Gujarat High Court
State Of Gujarat vs Aashish Jerambhai Faldu on 8 April, 2025
NEUTRAL CITATION
R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 367 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
=============================================
Approved for Reporting Yes No
=============================================
STATE OF GUJARAT
Versus
AASHISH JERAMBHAI FALDU
=============================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Opponent/Respondent No. 1
=============================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 08/04/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgment and order dated 30.11.2009 in Special (G.E.B.) Case No.133 of 2006 passed by the learned Special Judge, Jamnagar (hereinafter referred to as 'the learned Trial Court'), whereby, the learned Trial Court has acquitted the respondent from the offence punishable Page 1 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined under Sections 135 of the Electricity Act, 2003 (hereinafter referred to as 'the Electricity Act').
1.1. The respondent is hereinafter referred to as 'the accused' as he stood in the original case, for the sake of convenience, clarity and brevity.
2. The relevant facts leading to filing of the present appeal are as under:
2.1. Ramjibhai Vashrambhai Nakum was a consumer of electricity and was given Consumer No. 87101/59075/6 in Plot No.385 situated in the G.I.D.C. in Darek area, Taluka Jamnagar and on 17.03.2006 at around 11:20 hours, the members of the E.I.C. Squad Jamnagar including Mr.J.J.Bhatt and other staff members had done checking in Darek, Taluka Jamnagar and found the accused Ashishbhai Jayrambhai Patel had tampered with the meter seal and had made a hole in the top cover and had committed theft of 31HP electricity. The necessary procedure was done and a bill of theft of Rs.2,79,675.55/- was given to the accused after the calculation as per rules, but the same was not paid, and hence, the complainant, Nitinbhai Chimanlal Ghelani, Page 2 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined Deputy Engineer, P.G.V.C.L., Jamnagar filed a complaint under Section 135 of the Indian Electricity Act on 04.04.2006, which was registered at G.E.B Police Station, Rajkot Zone at II-CR No. 257 of 2006.
2.2. After registration of the FIR, the investigation was carried out by the concerned Investigating Officer and after having sufficient material against the accused, the chargesheet came to be filed before the concerned jurisdictional Magistrate which culminated into Criminal Case No.5529 of 2006. As the case was exclusively triable by the Court of Sessions, after completion of the process under Section 209 of the Cr.P.C., the case was committed to the Sessions Court and the same was registered as Special (G.E.B.) Case No.133 of 2006.
2.3. The accused were duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge was framed by the learned Trial Court at Exh.3 and the statement of the accused was recorded, at Exh.4, wherein, the Page 3 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has examined 04 witnesses and has produced 13 documentary evidences in support of the case.
2.4. After the closing pursis was submitted by the learned APP at Exh.29, the further statement of the accused under Section 313 of the Code was recorded. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order, has acquitted the accused for the offence punishable under Sections 135 of the Electricity Act, 2003.
3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Trial Court, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order passed by the Trial Court is contrary to law, evidence on record and principles of natural justice. The impugned judgment and order of acquittal passed by the learned Trial Court is based on inferences, not warranted by facts of the case and also on presumptions, not permitted by law. The learned Page 4 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined Trial Court has failed to appreciate that though there are direct and indirect evidences connecting the respondent with crime in produced in this case, the Trial Court has come to conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The Trial Court has not properly appreciated the oral as well as documentary evidence on record it its true spirit. The learned Trial Court has not properly scrutinized and appreciated the material and evidence on record which suggest that the respondent has illegally committed theft of electricity. The Trial Court has failed to appreciate that the complaint has been filed at a belated stage and the prosecution has failed to give plausible explanation with regard to the late filing of the complaint. The Trial Court has erred in acquitting the accused though there are ample and cogent evidence to connect the accused with the crime and the offence registered against him. The impugned judgment and order of acquittal passed by the Trial Court is illegal, invalid, improper, perverse and bad in law and the same deserves to be quashed and set aside.
4. Heard learned APP Ms.Jirga Jhaveri for the appellant - Page 5 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025
NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined State. Though served, the respondent has not appeared either in person or through an advocate. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Ms.Jirga Jhaveri for the appellant - State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the the case and has successfully proved the case against the accused but the Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by learned Judge is contrary to law, evidence on record and principles of justice. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence. Learned APP has urged this Court to allow the present appeal and impose maximum sentence on the accused.
6. At the outset, before discussing the facts of the present Page 6 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined case, it would be appropriate to refer to the observations of the Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) ........ From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;] (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such Page 7 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
7. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the Trial Court, it appears that there are some manifest illegality of perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The Page 8 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must.
8. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Nitin Chimanlal Ghelani at Exh.7 and the witness is the complainant, who has stated that he had received the checking sheet, rojkam and other documents of Deputy Engineer Mr.J.J. Bhatt and the Checking Squad on 25.03.2006, as per the documents, even though the accused was not a consumer, he had tampered with the seal of the metal meter box and had committed Page 9 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined a theft of 32937 units of electricity and a bill of Rs.2,79,675.55/- was given to him. That as he did not pay the amount, the complainant filed the complaint, which is produced at G.E.B. Police Station, Rajkot Zone by R.P.A.D. and the complaint is produced at Exh.11. The complainant has produced the other documents including the checking sheet, bill of theft etc. on record. During the cross- examination by the learned advocate for the accused, the witness has stated that whenever any team goes for fitting the meter, Proforma-15 is filled up and the signature of the consumer is taken in Proforma-15. That if damaged meters come to the laboratory and they can be re-used and they are given to consumers and if there is a hole on the top of the meter, it could be sealed. That in the complaint, it is not mentioned that the hole was made by a drill and in the document produced at Exh.9, there is no signature of the maker of the bill and the bill was not given to the accused or the consumer. The document produced at Exh.12 does not bear the signature of the person, who has prepared the document and the permission of the competent authority was not taken before filing the complaint. The Investigating Officer did not go to the place of incident and prepare any panchnama in the presence of Page 10 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined the panch witnesses and no muddamal wire or meter or any other electrical equipment was seized by the Police during investigation. That muddamal wire was not handed over to the police by the complainant or any members of the checking team. 8.1. The prosecution has examined PW-2 Jaydeep Jayantbhai Bhatt at Exh.13 and the witness was working as a Deputy Engineer in the E.I.C. Squad of P.G.V.C.L., Jamnagar and on 17.03.2006, as a part of his duty, he had gone for checking to Jamnagar G.I.D.C. Shed No.385. The witness has stated that he met the accused at the place and on checking, it was found that the seals of the meter box were tempered and there was a hole in the top cover of the meter body and theft of electricity was taking place. The checking sheet and other rojkam were prepared and the meter was seized and packed in a paper and sealed and a seizure memo was also prepared. The seized meter was deposited in the G.I.D.C. (Industrial Sub-Division) Office and the witness has produced the necessary documents at Exhs. 14 to 17. During the cross-examination by the learned advocate for the accused, the witness has stated that he did not have any documents or Page 11 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined authority letter to show that he was authorized to check the electricity connections and no panchnama was drawn in the presence of independent witnesses at the time of the checking. The procedure that was done was not done in the presence of the panch witnesses and when the muddamal was seized, his signature or the signature of the panch witnesses was not taken on the paper packing.
8.2. The prosecution has examined PW-3 Prahladrai Govindrai Valera at Exh.22 and the witness was working as the P.S.O. in G.E.B. Police Station on 04.04.2006, when he had received the written complaint of Nitin Chimanlal Ghelani, Deputy Engineer, Industrial Sub-Ddivision, Jamnagar by post. The complaint was registered with G.E.B Police Station II-CR No.257 of 2006 and the investigation was handed over to Police Inspector Miyatra, but he had expired some time ago. During investigation, Police Inspector Miyatra had recorded the statements of the connected witnesses and had filed the charge sheet against the accused. During the cross examination by the learned advocate for the accused, the witness has stated that he had merely registered Page 12 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined the complaint and during investigation, the Investigating Officer, Mr. Miyatra had not drawn any panchnama in the presence of any independent witnesses at the place of offence. The statements of any independent witnesses were not recorded and no muddamal was seized during investigation. There was no documentary evidence that the complainant had the authority to file the complaint and no such document was seized from the complainant. The witness has stated that from Exh.10, it transpired that the accused had filed Complaint No.123 of 2006 before the Consumer Forum, Jamnagar and had paid an amount of Rs.2,79,676/- and Rs.1000/- as re-connection charges and as per the interim order of the Forum, the electricity connection was restored.
8.3. The prosecution has examined PW-4 Shantaben Damjibhai Pambhar Exh.28 and the witness has stated that her husband was the owner of G.I.D.C. Shed No.385 and her husband had entered into a contract with the accused and had given the shed on rent of Rs.3500/- and the document produced at Exh.26 was executed between them. That her husband had expired and Page 13 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined she has identified the Rent Agreement at Exh.26. During the cross- examination by the learned advocate for the accused, the witness has stated that prior to giving the premises on rent to the present accused, the premises were given on rent to some other person.
9. On minute appreciation of the entire evidence prosecution, as per the case of the prosecution, the checking was done on 17.03.2006 at 11:20 hours and the complaint was filed on 04.04.2006 at 13:15 hours and a written complaint was sent to the G.E.B. Police Station by the complainant, but there is no explanation regarding the delay in filing of the complaint. PW-2 Jaydeep Jayantbhai Bhatt examined Exh.13 is the sole witness, who has stated that he had gone to do the checking at the place of incident and has narrated the procedure that was undertaken by him, but there is no evidence of any independent witnesses or any member of his team to support his version and the procedure that was undertaken on 17.03.2006. There is nothing on record to show that the complainant was authorized to file the complaint or that PW-2 Jaydeep Jayantbhai Bhatt was authorized to conduct the checking and during the procedure, no muddmal was seized and Page 14 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined no panchnama was drawn in the presence of independent witnesses. PW-2 Jaydeep Jayantbhai has stated that he had taken the meter and seizure memo was drawn, but the meter was not handed over to the Investigating Officer, and it has not been produced before the learned Trial Court. As per the document produced at Exh.9, the bill for Rs.2,79,675.55/- was paid on 23.03.2006 and the receipt has been produced by the complainant at Exh.10. An amount of Rs.1000/- has also been paid as reconnection charges and from the document produced at Exh.12, prima-facie. it appears that compounding charges of Rs.621/- was demanded and the same was not paid. The complainant PW-1 Nitin Chimanlal Ghelani was not a member of the checking squad and there is nothing on record to show that he was authorized to file the complaint.
10. In view of the above, learned the trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned trial Court has appreciated all the evidence and this Court is of the considered Page 15 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025 NEUTRAL CITATION R/CR.A/367/2010 JUDGMENT DATED: 08/04/2025 undefined opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
11. The impugned judgment and the order dated 30.11.2009 in Special (G.E.B.) Case No.133 of 2006 passed by the learned Special Judge, Jamnagar is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S.KAZI Page 16 of 16 Uploaded by F.S. KAZI(HC01075) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 23:44:47 IST 2025