Karnataka High Court
Vali Sab S/O Umar Sab, vs State Of Karnataka, on 5 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1600, 2020 (4) AKR 474
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5 t h DAY OF JUNE 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.2657 of 2011
BETWEEN:
VALI SAB S/O UMA R SAB,
AGE:50 Y EARS,
OWNER OF I LAHI OIL CENTRE,
H.NO.101, NEAR BANDIMOT MASZID,
BANDIMOT, BAN GALORE ROAD ,
BELLARY CITY, BELLARY.
... APPELLANT
(BY SRI. GANA PATI M. BHAT, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY THE S UB-INSPECTOR OF POLICE,
VIGILANCE SQUAD POLICE STATION ,
GESCOM, BELLARY.
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT CIRCUIT BENCH BUILDI NG,
DHARWAD.
... RES PONDENT
(BY SRI. RAVINDRA NAIK, HCGP)
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 374(2) OF CR.P.C. SEEKI NG TO SET ASID E
THE JUD GMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 01.02.2011 IN SPL.CAS E
NO.14/ 2008 PASS ED BY THE COURT OF THE SPL.
2
JUDGE, BELLA RY AND ACQUIT THE APPELLANT FOR
OFFENCES PUNIS HABLE UND ER SECTIONS 39 AND 44
OF INDIAN ELECTRICITY ACT, 1910.
THIS CRIMINAL APPEAL COMI NG ON F OR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is preferred against the judgment of conviction and order of sentence passed by the learned Special Judge, Bellary, in Special Case No.14/2008 dated 01.02.2011, wherein the trial Court has convicted the accused/appellant for the offence punishable under Sections 39 and 44 of the Indian Electricity Act, 1910 (hereinafter referred to as the 'IE Act', for brevity) and sentenced him to pay fine of Rs.6,000/- in default to undergo simple imprisonment for a period of four months. In addition, the appellant/accused is also held liable to pay arrears of BBC amount after deducting the amount deposited, if any, as per law.
2. I have heard the arguments of learned counsel for the appellant and also the learned Government Pleader. 3
3. Learned counsel for the appellant strenuously contended that the trial Court has erroneously convicted the accused for the above said offences in the absence of sufficient evidence on record. The trial court has not properly appreciated the oral and documentary evidence on record and not given the benefit of reasonable doubt arising out of the evidence of the prosecution witnesses. The trial Court has also erroneously drawn presumption under Section 39 of the IE Act, though the prosecution has not proved the guilt of the accused on facts under the said Section. Further, he contended that even though there is delay in filing the charge sheet, the trial Court took cognizance without condoning the delay.
4. Per contra, learned High Court Government Pleader strenuously contended that once it is shown to the Court that appellant is the consumer of the electricity under the Electricity Board and that there was tampering of the meter and seal which was appended to the meter, that itself is sufficient to draw the presumption under 4 Section 39 of the IE Act in order to hold that the meter was tampered only for the purpose of abstracting electrical energy. No person can get rid off the liability by taking undue advantage of his own wrong. It is also contended by the learned Government Pleader that the trial Court has properly appreciated the oral and documentary evidence on record and justified in recording the judgment of conviction and sentencing the accused in accordance with law. Therefore, he submitted that there is no room for interference with the judgment and sentence passed by the trial Court.
5. On the basis of the above said rival contentions of the parties, the points that arise for consideration by this Court are:
i. Whether the trial Court has committed any error in appreciating the oral and document evidence on record?
ii. Whether the trial Court has committed any error in convicting and sentencing the accused as noted above?5
iii. What order?
6. I answer the above said points in the affirmative for the following reasons:
7. Before adverting to the grounds urged by the respective parties, it is just and necessary to bear in mind the brief factual matrix of the case which is as under:
One Sri. A. Narasimhalu (PW-4) working as an Assistant Executive Engineer (E), Vigilance Squad, GESCOM, bellary, along with officials T. Mohansingh, Manjunath Sajjan (CW-5), Sheik Mohammed (CW-6), K. Ankalesh (CW-7), police constables, GESCOM and Malleshi- Gangman (PW-9) inspected the meter bearing No. AEH- 2305 situated in the house of the accused at Bandimot area near Bandipot Maszid Bellary, the accused found using electricity by bypassing the meter by wire and thereby it is alleged that the accused caused loss to the GESCOM worth Rs.61,270/- and thereafter, after disconnecting the electricity supply, meter and service wire were seized by drawing panchanama and thereafter case was registered in Cr.No.53/2003, submitted FIR to the Court and thereafter, after obtaining khatha extract of the house and also RR dockets, charge sheet was filed on 18.03.2008 along with the affidavit to condone the delay 6 under the above provisions of law. The accused, in fact, was enlarged on bail and contested the proceedings. The Court after hearing the accused framed charge under Sections 39 and 44 of IE Act. The accused pleaded not guilty and claimed to be tried.
The prosecution in order to bring home the guilt of the accused examined 9 witnesses as PWs.1 to 9 and Exs.P1 to 8 and M.Os.1 and 2 were got marked. The statement of the accused under Section 313 of Cr.P.C. was recorded. His defence was that of total denial.
After appreciation of the evidence on record, the trial Court has come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt and accordingly convicted and sentenced the accused for the aforesaid offences.
The prosecution, in fact, mainly relied upon the evidence of PW-1 who is the star witnesses to the prosecution. He is a person who raided the premises of the accused and conducted the investigation and subsequently after having found that the accused has committed the offence, he handed over investigation to PW-6-Mr. Vasudev, who was working as CPI, GESCOM, Bellary, who registered Crime No.53/2003 and submitted FIR to the jurisdictional Court and thereafter collected all 7 the materials and submitted charge sheet against the accused along with seized articles M.Os.1 and 2.
PW-1 Narasimhalu has categorically stated that he was working as AEE(E), GESCOM, Bellary and he received credible information on 13.02.2003 and went along with GESCOM police to Bandimot area for inspection. He inspected RR No.AEH-2305 in the house of the accused wherein he found that the accused has by-passed the electric meter with a wire using the electricity and thereafter secured PW2 to the spot. Thereafter, he prepared panchanama and disconnected the electricity supply from the main line, seized the meter and service wire. He has stated that the accused has by-passed the meter by disconnecting the connection to the meter and directly using the electricity to his house and the meter was not running at that time and the accused was using the electricity to his house. He has identified the meter at M.O.1 and service wire at M.O.2. He has prepared panchanama as per Ex.P-1 and one Muzeeb (PW-7) and Shreeshaila have attested their signature on the panchanama and thereafter, he filed complaint to the GESCOM Police as per Ex.P-2 along with Back Billing charges as per Ex.P-3 stating that the accused has caused loss to the GECOM to tune of Rs.61,270/-. In his cross- examination, it is elicited that sketch was not prepared and the wire which was used to by-pass the meter was also not 8 produced though it was seized and there is no mention regarding seizure of wire which was used to by-pass the electricity in the panchanama.
PW-2-Vishwanath-AEE, who went to the house of the accused at the call of PW-1, has also deposed similar to that of PW-1. In the cross-examination, he has stated that the wire used to by-pass the meter has not been seized.
PW-5-Malleshi, who is the Gangman, who disconnected the meter and removed the service wire in the meter, has stated in the cross-examination that he has not removed the wire, as it was in the board, which was used to by-pass the meter. He has deposed that PW-2- Vishwanath had not instructed him to remove the wire.
PW-6-Vasudev, Inspector of Police, GESCOM Vigilance has denied the suggestion in his cross- examination that he has not seized the wire which was used to by-pass the meter.
8. In the present case, the main instrument or device used to commit the theft of electricity by by-passing the meter is the "wire". The said wire has not been seized and produced.
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9. Learned Government Pleader placing reliance on the judgment of the Delhi High Court in the case of Mukesh Rastogi v. North Delhi Power Limited reported in 2008 (3) Crimes 440 (Del.), contended that mere non- production of wire used for the commission of the offence, would not fail the prosecution when there is cogent evidence of the officials regarding theft of electricity found being committed in the premises. In the said case, the electricity was found being tapped by connecting wires directly to LT Main and photographs of the site were also taken. In the present case, wire has been used to by- pass the meter. Therefore, wire used for by-passing the meter is one of the main material object to establish the theft of electricity by the accused. In Ex.P-3-Back Billing, there is a mention in column No.9 that there is consumption of 130 units of electricity in RR AEH No.2305 during February 2003. PW-1 and other officials raided the premises of the accused on 13.02.2003. Therefore, there was usage of 130 units which was recorded in the meter goes to show that the meter was working and there is 10 consumption of 130 units on 13.02.2003. Therefore, the prosecution has to establish that the accused has used the wire to by-pass the meter. The said wire has not been seized and produced even though there is a mention about it in Ex.P-1-panchanama. Therefore, it creates a doubt regarding theft of electricity by the accused by using the wire by-passing the meter when the meter recorded consumption of 130 units as on 13.02.2003.
10. PW-3-Executive Engineer has furnished the docket of RR No.AEH 2305 which is at Ex.P-5. The said electricity connection is standing in the name of one Sri.Syed Meeran Sab and not in the name of the accused/appellant.
11. PW-4-Revenue Officer, Bellary Municipality has furnished the extract of Tax Demand Register and khata extract wherein the name of the occupier is shown as Syed Meeran Sab. Exs.P5 and 6 are the extract of Tax Demand Register and Khatha extracts. Except the oral evidence of PWs.1, 2 and 6, the prosecution has not produced any 11 document to show that the appellant/accused was occupying the said premises. It is the case of the prosecution that the accused is a relative of Syeed Meeran Sab and he was residing in the said premises. To establish the same, the prosecution has examined PW-9. PW-9 has not supported the case of the prosecution. Therefore, there is no documentary or oral evidence apart form the evidence of PWs.1, 2 and 6 regarding occupation of the premises by the accused. The oral version of PWs.1, 2 and 6 that accused was residing in the same premises wherein RR AEH No.2305 was installed is not supported by documentary or oral evidence.
12. Ex.P-1 is the panchanama drawn by PW-1 in the presence of PW-7-Syeed Muzeeb and Shreeshaila (CW-
3). The said raid has been conducted by PW-1 and mahazar has been drawn. The said Syeed Muzeeb, who has been examined as PW-7, has not at all supported the case of the prosecution regarding preparing of 12 panchanama in his presence. There is no signature of accused on Ex.P-1.
13. The trial court has raised a presumption under Section 39 of the Act. "The presence of artificial means which would render abstraction of energy has to be established", as held by the Hon'ble Supreme Court in the case of Ram Chandra Prasad Sharma and others v. State of Bihar and another reported in AIR 1967 Supreme Court 349. The prosecution has not seized and produced the wire, which was an artificial means used to by-pass the meter. Therefore, presumption raised by the trial Court is not proper.
14. Though the date of offence is on 13.02.2003, the date of taking cognizance is 18.03.2008. The bar to take cognizance after the lapse of period of limitation period as provided under Section 468 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C., for brevity) reads thus:
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468. Bar to taking cognizance after lapse of the period of limitation.-(1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section(2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment The punishment provided for the offences punishable under Sections 39 and 44 of the IE Act is imprisonment which may extend to 3 years. Therefore, the cognizance for the said offence has to be taken within 3 years. The 14 extension of period of limitation in certain cases has been provided under Section 473 of Cr.P.C. which reads thus:
473. Extension of period of Limitation in certain cases.-.Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.
15. As per the above said provision, if the Court is satisfied on the facts and circumstances of the case, that the delay has been property explained, it can take cognizance of the offence after expiry of limitation period . The Apex Court in the case of State of H.P. v. Tara Dutt and another reported in (2000) 1 Supreme Court Cases 230 has held as under:
"7. Section 473 confers power on the court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which 15 a period of limitation has been provided in section 468, the power has been conferred on the court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the court has to be exercised judicially and well-recognized principles. This being a discretion conferred on the court taking cognizance, wherever the court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior court to come to the conclusion that the court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the court took cognizance and proceeded with the trial of the offence.
The order sheet of the trial Court dated 18.03.2008 is extracted as under:
18.03.2008 The PI Vigilance GESCOM, Bellary has submitted final report in Cr.No.53/03 for the offence punishable under Section 39, 44 of IE Act, 1910 and to take his trial I.O also filed affidavit to condone delay in submitting charge sheet.16
Perused the prosecution papers. Cognizance is taken. Register the case issue summons to accused returnable by 10.04.08.
Sd/-
Judge 18.3.08
16. On reading of the above said order it is clear that there is no order for condonation of delay. More so, there is no speaking order indicating the satisfaction of the court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of any positive order to that effect it may not be permissible for a superior court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceed with the trial of the offence. Therefore, taking cognizance beyond the limitation period without condonation of delay is bad and without jurisdiction.
Looking to the above said facts and circumstances, I am of the opinion that the trial Court has not bestowed its attention to the above said important aspects but it merely 17 swayed away by the presumption under Section 39 of the IE Act and on that basis convicted the accused, which is erroneous, and the same is liable to be set aside. Accordingly, the points for consideration are answered and I pass the following:
ORDER The appeal is allowed. The judgment and order of conviction and sentence dated 01.02.2011 passed by the learned Special Judge, Bellary, in Spl.C. No.14/2008, against the appellant accused under Sections 39 and 44 of the Indian Electricity Act, 1910 is hereby set aside. The appellant/accused is acquitted of the offence under Sections 39 and 44 of the IE Act. Fine amount, if any, received, shall be returned to the appellant. Bail Bond and surety bond stands cancelled.
sd/-
JUDGE kmv