Bombay High Court
The State Of Maharashtra vs Abdul Aziz Lokhandwala & Ors on 20 December, 2019
Author: K.R.Shriram
Bench: K.R.Shriram
1/12 209.Apeal921.03.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
C RIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.921 OF 2003
The State of Maharashtra )
through Murbad Police Station )....Appellant
(Org.Complainant)
V/s.
1) Abdul Aziz Lokhandwala )
Resident of Pakija Market, 4th Floor, )
Plot No.405,Grant Road, Mumbai-8 )
2) Padmalochan Madansundar Das )
Resident of Devichi Alley, Harad Chawl )
Murbad, Taluka-Murbad, Dist.Thane )....Respondents
(org.Accused nos.1 & 2)
----
Ms.Anamika Malhotra APP for appellant-State.
Mr.Rohan Sawant for respondents.
----
CORAM : K.R.SHRIRAM,J
DATE : 20.12.2019
ORAL JUDGMENT :-
1. The State of Maharashtra is impugning an order and judgment dated 10.3.2003 passed by the Judicial Magistrate First Class, Murbad, acquitting respondents of offence punishable under sections 39 (Theft of energy) and 44(c) (Penalty for interference with meters or licensee's works and for improper use of energy ) of Indian KJ ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 ::: 2/12 209.Apeal921.03.doc Electricity Act 1910 and under Section 379 ( Punishment for theft) of Indian Penal Code.
2. The complainant is Deputy Executive Engineer in MSEB. In November-1998 he was appointed in flying squad unit. On instructions received that one Rakhi Ispat Alloys India Limited (hereinafter referred to as said company) was consuming high amount of electricity, MSEB kept watch on the said company. The first 2 months consumption was high and then it came down. Therefore, it was decided to make a surprise check to make further inspection and collect necessary information. Complainant when he visited the said company on 26.2.2000 to check the meter, he found variation in the current of the meter and power factor. Therefore, he sealed the meter box by affixing new seals in presence of MSEB Engineers and representative of said company. He also made notes of the same on spot inspection report and obtained signature of all concerned. Thereafter complainant along with one Assistant Security officer Gidappa Dhotre (who though listed as a witness has not been called to depose) visited the said company on 7.3.2000 at 1.30 p.m. for further inspection. Complainant disclosed his identity to accused no.2 who was a supervisor and told accused no.2 to accompany him for inspection. Thereafter, complainant called one Mr.Sunil.
KJ
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 :::
3/12 209.Apeal921.03.doc
R.Bharambhe PW-3, Mr.A.K.Gupta (not examined) and
S.M.Bekhnalkar (not examined) to the said company. Complainant, other MSEB officers and accused no.2 inspected the meter. They first closed the electric supply of the said company and examined blue phase current transformer. They found that welding of secondary box was broken and wire of plastic pink colour seal was broken and rejoined. Thereafter cover of blue phase of the secondary was removed. One M-seal ball was found inside. Four enamel inserted copper wires were coming out of the said ball. Out of the 4, two wires were connected to current transformer (CT), secondary S1 and S2 terminals, one wire was connected to the armour of CT cable and the 4th wire was connected to the CT body from inside. Accused no.2 was unable to give any satisfactory explanation and also left the place without notice.
3. As it was a new kind of tampering which was highly sophisticated, complainant called a video photographer. Video and still photographs were taken and they found many other seals were broken and rejoined. They also found that a 24 volts battery was connected to meter box positive and to the earth strips of meter box negative terminals and electric supply was given by the battery. According to complainant this resulted into the working of the instrument hidden in KJ ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 ::: 4/12 209.Apeal921.03.doc M-seal balls shortening of current transformer resulting in defective reading of the meter. Thus according to complainant, consumer had made very expert arrangement of external equipment and by putting it into working, committed theft of huge quantity of electricity. Accused are alleged to have broken the seals of equipments. It is also alleged that accused had broken the welding of secondary and affixed instrument like Electric Magnetic miniature relay and caused huge economical loss to the MSEB. Complainant states that MSEB verified the electric bills and meter reading equipment reports which were taken from time to time prior to the incident and they have come to the conclusion that accused has committed theft of electricity between 21.3.1998 to 7.3.2000 and has committed theft of electricity to the extent of Rs.8,08,30,345/- and caused economical loss to MSEB.
4. Accused no.1 is the Managing Director of said company. Accused no.2 is a supervisor in the said company. According to complainant, in furtherance of common intention, these persons have committed theft of electric energy. Complainant therefore, filed a complaint in Murbad police station and supplied the spot inspection report, joint inspection report, estimate of theft of electric energy, diagram showing the mode of theft of electric energy and meter reading instrument (MRI) report. Complaint was registered and KJ ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 ::: 5/12 209.Apeal921.03.doc investigation was handed over to the police officer Sr.PSI V.D.Rane, who is PW-6. PW-6 called two panchas, went to the spot and prepared spot panchanama and sealed the C.T. secondary boxes in presence of panchas after affixing paper seals and vax seals to them.
5. The Court framed the charges as noted earlier and the accused denied all charges and claimed to be tried.
6. To drive home the guilt of the accused, prosecution examined in all 6 witnesses viz. PW-1 complainant D.K.Mali, PW-2 U.P.manore, Photographer and Video Shooter, PW-3 S.M.Bharambhe, Junior Engineer of MSEB, PW-4 S.R.Gujare and PW-5 B.D.Desale, both panch witnesses to the spot panchanama and PW-6 V.D.Rane Senior PSI, Murbad, who was Investigating officer.
Prosecution also relied on various documents as mentioned in paragraph-16 of the impugned judgment.
7. After considering the evidence, the trial Court concluded that prosecution has failed to prove its case and therefore, acquitted all the accused. It is that order and judgment which is impugned in this appeal.
KJ
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 :::
6/12 209.Apeal921.03.doc
8. I have also gone through the records & proceedings, evidence as well as the impugned judgment with the assistance of the learned APP and Mr.Sawant who was appointed by the Court as a counsel to represent respondents who have been absent.
9. Having considered the same, I do not see any reason to interfere in the impugned judgment and order. This is an elaborate judgment and trial Court has extensively dealt with each point raised. For the sake of brevity, I do not wish to go through all those points once again. What I have observed below itself are enough to dismiss the appeal.
10. At the outset, I have to note that both PW-4 S.R.Gujare and PW-5 B.D.Desale who were panch witnesses for spot panchanama- cum-seizure panchanama, have turned hostile. They have deposed that they were not even called by police to the said company but they were called to the police station and told to sign the panchanamas which were already prepared and they do not know the contents of the panchanamas.
11. One of the main ground for the prosecution's case is the presence of M-seal balls in 3 CTPT units, one in each. The most KJ ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 ::: 7/12 209.Apeal921.03.doc important piece of evidence is demonstration as shown in the video recording. Miniature relays were found in the M-seal balls. According to complainant by installing these miniature relays inside the M-seal balls and connecting it to the supply, the billing meter would show a reduced reading to the extent of 90%. Therefore, complainant relied on this to show that 90% of electric energy has been stolen. But the fact is when the M-seal balls were taken out from the CTPT unit and cut open in the Court in the presence of the complainant, the advocates and others, no such miniature relays were found in all 3 M- seal balls. Prosecution explained it to say that after seizing CTPT unit on 8.3.2000, Investigating officer brought and kept in open space in front of the lockup room where they remained for 1½ years. In the cross-examination of PW-6 (Investigating officer) it has come on record that CTPT units were not brought in the Court at the time of filing charge-sheet but were kept in the open ground within the campus of police station at Murbad and there was continuous guarding of the property. Prosecution tried to say that M-seal balls might have been replaced but there is no evidence to that effect. The fact that remains is that the M-seal balls that were produced in the Court did not contain any miniature relays hidden inside.
Another piece of evidence which was strongly relied upon KJ ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 ::: 8/12 209.Apeal921.03.doc by prosecution is that prosecution compared electricity consumption of similar factories and those factories showed huge amount of consumption as compared to the said company. According to prosecution said company's consumption per KVA MD was about 120 to 150 units, whereas the consumption of similar factories, i.e., Virat Ispat, Lion Alliance & and one more, had average consumption per KVA MD of 460 units and therefore, there has been tampering with meters. In the cross-examination, complainant has admitted that these 3 companies whose readings were used to compare with the said company were all based on the western railway line far away from Murbad MIDC where said company was situated. PW-1 also admits that there were similar companies situated near the said company in Murbad MIDC but he did not compare consumption of those companies. Complainant also admits that power consumption would depend upon efficiency of furnaces used, the number of furnaces used and number of hours they have been used. Complainant also has failed to consider the various factors that are related to consumption of electric power like, for example, the material that is melted in the furnaces or whether furnaces are manually loaded or mechanically loaded. Complainant has also not considered what material was being melted in the furnaces because defence submitted evidence to the fact that melting point of iron is 1.535 degree centigrade while melting KJ ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 ::: 9/12 209.Apeal921.03.doc point of zinc is 419.5 degree centigrade and aluminum was 666.2 degree centigrade. This shows the melting of iron will result in higher consumption of power as compared with zinc or aluminum. Prosecution has not made these studies and therefore, the comparative study with other factories is of no use to prosecution.
12. Complainant also relied on the video film that was taken and the photographs that were taken by examining PW-2. None of those photographs or videos show that there were any other independent persons, except MSEB officer and police, were present on the spot.
13. Investigating officer PW-6 V.D.Rane says he demanded demonstration of working of instrument kept in M seal balls from PW-1 by connecting electric supply and PW-1 D.K.Mali showed him such type of demonstration by connecting electric supply . As against this, PW-1 says he has not shown any such type of demonstration. Therefore, there is a contradiction between the two, plus, the question that arises is that if such a demonstration as alleged was given, what was the result of such demonstration and if not given, why was it not given, because it is the duty of the prosecution to bring on record the best possible evidence.
KJ
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 :::
10/12 209.Apeal921.03.doc
14. MRI report which is at Exh.60 is for the period from 6.2.2000 to 21.2.2000, i.e., for 15 days. Complainant in his evidence states that MRI reports were drawn on 11.7.1998, 22.9.1999, 4.1.1999 and 19.2.1999, based on which complainant is accusing the accused of committing theft of electricity worth Rs.8,08,30,345/- during the period from 21.3.1998 to 7.3.2000. But the MRI report filed is only for 15 days as noted above. The documents filed on record show that MRI report was available to the complainant at least for a period of 240 days. Therefore, adverse inference could be drawn against complainant for non production of MRI reports, because if it is produced, they might have shown that there was no tampering of meters or theft of electricity.
15. All these infirmities, in my view, are serious to the extent that they go to the root of the case and indicates that the prosecution has failed to prove beyond reasonable doubt that accused committed theft of electricity.
16. Mr.Sawant submitted, relying upon a judgment of the Apex Court in Tamil Nadu Electricity Board Vs. Rasipuram Textile Private KJ ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 ::: 11/12 209.Apeal921.03.doc Limited1 that in terms of section 49A it was obligatory on the part of the complainant not only to make requisite averments in the complaint or the FIR but also to prove that its director- accused no.1 and supervisor-accused no.2 were in charge of or otherwise responsible for the conduct of the affairs of the said company. Mr.Sawant states only in the event it is proved that accused no.1 and accused no.2 were in charge of and/or responsible for the conduct of the business of the said company, the burden would shift on accused to establish the ingredients contained in the proviso to section 49A. In addition, Mr.Sawant submitted that in the entire complaint or in the evidence, no case is made out as to how the accused were responsible for tampering. Just because accused no.1 was a Director and accused no.2 was a supervisor of the said company, would not mean that they were responsible for tampering.
17. I agree with Mr.Sawant that there are no averments, let alone an attempt to prove both accused were in charge of or otherwise responsible for the conduct of the affairs of the said company. I have to add that the said company is also not made an accused.
1 (2008) 17 Supreme Court Cases 285
KJ
::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 :::
12/12 209.Apeal921.03.doc
18. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting accused, the Trial Court observed that prosecution had failed to prove its case.
19. In the circumstances, in my view, the opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal, in my view, cannot be interfered with.
20. Appeal dismissed.
(K.R.SHRIRAM,J) KJ ::: Uploaded on - 21/12/2019 ::: Downloaded on - 21/12/2019 23:54:01 :::