premises to which the electricity was drawn was belonging to accused No.1, the use of illegally drawn electricity was also by accused No.1, and the purpose of drawing electricity illegally and through theft was to run the rice mill owned and controlled by accused No.1. As such, it is the accused No.1 who has committed the theft. Merely because the remaining accused said to have assisted him in drawing the illegal electric line and since they were acquitted, due to the absence of any cogent evidence against them, it cannot be said that principle of parity is applicable and accused No.1 also deserves to be acquitted.
38. Thus, the trial Court since has appreciated the materials placed before it, including the evidence in its proper perspective and arrived at a right conclusion and held that accused No.1 – appellant herein guilty of the alleged offences and also passed order on sentence proportionately to the criminality of the offences committed by him, I do not find any reason to interfere in the said judgment of conviction and order on sentence.
Accordingly, the appeal stands dismissed. The judgment of conviction and order on sentence passed by I Additional Sessions and Special Judge at Mysuru in Spl. Case No.23/2007 dated 07.09.2010 stands confirmed.
Registry to transmit a copy of this judgment along with the lower Court records to the trial Court without delay to enable it to proceed further in the matter in accordance with law.
Sd/- JUDGE GH