IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1361/2019 Between:
The State of Karnataka By Bescom Vigilance Indiranagar Police Station Bengaluru Rept. by State Public Prosecutor High Court Building Bengaluru – 560 001. …Appellant (By Sri.M.Diwakar Maddur, HCGP) And:
Muninarayana S/o late Gurumurthy Aged 40 years, R/at No.8, Saketh Nagar Kodigehalli Hoodi Main Road K.R.Puram, Bengaluru - 38 …Respondent (Notice to respondent is dispensed v/o dtd 13.12.2019) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C., pleased to grant leave to file an appeal against the judgment and order dated 15.03.2019 passed by LXX Additional City Civil and Sessions Judge, Bengaluru in Spl.C.No.143/2018, acquitting the accused/respondent for the offences p/u/s 135 of Indian Electricity Act.
This Criminal Appeal is coming on for Orders, this day, the Court delivered the following:
J U D G M E N T This Appeal has been preferred by the appellant- State challenging the judgment and order of acquittal passed by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru in Spl.C.No.143/2018 dated15.03.2019. Whereunder the accused-respondent was acquitted.
2. I have heard the learned High Court Government Pleader for the appellant-State.
3. Notice to respondent is dispensed with.
4. Though this case is listed for hearing interlocutory application and admission, the same is taken up for final disposal.
5. The facts alleging to the case are that the accused has obtained electricity connection to the borewell which is used for selling the water for commercial purpose. On 15.3.2017 on credible information received by CW.1, he along with his staff visited the borewell of the accused and found that the accused was running 18 HP motor by directly connecting the wire from the pole to the borewell starter and thereby he has committed theft of electricity. A total amount towards the theft of the said power was Rs.3,48,851/- towards BBC amount and Rs.1,14,000/- towards compounding amount for having committed the theft of the electricity. The proceedings have been conducted and after investigation the charge sheet has been filed.
6. The Special Judge took cognizance and secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused the charge was framed as against the accused. The accused pleaded not guilty, he claims to be tried and as such the trial was fixed.
7. In order to prove the case of the prosecution, he has got examined 4 witnesses and got marked 9 documents as Ex.P1 to Ex.P9 also got marked 5 material objects. Thereafter, the statement of the accused was recorded. During the course of evidence. Accused got marked Exs.D1 to D4.
8. After hearing the learned counsel appearing for the parties, the learned Sessions Judge has come to the conclusion that the material placed on record does not satisfy to bring home the guilt of the accused and accused has been acquitted. Challenging the same, the State is before this Court.
9. The main grounds urged by the learned High Court Government Pleader are that the impugned judgment and order is not sustainable under law. No good reasons have been assigned by the trial Court. The reasons assigned are not justified. It is his further submission that PWs.1 to 4 are the persons who are working in the electricity department and they have categorically deposed with regard to visiting of the said place and the accused has directly connected the electricity from the pole to the borewell and has committed theft and thereby he has committed an offence under Section 135 of Electricity Act. It is his further submission that the said borewell and its meter stands in the name of the accused, he is liable to be convicted. Accused has falsely contended that there was lease agreement between him and another person, but it is a make believe affair, actually it is the accused who was selling the said water to the third persons.
10. He further submitted that the Court below has wrongly come to a conclusion that no independent witness has been examined. The evidence of official witnesses is cogent and acceptable and the same has to be considered. It is his further submission that the explanation has also been given by the prosecution that no other independent witness is available as on the date and time of the raid as it was already late night and no independent witnesses have been examined. Without considering all these aspects the trial Court has come to a wrong conclusion and has wrongly acquitted the accused.
11. It is his further submission that there are good grounds made out to convict the accused. On these grounds, he prays to allow the appeal and to set aside the impugned order and convict the accused for the alleged offence.
12. In order to prove the case of the prosecution, it has got examined 4 witnesses. PW.1 is the meter reader in BESCOM and in his evidence he has deposed that on 15.03.2017 he was on night duty at about 1.00 a.m. CW.1 told that the accused who is using the said borewell for commercial purposes has connected the wire directly to the pole to take electricity and there is a theft of electricity. They went to the spot and there they have seen that the accused has connected the electricity wire directly to the pole and was consuming the electricity. Thereafter and he disconnected the same and collected the articles and other instruments by drawing seizure mahazar as per Ex.P1. He has further deposed that Ex.P1 bears his signature. During the course of cross examination, PW.1 admitted that the boundaries which are mentioned in Ex.P1 are written in different ink. He further admitted the suggestion that M.O.1 to M.O.5 does not contain chit containing his signature. He has further admitted that the material objects like M.Os.2 and 3 are also available in the market. He has further admitted that meters like M.O.1 is also available in his office and material object like M.O.4 which will be available in electrical shop. Other suggestions which have been made to this witness have been denied.
13. PW.2 is the Assistant Executive Engineer BESCOM and he is also a member of the squad. In his evidence he has deposed that he has received a credible information on 15.03.2017 that the accused has illegally connected the electricity wire to the motor pump and committing the theft. He along with vigilance police visited to Kodigehalli and there they noticed the said fact and he got disconnected the electricity with the help of PW.1 and seized M.Os.1 to 5 by drawing a mahazar as per Ex..P1 and he has given the report as per Ex.P2. During the course of cross-examination, he has deposed that when he visited the place of incident, accused was there in the place of incident and the junior engineer and lineman came to the spot after half an hour. He has further deposed that he had enquired with the accused. He further admitted that in his enquiry report he has not mentioned that the accused was present at the spot and he has made an enquiry with the accused. He has further deposed that he has taken photos and videos of the place of incident and the same have been handed over to the investigating officer. Except that nothing has been elicited from the mouth of the this witness.
14. PW.3 is the Assistant Executive Engineer. He has deposed that he has sent Exs.P4 to P8 i.e., the true copy of application given by the accused for electricity connection and he has also given the estimation and the sanction letter for having given electricity connection to the accused. In his cross-examination, he has admitted that the application was filed in order to get the electricity connection for 15 HP motor for sale of water for commercial purpose.
15. PW.3 has admitted that as per Ex.D1 the accused has raised objection that he has leased borewell to one Niranjan Biswal. He has further admitted that Ex.D2- copy of spot inspection report is issued from their office. Except that nothing has been elicited from the mouth of this witness.
16. PW.4 is the PSI of BESCOM. He has taken up further investigation and thereafter he has filed the charge sheet as against the accused. Based on the evidence which has been produced it is not in dispute that the accused has obtained the electricity connection to the said pump by applying the same to the authorities, the said fact has been admitted by PW.3. In this regard there is no dispute. It is a specific case made out by the prosecution that at the time of the alleged incident, PW.2, who received the credible information went to the spot and he has taken the photographs and has also done the video of the place of incident and the same has been handed over to the investigating officer. But for the reasons known to investigating officer the said document has not been placed before the Court. When the best evidence which was available in the prosecution, if it has been withheld without producing before the Court then under such circumstances the adverse inference has to be drawn to the effect that if it is going to be produced, then it is going to benefit the accused. Even as could be seen from the evidence of PW.1, in his evidence he has admitted that Ex.P1 the boundaries which have been mentioned are in different ink and all M.Os.1 to 5 do not contain chit containing the signature. In his evidence he has specifically stated that by drawing a mahazar Ex.P1, obtained M.Os.1 to 5 and when they seized the same it had the chit. But if they are missing, then under such circumstances it could be inferred that they are not the material objects which have been seized at the time of making the said raid.
17. Section 135 of Electricity Act, reads as under:
“135. Supply and use of energy by non-licensees and others.- Where any person other than a non-licensee is supplied with energy by a non-licensee or other person or has his premises for the time being connected to the conductors or plant of a non-licensee or other person, or himself generates energy and uses such energy or part thereof, such person shall be deemed to be a consumer for the purposes of rules 9, 10, 29 to 33 (inclusive), 87 and 142 and non-licensee or other person shall be subject to all the liabilities imposed on a licensee by these rules.
18. It is settled law that under Section 135 of the Electricity Act, the word ‘whoever’ has been used. Whoever does not mean only the owner and it also includes the person who commit the theft of electricity who was in possession of the borewell to him by the owner.
19. Admittely, PW.3 has stated that as per Exhibited documents accused has applied for electricity connection and he has given report of estimation and sanction letter for electricity connection to the accused. But when accused made out the specific case by producing Ex.D1, the said borewell is leased to Niranjan Biswal, then under such circumstances, the prosecution has to prove actually who was having the actual control of the said borewell and who directly connected the electricity to the borewell and thereby, committed theft of the electricity. In the absence of the said material it cannot be said that the accused being the owner of the said borewell, he is liable to be punished under Section 135 of Electricity Act.
20. When the materials seized have not been properly marked and produced and the one which has been produced, pertain to the case or not, in that light it create doubt in the case of the prosecution, then under such circumstances, the benefit of doubt goes to the accused. The trial Court after considering all the material has come to a conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and has rightly come to a right conclusion to acquit the accused. There are no good grounds to interfere with the judgment of the trial court and the same deserves to be confirmed.
Appeal is dismissed as devoid of merits.
I.A No.1/2019 does not survive for consideration.
Sd/- JUDGE HB/-