Andhra Pradesh High Court - Amravati
Katta Lumamba, vs The State Of A.P., Rep By Pp., on 25 August, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Appeal No. 275 of 2009
JUDGMENT:
1) The present appeal came to be filed challenging the conviction and sentence imposed by the trial court in S.C. No. 42 of 2008 on the file of the District and Sessions Judge, Ongole- FAC- Special Judge-cum-I Additional Sessions Judge, Ongole. Originally, the appellant herein was charged for the offence punishable under Section 135(a) of the Electricity Act, 2003. By its judgment, dated 25.02.2009, the learned Sessions Judge, found the appellant guilty of the said charge and sentenced him to pay a fine of Rs.66,111/- in default to undergo simple imprisonment for a period of six [06] months. The fine amount was directed to be payable to the complainant department, as compensation under Section 357 Cr.P.C.
2) The facts, in issue, are as under:
i. PW1 who is the Assistant Divisional Engineer, Y.Palem, A.P.S.P.D.C.L. [A.P.S.E.B], Prakasam district along with A.E., DPE, Ongole, who was examined as PW2, inspected the premises of the accused, situated at Kurravanipalem village, Korisapadu mandal, Prakasam district, on 07.07.2005, at about 19.15 hours. During the inspection of the premises, they noticed pilferage of energy by directly tapping from the nearby L.T. overhead lines, to his premises, with the help of 2 two [02] number black coloured aluminum wires measuring about 75 meters length each, to run both his domestic and commercial load for the dish he was maintaining for providing TV programmes to the nearby people therefrom. ii. It is said that, at the time of inspection, the accused was present with PW 1 and PW2. His statement was recorded, which formed part of inspection report [Ex.P1]. The accused is said to have stated that, he has no consumer connection and has asked for consumer connection, for which he was to pay Rs.1,200/- with proof as demanded by A.E. but did not pay, however, stated that, he paid Rs.650/- to Line's Inspector. PW1 disconnected the service wires with which the power was pilfered, seized the wires, and mentioned the same in his report Ex.P1 [at column no. 8]. He also recommended that no new connection be released to the said premises. PW1 assessed the loss caused to the department from the theft of the energy at Rs.22,000/- and odd, out of which, the domestic consumption was Rs.7,824/-. It was further stated that, even in the year 2003, the accused indulged in pilferage of energy adopting the same modus operandi, and a case was registered against him.3
iii. Be that as it may be, basing on the report Ex.P1 given by PW1, a case in Cr. No. 1847 of 2005 for the offence punishable under Section 135 of the Electricity Act, 2003, came to be registered by PW6 - Inspector of Police. Ex.P3 is the FIR. In the course of investigation, he examined PW1 to PW5 and recorded their statements. He also obtained a certificate issued by PW5 as Ex.P2. Thereafter, he visited the premises of the accused and prepared a rough sketch of the scene, which is marked as Ex.P4. The rough sketch indicates, live wires of electrical pole being used for pilferage of energy. The accused was arrested, on 20.07.2005, and was remanded to judicial custody. After completing the investigation, a charge-sheet came to be filed against the accused for the offence punishable under Section 135 of the Electricity Act, 2003. Subsequently, the case was converted into Sessions case by invoking the provisions of Sections 262 read with 259 of Cr.P.C.
3) On appearance of the accused, copies of all documents as required under Section 207 Cr.P.C. were furnished. On appearance of the accused, charge as referred to above came to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.4
4) In support of its case, the prosecution examined PW1 to PW6 and got marked Ex.P1 to Ex.P4. After completion of the prosecution evidence, the accused was examined under section 313 Cr.P.C with reference to the incriminating material appearing against him in the evidence of prosecution witnesses, to which, he denied, but did not adduce any oral or documentary evidence in support of his plea.
5) Relying upon the evidence of PW1 to PW6, the learned Sessions Judge convicted the accused and sentenced him to pay a fine of Rs.66,111/- in default to undergo simple imprisonment for a period of six [06] months. Challenging the same, the present appeal came to be filed by the accused.
6) Sri. T. Nagarjuna Reddy, the learned counsel for the appellant would contend that, the trial court erred in convicting the accused for the offence punishable under Section 135 (a) of the Electricity Act, as he could not have taken cognizance of the matter, in view of the bar under Section 151 of the Electricity Act. He would further contend that, all the witnesses examined by the prosecution are official witnesses and no attempt was made to secure any independent witness to speak about the pilferage.
7) The same is strongly rebutted by the learned Public Prosecutor stating that, the bar under Section 151 of the Electricity Act, would not apply, since the report was given by the 5 officer on duty in writing. Insofar as non-examination of an independent witness is concerned, he would contend that, the accused failed to show as to how he was prejudiced of non- examination of independent witness. Further, he would submit that, there was no need for these witnesses to speak false against the accused.
8) As seen from the record, PW1 along with PW2 inspected the premises of the accused and noticed pilferage of energy by directly tapping from the nearby L.T. overhead lines to his premises with the help of two [02] number black coloured aluminum wires, each measuring about 75 meters. A report came to be prepared, vide Ex.P1, which contains the statement of the accused at column no.10. After disconnecting the service, PW1 lodged the report before PW6, setting the law into motion.
9) In cross-examination, PW1 denied the suggestion that, the contents in column 10 of Ex.P1 nowhere show any theft or pilferage of energy by accused much less for dish antenna used or cable connection circulation. He further denied the suggestion that, the last line of column no. 10 of Ex.P1 words "DISH KOSAM"
was a subsequent interpolation. However, he avers that, it is the accused who scribed the contents of column no. 10 of Ex.P1. A perusal of column no. 10 contents of Ex.P1, scribed by accused, from the first two lines, reveals, the checking of the premises of the accused by PW1 and PW2; there being no electrical service 6 connection and meter for it. Column no. IV of Ex.P1, which deals with mentioning of S.C. number, shows direct tapping to the premises connecting dish. As per column no. V of Ex.P1 contents filled and even at column No. V(2) regarding the meter capacity, it was mentioned as 'no meter connection'. At column No. VII, it was mentioned that the accused was found indulging in pilferage of electrical energy by directly tapping the supply from the nearby L.T.O.H. wires to run his dish cable and domestic purposes with the aid of two black coloured P.V.C. aluminum wires measuring about the length of 75 meters each. He denied the suggestion that, Ex.P1 contents including consumption load mentioned is beyond the knowledge and information to the accused. He further denied that Ex.P1 is a created one and the accused was called upon to write at column no. 10 subsequently to their dictation under threat. He further denied the suggestion that, the so called commercial and domestic consumption calculation is a subsequent engineering to burden the accused. Though, PW1 was cross-examined at length on various aspects, nothing useful came to be elicited to discredit his testimony.
10) PW2 is the person who accompanied PW1 at the time of inspection and his evidence corroborates the evidence of PW1 in all aspects.7
11) PW3 is a retired Line Inspector of D1 Section, Ongole.
According to him, prior to December 2004, he was working as Line Inspector at Ravinuthala, Kurravaripalem, which is a part of Ravinuthala. The Vigilance A.P.T.S., Inspector, examined him regarding the truth of the contents of column no. 10. He stated that the allegation of he receiving money from the accused is false.
12) PW4 is a retired A.D.E., who was examined by Inspector A.P.T.S., to find out as to whether the accused approached him for domestic connection. He stated that, when the accused approached him, he advised him to come with a duly filled application along with a demand draft of Rs.1,325/- for applying domestic service connection, to be handed over at Addanki Sub- Division Office. However, in the cross-examination, he admits that, he did not mention the name of the accused and said one person, but, however, denied the suggestion that his evidence is false.
13) PW6 - Inspector of A.P.S.P.D.C.L., V&APTS, Ongole, deposed that, on 06.07.2005 at 10.30 a.m., he received Ex.P1 from PW1 and he registered a case in Cr. No. 1847 of 2005 for the offence punishable under Section 135 of Electricity Act, for theft of energy by the accused and issued Ex.P3 -FIR. He took up investigation and collected Ex.P2 [certificate] from PW5, examined PW1 to Pw4, and prepared Ex.P4 [rough sketch]. He arrested the accused on 8 20.07.2005 and sent him to judicial custody. On completing the investigation, he filed the charge-sheet against the accused.
14) In further cross-examination, PW6 states that, in Ex.P4 [rough sketch] item no. 4 was mentioned as the premises of the accused under construction, for which no house number can be allotted, and the pilferage was to item No.1 of Ex.P4 house bearing no. 3/76. He denied the suggestion that the said house is not that of the accused or that Ex.P4 is falsely showing the house as that of the accused, or that Ex.P4 is prepared by sitting in office and the investigation is table made one.
15) At this stage, it would be appropriate to extract Section 151 of the Electricity Act, which reads as under:-
"Section 151. (Cognizance of offences): No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose. [Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.] 9
16) A reading of Section 151 would show that, "no court shall take cognizance of an offence except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose. Though, the learned counsel for the appellant tried to contend that, it was the police officer who lodged the report, but, a perusal of the FIR shows that, it was one Sri.P.Siva Nageswara Rao, Assistant Divisional Engineer, Y.Palem, A.P.S.C.D.C.L., (A.P.S.E.B.), Prakasam District, who lodged Ex.P1 report, and he is no other than PW1 in this case. Therefore, the argument of the learned counsel for the appellant that, a police officer has lodged the report, which lead to the filing of a charge-
sheet and taking cognizance appears to be incorrect. Thus, the procedure that has been adopted by the agency in lodging the report cannot be found fault with.
17) The second ground urged by the learned counsel for the appellant is that, adverse inference should have been drawn for non-examination of independent witness. It is no doubt true that, no independent witness has been examined by the prosecution, but, the accused failed to show as to how he was prejudiced by non-examination of a witness of that area, when the search was made.
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18) From a reading of the evidence of PW1 and that of the evidence of PW2, it is very much clear that the Inspector searched the premises in the night, and they noticed accused indulging in pilfer of energy by directly tapping from the nearby L.T. overheads lines, to his premises, with the help of 2 number black coloured aluminum wires, which has been used for showing T.V. programmes to the nearby people therefrom. In-fact, the accused was also present at the spot and his version was recorded in column 10 of Ex.P1 report. The fact that, the accused himself scribed column no.10 of Ex.P1 report, which contains his signature, is not in dispute. No suggestion was given to PW1 to show as how the accused was prejudiced for non-examination of any independent witness. At-least, an iota of material should have been placed on record to show that there was some 'motive' for these witnesses to speak false against the accused. In the absence of the same, the argument of the learned counsel for the appellant that he was greatly prejudiced cannot be accepted.
19) Though, the accused in his Section 313 Cr.P.C., statement stated that, police took him to Ongole, got something written as if it was his statement, obtained his signature and submitted before the court, but, the version stated by him in his Section 313 Cr.P.C., statement was not suggested to any of the witnesses. On the other hand, the evidence shows that, it was he who scribed 11 the contents and put his signature covered by column no. 10 of Ex.P1 report.
20) For the reasons stated above, this court does not find any illegality in the judgment of the trial court, accordingly, the conviction imposed by the trial court is confirmed.
21) At this stage, the learned counsel for the appellant would submit that, at-least the quantum of fine imposed be reduced. But, a reading of Section 135(a) of the Act, which stands for "theft of electricity", stipulates that, "whoever dishonestly, (a)taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be, .... shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use - (i) 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 and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity.
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22) Proviso (i) to Section 135(a) states that, "where the 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". That being so, though, the value of the energy, which was pilferage by the appellant was assessed to Rs.22,037/-; the punishment cannot be less than three times the financial gain. Hence, the finding of the trial court in directing the appellant to pay Rs.66,111/- cannot be reduced further.
23) The Hon'ble Apex Court in the case of Jagamohan Mehatabsing Gujral v. State of Maharashtra1 observed as follows:
"Large scale theft of electricity is a very alarming problem faced by all the State Electricity Boards in our country, which is causing loss to the State revenue running into hundreds of crores every year. In our considered view, after proper adjudication of the cases of all those who are found to be guilty of the offence of committing theft of electricity, apart from the sentence of conviction, the Court should invariably impose heavy fine making theft of electricity a wholly non-profitable venture. The most effective step to curb this tendency perhaps could be to discontinue supply of electricity to those consumers temporarily or permanently who have been caught abstracting electricity in a clandestine manner on more than one occasion. The legislature may consider incorporating this suggestion as a form of punishment by amending Section 39 of the Indian Electricity Act of 1910".
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2006 AIR SCW 5905 13
24) Having regard to the above, the appeal fails and is accordingly dismissed, confirming the conviction and sentence imposed in S.C. No. 42 of 2008 by the District and Sessions Judge, Ongole -FAC-Special Judge-cum-I Additional Sessions Judge, Ongole. The fine amount shall be paid to the complainant department as compensation under Section 357 Cr.P.C., as directed by the trial court. No order as to costs.
_______________________________ JUSTICE C. PRAVEEN KUMAR Date: 25.08.2020 SM.
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR Criminal Appeal No. 275 of 2009 Date: 25.08.2020 SM.