Calcutta High Court
Anjan De vs State Of West Bengal And Anr. on 9 January, 2008
Equivalent citations: (2008)1CALLT486(HC)
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
JUDGMENT Kalidas Mukherjee, J.
1. This application under Section 401 read with Section 482 Cr. PC is directed against the Judgment and order dated 12.04.2006 passed by learned Judge, Special Court (E.C. Act) and Additional Sessions Judge, Alipore, 24 Parganas (South) in Special Case No. 30(2) of 2005 arising out of Beliaghata P.S. Case No. 23 dated 10.02.2005 under Section 135/138 of the Electricity Act, 2003 thereby acquitting the Opposite Party No. 2 herein.
2. The case of the petitioner, in short, is that he is an Engineer at the Loss Control Cell, C.E.S.C. Limited. The supply of Electricity was disconnected on 08.04.2002 being Industrial Meter No. 2157330 of M/s. Lokenath Oil Mill of 1/8/2 of Taran Krishna Naskar Lane, Kolkata - 700010, consumer No. 280/120/9007 and the assessment for the meter consumption was assessed to the tune of Rs. 69,060/-. Thereafter the ex parte final order of assessment was passed on 17.05.2002 by the petitioner No. 1 Company. The prosecution case is that the accused person un-authorizedly consumed electricity at the said premises which was previously disconnected by them. It is further alleged that on 10.02.2005 in between 13-15 hours and 13-40 hours a special team along with the police raided the said premises and found that the consumer of the said meter had reconnected the supply of the Industrial Meter, illegally which was previously disconnected due to pilferage of electricity by tampering the seals of the meter body. It is alleged that the meter was disconnected on 08.04.2002 and thereafter re-connected on 10.02.2005. The meter has also been removed from the meter board and seized at the site. After observing the formalities, the complaint was lodged against the O.P. No. 2 herein. On the basis of the said complaint, the police investigated the case and submitted charge sheet under Section 135/138 of the Electricity Act. The charge was framed against the O.P. No. 2 and he pleaded not guilty. 10(ten) witnesses were examined for the prosecution.
3. After completion of trial, the order dated 12.04.2006 was passed by the learned Trial Judge acquitting thereby the O.P. No. 2 herein. Being aggrieved by and dissatisfied with the said Judgment and order, the present revisional application has been filed by the petitioner herein.
4. It has been submitted by the learned Counsel appearing on behalf of the petitioner herein that the learned Trial Judge committed illegality by not considering the materials on record and, in fact, the learned Judge did not consider the report of the expert wherefrom it would clearly appear that the seal of the meter was tampered. It is submitted that the learned Judge did not consider this aspect of the evidence and proceeded to decide the case on surmise and conjecture. It is further submitted that the learned trial Judge did not consider the evidence on record from its proper prospective and decided the case after wrong appreciation of evidence.
5. The learned Counsel appearing on behalf of the petitioner submits that after the amendment of Section 151 of the Electricity Act in the year 2007, Court may also take cognizance of an offence punishable under the Act upon report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973. It is contended that such amending Act being a procedural law, would be retrospective in effect and this amendment has been introduced to remove the anomaly in Court's procedure and the accused will not be prejudiced in any way thereby. The learned Counsel further submits that the electric line was disconnected on 08.04.2002 which was re-connected on 10.02.2005 and the police after completion of the investigation submitted charge sheet under Section 135/138 of the Electricity Act. It is contended that in 2002 the meter was tampered and the disconnection was made, but, the meter was not seized because the officers of C.E.S.C. had not the power to make the seizure. It is submitted that it has also been decided by the learned single Judge of this Hon'ble Court in CRR No. 1224 of 2007, CRR 2374 of 2007 as reported in (2007)2 C Cr.L.R. (Cal) 463 [Ajay Kumar Ghosh v. The State of West Bengal and Anr.] and CRR 4030 of 2006 that the new amendment of the Electricity Act will be retrospective in operation.
6. Learned Counsel for the petitioner further submits that the report of the expert wherein it was specifically mentioned that the seal was tampered was not considered by the learned Trial Judge. It is contended that the report of the expert is sufficient to prove that there was pilferage of electricity. Learned Counsel further submits that there is bar of jurisdiction to entertain such matter by Civil Court. It is submitted that the issue relating to taking cognizance cannot be reopened at this stage.
7. The learned Counsel appearing for the petitioner submits that the instant revisional application is a continuation of the original proceeding and it cannot be said that with the order of acquittal passed by the learned Trial Judge, the original proceeding reached its logical conclusion, in as much as, revision is the continuation of the original proceeding. It is contended that a proceeding will reach its logical conclusion when it is decided by the last forum. The learned Counsel appearing for the petitioner has referred to the decisions reported in 1986 Cr.L.J. 1074 [Maj. Genl., A.S. Gauraya and Anr. v. S.N. Thakur and Anr.] [State of M.P. v. Bhooraji and Ors.]; and [Mohammad Safi v. The State of West Bengali.
8. The learned Counsel appearing on behalf of the O.P. No. 2 has submitted that the officer of C.E.S.C. lodged the FIR and upon completion of investigation by the police, the cognizance was taken by the Court on the basis of police report prior to the coming into operation of the amendment, which is contrary to the provisions of Section 151 of the Electricity Act. It is submitted that the amendment of Electricity Act in 2007 clearly indicates that it came into force w.e.f. 15.06.2007. While submitting on the remedial statute, it is contended by the learned Counsel for the O.P. No. 2 that the amendment of Section 151 of the Electricity Act will not be retrospective, in as much as, a specific date has been mentioned in the amending Act itself and, as such, the cognizance taken by the learned Court below prior to the amending Act was bad in law. It is submitted that by introducing the new amendment a vested right with regard to the procedure has been curtailed and such amendment will be applicable in respect of the pending cases only. It is submitted that the case has already been disposed of by the learned Special Judge and, therefore, it has reached the logical conclusion and the pendency of the revision cannot be said to be the pendency of the original proceeding. It is the contention of the learned Counsel appearing on behalf of the O.P. No. 2 that the amendment of 2007 will not be retrospective and if it is retrospective, it will be operative in pending cases only. It is the further contention that the instant case has already been decided by the learned Judge, Special Court whereby the O.P. No. 2 herein was acquitted of all the charges.
9. Learned Counsel appearing on behalf of the O.P. No. 2 has submitted that in case of revision, the Court can only interfere if there is perversity, but, in the instant case the learned Trial Judge after considering all the aspects of the case and the materials on record, passed an order of acquittal and, as such, there is no ground to interfere in revision. The learned Counsel has referred to the decisions [Nani Gopal Mitra v. State of Bihar] para 6; (2007)2 C. Cr. L.R. (Cal) 463 [Ajoy Kumar Ghosh v. The State of West Bengal and Anr.]; AIR 1979 3C 592 [Mohd. Rashid Ahmad etc. v. The State of U.P. and Anr.]; [Pt. Ram Prakash v. Smt. Savitri Devi]; [Sukhram Singh and Anr. v. Smt. Harbheji] and 2002 Cr.LJ 3788 [Bindeshwari Prasad Singh alias B.P. Singh and Ors. v. State of Bihar (now Jharkhand) and Anr.].
10. On the point of retrospectivity, it has been held in a number of casels [CRR No. 1224 of 2007, CRR No. 2374 of 2007 as reported in (2007) 2 C. Cr. L.R.(Cal) 463 and CRR No. 4039 of 2006] by the learned single Judge of this Hon'ble Court that the amendment of 2007 will be retrospective in operation. As regards the operation of the amendment of 2007 in pending cases, it is clear that with the pendency of the revisional application, there is continuation of the original proceeding, although in the original proceeding the accused was acquitted. It is immaterial whether it is appeal or revision so far as the pendency of the original proceeding is concerned. The ratio of the decisions cited by the learned Counsel for the O.P. No. 2 will not be applicable in the different facts of the instant case.
11. Learned Counsel appearing on behalf of the O.P. No. 2 has referred to the decisions reported in AIR 1970 SC 1636 para 6 [supra]; 2007 Vol. 2 C. Cr. L.R. (Cal) 463 [supra]; [supra]. AIR 1958 (Punjab) 87 [supra]; [supra] and 2002 Cr.L.J. 3788 [supra] in support of his contention that the effect of the new amendment will not be retrospective. But it has been decided by the learned single Judge of this Hon'ble Court in CRR No. 1224 of 2007, CRR No.2374 of 2007 as reported in (2007)2 C. Cr. L.R. (Cal) 463 and CRR No.4039 of 2006 that this amendment will be retrospective in effect. Since the question of retrospective operation of the amendment of 2007 of the Electricity Act has been considered and decided in the aforesaid revisional applications and the said point being involved in the instant case with similar facts and circumstances, I am inclined to rely on the said decisions of the learned single Judge of this Hon'ble Court and I am of the considered view that the amendment of 2007 is retrospective in operation. With the coming into operation of this amendment, the question of legal infirmity in taking cognizance does not arise and it cannot be reopened at this stage.
12. As regards the merits of the case, it appears that the learned Trial Judge observed that no explanation was given by the prosecution as to why the electric bills were sent to the consumer inspite of the alleged contention that in 2002 the meter was disconnected. The learned Judge also referred to the evidence of the witnesses and came to the finding that the prosecution miserably failed to prove that the meter was disconnected in the year 2002. The learned Judge also considered Exhibit 4 i.e. the report of the expert. The learned Judge observed that order of injunction was passed on 09.02.2005 by the learned Civil Judge, Junior Division, 1st Court, Sealdah and being dissatisfied with the same, the instant case was registered on 10.02.2005. The learned Court below also considered the evidence of the P.Ws, the search and seizure, the point of alleged tampering with the meter and the alleged pilferage and ultimately came to the conclusion that the accused person was entitled to get an order of acquittal on the basis of strong benefit of doubt.
13. It is the settled position of law that even when a different view is possible on the basis of evidence on record, the Court will not interfere in revision. On perusal of the impugned Judgment and order passed by the learned Trial Judge, I find that the learned Judge considered the entire evidence on record and after taking into consideration all the aspects of the case, recorded an order of acquittal. I find that no illegality or perversity was committed by the learned Court below. Such being the position, I find that there is no ground to interfere with the impugned Judgment and order of acquittal in this revisional application.
In the result, the revisional application fails. The application under Section 401 read with Section 482 of the Cr. PC stands dismissed.
Urgent xerox certified copy, if applied, be handed over to the parties as early as possible.