Bombay High Court
Sheikh Chand Sheikh Jumma vs State Of Maharashtra, Through P.S.O. ... on 19 January, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.429 OF 2014
Sheikh Chand Sheikh Jumma,
Aged about 67 years,
R/o. Wani, Tahsil Wani,
District Yavatmal ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer,
Police Station Wani, District Yavatmal
...RESPONDENT
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Mr. A.S. Dhore, counsel for appellant.
Ms. Ritu Kalia, Additional Public Prosecutor for respondent.
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CORAM:
ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 22.12.2017
DATE OF PRONOUNCING THE JUDGMENT : 19.01.2018
JUDGMENT
Challenge is to the judgment and order dated 11.7.2014 delivered by the learned Special Judge, Kelapur in Special Case 14 of 2007, by and under which, the appellant (hereinafter referred to as "the accused") is convicted for offences punishable under section 135(1)(b) and 138(1)(d) of Electricity ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 ::: 2 Act and is sentenced to pay fine of Rs.1,00,000/- and in default to suffer simple imprisonment for six months.
2 Heard Shri A.S. Dhore, the learned counsel for accused and Smt. Ritu Kalia, the learned Additional Public Prosecutor for the State.
3 The informant is PW 7 Vilas Hade, who was then serving as Deputy Executive Engineer - Flying Squad, Maharashtra State Electricity Distribution Company Limited (MSEDCL), Yavatmal. Duty of the flying squad is to inspect electric meters and to detect theft of electricity etc. The case of the prosecution as is unfolded through the evidence of PW 7 is that the flying squad raided the ice factory of the accused situated near Dipak Talkies at Mominpura, Wani. PW 7 was accompanied by junior engineer Shri. Angaitkar, vigilance officer Dadarao Sayam and others. The flying squad tested the load on the meter for 45 minutes in the presence of the owner of the factory, the meter recorded only 1 unit and the load counting pulse was slow. The meter was removed and opened in the presence of the consumer and it was found that R Y B CT secondary wires were found short at PCB hampering the recording of the current. The meter was seized and ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 ::: 3 sealed. The seal of the meter was found tampered. After seizure of the meter joint inspection report (Exh. 28) was prepared which was signed by PW 7 and the vigilance officer. The consumer did not sign the joint inspection report. Spot inspection report Exh. 29 was prepared, electric bill was obtained from the accused. The total load in the factory was 19 HP and the meter was in use for period for more than two years. Accordingly, assessment for period of two years as per the load of HP was prepared and the provisional assessment (Exh. 39) was submitted to the office, extract of the account of the meter was obtained, the seized meter was handed over to police during investigation and seizure panchanama (Exh. 21) was prepared by the police. The seizure panchanama prepared by PW 7 when the meter was seized at the factory is Exh. 19. PW 7 lodged report at Wani Police Station (Exh. 24) 4 The defence of the accused during the course of trial, as is discernible from the trend and tenor of the cross examination, is that the accused is neither the owner of the Bombay Ice Factory nor the consumer. The suggestion given to PW 7 is that he did not inspect Bombay Ice Factory. However, the further suggestion is that when PW 7 entered the Bombay Ice Factory, the owner was ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 ::: 4 not present. The defence however is that the meter was not tampered and was not seized. In reply to question 15 in the statement recorded under section 313 of the Code of Criminal Procedure, the accused states that he is not connected with Bombay Ice Factory and is falsely implicated. 5 The prosecution examined PW 1 Mohammad Makdul a witness to seizure panchanama Exh. 19. PW 2 Nago Ingole a witness to seizure panchanama of electric meter by police Exh. 21, PW 3 Noorsingh Rathod ASI who had received the report and registered the offence also seized the electric meter. PW 4 Prakash Wankhede is the Deputy Executive Engineer serving in MSEDCL and was present at the time of spot panchanama Exh. 26. PW 5 Ritesh Chawardol is the junior engineer present in the flying squad and present on the spot at the time of raid. PW 6 Namdeo Mandalwar ASI who carried the spot panchanma, PW 7 Vilas Hade is the complainant.
6 The evidence of PW 7 Vilas Hade is corroborated by PW 5 Ritesh Chawardol who deposed that he accompanied PW 7 Shri Hade to Bombay Ice Factory. Accused was present, load test was conducted and it was noticed that seal of the meter was ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 ::: 5 tampered and the meter was running slow. PW 7 Shri Hade opened the meter and found evidence of tampering. PW 7 seized the meter vide panchanama Exh. 19 and the seal was signed by PW 5 and PW 7. Joint inspection report Exh. 28 and spot inspection report Exh. 29 were prepared by PW 7. Accused refused to sign panchanama Exh. 19.
PW 3 Noorsingh Rathod registered crime vide Exh. 24 and seized the electric meter produced by PW 7 (Exh. 21).
PW 2 Nago Ingole is the panch to seizure of the electric meter at Police Station Wani.
PW 6 Namdeo Mandalwar is the Investigating Officer who visited the spot alongwith the panch witness and prepared spot panchanama Exh. 26.
7 PW 4 Prakash Wankhede is a witness to spot panchanama Exh. 26 who further deposes that PW 7 submitted report about the theft of electricity on the basis of which he prepared a bill of Rs. 3,61,920/- which was served on the accused. 8 The learned counsel for accused Shri. A.S. Dhore ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 ::: 6 submits that the prosecution witnesses are not independent witnesses. Concededly, PW 7 is the complainant. The Investigating Officer has not conducted any investigation worth the name after registration of the offence. The seized meter is not produced in the Court. In view of failure of the prosecution to produce the seized meter in the Court, it would be unsafe to hold that the prosecution has established the offence beyond reasonable doubt, is the submission.
Shri. Dhore, the learned counsel relies on an order of the learned Single Judge of the Rajasthan High Court in Criminal Leave to appeal 35 of 2015 and particularly on the following observations:-
"After perusing the evidence and judgment, it appears that the finding given by the trial Court does not require any interfere because it is the duty of the prosecution to prove its case beyond reasonable doubt and in this case the electricity meter in question has not been produced and not sent for examination, therefore, no error has been committed by the trial Court in acquitting the respondent from offence under Sections 135 and 138 of Electricity Act, 2003. In view of above, no case is made out to grant leave to appeal. Hence, this criminal leave to appeal is hereby dismissed."
9 Per contra, the learned Additional Public Prosecutor ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 ::: 7 invited my attention to the judgment of the learned Single Judge of this Court in Anandrao Madhavrao Shinde Vs. The Maharashtra State Electricity Distribution Company Ltd., through Chintaman Gendaji Marathe, 2011 ALL MR (Cri) 1773 and in particular on the following observations:-
"25. In the said context, it is necessary to mention that merely because no independent person was present at the time of inspection of the meter, it does not mean that evidence of both the witnesses of the respondent should be discarded, mechanically, and on close and careful scrutiny of their respective testimonies on the aforesaid aspect of tampering the electric meter, I am of the view that there is no deformity, fatal to the case of the respondent in respect of the said vital aspect, and the observations made by the learned trial judge in that respect, cannot be faulted with."
"27. As regards reliance placed by learned counsel for the appellant-accused on observations in the judicial pronouncement in the case of Harvinder Motors (supra), it is amply clear that the facts and circumstances of the said case and the facts and circumstances of the present case differ from each other, and in the said context, learned counsel for the respondent canvassed that, in fact, Section 126 of Electricity Act contemplates civil liability and it has no role to play in the instant case."::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 ::: 8
The submission of the learned Additional Public Prosecutor is, the production of the seized meter is not sine quo non for bringing home the charge. She submits that the observations of the learned Single Judge of this Court must be considered in the context of the admitted position that the meter was not seized. She would submit that the evidence of the prosecution witnesses is implicitly reliable and is not shaken in the cross examination. The submission is that the accused has not put to serious challenge the prosecution evidence and the main plank of the defence was that he is neither the owner of the Bombay Ice Factory nor the consumer.
10 I find considerable force in the submission of the learned Additional Public Prosecutor. It is true that PW 7 is the complainant. The material prosecution witnesses are employees of the MSEDCL. In a given case, if the evidence of such witnesses is found to be doubtful or otherwise infirm, the non production of the seized electricity meter may assume some significance and importance. However, I am not persuaded to take a view different to that taken by the learned Single Judge of this Court which is... that examination of independent witnesses is not sine quo non to bring home the charge of theft. It is not even the case of the ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 ::: 9 defence that the witnesses had any reason to falsely implicate the accused. An ex facie false defence was taken that the accused was neither the owner of the factory nor the consumer. In the factual matrix, I am not inclined to agree with the submission of the learned counsel that non production of electricity meter is fatal to the prosecution. The learned Judge of the Rajasthan High Court was considering grant of leave to challenge the judgment and order of acquittal. The factual matrix is not clear from the judgment. The observation of the learned Single Judge of the Rajasthan High Court must be restricted to the facts of the case. That apart, there is no compelling reason demonstrated not to follow the view taken by the learned Single Judge of this Court.
The appeal is sans merit and is rejected.
JUDGE Belkhede, PA ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:50:55 :::