Karnataka High Court
B Ramesh vs The State By on 17 August, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17th DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL No.33 OF 2011
BETWEEN
B. Ramesh
S/o Bhyrappa
Aged 50 years
R/at Shivanarahalli village
Duggasandra Hobli
Mulbagal Taluk
Kolar District
...Appellant
(By Sri Vivek N, Advocate for
Sri Y.R.Sadashiva Reddy & Associates, Advocates)
AND
The State by
BESCOM Vigilance Police
Kolar
...Respondent
(By Sri K.S.Abhijith, HCGP)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C. praying to set aside the judgment and order of
conviction and sentence passed by the I Additional
Sessions Judge, Kolar in EA C.C.No.59/2010 dated
09.12.2010/10.12.2010 convicting the appellant/accused
for the offence punishable under Section 135 of the
Electricity Act, 2003 and the appellant/accused is
sentenced to pay fine of Rs.57,135/- (Rupees Fifty Seven
Thousand One Hundred and Thirty-Five only) and back
2
billing charges in default he shall undergo S.I. for six
months for the offence punishable under Section 135 of
Electricity Act.
This Criminal Appeal coming on for dictating
judgment this day, the Court delivered the following:
JUDGMENT
The accused in EA C.C.No.59/2010 prosecuted for the offence of Section 135 of the Electricity Act in the Court of I Additional Sessions Judge, Kolar, has preferred this appeal challenging his conviction for the said offence. The Court has sentenced him to pay a fine of Rs.57,135/- being back billing charges and directed him to undergo simple imprisonment for six months in case of failure to pay the fine amount.
2. The prosecution case is that on 24.08.2009 PW-1 Mallaiah who was working as Section Officer in O & M Section of Bengaluru Electricity Supply Company Limited (hereinafter referred to as 'BESCOM' for short), Mulbagal received information from the Vigilance Police attached to BESCOM about illegal tapping of electric power at Shivanarahalli village, Mulbagal Taluk. Immediately he went to that village along with BESCOM 3 vigilance police and a lineman, he found two poultry sheds one on the northern side and the other on the southern side. To the shed situated on the southern side, the accused had taken power supply authorisedly. But to the northern side shed, he had tapped power supply from the up-pole fixed to the shed situated on the southern side. The power supply to the northern side shed was illegal and therefore in the presence of two independent witnesses of the village and one Ravikumar, the brother of the accused he seized certain length of wire used for drawing power supply to the northern side shed and then drew up a mahazar, he made a report to PW-6 who registered an FIR. Thus the accused came to be charge- sheeted, tried and convicted.
3. The prosecution in all examined 7 witnesses and produced 17 documents, Exs.P1 to P17, and 2 material objects MO.1 and 2. From the accused side one document Ex.D.1 was marked. The trial Court's conclusion is that accused had drawn power supply illegally from the southern side shed to the northern side shed. It has recorded reasons that the defence version 4 that two poultry sheds cannot be constructed in a land measuring 12.05 guntas cannot be believed, that very existence of a poultry shed towards northern side is enough to prove the guilt of the accused. The evidence given by PW1 and PW2 is believable for they have clearly stated that when they visited Shivanarahalli village, they found that there was tapping of electricity by the accused and the said information was given to them by the brother of the accused himself. Referring to the evidence of PW4 and PW5, the independent mahazar witnesses, it is observed by the trial Court that they are the residents of same village and if they have turned hostile, there is nothing strange in it. According to the trial Judge, assessment of evidence as a whole indicates that there was illegal tapping and thus the accused has committed an offence under Section 135 of the Electricity Act. He has levied fine in the light of the evidence given by PW3 C.M.Vasudeva.
4. Learned counsel for the appellant argued that there are two poultry sheds, one on the southern side and the other on the northern side. The southern side shed 5 belongs to the accused and the northern side shed does not belong to him. In between the two sheds, there is a road and a distance of 50 feet. The land in which the northern side shed is situated does not belong to the accused. The measurement of each shed is 220 x 26 feet. It has come in evidence that attached to the southern side shed, there is another room measuring 26 x 15 feet for the purpose of storing the feeds and other materials. If the measurements of two sheds as depicted in Ex.D1 are considered, it is not possible that in a land measuring only 12.05 guntas, two such big sheds can be constructed. Therefore, it was his argument that only the southern side shed belongs to the accused and the northern side shed does not belong to him and if illegal power supply was there to northern side shed, the accused cannot be held guilty. It is further argument of the appellant's counsel that according to the prosecution case, the brother of the accused, namely, B.Ravikumar was present when the raid was conducted. But the prosecution did not examine him. Two independent panch witnesses turned hostile. In these circumstances 6 conviction of accused does not stand to any reason. It was his last point of argument that prosecution has not placed convincing evidence for calculation of consumption charges for the purpose of levying fine on the accused. Since no reasons are forthcoming, the sentence must also be set-aside.
5. Learned High Court Government Pleader met this argument by submitting that the evidence given by PW1, PW2, PW6 and PW7 cannot be discarded at all. Their evidence clearly discloses that even the northern side shed belongs to the accused. Though power supply was authorisedly taken to the southern side shed, but to the northern side shed, the accused had illegally drawn the electric power. The fact that the northern side shed belongs to the accused was confirmed by the brother of the accused, whose presence is clearly noted in the mahazar. Merely for the reason that the independent witnesses PW4 and PW5 turned hostile, that cannot be a reason for disbelieving the testimony of other witnesses, who have clearly deposed as to theft of electricity by the accused. If according to the accused northern side shed 7 does not belong to him, giving a mere suggestion to that effect is not sufficient and he should have come out with a specific suggestion as to whom the shed belonged. The evidence of PW3 is not shaken in the cross examination. Ex.P4 shows calculation of power consumption charges and it is not controverted at all. Therefore the judgment of the trial Court has to be sustained.
6. I have gone through the entire evidence once again for the purpose of its reappreciation. The evidence of PW1 shows that soon after receiving information from BESCOM Vigilance Police about illegal tapping of electricity, he went to Shivanarahalli village and found that the accused had authorisedly obtained power supply to the southern side shed only. There was illegal tapping of electricity for the purpose of providing power supply to the northern side shed. He speaks about the presence of Ravikumar, the brother of the accused and came to know from him that the northern side shed also belonged to the accused. He conducted mahazar in the presence of PW4 and PW5 and seized electric wire used for drawing electricity. Ex.P1 is spot mahazar. Thereafter he made a 8 report of the same to PW6, who registered an FIR as per Ex.P.7.
7. PW2 is a lineman, who also speaks in tandem with PW1. PW6 has given evidence with regard to receiving of a report from PW1 and registration of FIR. PW7 is the police inspector of BESCOM Vigilance and his evidence also discloses authorized power supply to southern side shed and illegal drawing of electricity to the northern side shed. If the cross examination of all these material witnesses is perused, what can be made out is that according to defence, measurement of each shed is 220 x 26 feet and in a land measuring 12.05 guntas it is impossible to construct two sheds of this measurement and therefore only southern side shed belongs to accused to which there was authorized supply of electricity power. The witnesses have denied this suggestion. It is suggested to them that the northern side shed belongs to somebody else.
8. For holding a person guilty of offence under Section 135 of the Electricity Act, there must be illegal tapping of electricity or tampering of meter or causing 9 damage to the electric meter or using electricity through a tampered meter or using electricity for the purpose other than the purpose it was authorized. So what becomes clear is, it does not speak about the ownership of the land or house or a shed. Ex.P3 is the RTC which shows that Sy.No.46/4 of Shivanarahalli village stands in the name of the accused to the extent of 12.05 guntas. So according to the prosecution two sheds are situated in this land and the defence version is that the northern side shed is not situated in this survey number, it is altogether in a different survey number which does not belong to the accused. Even assuming for a moment that northern side shed is situated in the land which does not belong to the accused, what the evidence discloses is that the shed was under the control of the accused and the same was disclosed to PW1 by Ravikumar, who is none other than the brother of the accused. It is true that Ravikumar is not examined. For this reason alone the prosecution case does not become weak. Sub-section 3 of Section 135 clearly says that at the time of search the occupant of the place of search or any person on his behalf shall remain 10 present. While cross examining PW1, the defence clearly admitted the presence of Ravikumar by making suggestion to PW1 that although Ravikumar told him (PW1) that only southern side shed belonged to the accused, a false case was brought against the accused intentionally. This was a positive suggestion flown from the side of the accused admitting the presence of Ravikumar and for this reason his non-examination does not matter and thereby noting of Ravikumar's presence in the mahazar cannot be said to be incorrect. There is compliance of sub-section (3) of section 135.
9. Further the prosecution case is that there was authorized power supply to the southern side shed and only to the northern side shed, there was illegal tapping of electricity. To this effect, there is convincing evidence from the prosecution side. The witnesses have not been impeached in the cross examination. Second proviso to Section 135 provides presumption in favour of the prosecution. When the defence has failed to discredit the witnesses, the presumption that can be attached makes the prosecution case still stronger and therefore 11 the inference to be drawn is that although the northern side shed is situated in a land which may not belong to the accused, the shed was under his control, it was he who had tapped the electricity from the up-pole fixed to the southern side shed. For this reason, Ex.D1 has no significance. I don't find any infirmity in the appreciation of evidence by the trial Court and convicting the accused for this reason cannot be said to be unjustifiable in spite of no support from two independent witnesses PW4 and PW5; it is obvious that they might have decided not to depose in favour of the prosecution as they too belong to the same village.
10. So far as levying of fine is concerned, the witness who has given evidence is PW3, C.M.Vasudeva. Ex.P4 is the bill which shows as to how the consumption charge has been calculated. This witness has not at all been cross examined and only suggestion given to him is that a false bill has been given at the instance of PW1. Ofcourse suggestion is denied, thereby the evidence of PW3 has remained uncontroverted. Based on the evidence of PW3 if the trial Court came to conclusion that 12 the fine of Rs.57,135/- is to be levied, again it cannot be said to be incorrect.
11. Therefore from the foregoing discussion I don't find any merit in this appeal; conviction and sentence cannot be set-aside. Appeal is dismissed.
SD/-
JUDGE Kmv/-