Karnataka High Court
Shri Moulappa S/O Kanakappa vs The State Of Karnataka on 8 February, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08th DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.483 of 2011
BETWEEN
SHRI MOULAPPA S/O KANAKAPPA
AGED ABOUT 74 YEARS, OCC: AGRICULTURE
R/O KALAMALLI, TQ: KUSTAGI
DIST: KOPPAL
... APPELLANT
(By Sri. ASHOK R KALYANASHETTY AND
Sri. R.M. KULKARNI, ADVOCATES)
AND
THE STATE OF KARNATAKA
BY ITS STATE PUBLIC PROSECUTOR
ADVOCATE GENERALS OFFICE
HIGH COURT BUILDINGS
BANGALORE-560001
... RESPONDENT
(By Sri. RAJA RAGHAVENDRA NAIK, HCGP )
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV.,
FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER
DT 15.4.11 PASSED BY THE S.J., KOPPAL IN SPL.C.C.(I.E.)
NO.12/08 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 135 OF I.E. ACT 2003. AND THE
APPELLANT/ACCUSED IS SENTENCED TO PAY A FINE OF
RS.90,123-00 (RUPEES NINETY THOUSAND, ONE HUNDRED
AND TWENTY THREE ONLY) AND IN DEFAULT TO PAY A FINE,
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S.I. FOR ONE YEAR FOR THE OFFENCES P/U/S 135 I.E. ACT
2003.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellant-accused being aggrieved by the judgment of conviction and order of sentence dated 15.04.2011 passed by the Sessions Judge, Koppal, in Special C.C. (IE) No.12 of 2008.
2. Brief facts of the case are that on 17.09.2005 at about 12.35 p.m. on the basis of the credible information, CW-1 along with GESCOM Police and his staff conducted a raid on the flour mill of the accused-appellant at Kallimalli village. It is further alleged that on such raid, they noticed that the accused without any R.R No. and without prior permission from the GESCOM, by directly connecting to the LT line of 4 lined wire, has taken supply of electricity to 7½ HP electric motor and was running the four mill. Immediately, he secured two panchas and in their presence, 3 the lineman removed the 4 lined service wire and after drawing mahazar, the same was seized. It is the contention of the complainant that there was an estimated theft of electricity to the tune of 5035 units and BBC is of Rs.30,041/-. After seizing the said wire, a case was registered on the basis of the complaint given by CW-1. It is the further contention of the prosecution that on the strength of the complaint, investigation was conducted in Crime No.363 of 2005 and a charge sheet was laid as against the accused. After submitting the charge sheet, the Sessions Court, which is also a Special Court for trying the offences relating to Electricity, secured the accused and after following the formalities under Section 207 of the Code of Criminal Procedure, the accused and the learned Public Prosecutor were heard relating to the charge. Thereafter, charges were framed. The accused pleaded not guilty and claimed to be tried. As such the trial was fixed.
3. In order to prove the case of the prosecution, the prosecution examined PWs.1 to 5 and got marked Exs.P-1 to P-5 and also got marked M.O.1. The statement of the 4 accused under Section 313 of the Code of Criminal Procedure was recorded by putting incriminating material as against him. The accused denied the same. The accused has not led any evidence.
4. After hearing the learned Public Prosecutor and the learned counsel for the accused, the impugned judgment of conviction and order of sentence came to be passed wherein the accused is convicted for the offence punishable under Section 135 of the Indian Electricity Act,(hereinafter referred to as the 'Act' for short) and was sentenced to pay a fine of Rs.90,123/- in default of payment of fine, to undergo simple imprisonment for one year. Against the said order, the accused is before this Court.
5. The main grounds urged by Sri. Ashok R. Kalyanshetty, learned counsel for the accused are that as provided under the provisions of Section 135(2)(b) of the Indian Electricity Act the checking party was under an obligation to collect and seize all the devise which have been used for effecting illegal connection of the electricity. He 5 further contended that except M.O.1-service wire, no other devices have been seized. He further contended that non- seizing of 7½ HP electric motor and the other flour mill materials clearly indicate the fact that the seizing authority has not visited the place and have not conducted the panchanama and have also not followed the procedure as contemplated under Section 135(2) of the Act. He further contended that if really they had visited, then under such circumstances, definitely they would have followed the procedure as contemplated under Section 135(2) of the Act. He further contended that the evidence of PW-1 indicates that a separate lineman was there in Kallimalli village. But at the time of the said raid, the said lineman has also not been called and he has also not filed any complaint or informed about the theft of electricity; though the prosecution got examined PW-4-panch witness to substantiate the case, he was treated as hostile as he has not supported the case of the prosecution; the distance which has been stated in the mahazar from the LT line to the electric power connected to the electric motor varies from 6 witness to witness. But as per Ex.P-4 it has been mentioned that the seized wire is 130 feet. The evidence and the documents which have been produced also clearly goes to show that the complaining authority has not only asserted the theft of electricity but even has calculated the penalty in case of theft of electricity also. The said evidence clearly indicates the fact that only for statistical purpose, the said case has been registered as against the accused- appellant. He further contended that the investigating officer was also not examined to either bring the contradictions and omission in the evidence of these witnesses. If the investigating officer has been examined and the contradictions and omission have been brought on record, then under such circumstances, the benefit of doubt should have been given to the accused appellant. On these grounds, he prayed to allow the appeal by setting aside the judgment of conviction and order of sentence passed by the trial Court.
6. Per contra, Sri. Raja Raghavendra Naik, learned High Court Government Pleader vehemently argued by 7 contending that there is corroboration in the evidence of PWs.1 to 3 to the effect that the raiding party has noticed theft of electricity and even the accused has also not produced any meter number of the bills for having paid the electricity charges to the place where the electricity connection was supplied. The said circumstance itself clearly gives a conclusion and the Court can presume that the accused has committed an offence under the Act. He further contended that as per Section 135(2)(b) of the Act, the seizing authority noticed that there is illegal electricity connection from LT line to the motor by virtue of a service wire. The said service wire has been seized in accordance with law. That itself indicates the fact of presence of the seizing authority at the place of incident and after investigating, has rightly charge sheeted the accused. He further contended that the trial Court, after considering all the facts and materials which have been produced, has come to the conclusion that the accused-appellant has committed the alleged offence under Section 135 of the Act. He further contended that in order to run the flour mill, a licence is 8 required and no such licence is produced by the accused- appellant. Under the said facts and circumstances, the Court can presume that the accused, by illegally contravening the provisions of the Act has consumed the electricity and as such the trial Court has rightly convicted the accused-appellant. In support of his contentions he relies on the decision in the case of Bhruhath Bengaluru Mahanagara Palike & Anr. V. M/s. Mahtani Ventrures reported in (2013) 3 AKR 103. Hence, he contends that no good ground is made out to interfere with the judgment of conviction and order of sentence passed by the trial court and the same may be confirmed.
7. The first and foremost contention of the learned counsel for the appellant is that the seizing party has not complied with the provisions of Section 135(2)(b) of the Act. For the purpose of brevity, I quote the said section which reads as under:
" 135(2)(b): Search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being used for unauthorised use of electricity"9
8. On a close reading of the said Section, an obligation is cast on the seizing party to seize all the articles, materials and devices which are used as facilitators for the purpose of unauthorized use of electricity. It also enumerates at Section 135(3) of the Act that the occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list. Keeping in view the above said facts and circumstances and the proposition of law, let me consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubt.
9. PW-1 is the complainant. He is also a seizing party. As per his evidence, he, on the basis of the credible information, along with the seizing party went to the place and there they noticed that the accused without obtaining prior permission and without having any RR number and meter, by hooking to LT service line from the 4 lined service 10 wire and taking the connection to the Board by committing theft of electricity, was running the flourmill. PW-1 during the course of cross-examination has deposed that the distance between the LT line to the flour mill was more than 100 feet and the distance to his flour mill has been covered by drawing a service wire passing through neighbouring buildings. Though the wire has been passed through the neighbouring house, none of the neighbours were examined by the raiding party nor their statement have been recorded. Be that as it may. Even their house number or property number through which the said line has been taken, has also not been specifically mentioned either in the panchanama or in any other records. PW-1 in his evidence has stated that the distance from the LT line to the flour mill was more than 100 feet. But as could be seen from the evidence of PW-3, the distance is about 200 feet and the said distance has been covered by the service wire. PW-2 has also not specifically deposed during the course of cross- examination that through whose building/wall the said line was passing through, though he deposes that he climbed the 11 pole and cut the service wire. If really the raiding party had visited the place of incident, then, under such circumstances, definitely they would have followed the provision of Section 135(2)(b) and 135(3) of the Act. Non- following the procedure itself creates a doubt in the case of the prosecution with regard to conducting of raid and noticing illegal electricity connection to the flour mill and other allegations.
10. Be that as it may. Surprisingly, an independent pancha, who has been examined as PW-4 has not supported the case of the prosecution. Though yet another co-pancha was present at the time of drawing the panchanama, was not examined by the prosecution for the reasons best known to the prosecution. Even the investigating officer was also not examined in this particular behalf. The Government Pleader by relying upon the decision quoted supra tried to convince the Court that there is material to convict the accused. It is seen therein the mahazar witness, lineman, police constable all have supported the case of the prosecution with regard to the theft of electricity and also running the flour mill by the 12 accused. Under the said facts and circumstances, this court has convicted the accused. But the said facts and circumstances are not existing in the present case on hand and as such the said decision will not come to the aid of the prosecution.
11. As could be seen from the complaint, it indicates that the said flour machine was run in the house. If really the flour mill was run in the house, then definitely the house may be having a separate meter. Whether the house was having any separate electricity connection or not, is not forthcoming. It is not the case of the complainant that though the house is also not having any electricity connection, by using the illegal connection they are taking the electricity to run the flour mill as well as the house. The persons who have come for the purpose of flouring the ingredients, have also not been examined and they have also not been made as a panch witnesses for the reasons best known to the prosecution. When this is the case, then under such circumstances, the evidence which has been 13 lead appears to be not trustworthy and reliable so as to convict the accused.
12. As could be seen from the judgment of conviction and sentence passed by the Trial Court, at paragraph 15, it has specifically observed that there are minor contradictions in the evidence of the prosecution witnesses regarding the distance between the flour mill and pole of LT line and also little minor contradiction as to how many customers were present at the time of raid. If the said contradictions are looked into with reference to Section 135(2)(b) and (3), the said contradiction appears to be a major and goes to the root of the prosecution case itself. In that light, if the entire prosecution case is looked into, it clearly goes to show that the prosecution has utterly failed to prove the case as alleged in that event the benefit of doubt should go to the accused and the accused is entitled to be acquitted.
Keeping in view the above said facts and circumstances, the judgment of conviction and order of 14 sentence dated 15.04.2011 passed by the Sessions Judge, Koppal, in Special C.C. (IE) No.12 of 2008 is set aside and the accused is acquitted of the offence punishable under Section 135 of the Indian Electricity Act, 2003. The Trial Court is directed to refund the appellant the fine amount paid by him on proper identification and acknowledgment.
The bail bonds and surety bonds executed by the accused and surety stands discharged.
Sd/-
JUDGE Kmv