Bhikhabhai Mankabhai Patel vs State Of Gujarat

Gujarat High Court

Bhikhabhai Mankabhai Patel vs State Of Gujarat on 3 December, 2025

Author: Gita Gopi

Bench: Gita Gopi

                                                                                                                         NEUTRAL CITATION




                            R/CR.A/1405/2008                                             JUDGMENT DATED: 03/12/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 1405 of 2008


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MS. JUSTICE GITA GOPI                           Sd/-

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                                    Approved for Reporting                          Yes                 No
                                                                                                    ✔
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                                                 BHIKHABHAI MANKABHAI PATEL
                                                            Versus
                                                      STATE OF GUJARAT
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                       Appearance:
                       MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
                       MR. ROHAN H.RAWAL APP s for the Opponent(s)/Respondent(s) No. 1
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                         CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                              Date : 03/12/2025

                                                              ORAL JUDGMENT

1. The judgment of conviction and sentence passed under Section 135(1)(b) of the Indian Electricity Act, 2003 has been challenged by the appellant- accused Patel Bhikabhai Mankabhai who came to be convicted on 24.03.2008 by Special Judge, Mehsana in the Special Electric Case No.55 of 2007. The appellant-accused was ordered to undergo sentence of nine months rigorous imprisonment and a fine of Rs. 26,634/-, in default of payment of fine, further Page 1 of 11 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Dec 05 2025 Downloaded on : Mon Dec 08 20:40:00 IST 2025 NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined seven months rigorous imprisonment was ordered with the benefit of set off under Section 428 Code of Criminal Procedure (for short 'Cr.P.C.').

2. Considering it is an offence under Section 135(1)(b) of the Electricity Act, 2003, the charge against the appellant-accused was drawn below Exh.5 with the facts that on 18.07.2006, the Officers of UGVCL had gone for checking at Village Sangthada, Taluka Kheralu. The allegation against the accused was that from his house, an overhead wire was linked from the electricity poll by switching off the outgoing main switch, the electricity flow continued for the use by-passing the meter. It was observed that the meter was not in progress and the electricity theft was noted and the supplementary bill of Rs. 8877.54/- was issued. It was also noted that, earlier on 31.05.2005, the appellant-accused was found stealing the electricity power and thus, the present matter was considered as a second theft.

3. Learned Advocate Mr. Yogendra Thakore submitted that the other matter of Criminal Appeal No.1406 of 2008 decided on 02.12.2025 shows connection with the present matter since the Officers of UGVCL appears to have gone on random bulk raid at the village Sangthada and had considered the case of electricity theft, while actually, the Muddamal stated to be seized has not been produced before the Court. The Panchnama of the place of incident as well as the Page 2 of 11 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Dec 05 2025 Downloaded on : Mon Dec 08 20:40:00 IST 2025 NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined house of the appellant-accused has not been drawn on that very same day. The complaint is not registered within the statutory period and the Panchnama drawn by the police does not reflect the house number to show that the accused was in ownership and possession of the house.

4. Countering the arguments, learned APP Mr. Rohan H. Rawal submitted that there is no denial to the fact that the house which was raided was of the ownership of the appellant-accused, since the documentary evidence was produced to substantiate the said fact and further submitted that the appellant- accused himself is the consumer. Light bill was issued in his name. He was given a notice by way of Exh.13 for paying the amount for compounding, considering it as a second offence. The inspection report also bears the signature of the appellant- accused which has been identified by the officer PW-1 Shri Rajeshkumar Bahmaniya. APP Mr. Rawal further stated that the appellant-accused had been proved by the inspection report, where the checking sheet reflects the appliances as television, fridge, fan, lamp put to use and the complaint suggest that there was a theft of 1326 kilowatts of electricity.

5. On considering the arguments canvassed by learned Advocate Mr. Yogendra Thakore for the appellant-accused and learned APP Mr. Rohan H. Rawal for the State, perused the deposition of the Page 3 of 11 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Dec 05 2025 Downloaded on : Mon Dec 08 20:40:00 IST 2025 NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined witnesses and the documentary evidence on record.

6. PW-1 Rajeshkumar Gopalsingh Bahmaniya was working in Kheralu Sub-Division as Deputy Engineer in UGVCL who stated that on 18.07.2006, there was a checking of electricity connection at Sangthada village who had gone along with junior engineer, assistant lineman and a helper. They had checked the electricity connection of the appellant-accused's house and found that an additional wire was used in the phase of L.T. and with that, extra wire was linked with the outgoing switch of the meter and the main switch was closed down stagnating the meter reading. Therefore, it became a case of electricity theft. The checking sheet was prepared and the electricity connection was shut down. The meter as well as the wire were seized and a bill of Rs.8877.54/- was given. After going back to the office, notice was issued, the accused had paid the bill amount, PW-1 gave the complaint Exh.9. The inspection sheet Exh.10 was produced in evidence whereupon he identified the signature of the accused. The forwarding letter which was sent along with the bill was produced at Exh.13.

6.1 The witness stated that the Muddamal which was seized by them was given to the police. The police had returned back to them for safe custody. He stated that this was a second offence of the appellant- accused. Earlier on 31.05.2005, he was found stealing Page 4 of 11 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Dec 05 2025 Downloaded on : Mon Dec 08 20:40:00 IST 2025 NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined electricity. In the cross-examination, it has been recorded that the loose wires on the place were seized and for the earlier offence, no compound charge was taken. The meter has not been sent for laboratory examination. A new meter was installed. He stated that the police has not sealed the wire seized. Police had given him the receipt for the custody of wire.

6.2 According to the evidence of the witness, there were about 20 to 25 raids in the village. Public people were present there. He affirmed that no signature of any person from the public had been recorded in the inspection report. The evidence, thus, clarifies that it was a raid in bulk. The Muddamal has not been produced on record. The meter which was alleged to be tampered had not been sent for laboratory examination to prove the actual manipulation. The wire which has been alleged to be used has not been produced. The inspection report at Exh.10 reflects the appliances which has been put to use, which the officers stated was by electricity theft. The present appellant-accused is the consumer. The assessment sheet of the supplementary bill is at Exh.12, which reflects the contract load, the connected load and the extra unauthorized load found during checking. Exh.13 is the notice which was given to the appellant-accused on 19.07.2006 asking him to pay the bill amount for compounding the offence.

NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined

7. PW-2 Kaushikbhai Joitaram Prajapati is the Junior Engineer, who has supported the evidence of the Deputy Engineer PW-1. PW-2 had prepared the inspection report. He stated that in the year 2005 compound charge was taken, however, he does not reflect the exact amount nor does he has any material to support the receipt of the compound charge. PW-2 also stated that the meter and wire which was seized were not sealed.

8. PW-3 Maheshbhai Narsinhbhai Solanki is the head- constable who was working at G.E.B. Police Station, Sabarmati. He was entrusted with the investigation on 08.08.2006 in connection to C.R.No.768 of 2006 under the Electricity Act, 2003. He had recorded the statement of the complainant as well as the officers who were on checking. The Panchnama of the house of appellant-accused was drawn on 03.09.2006. The tax receipt was seized. The witness as an I.O. stated that the wire and meter was handed over to them but they were returned back to the UGVCL for safe custody. The receipt he relied upon was produced at Exh.17. The I.O. stated that he has not taken any documents with regard to the earlier case. He had not sent the meter for laboratory examination. The Muddamal was not in his custody.

NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined

9. The third proviso to sub-section(1) of Section 135 of the Electricity Act, 2003 is with regard to the statutory presumption to be drawn in case of dishonest use of electricity by the consumer. The proviso reads as under:

"Provided also that if it is provided that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer."

10. The second proviso to sub-section(1A) of Section 135 of the Electricity Act, 2003 is with regard to lodging the complaint within 24 hours, which reads as under:

"Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hour from the time of such disconnect:"

11. The place which was raided was surrounded by residential houses. The Panchnama which was drawn by the police does not reflect the house number of the accused, however, the accused cannot deny that he was not a consumer. P.S.O. has not been examined in the matter to give the evidence of the fact of the date Page 7 of 11 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Dec 05 2025 Downloaded on : Mon Dec 08 20:40:00 IST 2025 NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined of receipt of the complaint. The original complaint Exh.9 is dated 21.07.2006, while the raid was conducted on 18.07.2006. The mandatory requirement of filing the complaint within 24 hours has not been followed in the present matter. The original Muddamal in the form of electric meter as well as the wire has not been made a part of the trial. Section 135 of the Electricity Act, 2003 makes provision for the presumption to be drawn when it becomes proved that the artificial means or means not authorized by the Board or licensee or supplier exists for the abstraction, consumption or use of electricity by the consumer. The UGVCL to prove the case for considering the presumption was required to produce on record as Muddamal, the alleged artificial means which were not authorized by UGVCL. Unless the initial burden is not proved, it would not get shifted to the consumer to prove the contrary. The meter which was alleged to be manipulated had not been examined by getting a test report to prove that the meter was blocked for the alleged abstraction, consumption or dishonest use of the electricity by the consumer. The place of incident where the alleged wire was extended for drawing the electricity dishonestly, also does not get proved by any Panchnama from any independent person. The case of earlier theft by the appellant- accused has not been proved by any documentary evidence. The witnesses from UGVCL could not prove any compound charges received by them.

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12. Section 135 of the Electricity Act, 2003 refers to the provision of first conviction, second and subsequent conviction. The relevant provision of Section 135 of the Electricity Act, 2003 is abstracted hereinbelow:

"Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-

(I) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction of the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;

(II) exceeds 10 kilowat, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:

NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity of electricity for that period from any other source or generating station:"

13. On first conviction, the fine imposed shall not be less than three times of financial gain on account of such theft of electricity, if in a case, where the load abstracted, consumed or used or attempted abstraction or attempted consumption or attempted use does not exceed 10 kilowatts. In the event of second or subsequent conviction, the fine imposed shall not be less than six times of financial gain on account of such theft of electricity. Here, the complaint shows that there was a total electricity theft of 1566 kilowatts, which as provided in Clause (ii), the fine imposed on first conviction shall not be less than three times of financial gains. On account of such theft of electricity and in event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with a fine not Page 10 of 11 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Dec 05 2025 Downloaded on : Mon Dec 08 20:40:00 IST 2025 NEUTRAL CITATION R/CR.A/1405/2008 JUDGMENT DATED: 03/12/2025 undefined less than six times of financial gain on account of such theft of electricity.

14. In view of the observations made here-in-above with the analysis of the evidence, the prosecution witnesses had failed to prove the case against the accused.

15. In the result, the appeal is allowed. The conviction order dated 24.03.2008 passed by the learned Special Judge, Mehsana in Special Electricity Case No.55 of 2007 is set aside. The appellant- accused is acquitted. The amount of the fine deposited by the appellant-accused before the trial Court be handed over to the appellant-accused on verification of the identity. Record and Proceedings be sent back to the concerned Trial Court forthwith.

Sd/-

(GITA GOPI,J) PARMAR KRISH/1 Page 11 of 11 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Dec 05 2025 Downloaded on : Mon Dec 08 20:40:00 IST 2025