Karnataka High Court
Bakkappa S/O Hanmanthrao Anr vs The State Through on 12 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1387
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3613/2012
Between:
1. Bakkappa S/o Hanmanthrao
Now aged 53 years, Occ Agriculture
2. Rajshekhar S/o Bakkappa
Now aged 31 years, Occ. Agriculture,
Both are R/o Rajgira Village,
Tq. and Dist. Bidar.
... Appellants
(By Sri Anilkumar Navadagi, Advocate)
And:
The State through
GESCOM Vigilance Police Station,
Bidar, Tq. & Dist. Bidar.
... Respondent
(By Sri Gururaj V.Hasilakar, HCGP)
This Criminal Appeal is filed under 374(2) the Code of
Criminal Procedure, praying to set-aside the judgment of
conviction and order of sentence dated 31.05.2012 of
Additional District and Sessions Judge, Bidar in Special CC
2
(Elec) No.15/2009 and acquit the appellants herein for the
charges for which they were convicted in the interest of
justice.
This appeal coming on for final this day, the Court
delivered the following:
JUDGMENT
The above appeal is filed challenging the judgment of conviction and order on sentence dated 31.05.2012 passed in Special C.C. (Elec.) No.15/2009 by the Court of Special Judge and Additional District and Sessions Judge at Bidar.
2. The brief facts of the case are as follows ;- The PW.1- complainant who is Assistant Executive Engineer received a credible information that there is theft of energy. Accordingly, on 18.10.2008 he along with vigilance police and other staff had been to Rajgira village between 6.00 to 7.30 p.m., and visited the flourmill of the accused wherein it is alleged that theft has been committed and checked the flourmill of the accused and found that the meter was running but 3 there was hole made on the top of the meter and a wire was inserted so as to stop rotating disc and prevented recording of energy consumed. Thus, in this way, it is alleged that theft of energy was committed and he got disconnected the electrical supply and seized the meter, service wire and accordingly prepared panchanama on the spot in the presence of panchas as per Ex.P.2. Thereafter on the next day he filed first information statement (FIS) before the police and first information report (FIR) is registered for the offence under Section 135(1) of the Electricity Act, 2003 (for brevity hereinafter referred to as the 'Act') The PW.5 had conducted investigation and filed charge sheet for the offence under Section 135(1) of the Act. After receipt of the charge sheet the Special Court proceeded with the case and framed charge against accused nos.1 and 2 under Section 135 of the Act and appellants/accused pleaded not guilty and claims to be tried. Thus, by recording their pleas proceeded with 4 examination of the accused and accordingly the prosecution totally examined five witnesses as PWs.1 to 5 and got marked documents as Exs.P1 to P6 and got marked material objects M.Os.1 and 2.
After closure of prosecution side evidence and when put the incriminating circumstances/evidences to the accused nos.1 and 2 but they have denied the incriminating circumstances/evidences and totally denied the prosecution case. The accused did not choose to lead defence evidence.
After assessing the evidence on record, the Special Court found that the accused is guilty of the offence under Section 135(1) of the Act and accordingly convicted and it is ordered each of the accused nos.1 and 2 to pay a fine amount of Rs.1,32,199.50 and in default to pay fine amount, to undergo simple imprisonment for a period of one year for the offence above stated.
5
3. Being aggrieved by the judgment of conviction and order on sentence above stated, the accused nos.1 and 2 have preferred this appeal raising various grounds which are as follows ;-
• The Special Court has not appreciated the evidence on record and there are various inconsistencies, discrepancies and contradictions revealed but those are not appreciated but delivered wrong judgment. • The entire investigation leading to the alleged search of the premises of the accused and seizure of incriminating articles from the flourmill is vitiated on account of non-compliance of mandatory provisions of the Act. Therefore, submitted that the entire search and seizure of articles is vitiated for non- compliance of mandatory provision.
• There are no independent witnesses in the present case and the PW.2 had turned hostile regarding panchanama conducted and the other panch witness PW.3 who is a meter reader and bill collector and who is also a man of department. Therefore, he is interested witness and the Special Court only on the basis of the official witnesses had convicted the 6 accused. Therefore, there are no sufficient evidences to hold guilt against the accused.
4. Further the Special Court has proceeded on assumptions, surmises and conjectures to pass judgment therefore requested this court to cause interference with judgment of conviction and order on sentence. On all above stated grounds urged during the oral argument it is prayed to allow the appeal by setting aside judgment of conviction and order on sentence. During pending appeal the appellant/accused No.1 died on 12.07.2018 hence, so far as appellant No.1 is concerned the appeal stands abated.
5. Having heard the learned counsel for both sides, the point that arise for consideration are:
1. Whether the judgment of conviction against accused Nos.1 and 2 holding guilty under Section 135(1) of Indian Electricity Act requires any interference by this court?7
2. Whether the sentence imposed directing accused Nos.1 and 2 to pay fine amount requires any interference by this court?
6. I would like to discuss the submissions made by the learned counsel for the appellants and learned HCGP on each points wherever this Court is making discussion on the points in order to avoid repetition of the submissions stated as above. ANALYSIS:
Point No.1:
7. The learned counsel for the appellants argued that the entire search and seizure in the present case is vitiated for non-compliance of mandatory provisions as stated under the Code of Criminal Procedure (for short 'Cr.P.C.). He argued that there is non-compliance of Section 93, 100(4) and 165 of Cr.P.C. Therefore, argued that PW.1 had conducted search, inspection and seized the materials without obtaining 8 search warrant from the Magistrate. Further argued that even if PW.1 had conducted search and seized the materials without obtaining search warrant and if it is opinion of the PW.1 that obtaining search warrant prior to raid is not possible as there could be undue delay then at least PW.1 would have made in writing stating the reasons for what reasons he could not obtain search warrant from Magistrate. Therefore, non-compliance of these elements as mandated under the law vitiates search and seizure therefore conviction recorded by the trial court is not correct.
8. Considering the submissions made by the learned counsel for the appellants herein in the present case the first thing is to be borne out that the offence alleged under Section 135(1) of the Act is cognizable and non-bailable a per Section 151-B of the Act. Section 151-B begins with non-obstacle clause 'notwithstanding'. Therefore, the offence stated in the 9 present case which is offence under Section 135 is cognizable and non-bailable. As per Section 135(4) of the Act the provisions of Cr.P.C. relating to search and seizure shall apply as far as may be searches and seizure are made in this Act. Therefore, for conducting search and seizure as far as may be provisions of Cr.P.C. are applicable.
9. The learned counsel for the appellants argued that Section 93 of the Cr.P.C. is not complied with. Section 93 of Cr.P.C. is coming under Chapter-VII "process to compel the production of 'things'. As per this Section 93(1)(a) wherever person is served summons or order to produce some documents or things under Section 91 or under Section 92(1) or such order or summons might be addressed and such person fails to produce the document or thing as he is summoned or ordered for such search then obtaining search warrant is necessary. But the facts involved in the present case 10 is not the thing that the accused were summoned or ordered to produce documents or things. Therefore, considering the present case the search warrant is necessary is not applicable in the present factual matrix involved in the case. Here in the present case direct raid is conducted after receipt of information that offence in the nature of cognizable offence is occurred. Therefore, the argument canvassed by the learned counsel for the appellants that PW.1 ought to have obtained search warrant from Magistrate as per Section 93 of Cr.P.C. is not correct.
10. Further learned counsel for the appellants argued that there is non-compliance of Section 100(4) of Cr.P.C. reads as follows:
"100(4) - Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants or the locality if no such inhabitant of the said locality is available or is willing to be a 11 witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."
11. Considering the ingredients enumerated in the above said provision that is not applicable in the present case. Sub-section 4 of Section 100 of Cr.P.C. stipulates regarding before making search it is mandatory to call upon two or more independent panchas and that in the present case PW.2 had summoned pancha witnesses before making search and the records reveal the presence of panchas. Section 100(4) of Cr.P.C. is not pertaining to obtain search warrant prior to conduct search. It is to secure two or more persons to act as panchas. On this ground also the submission made by the learned counsel for the appellant/accused is not tenable.
12. The learned counsel for the appellants further argued that there is non-compliance of Section 12 165 of Cr.P.C. Section 165 of Cr.P.C. enunciates search by police officer. This Section 165 of Cr.P.C. is placed under Chapter-XII "information to the police and their powers to investigate". Section 165 of Cr.P.C. states conducting investigation of the offence by any police official being Investigating Officer. Section 165 Cr.P.C. empowers a police officer while conducting the investigation to make search of any premises. Hear in Section 165 of Cr.P.C. there is no thing warranted to state that for making search of any place warrant by Magistrate is necessary. In Section 165 Cr.P.C. procedures are stated regarding conducting search by police officer when he being Investigating Officer while doing investigation into the offence alleged. Therefore, the Court is of the opinion that the submission made by the counsel for the appellant/accused does not have any merit in this regard.
13
13. It is worth to mention here that since learned counsel for the appellant canvassed argument that before conducting search in every case warrant by Magistrate is necessary. This can be answered by referring to Section 156 of Cr.P.C. which stipulates a police officer without order of the Magistrate investigate any cognizable offence. Therefore, for conducting investigation in cognizable offence stated to have been committed the police officer can investigate without the order of Magistrate. In the present case as discussed above as per Section 151-B of the Act the offences alleged under Section 135 to 140 or 150 shall be cognizable and non-bailable. Therefore, upon considering all the relevant provisions of law as referred above the submission made by the learned counsel for the appellant/accused cannot be accepted for the reasons aforementioned.
14
14. Further the learned counsel for the appellants argued that in the present case independent witnesses are not available but only departmental officials and police officials are there to prove the case and naturally they are interested witnesses and therefore their evidence cannot be believable. Hence, submitted the Special Court has believed these official witnesses even though they are interested witnesses and without any corroboration from the independent witnesses the conviction cannot be recorded only on the basis of the interested witnesses/police officials.
15. On the other hand, learned HCGP submitted that even in the present case PW.2 is pancha witness who is stated to be independent witness turned hostile but other witnesses PWs.1 and 3 to 5 are not shaken. Considering their evidence lead in the present case, it is further submitted by the learned HCGP that just because PWs.1 and 5 are the GESCOM official and 15 police official, their evidence cannot be brushed aside simply for the reason that they are official witnesses unless there is any grudge against the accused to implicate into false case. Therefore, argued in the present case it is not case of the accused that there is enmity between the PWs.1, 3 to 5 and accused so as to accused are falsely implicated into the case. Under these circumstances when the evidence of official witnesses scrutinized carefully then their evidences are believable. Further submitted, recording of reasons that the Special Court are legal and correct and justified.
16. It is true that PW.2 turned hostile and the available witnesses are PWs.1, 3 to 5 for appreciation of their evidences I place reliance on the judgment of the Hon'ble Apex Court in the case of Surinder Kumar vs. State of Punjab [(2020) 2 Supreme Court Cases 563], wherein it is held that -
"14. Further, it is contended by learned Senior Counsel appearing for the appellant that no 16 independent witness was examined, despite the fact they were available. In this regard, it is to be noticed from the depositions of Devi Lal, Head Constable (PW-1), during the course of cross- examination, has stated that efforts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed.
15. The judgment in the case of Jarnail Singh v. State of Punjab ((2011) 3 SCC 521), relied on by the counsel for the respondent-State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil ((2001) 1 SCC 652, it was held as under (SCC p.655):
'It is an archaic notion that actions of the police officer, should be approached with initial distrust. It is time now to start placing at least 17 initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature'. "
17. Therefore, as per principle of law laid down by the Hon'ble Apex Court the evidence of PWs.1, 3 to 5 are carefully scrutinized and considered to ascertain there is any vindictiveness against accused. Keeping in mind once again the evidence of PWs.1, 3 to 5, PW.1 is the Assistant Executive Engineer who had stated that he has received credible information of theft of energy in Rajgera village by the accused when they are running flour mill and accordingly conducted raid and made search and seizure in presence of pancha witnesses and other officials and found that flour mill was running and it was found further there is a hole in the meter and one wire was inserted through said hole and thereby 18 stopped the rotating disc of the meter thereby interfered not to show meter reading and in this way it is found that accused committed theft of energy. Accordingly, lodged FIS on 19.10.2008 as per Ex.P1.
18. PW.2 pancha witness has turned hostile and his evidence is not helpful to the prosecution.
19. PW.3 is a Bill Collector and Meter Reader acted as panch drawing up of panchanama/Ex.P.2 and he had stated the raid was conducted and search and seizure was made as stated by the PW.1. The evidence of PW.3 is found to in tune with the PW.1.
20. PW.4 is the police constable who had accompanied PW.1 while conducting raid and witnessed search and seizure made in the premises of the accused. PW.4 had stated evidence in the line of PW.1. These evidence of PWs.1, 3 and 4 are closely scrutinized regarding raid conducted and analyzed with reference to 19 the cross-examination but nothing is elicited that the evidence of PWs.1, 3 and 4 are telling lie before the Court. During the cross-examination of PW.1 to the effect that whether documents were collected before conducting raid but just because documents are not collected before conducting raid cannot suspect the raid conducted and other aspects of cross-examination of PWs.1, 3 and 4 went to the aspect that how many people have gathered while conducting raid and who are there present and PWs.3 and 4 are the interested witnesses and PW.3 being department official and PW.4 police attached GESCOM and galvanised all these cross- examinations the raid conducted is not found to be suspected one rather upon analyzing the evidence carefully the raid conducted is found to be in natural course and also drawing up of panchanama as per Ex.P2. Upon considering Ex.P.2 panchanama which is found to be natural in course that by stating how a hole is made in the meter and inserted wire so as to make 20 not to rotate disc and not reading consumption of energy. Therefore, upon considering the evidence on record discussed above, this Court is of the opinion the Special Court has rightly appreciated the evidence on record and there is no need to cause interference in the said approach of the Special Court in appreciating the evidence of witnesses.
21. PW.5 is the PSI who had stated that on 19.10.2008 at about 11:30 a.m. when he was in the police station PW.1 came to the police station and lodged FIS and accordingly registered FIR for the offence punishable under Section 135 of the Act. PW.5 has conducted investigation. The FIS is as per Ex.P1 and FIR is as per Ex.P6 and PW.5 has narrated sequence of events during the course of investigation and filed charge sheet. Upon considering the evidence of PW.5 this court do not find false charge sheet is filed against the accused. Therefore, upon carefully analyzing the 21 evidence of these witnesses the Special Court is correctly holding guilt of the accused as per offences alleged. Therefore, it is difficult to cause interference in the appreciation done by the Special Court.
22. The learned counsel for the appellant argued that there is delay in lodging FIS and goes to the very core of the prosecution case.
23. On the other hand, the learned HCGP submitted there is no delay in lodging FIS and there is no merit in the submission made by the learned counsel for the accused/appellant.
24. In this background considering the rival contentions by both sides the lodging of FIS is to be considered PW.1 had conducted raid on 18.10.2008 at Rajgera village between evening 6:00 to 7:30 p.m. Then FIS was lodged on the next day on 19.10.2008 at morning 11:30 a.m. This time gap between the two 22 events of the time of conducting raid and lodging FIS cannot be made a delay in lodging FIS affecting very case of the prosecution. Further more, as per Section 135 of the Act itself stipulates regarding after theft of electricity shall lodge the complaint to police station having jurisdiction within 24 hours from the time after finding theft and disconnection is made. On 18.10.2008 evening from 6:00 p.m. to 7:00 p.m. the raid was conducted and disconnection was made by the PW.1 being Assistant Executive Engineer and had disconnected power and it is duty on part of PW.1 to lodge complaint within 24 hours from the time of such disconnection and that is what is done in the present case. Therefore, it is statutorily recognized that empowering officer to make disconnection after receiving information of theft of energy and to lodge complaint within a period of 24 hours from the time of disconnection. Therefore, under these circumstances it cannot be said that there is a delay in lodging FIS. 23
25. Further more, the search, seizure and disconnection was made on evening 6:00 p.m. to 7:00 p.m. on 18.10.2008 and on the very next day morning 11:30 complaint was lodged and this factor cannot be stated that there is a delay in lodging FIS so as to discredit very conduct of PW.1. Therefore, in this regard I do not find any merit in the submission made by the learned counsel for the appellant.
26. Therefore, upon considering the entire evidence on record discussed above this Court is unable to accept submission of appellant counsel so far as challenging the judgment of conviction holding guilt of the accused. Therefore, judgment of conviction dated 31.05.2012 in Special C.C.(Elec.) No.15/2009 by the Special Judge and Additional District & Sessions Judge, Bidar is hereby upheld. Accordingly, I answer point No.1 in Negative.
24Point No.2:
Regarding Sentence:
27. In the present case the Special Court has convicted the accused and sentenced to pay a fine amount of Rs.1,32,199.50 that each accused Nos.1 and 2 shall pay fine amount and in default to undergo simple imprisonment for a period of 1 year in case failure to payment of fine amount.
28. The Special Court on the basis of Ex.P4 back billing charge calculation had observed that there is loss sustained to GESCOM is Rs.88,133/-. Accordingly as per Section 135 of the Act the fine amount is calculated 3 times of the financial gain which would come to Rs.2,64,399/- and divide the same between two accused and accordingly ordered each of the accused shall pay fine of Rs.1,32,199.50.
29. Considering the admitted facts in the present case, the flour mill of the accused situated in 25 Rajagera village which is a small village having population 2500 as on today. The present case is ten years before and any one can imagine population of such small village. Even the sanctioned load is 10 HP but it cannot be expected always that accused were using power by running 10 HP motor 24 hours and throughout the week. In such small village it cannot be expected that always 150 units electricity is consumed per month out of running flour mill.
30. PW.1 also examined in the cross-
examination he does not know the time of load shedding. Therefore, when there was load shedding the appellant could not run the flour mill. Therefore, under these circumstances, the assessment made by PW.1 as stated in Ex.P4 that there is normally 150 units used per month from 1 HP motor is on exorbitant and higher side. Therefore, if 75 units consumption is taken as normal expected rate of consumption, then the 26 assessment would be in right direction. Accordingly, the assumption of consumption as per CRC rules can be calculated as below:
7.46 kw x 75 x 12 = 6714 units For 12 months recorded consumption of 1944 units is deducted then theft of units would be 4770 units (6714 - 1944 = 4770) Learned HCGP submits that for the first 6,000 units consumption rate per unit is Rs.3.30. Therefore, for theft of units of 4770 the calculation is as below:
4770 x 3.30 x 2 = Rs.31,482/-
Tax @ 5% = Rs.1,574/-
(31482 + 1574) = Rs.34,630/-
Therefore, if this is to be calculated as assessment of theft of electricity in monitory term is computed for such financial gain stated to have been obtained by the accused, then, for such financial gain upon first conviction the fine amount would not be less than on 3 27 times of such financial gain as per Section 135 of the Act. Therefore, 3 times of financial gain is Rs.1,03,890/- and accordingly this amount to be fastened on both accused Nos.1 and 2 by equally. Therefore, accused Nos.1 and 2 are each liable to pay fine amount of Rs.51,945. Therefore, each accused are liable to pay fine amount of Rs.51,945/-.
Now accused No.1/appellant No.1 died during the pendency of appeal. Therefore, appeal against accused/appellant No.1 stands abated.
Accused No.2 alone is liable to pay fine amount as the fine amount calculated. Therefore the sentence is imposed against accused No.2 to pay fine amount of Rs.51,945/-.
Therefore, in this way the appeal succeeds in part. Accordingly, I answered point No.2 in partly affirmative.
Hence, I proceed to pass the following: 28
ORDER The Criminal Appeal No.3613/2012 is hereby allowed in part.
The judgment of conviction dated 31.05.2012 in Special C.C. (Elec.) No.15/2009 by the Special Judge and Addl. District & Sessions Judge, Bidar, convicting for offence u/s 135 of Act is hereby confirmed.
So far as imposition of sentence by way of fine amount is concerned is modified that accused No.2 shall pay a fine amount of Rs.51,945/-. In default of payment of fine amount above stated the GESCOM officials shall take recourse as per Section 421 of Cr.P.C. and also the appellant/accused No.2 shall further undergo simple imprisonment for a period of 1 year.
It is submitted that both accused Nos.1 and 2 have already paid Rs.25,000/- as fine amount, this 29 amount of Rs.25,000/- already paid shall be adjusted to the sentence imposed herein.
Sd/-
JUDGE sn/sdu