Karnataka High Court
Uttam S/O Veerbassappa vs The State Of Karnataka on 10 June, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3520/2012
Between:
1. Uttam S/o Veerbassappa
Age 30 years, Occ. Agriculture,
R/o Siddapur, Taluk Bidar.
2. Mallamma W/o Veerbassappa
Age 55 years, Occ. Household
R/o Siddapur, Taluk Bidar.
... Appellants
(By Sri B.C.Jaka, Standing Counsel and
Sri Hanumanthraya Sindol, Advocate)
And:
The State of Karnataka
Through the GESCOM
Vigilance Police Station,
Bidar.
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Appeal is filed under Section 374(2) of
the Criminal Procedure Code praying to set aside the
judgment and sentence passed by the Special Judge and
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Additional District and Sessions Judge, Bidar in Special
C.C.(ELEC) No.4/2009 dated 17.12.2011 and appellants
may kindly be acquitted in the interest of justice and equity.
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
The above appeal is filed challenging the judgment of conviction and order on sentence dated 17.12.2011 passed in Special C.C.(ELEC) No.4/2009 by the Court of Special Judge and Additional District and Sessions Judge, Bidar.
2. The brief facts of the case are as follows ;- PW.1 is the complainant who is Assistant Executive Engineer, GESCOM received a credible information regarding theft of electrical energy at Siddapur Village in the flourmill belonging to appellants/accused and thereafter he along with other vigilance police and his staff and Section Officer conducted raid on 03.12.2008 at about 12.20 p.m on the flourmill of the appellants/accused situated in 3 Siddapur Village and the flourmill was standing in the name of accused No.2 who is the mother of accused No.1 and inspected, checked and found that there was energy being abstracted from the L.T line bypassing the meter directly connecting to the flourmill and thus, made arrangement for not recording the meter eventhough the flourmill was running. The accused No.2 who is the mother of accused no.1 who is the registered consumer in whose name the flourmill was licenced and accused No.1 was managing flourmill and thus, both in this passion have committed theft of energy worth of Rs.1,06,949/- as per back billing charges. Thus, committed an offence punishable under Section 135 of Electricity Act, 2003 (for brevity hereinafter referred to as the 'Act') and accordingly lodged first information statement (FIS) as per Ex.P.1 and based on that FIS, first information report (FIR) was registered as per Ex.P.5.
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PW.4 who is a Police Sub-Inspector, GESCOM after registration of FIR started investigation and filed charge sheet against the accused for the offence punishable under Section 135 of the Act.
After receipt of the charge sheet the Special Court proceeded with trial and accused were summoned (since they were on bail) and framed charges under Section 135 of the Act and the appellants/accused pleaded not guilty and claims to be tried. Thus, by recording their pleas proceeded with examination of the accused and accordingly the prosecution has examined four witnesses as PWs.1 to 4 and got marked documents as Exs.P1 to P5 and got marked material objects as M.Os.1 to 4.
After completion of the prosecution evidence, the appellants/accused were examined under Section 313 of Criminal Procedure Code and the appellants/accused were simply denied the prosecution case whenever 5 incriminating circumstances/evidences put-forth to them. Thereafter the appellants/accused chose to lead defence evidence, accordingly accused no.1 has given his defence evidence as DW1.
After considering the evidence on record and all other materials available on the file the Special Court delivered the judgment by convicting the appellants/accused for the offence punishable under Section 135 of the Act and passed order on sentence against the accused that each accused shall pay a fine amount of Rs.1,60,424/- and in default of payment of fine each accused shall undergo simple imprisonment for a period of six months.
3. Being aggrieved by the judgment of conviction and order on sentence as stated above, the accused have preferred the above appeal by invoking Section 374 of Code of Criminal Procedure on the following grounds inter alia contending as follows ;- 6 • That meter was not running as there was defect and it was reported to the Section Officer of the department but the grievance of the accused was not met with and in the meantime raid was conducted in the absence of accused No 1 and thus, without there being any reason the accused were falsely implicated into the case. • The accused have not committed any offence as alleged but the prosecution has implanted the material objects in the present case just to show the accused have committed the offence alleged. • The Special Court has not appreciated the evidence on record in true and correct perspective manner and blindly accepted the calculation made by the department officials as per Ex.P4 without verifying the same whether calculation is correct or not and blindly imposed heavy fine amount against the accused. The accused were agriculturists and poor persons and for their livelihood they were running flourmill but have not committed any offence as alleged. Therefore in this regard the Special Court has not appreciated the evidence on record correctly. Therefore the 7 approach of the Special Court in convicting the accused is perverse one.
• The accused have lead defence evidence proving that meter is not recording the consumption of units since there is defect in the meter and it was reported to Section Officer and the accused were paying minimum charges and have never committed any default in payment of electrical charges and when this being the promptness shown by the accused but they were falsely implicated into the case. Therefore without considering the defence evidence judgment of conviction is rendered. Therefore prayed to cause interference with the judgment passed by the Special Court.
4. Having heard the arguments canvassed by both the learned counsel for the appellants and the learned High Court Government Pleader and upon perusing the material evidence on record meticulously, the points that arises for my consideration are - 8
(i) Whether the judgment of conviction holding the appellants for the offence under the Section 135 of the Act requires any interference ?
(ii) Whether the order on sentence imposing fine amount of Rs.1,60,424/- against each of the accused requires any interference by this Court?
5. I would like to place submissions of the learned counsel for the appellants and the learned High Court Government Pleader at appropriate places while discussion is made on the submissions made by both the learned counsels.
6. PW.1 is the complainant who had conducted raid and lodged FIS; PW.2 Head Constable of GESCOM accompanied PW.1 during raid; PW.3 is the panch witness to Ex.P.2 - panchanama; PW4 is the Police Sub Inspector who had conducted investigation and filed charge sheet against the accused.
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7. The learned counsel for the appellants vehemently argued that the entire episode of raid conducted as depicted by the prosecution is not conducted and simply all the documents are created in the office and thus, accused are falsely implicated into the case. He argued with reference to the defence evidence of DW.1 that the meter was out of order one year from the date of registration of the case and it was informed to the Section Officer and also had paid a sum of Rs.1,000/- for replacing the meter since the meter was defective but the Section Officer did not replace the meter inspite of request and inspite of it the accused were paying minimum charges of Rs.550/- per month as per the order made by the GESCOM Department and in the meantime registered a false case against the accused.
8. Therefore the learned counsel for the appellants submitted that the entire prosecution case itself is created and concocted one but virtually raid was 10 not conducted and no panchanama was drawn on the spot and no material objects were seized as on the date, time and place of the alleged incident.
9. In this regard the evidences of PWs.1 to 4 and evidence of DW.1 which are to be considered. PW.1 is the complainant who is also Assistant Executive Engineer of GESCOM had stated that on 03.12.2008 he has received a credible information that there is theft of electrical energy in Siddapur village by the accused and accordingly he along with PWs.2 and 3 and with other officials went to the flourmill of the accused and checked, inspected and at that time of raid accused No.2 was there and accused No.1 was not present and during inspecting and checking it was found that directly energy has been taken to meter bypassing the meter and at that stage flourmill was running. Therefore explained the manner of abstracting energy stating that wire was installed from the flourmill directly to the LT line bypassing the meter. This arrangement is made for 11 not showing the reading in the meter. It is in this manner straightway the theft of energy was committed and accordingly conducted panchanama as per Ex.P2 and with the help of PW.2, M.Os.1 to 4 articles were seized.
10. PW.2 has also given evidence in the same line as that of PW.1 that he had accompanied with PW.1 and found that there was theft of electrical energy committed in the manner as stated by PW.1.
11. PW.3 is the panch witness who had stated that raid was conducted and prepared panchanama from 12.00 noon to 1.00 p.m., as per Ex.P2 and put signature and material objects were seized.
12. Upon considering the arguments canvassed by the learned counsel by the appellants regarding disputing the raid conducted, the evidence of PWs.1 to 3 whatever they have stated in examination-in-chief is analyzed with reference to cross examination and 12 nothing is found that to discard the evidences of PWs.1 to 3. It is suggested in the course of cross-examination of PW.1 regarding revenue report is not produced and calculation of back billing was not made correctly and in this line cross-examination is conducted but there is no serious dispute in the cross-examination to elicit the fact that raid was not conducted. Therefore from the evidence of PWs.1 to 3 it is proved that they have conducted raid on 03.12.2008 and drawn panchanama as per Ex.P2 and seized M.Os.1 to 4.
13. Then coming to the evidence of DW.1 he had stated that he was running the flourmill and earning livelihood from the flourmill and there is meter to the flourmill but it was out of order from one year from the date of registration of the case and this fact was informed to the Section Officer and also paying minimum charges. But DW.1 has not disputed the raid conducted. The defence of the accused is that they have not committed offence of theft of energy and by taking 13 defence that the meter was out of order and informed to the Section Officer of the Department. Except this there is no defence evidence regarding disputing the raid conducted. Therefore upon analyzing the evidence on record discussed above, it is proved that PW.1 has conducted raid along with PWs.2 and 3 and by securing other Officials and found that there is theft of electrical energy by the manner as deposed by the PW.1 as discussed above.
14. The learned counsel for the appellants argued that the prosecution has not produced the revenue report and unless revenue record produced it cannot be said that the accused have committed theft of energy and he has taken the court to the unmarked document i.e., revenue report which is stated to have been procured by filing application under Section 91 of Criminal Procedure Code and argued on Ex.P4 which is abstract of calculation of theft of energy and another document which is unmarked xerox copy of revenue 14 report. Upon perusing the report which is found in the file which do not contain any official seal and was not marked during the course of trial and it was not invited the attention of the prosecution whether the revenue report is confronted by disputing the same. This exercise was not done by the prosecution during the course of trial. Even at the instance of the accused if it was procured but the said document has been confronted to the officials who have been examined before the Special Court. Therefore, uninvited documents to summon into the case that too it is xerox document it cannot be relied.
15. The learned counsel with reference to the said revenue report (unmarked document) had argued that in the said revenue report the initial reading and final reading are different one and the final reading in Ex.P.2 panchanama is in different. Upon perusing the panchanama the final reading in the meter is shown as 5294.4 unit and had shown with reference to the 15 revenue report that the initial reading and final reading are different as 5660. Therefore, with reference to this the learned counsel for the appellants argued that the panchanama prepared is created and concocted one.
16. As discussed above the said revenue report is unmarked document and had not been invited the attention to the prosecution if that was summoned at the instance of the accused and the court is of the opinion it is not safe to make any comment upon it on the revenue report. But as discussed above also as it was not disputed fact by the accused regarding raid conducted. Therefore drawing up of panchanama as per Ex.P.2 is proved one. Therefore, whatever the final reading shown in Ex.P.2 can be accepted as 5294.4 units and in this regard the submission made by the learned counsel for the appellants that there is discrepancy in taking the different reading cannot be accepted.
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17. Even the DW.1 had stated that the meter was out of order and in this regard he had informed to the Section Officer but to show that the accused have not placed any documents before the court. Therefore, his evidence found to be oral without substantiating any documents. It is settled law that the defence of the accused to be proved not by beyond reasonable doubt but mere preponderance of probabilities is sufficient but the accused even has failed to prove the defence by way of preponderance of probabilities. Had accused produced some documents regarding the meter was defective in nature and that was informed to the Section Officer of the Department then the argument canvassed by the learned counsel for the appellants would have been accepted on the basis of the evidence of DW.1 but the evidence of DW.1 is found to be only oral evidence in nature without substantiating any documentary proof even by way of preponderance of probabilities. 17 Therefore, the evidence of DW.1 is hereby rightly rejected by the Special Court.
18. The learned counsel for the appellants argued that the accused no.2 is the licence holder of the flourmill and electricity connection was taken in the name of accused no.2 and accused No.2 was running the flour mill and accused no.1 being the son of accused no.2 cannot be fastened criminally liability. Therefore, prayed for exoneration of accused no.1 from the case on the ground that accused no.1 is unconnected with the case and there is no concept of vicarious liability or criminally liability just because being a family member of the accused no.2.
19. Further argued that Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC') is not framed along with Section 135 of the Act showing proving the common intention set up by both the accused. Considering this submission Section 34 of IPC 18 is not substantive offence but it is a mere rule of evidence. Just by omission to mention Section 34 of IPC while framing substantive charge the other accused cannot be absolved who have shared common intention. Therefore, omission to mention Section 34 of IPC cannot absolve accused No.1 by saying that the accused no.1 has not shared common intention just because the accused no.2 is the licence holder of the flourmill.
20. In this regard, fastening criminally liability on the accused no.1, the evidence of DW.1 can be perused. During the trial before the Special Court accused no.1 has given evidence as DW.1 admitting that he was running flourmill and earning livelihood and he was managing the entire affairs of the flourmill. By perusing the evidence of DW.1 it is proved even though the accused no.2 who is mother of accused no.1, but the accused no.2 is licence holder for having electrical energy for running flourmill. But in fact as per the evidence of DW.1 it is proved that accused no.1 is 19 managing the entire affairs and transactions of business of the flourmill that is what is revealed from the evidence of DW.1.
21. Under these circumstances and the facts revealed in the case as per evidence discussed above, the accused no.1 is also equally liable as that of accused no.2 in the commission of offence. Even though Special Court has not mentioned Section 34 of IPC along with substantive offence of Section 135 of the Act but mere omission does not absolve the criminally liability on the part of the accused No.1 considering the evidences as discussed above.
22. Therefore in this regard the trial court has rightly appreciated the evidence on record and correctly came to conclusion that both the appellants have committed offence under Section 135 of the Act. In this regard the Special Court arrived at a conclusion regarding recording conviction under Section 135 of the 20 Act and is found to be correct and legal one and there is no need to cause any interference in the judgment of conviction made by the Special Court. Hence, I answer point No.1 in negative.
POINT NO.2
23. In the present case the Special Court has only imposed fine amount of Rs.1,60,424/- on each of the accused with default clause to undergo simple imprisonment for a period of six months, if failure to pay fine amount.
24. The Special Court had assigned the reasons while discussing on order on sentence that as per the prosecution papers Rs.1,06,949/- back billing charges and Rs.32,000/- is compounding charges. The Special Court has calculated and considered Rs.1,06,949/- is back billing charges which is the financial gain taken by the accused by committing theft of electrical energy and three times of the said amount is imposed to the 21 accused as fine amount which comes to Rs.3,20,847/- and thus, it was divided by two showing that each of the accused shall pay a fine amount of Rs.1,60,424/-. In this line the Special Court has ordered sentence to pay fine as stated above.
25. Upon considering Ex.P.4 which is loss sustained to GESCOM due to the theft of electrical energy prepared by PW.1 and as per this Ex.P.4 the sanctioned load to the accused is 8 HP. It is stated that the load consumption is 240 units. As per the KERC's rules, the consumption is assessed as 8HPx12x150=14400 units, by deducting 240 units out of 14400 units then the loss of energy in units is stated as 14160 units.
26. It is not disputed fact in the present case that the flourmill is situated in the village. From the prosecution evidence on record it is revealed that in Siddapur village the population is 200 as it is revealed 22 during the course of cross-examination made by the prosecution to DW.1. Therefore from the prosecution papers it is revealed that there are about 50-55 houses in Siddapur Village. Therefore, Siddapur Village can be considered as a hamlet. Under these circumstances it cannot be said that always for running the flourmill in such a small or tiny village 8 HP motor is regularly being used. From considering the evidence of PW.1 also who has lodged FIS in this case, conducted raid and also stated that there is also another flourmill situated in the same village. Therefore, for about having 200-250 population consisting of 50-55 houses in such a small village revealed that there are two flourmills are running including one of the accused. Therefore, under these circumstances it cannot be expected and possible always to use 8 HP motor for running the flourmill and also it cannot be said that there is always regular energy supplied to such villages on 24 hours throughout the week and throughout the year. 23 Therefore, under these circumstances the calculation made by PW.1 as per Ex.P.4 is found to be exhorbitant.
27. It is a standard calculation of the department that for 1 HP normal expectancy of using 150 units per month but for the reasons and discussions made above it cannot always be expected to use 150 units per 1 HP per month.
28. Considering the facts and circumstances in the present case, muchless considering the fact that there are two flourmills are there in Siddapur village in such a tiny village. Therefore if for 1 HP power consumption of 75 units per month is calculated considering the flourmill situated in tiny village and that would be a proper calculation. Considering all practical aspects involved in the case therefore assessment of consumption is made by taking into consideration the consumption of 75 units per month for one month per motor then the calculation would be as follows ;- 24
8 HP x 12 x 75 = 7200.
If in Ex.P.4 the recorded consumption is 240 units and if this 240 unit are deducted from 7200 then the consumption unit is 6960 (7200-240=6960).
Then the loss sustained to GESCOM can be calculated as follows ;-
Upto the unit 5760 the rate per unit is 3.30 as per KERC's Rules, multiplied by '2', i.e., calculated as below;-
5760x3.30x2=38,016/-.
Then for remaining 1200 the rate per unit is 3.80 accordingly the calculation as below ;-
1200x3.80x2=9,120/-.
In total of Rs.47,136/- (Rs.38016+9120). Tax @ 5% is 2356.8 (47136x5%/100).
Therefore the back billing charges would come to Rs.49.492.8 (47136+2356.8).
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Therefore the loss sustained to GESCOM is at Rs.49,492/-.
29. As per proviso to Section 135 of the Act where the load abstracted, consumed, or used or attempted for abstraction or attempted consumption or attempted use does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity.
30. In the present case as per the prosecution version this is the first offence by the accused. The prosecution has not placed any other material to show that the accused are habitual offenders. Therefore, considering the factors that it is the first offence committed by the accused, therefore, the fine amount would be imposed minimum three times of the financial gain. In the present case as above discussed while calculating loss sustained to GESCOM and as such the 26 loss is financial gain to accused is calculated as Rs.49,492/-. Therefore, if it is multiplied by three times then it would be Rs.1,48,476/-. Therefore, if this is divided on each accused then each accused shall pay fine amount of Rs.74,238/-. Therefore, accused nos.1 and 2 are ordered to pay fine amount of Rs.74,238/-. Thus, totally the accused nos.1 and 2 together shall pay fine of Rs.1,48,476/-. Therefore, accordingly the order on sentence is modified to the above extent. If the accused nos.1 and 2 fails to pay fine amount as stated above then they shall undergo simple imprisonment for a period of six months of the offence committed.
31. In the above discussions and reasons, the order on sentence is modified to the said extent. The appeal succeeds in part. Accordingly, I answer Point No.2 in the affirmative. Hence, I proceed to pass the following ;
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ORDER Appeal is hereby partly allowed.
The judgment of conviction, convicting the appellants for the offence under Section 135 of the Electricity Act, 2003 is hereby upheld.
The order on sentence is modified to the extent that each accused shall pay fine amount of Rs.74,238/-. If accused fails to pay fine amount as stated above they shall undergo simple imprisonment for a period of six months.
Registry is hereby directed to send the lower court records along with certified copy of this judgment to the concerned court forthwith.
Sri B.C.Jaka, Advocate since appointed as a standing counsel by the High Court Legal Services Committee (HCLSC) and the court places its appreciation for rendering the valuable assistance to 28 this court and thus, his professional fee is fixed as Rs.8,000/- payable by HCLSC to the Advocate.
Sd/-
JUDGE sn