Karnataka High Court
Abdul Gafoor S/O Baba Jan vs The State Of Karnataka on 23 September, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 23RD DAY OF SEPTEMBER 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.710 OF 2009
BETWEEN:
Abdul Gafoor,
Son of Baba Jan,
Aged about 42 years,
Occupation : Petty Business,
Resident of No.191,
St. Joseph Convent Road,
Bannimantap Extention,
Mysore.
...APPELLANT
(By Shri. R.B. Deshpande, Advocate)
AND:
The State of Karnataka
By Mandi Police Station.
...RESPONDENT
(By Shri. K.R. Keshava Murthy, State Public Prosecutor 1)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
2
appellant praying to set aside the conviction and sentence dated
31.7.2009 passed by the I Additional, Sessions Judge and
Special Judge, Mysore in Special Case No.100/2002 -
convicting the appellant for the offence punishable under
Section 44 of the Indian Electricity Act and under Section 435
and 201 of IPC and etc;
This appeal coming on for Hearing this day, the Court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned State Public Prosecutor.
2. The facts of the case are as follows:
The appellant herein was said to be one of the partners of a firm which was managing a factory known as The Modern Pulverizer Factory at Bannimantap Extension, Mysore which was serviced with a 70 HP Electric connection to his installation by the then Karnataka Electricity Board. It is alleged that on 19.05.1997, the complainant, one Assistant Executive Engineer (Vigilance), Karnataka Electricity Board, Mysore, had lodged a complaint with the Mandi Police Station 3 against the accused who was the registered consumer of meter bearing R.R.No.1ZP-182. In that, on verification of the consumption of electricity by the unit of the appellant, there was a strong suspicion that there was commission of theft of electricity and therefore, vigilance squad headed by the complainant, had visited the installation on 15.05.1997. Since the electric meter was located in a room where it was locked, the labourers present were enquired as to the key of the said room and it was stated that it was with the present appellant and since he was not available, the complainant had again visited the premises on the next day, namely on 16.05.1997 to inspect the electrical meter. Again, the appellant being absent, a message was left that the room should be left open to be made available for inspection on the next date of inspection. Since it was over the week end, the complainant had decided to visit the premises on 19.05.1997. At 7.30 a.m. on 19.05.1997, the complainant received information that the electric meter which he was to inspect, had accidentally caught fire. Thereafter, he 4 had visited the premises at 10.45 a.m. and found that the door was now open and there was smoke billowing out of the meter board and the entire meter box had fallen out and it was lying on a heap of sawdust and fire had already extinguished. From the facts and circumstances, the complainant suspected that the so-called fire accident was stage managed in order to cover up and destroy the evidence pertaining to theft of electricity which was suspected all along. Therefore, he had requested the Mandi Police to initiate action against the accused. Complaint was accordingly registered later in the day at 8.30 p.m. and after further investigation, the suspicion of the complainant was confirmed in the manner in which the alleged fire accident had taken place. The sign of such a manipulation of the circumstances was disclosed by the partly burnt but the visible copper wire, which had inexplicably remained intact though the meter board had allegedly caught fire and it looked as if the copper wire had been deliberately cut, but was not burnt up. It is a partially burnt meter which raised the suspicion of the 5 complainant that the meter board was actually tampered with to destroy the evidence of theft of electricity. This was the basis of the complaint. The observations of the complainant were indicated as follows:
"(i) The seal that was affixed to the power meter, which was inside the Meter Box, was not available.
(ii) The wire, which was connected to the Meter, was visibly cut and separated.
(iii) The service main cable connecting the Meter Box with electric pole was also cut and separated.
(iv) The load side wire, which was going out of the Meter Box to the installation, was also cut and separated.
(v) The Sawdust was stored just below and in front of the Meter Box and the said Sawdust heap was set fire intentionally.
(vi) The Meter Box was removed from the Meter Panel and it was placed just above the Sawdust heap and the Sawdust heap was set fire.
(vii) Bolt, Nut and Washer put to the Meter Box was in good condition and no damage was caused to them. These bolt, nuts and washers are intact with the Meter Box.6
(viii) The wall to which the Meter Box was fixed had also no traces of smoke etc.,
(ix) The lighting meter of the installation was not damaged and it was intact."
Thereafter, there were further proceedings where an estimate was made of the possible quantity of electrical energy that was stolen by the accused and his unit. After gathering reports from the Fire Station as to the manner in which the fire had occurred and the way it was put out and after gathering all other material particulars, a charge-sheet was filed against the accused for offences punishable under Sections 39 and 44 of the Indian Electricity Act, 1910 (hereinafter referred to as 'the Act, 1910' for brevity) read with Section 379, 435 and 201 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity) before the I Additional Chief Judicial Magistrate, Mysore. The said court, after framing charges for the offences aforesaid punishable under the aforesaid provisions, the accused had pleaded not guilty and claimed to be tried. The prosecution 7 had then examined three witnesses and marked several exhibits and material objects and later examined three more witnesses namely PWs 5 to 7 and marked certain other exhibits as well.
Thereafter, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.', for brevity) and after hearing both the sides, the court below had framed the following points for consideration:
"(1) Whether prosecution proves beyond all reasonable doubt that when the installation of meter bearing RR No.NZP-182 of Modern Pulvarizer situated at Bannimantap Extension, Mysore belonging to the accused was inspected, the accused was dishonestly obstructing the energy between 24.2.1995 to 19.5.1997 and thereby committed an offence punishable under Section 39 of Indian Electricity Act, 1910?
(2) Whether the prosecution further proves beyond all reasonable doubt that the accused maliciously injured or tampered the Meter in question willfully or fraudulently and thereby committed an 8 offence punishable under Section 44 of Indian Electricity Act, 1910?
(3) Whether prosecution further proves beyond all reasonable doubt that the accused has committed mischief by fire with an intention to cause damage to the meter in question and thereby committed an offence punishable under Section 435 of IPC?
(4) Whether prosecution further proves beyond all reasonable doubt that the accused with intent to cause disappearance of evidence of tampering of the meter, intentionally burnt and destroyed the meter in question and thereby committed an offence punishable under Section 201 of IPC?
5. What order?"
The Trial Court ultimately had held Point No.1 in the negative and all other points in the affirmative and acquitted the accused for the offence punishable under Section 39 of the Act, 1910 and convicted the accused for the offence punishable under Section 44 of the Act, 1910 and under Sections 435 and 201 of the IPC. It is that which is under challenge by the accused.9
3. The learned counsel would seek to point out that the appellant has been acquitted for the offence punishable under Section 39 of the Act, 1910 but has been convicted for the offence punishable under Section 44 of the Act, 1910. The State has not chosen to challenge the acquittal insofar as the offence punishable under Section 39 is concerned. The learned counsel would submit that when the court did not find any substance in the case of the prosecution insofar as the alleged theft of electricity is concerned, the inexplicable findings that there was tampering with the meter board and mechanically applying the provisions of Section 44, would be incongruous when the main evidence of theft of electricity and to conceal the theft of such electricity, the charge having been brought against the appellant that he had tampered with the meter in order to destroy such evidence, indeed the reasoning of the court below cannot be reconciled on the one hand holding that the main case against the appellant was not made out to incidentally hold that the tampering of the meter has been established. This is an 10 incongruity which cannot be reconciled and runs against the grain and would indicate the perverse manner in which the court below has proceeded to address the case of the prosecution. Further, he would point out that even the basis on which the court below has held that the offence punishable under Section 44 of the Act, 1910 was made out is to be found at Paragraphs 33 and 34. From a reading of the same, it is evident that the court has concluded that the tampering of the meter is clouded in technical terms in order to understand that there was indeed tampering and it has also been observed that it was not possible for the prosecution to place direct evidence before the court to establish the offence alleged. But, there was circumstantial evidence in support of the contentions and that the chain of circumstances was complete by the evidence on record and it has also held that no link is found missing. It has been found that the lead seal on the meter was not available and therefore, it would indicate that the meter was tampered with and it is further concluded that if the lead seal was intact before 11 the outbreak of fire, it would have been there in a damaged condition or it would have melted down and has accepted the observation made by the prosecution witnesses that if it was a case of accidental fire due to electric short circuit, the centre portion of the meter would have been burnt completely and the wires connecting the meter would also have been burnt as well along with the board and the sealing wire which is markedly very thin would have also burnt. But it was not so in the case on hand. Only the outer portion of the meter was burnt and the wires were found intact and it was evident that they had been cut and removed. Therefore, it did not evidence an accidental fire due to short circuit and it was also strange that the meter having cut off its moorings were found lying on the heap of sawdust face up and this was indeed strange, as there was no damage found to the wall or to the wooden panel or the bolts and nuts to which the meter was secured to the meter board. Therefore, the court below has concluded and accepted the case of the prosecution that there was tampering of the meter. But at 12 the same time, has acquitted the accused of the offence alleged against him of theft of electricity. Therefore, the learned counsel would submit, in the absence of the main allegation against the accused not having been established and the court holding that unless the technical aspects are addressed, which the prosecution is not competent to do, it would not be possible for the court to arrive at a definite conclusion that there was tampering, but however, proceeds to accept the explanation put forward by the prosecution in holding that there was indeed tampering of the meter and hence would submit that the appeal ought to be allowed and the conviction be set aside insofar as the allegation of an offence punishable under Section 44 of the Act, 1910 is concerned.
4. While the learned State Public Prosecutor would strongly oppose the appeal and would contend that though it is unfortunate that the State has not chosen to file an appeal which in his opinion warranted an appeal, the fact remains that the finding insofar as the tampering of the meter which is an 13 independent offence punishable under Section 44 of the Act, 1910 is concerned, there can be do doubt that the meter was tampered with. The technical aspects which are referred to by the Trial Court are not of such a nature as cannot be understood. The allegation that the meaning of accidental electrical fire could have been triggered only by a short circuit within the electricity meter board and if such an eventuality had indeed occurred, it was but natural for the wires inside the electrical board to have been burnt out along with the lead seal put on the meter, as well as the sealing wire, which were all found to be intact. This is indeed an indication that the meter board was set on fire from the outside and the half burnt meter was knocked off the board and made to look as if it had caught fire and fallen off the meter board. Ultimately, it is the information that was provided by the prosecution to the Court, which has been accepted.
Incidentally, the observations of the court that it is highly technical and it would require highly technical knowledge to 14 understand the matter, is irrelevant and hence would submit that the offence punishable under Section 44 can be independently sustained apart from the prosecution having invoked the provisions of the IPC which were also applicable. Hence, contends that the conviction be sustained.
Insofar as the visit of the Electrical Inspector and his observations which have been made meticulously and on the basis of which a charge having been framed and evidence having been tendered and the accused confronted while recording the statement under section 313 Cr.P.C. that the circumstances that appeared against the appellant and his unit, has not been explained by the accused at all. This is yet another circumstance which warranted a conviction of the accused both for the offence punishable under Section 35 and under Section 44, apart from the provisions of the IPC and hence would submit that it is not a fit case to be entertained.
5. The learned counsel for the appellant by way of reply would point out that there is a glaring circumstance which also 15 would entitle the appellant to claim that there cannot be a punishment in respect of the same act under two different legislations when the object and intent to punish the accused was in respect of the same acts. In that, he would point out that the offence contemplated under Section 35 of the Electricity Act, 1910 and the offence contemplated under Section 44 of that Act are in pari materia with Sections 435 and 201 of the IPC and the court below having thought it fit to not only impose punishment for the offence punishable under Section 44, but also under Sections 435 and 201 of the IPC, results in a disproportionate punishment being imposed under two different legislations with the same object in respect of the same acts or the conduct of the accused, and hence would submit that it is yet another ground on which the entire proceedings ought to be set at naught.
6. On a close examination of the record and the rival contentions, the court below has categorically found on the basis of evidence tendered that there was tampering with the 16 electricity meter and this was directly in order to conceal the theft of electricity and the court below on the other hand, having acquitted the accused for the offence punishable under Section 35 of the Act, 1910 which prescribes the punishment for theft of electricity, is indeed incongruous and cannot be reconciled. But however, the findings that there was tampering with the electric meter, is certainly well-established. In that regard, there cannot be any doubt that the prosecution had established its case with reference to elementary observations of the manner in which an electrical fire is said to have occurred in the electricity meter board and leaving inflammable material intact and which were found to have been cut deliberately and the attempt to make it seem like a fire accident, was plain on the face of it. Therefore, the court below was not justified in holding that the accused was to be acquitted under Section 39 of the Electricity Act. However, the State not having filed an appeal and in an appeal filed by the accused, it would be impermissible for this Court to reverse the findings which are to 17 the benefit of the accused. However, insofar as the conviction for the offence punishable under Section 44 independently, cannot be doubted. The course open to this Court therefore, to prevent any possible mischief in future and to bring home to the accused that any such acts would not pay and in order to ensure that the petitioner does not take advantage of a lapse committed by the court below, in acquitting the accused of the main allegations, it would be necessary to substantially modify the judgment of the court below insofar as it has convicted and sentenced the appellant to various punishments. In order to enhance the fine that would be imposed on the appellant, it is also necessary to modify the sentence of imprisonment which appears to be disproportionate to the limited offence of alleged tampering of the meter is concerned.
The offence punishable under Section 435 and Section 201 of the IPC are alone taken into consideration and a fine of Rs.50,000/- for the offence punishable under Section 435 and a 18 further amount of Rs.50,000/- for the offence punishable under Section 201 IPC are imposed.
The other punishments by way of imprisonment and fine under the provisions of Section 44 of the Electricity Act, 1910 is set-aside and eschewed. In the event of default on the part of the appellant to pay the fine as imposed for the offences aforesaid, he shall be sentenced to simple imprisonment for a period of six months. Substantive sentence of imprisonment is set-aside and restricted to fine as aforesaid.
Sd/-
JUDGE KS