Gujarat High Court
Kadarbhai Rehmanbhai Vepari vs The State Of Gujarat on 1 October, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1446 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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KADARBHAI REHMANBHAI VEPARI
Versus
THE STATE OF GUJARAT
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Appearance:
MR IRFAN H.SAIYED ADVOCATE FOR O. I. PATHAN(7684) for the
Appellant(s) No. 1
MR ROHAN H.RAVAL APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/10/2025
ORAL JUDGMENT
1. The challenge is given to the judgment of conviction and sentence passed by the learned Special Judge, Mehsana on 10.08.2006 in Special Electricity Case No.16/2006, whereby the appellant - accused was found guilty of offence under Section 135(1)(b) of the Electricity Act, 2003 (hereinafter referred to as 'the Act' for short) and was sentenced to two years rigorous Page 1 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined imprisonment with fine of Rs.2,00,000/-. The default stipulation was that in failure of paying fine amount, the appellant - accused was to undergo further six months simple imprisonment.
2. Learned advocate Mr.Irfan H.Saiyed with learned advocate Mr. O.I. Pathan for the appellant submitted that the witnesses of the Electricity Company had not followed the procedure laid down under the Act. Advocate Mr. Saiyed submitted that the officers of the Electricity Board cannot run away from the mandated provision of Section 135 of the Act, where the whole procedure of conducting search and seizure has been laid down very specifically, where there can be no escape from the statutory provision.
2.1 Advocate Mr. Saiyed submitted that the complaint has to be filed within 24 hours when such act of alleged theft of electricity comes to Page 2 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined the notice of the officer of supplier. The search and seizure should be in presence of occupant of the place and in the present matter the case was of a residential house, hence, being a domestic place, no inspection, search and seizure could be carried out between sunset and sunrise, unless the presence of any adult member occupying the premises could be said to be proved. 2.2 Referring to the facts of the matter, learned advocate Mr. Saiyed submitted that the trial Court failed to appreciate that there was no theft of electricity established by the prosecution to held the appellant-accused guilty under Section 135 of the Act.
2.3 Advocate Mr. Saiyed referring to the deposition of the complainant stated that he himself had not carried out any checking, no meter or service wire were recovered from the residential place of the appellant. There was no Page 3 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined checking of electric appliances, which were installed in the house and there was no report of meter checking from expert of the laboratory. Advocate Mr. Saiyed stated that the switch, which was alleged to have been used for committing theft of electricity was never recovered by the checking squad, and from the deposition of the complainant the only fact that gets reflected is the allegation of theft of electricity, while the deposition does not state of actual theft of electricity by the accused - appellant. Advocate Mr. Saiyed, thus, stated that the learned Trial Court Judge failed to appreciate the aforesaid aspect and has wrongly convicted the appellant in the matter.
2.4 Referring to the deposition of Hamendra Dahyalal, Junior Engineer, it is contended by learned advocate Mr. Saiyed that the switch, which was alleged to have been used, was not recovered. The witness even was not having the Page 4 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined knowledge as to where the switch was installed and without appreciating the aspect, the learned Special Judge has convicted the accused. 2.5 Learned advocate Mr. Saiyed submitted that the checking squad had entered into many houses and premises in the area in that evening. The actual data has not been brought on record and nothing has been proved on record to fortify the fact that inspection was carried out in the house of the appellant-accused.
2.6 Advocate Mr. Saiyed referring to the judgment of Kadi Judicial Magistrate, First Class in Criminal Case No.317/2006, submitted that a Criminal Case was filed under Sections 324, 323, 353, 332 and 114 of Indian Penal Code against three of the accused, where all the accused came to be acquitted on 03.04.2017 by the Judicial Magistrate. Referring to the observation of learned Judicial Magistrate, First Class, learned Page 5 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined advocate Mr. Saiyed submitted that the learned Judge has appreciated the fact that the injuries were not proved, and even the Doctor was not examined to prove any of the claim of injury, nor the place of offence or the recovery panchnama could be proved in the criminal trial. 2.7 Learned advocate Mr. Saiyed submitted that a criminal offnce was created to show the gravity of the matter, where actually, advocate Mr. Saiyed stated that if the officers of the Electricity Board had conducted themselves in accordance to the provision of Section 135 of the Act, there would not have been any criminal complaint.
2.8 Learned advocate Mr. Saiyed submitted that deposition of the Junior Engineer (P.W.2), would prove the fact that Rojkam Exh.12 was prepared in the office and not at the place of incident. No signature of occupant of the place was received Page 6 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined on the Rojkam. The reported switch, which was alleged to be used for the illegal activity was not recovered from the place. There was no writing on the place of incident and as per deposition of the Junior Engineer (P.W.2), only load was recorded. However, under what format such observation was made and where it was recorded has not been proved.
2.9 Learned advocate Mr. Saiyed submitted that deposition of the Junior Engineer itself proves that more than 25 to 30 people of the neighborhood had gathered there. The accused was not present and the witnesses do not state of any presence of accused. The deposition of the victim rather was to the effect that the persons of Kadarbhai had not shown him any material. He himself was not ready to give any police complaint. Advocate Mr. Saiyed submitted that though all the staffs had gone to Police Station on that very day, however, no complaint under Page 7 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined Section 135 of the Act was lodged.
2.10 Learned advocate Mr. Saiyed submitted that as per deposition of the witness P.W.3, at about 5:30 in the evening they had entered in the house of accused, but it was not verified as to whether accused was present in the house, and nothing comes on record that accused was on that day present, when the inspection was done by the team, rather the deposition of Junior Junior Engineer would prove that he had not entered the house and he had not personally taken any tools or appliances from the house of accused, and the witness further has failed to recover the switch, which was alleged to be used for the illegal activity.
2.11 Referring to the deposition of P.W.6 - P.S.O., advocate Mr. Saiyed submitted that the incident had occurred on 19.01.2006, while the P.S.O. of G.E.B. Police Station, Sabarmati, Page 8 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined received the complaint by post Exh.8 on 23.01.2006, hence, the complaint was also not filed as per the mandated provision. 2.12 Placing reliance on the testimony of I.O. - Govindgiri Ganpatgiri Goswami, learned advocate Mr. Saiyed submitted that the Investigating Officer was required to ask from the witnesses about the muddamal for trial. Though, he had recorded the statements and was to take muddamal, however, it does not come on record that he had actually taken any alleged muddamal from the witnesses. Mr. Saiyed submitted that the Investigating Officer received copy of F.I.R., the complaint, bill and the Rojnama. The Investigating Officer has not stated that he had received any mudammal in the form of switch, rather his evidence would prove that he was not handed over the meter, and the Investigating Officer himself had not gone to even seize the M.C.C.B. switch.
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NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 2.13 Advocate Mr. Saiyed stated that the witness
- P.W.2 has deposed in his statement that bath water was heated by 'Bambo', which is a traditional way of heating water using wooden logs and the witness has also deposed about the colour on it, which as per the witness was light blue hence, the presence of 'Bambo' was proved. Advocate Mr. Saiyed submitted that the complainant cannot be relied upon since he had not visited the place. He had only gone to the Police Station, but had not made any efforts to visit the place of incident along with checking squad, nor had filed complaint under this Act.
2.14 Advocate Mr. Saiyed, thus, submitted that the observation of the learned Trial Court Judge is not consistent to the provision of law or the evidence on record hence, urged to acquit the accused.
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NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined
3. Per contra, learned APP Mr. Rohan Raval referring to the charge submitted that the case against the accused was that when the officers of the Uttar Gujarat Electricity Company visited at about 5 O' clock on 19.01.2006, they found during the checking in the lane opposite Sahara Guest House, that the accused through earthing by M.C.C.B. Switch, had tampered the meter for electricity theft and even during that checking, had assaulted the checking staffs with the weapons. The checking disclosed the total use of electricity as 3,920 Volt, and a bill of Rs.60,499.17 was issued and since the payment was not made, the complaint was filed. 3.1 Referring to the deposition of complainant, learned APP Mr. Raval submitted that the complainant as a Deputy Engineer of Kadi had oversee the work of the staff and as per his deposition on 19.01.2006, the Junior Engineer - S.B. Chaudhary (P.W.2) along with the staffs had Page 11 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined gone in the lane opposite Sahara Guest House, where the raid was conducted of electricity theft. Along with him, there were other staffs and the Junior Engineer had thereafter come and narrated before him that there was use of earthing switch and the meter had stopped working. The complainant had produced the complaint at Exh.8 and the Rojkam at Exh.12. 3.2 Learned APP Mr. Raval submitted that the bill issued to the accused was produced at Exh.9, notice at Exh.10 and the report at Exh.11. Referring to the complaint Exh.8 and the deposition of P.W.2 Junior Engineer - Hamendra Dahyalal Chaudhary, learned APP submitted that the evidence of witness Shri Chaudhary would fortify the fact that there was tampering with the meter and the earthing switch was joint, as a result the polarizing change would be found in the service line and the meter would not work inspite of the usage. The Rojnama proves the Page 12 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined incident.
3.3 Learned APP stated that the fact has been supported by the helper, who was there along with P.W.2, whose deposition as P.W.3 - Dasrathji Mafaji Thakor, refers the fact that such an incident had taken place. The Investigating Officer after receiving the complaint had made relevant investigation and accordingly charge sheet had been filed against the accused. Thus, learned APP stated that the case had been proved by the witnesses, supporting the impugned judgment learned APP submitted that the conviction is required to be confirmed.
4. Having heard learned advocates for both the sides, it would be apt to refer to Section of 135 of the Act prior to appreciation of the evidence. Section 135 of the Act is extracted hereinbelow for ready reference:
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NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined "135. Theft of Electricity.- (1) Whoever, dishonestly,-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised, so as to abstract or consume or use electricity shall be punishable with Page 14 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined imprisonment for a term which may extend to three years or with fine or with both:
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 the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 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, 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:
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 Page 15 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 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 for that period from any other source or generating station:
Provided also that if it is proved that any artificial means or means not authorised 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.
(1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorised for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:Page 16 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 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 hours from the time of such disconnect:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.
(2) Any officer of the licensee or supplier as the case may be, authorised in this behalf by the State Government may-
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is Page 17 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined being, used for unauthorised use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) 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:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."Page 18 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 4.1 Section 135 of the Act refers to the act of theft and classifies the dishonest act from clause (a) to clause (e), where it penalises the dishonest act to abstract or consume or use electricity, making it punishable with imprisonment for a term, which may extend to three years or with fine or with both. However, sub-section (1) is with the proviso under clause
(i) that in a case where the load abstracted, consumed, or used or for that purpose attempts are made, it 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, the fine imposed shall not be less than six times the financial gain on account of such theft of electricity.
4.2 The second clause to the proviso is, in case, where the load exceeds 10 Kilowatt, the Page 19 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity, however, in the event of second or subsequent conviction, the sentence would be imprisonment for a term not less than six months, but which may extend to five years with fine not less than six times the financial gain on account of such theft of electricity. Further under second proviso to Sub- section (1) it is made clear that in event of second and subsequent conviction and in a case of more than 10 Kilowatt use, abstraction or consumption, or any attempt for that purpose, then such person would 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 for that period from other source or generating station. Page 20 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 4.3 The penal provision are stringent in nature. In that circumstances, the provisions so made under Section 135 of the Act for the suppliers or the officers of the licensee are also required to be stringently followed.
4.4 The third proviso to Sub-section (1) is on the basis of presumption, where in case an artificial means or means not authorised by the Board or licensee or supplier, exist for the abstraction, consumption or use of electricity by the consumer, then the proviso mandates the statutory presumption, unless a contrary is proved that such abstraction, consumption or use of electricity has been dishonestly caused by such consumer. The third proviso thus, would want the prosecution to prove in case of detection of any artificial means or means not authorised by the Electricity Board being used, to be proved on record during the trial.
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5. Here, the allegation is that M.C.C.B. switch was used for earthing and there was tampering of meter for electric theft. The total load of the house was shown as 3,920 Volt. Unless and until, such seizure of artificial means or any other means not authorised by the Electricity Board is proved, the statutory presumption would be difficult to be drawn for the accused to rebut such presumption.
6. The second proviso to Sub-section (1A) makes it compulsory for the officer of the licensee or the supplier to lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of disconnection of the electricity supply, which the officer is authorised to do so, in case of detection of theft of electricity. Such disconnection of supply of electricity could be immediate on detection of theft of electricity. Page 22 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 6.1 By way of third proviso to Sub-section (1A) the licensee of the supplier on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of Act, may restore the supply of electricity within forty eight hours of deposit or payment of money, which shall be without prejudice to the obligation to lodge the complaint, as referred to in the second proviso of Sub-section (1A). 6.2 By way of Sub-section (2) of Section 135 of the Act, the officers of the Electricity Supply Board on behalf of the State Government are authorised to enter, inspect, break open and search any place or premises in which the officer would have the reason to believe that electricity has been or is being used unauthorisedly. While making such an inspection, the officer during the search can seize and remove all such devices, instruments, wires and other facilitators or articles which they consider is being used for Page 23 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined unauthorised use of electricity. The Act also permits them to examine and seize books of account or documents which would be relevant in respect of the proceedings for the offence. 6.3 Sub-section (3) of Section 135 of the Act clarifies that the occupant of the place of search or any person on his behalf shall remain present during the search, and the list of all things seized in course of such search shall be prepared and delivered to the occupant or the person who shall sign the list. The proviso to sub-section (3) mandates to the officers that no inspection, search and seizure of any domestic places or domestic premises to be carried out between sunset and sunrise except in presence of the adult male member occupying such premises.
7. The evidence of P.W.1 as a complainant - Kantilal Shivlal Patel, records of the raid being conducted by P.W.2 Junior Engineer - S.B. Chauhan Page 24 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined with the staffs on 19.01.2006. The place of raid was in the lane opposite Sahara Guest House. The raid was in connection to electricity theft. The complainant stated that the theft was by use of earthing switch. The flow of the electric supply would be there, while deter wire would show no reaction resulting into stoppage of meter. The complaint Exh.8 was produced by the witness on identification of his signature. P.W.1 stated that thereafter, he had given the bill to the accused. The copy of the bill was produced at Exh.9 and the notice along with copy of bill at Exh.10. The complainant had also produced the report, which he made at Exh.11, and the Rojnama of the Junior Engineer at Exh.12.
7.1 As per the complainant thereafter he had gone to the place of incident and by drawing a Rojnama the meter was removed, whereupon the witness identified his signature and signature of S.R. Patel and S.B. Patel on the Rojkam Exh.13. Page 25 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 7.2 The further evidence of the complainant records that when the Junior Engineer had gone to the place, there was quarrel and police was informed. The report he produced at Exh.14. The deposition of P.W.1 records that the accused had not deposited the bill amount and also stated that it was the first offence of the accused.
8. Learned advocate Mr. Saiyed has referred to the order dated 17.08.2006 passed by this Court in Criminal Misc. Application No.8833 of 2006 in Criminal Appeal No.1446 of 2006 (Coram: J.R. Vora, J., as he then was), where the application had moved for suspension of sentence and the same was granted on condition that the applicant- appellant would deposit the amount of Rs.60,499.17 paise being the amount of supplementary bill, when it was noticed that fine amount of Rs.2,00,000/- had not been paid by him. 8.1 The prayer made in Criminal Misc. Page 26 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined Application No.5915 of 2008 for refund of the amount came to be rejected observing that it was the amount deposited as a condition of bail, while the Court exercising the power under Section 389 of Cr.P.C., observed that it would have no connection whatsoever in respect of fresh electric connection which might have been requested by the applicant and the amount deposited was made subject to the outcome of the present Criminal Appeal.
9. In cross-examination of the complainant, the defense could bring on record that service time of the employees starts from 8:00 in the morning. While they had started checking at 5:00 in the evening. Junior Engineer - S.B. Chaudhary had gone with License Inspector N.S. Patel, A.K. Katara, B.M. Thakor, Helper, K.M. Chawda and the driver for checking. The witness stated that even after 6 O' clock, they would go for inspection with regard to electricity theft. Page 27 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 9.1 The complainant denied the suggestion that on that day, the checking was of the houses in rural area at 7:30. He had gone to the house of accused, and the team met him there at 7:30. The witness stated at that time, he was at Kadi Police Station and all the persons who had gone for inspection met him at the Police Station. He had no information of the place, where the staffs had gone prior to that. He also had no information of number of houses that had checked at 7:30 in the evening.
9.2 The witness as complainant also had no knowledge of how many people were present there when he visited the house of accused, while three of them had gone to the house of accused. When he was at the police station, the staffs had informed him that there was quarrel and they had gone for medical treatment. Out of all the staffs, three employees were injured. The witness also stated that in that lane, there were many Page 28 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined houses. He had no information whether the houses opposite the house of the accused were inspected. The witness stated that he had personally not made any checking in the house of the accused. 9.3 The deposition of the complainant thus, proves that he had no personal knowledge with regard to alleged theft of electricity in the house of accused. He could not even name the person nor could identify that accused was present at 7:30, when he had visited the house. What was his reason to enter the house of the accused at 7:30 does not get clarified.
10. The law under sub-section (3) of Section 135 of the Act with proviso clarifies that there would be no inspection, search or seizure of any domestic premises or places between sunset and sunrise except in the presence of adult male member occupying such premises. The complainant neither identified, nor could name the persons who were present in the house, when he visited Page 29 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined the residential premises of the accused. The witness thus, further states that after the complaint was recorded at the Police Station of assault, he appears to have visited the house of accused, where his deposition gives the time as 7:30. The complainant states that he had seized meter and service wire. Further clarified that in the house of accused, he had not inspected any other electrical appliances being used in the premises. After seizing the meter, he reached the office at about 8:00. The witness had no knowledge as to where his staffs were, when he had gone for seizing the meter. The witness affirmed that the meter was not sent for laboratory test and further clarified that no signature of the accused was received when the meter was seized.
10.1 It appears that the complainant has no knowledge of the provision of law that no such inspection can take place between sunset and Page 30 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined sunrise. He denied of any such provision in the cross-examination. The witness further clarified that he had the information that the inspection can be done after sunrise and prior to sunset. The complainant further stated that when he had reached the office at 8 O' clock, he had not produced the documents with regard to the checking. He further stated that the seized meter was in running condition, there were no tampering in the meter, he had not seized the switch. He stated that the meter was removed, the electric connection was temporarily disconnected and the bill was given to the customer.
10.2 The evidence of the complainant thus, shows that he had visited the house of accused after sunset. The meter was seized, which was in working condition. There is no laboratory test reporting any irregularities with regard to the meter, while the witness as complainant stated that there was no tampering of the meter. He had Page 31 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined not seized the switch M.C.C.B., which was alleged to have been used for earthing by tampering the meter for electricity theft. As per the evidence of the complainant there was no tampering of the meter and it was in running condition. 10.3 The Junior Engineer (P.W.2) deposed that he had seen the earthing switch, which was being applied. On 19.01.2006, he and his staff for performance of their duty had gone in the lane opposite Sahara Guest House in connection with the electricity theft, which was residential area and he had checked the electricity connection of trader Kadarbhai, who was a customer. He found the end of wire of earthing switch connected with the meter. P.W.2 stated that there was polarizing change in the service line and because of that, the meter was not functional inspite of consumption of electricity.
10.4 P.W.2 stated that the accused was present there and the fact of theft was informed to him. Page 32 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined Further stated that the accused gave no response and started beating them. He received injury on his head, as the attack was with wooden chair. The witness also stated that his staff was also attacked and threat was given to their lives. The accused did not allow them to cut the connection therefore, they informed their superior officer. They thereafter had gone to Government Dispensary, where he, Satishbhai and one Katara took medical treatment and thereafter, they gave police complaint at Kadi Police Station, and from there they went to their office. The witness stated that the Rojnama Exh.12 was prepared in the office. According to him, there was load of 3,920 Volt.
11. It has been argued and brought to the notice of this Court by learned advocate Mr. Saiyed that in Criminal Case No.317/06, where upon the complaint of this witness the criminal proceeding was initiated, but the criminal trial ended into Page 33 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined acquittal since the injury could not be proved beyond reasonable doubt and prosecution had failed to examine any Doctor. The medical certificates produced were also not proved. The uncontroverted fact, as per the deposition remains that the Rojnama was not drawn at the place of incident. P.W.2 stated that they were assaulted and threat to life was there and therefore, they left the place.
12. It is unfortunate that though the whole team as checking squad was checking the residential houses in the lane opposite Sahara Guest House, they had not asked for any police protection. There was no security person along with them. Admittedly, the checking was in the late evening. In the cross-examination, the defense could bring on record that the witness could not maintain any record with regard to raid, nor could they maintain any register. As per the witness only when theft was found the register thereafter was Page 34 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined prepared. The witness had not brought the register during the course of his deposition. The raid conducted by the witness could not be proved by the corresponding corroborative document, which they were required to prove, where an allegation of criminal complaint was made by them. There were about five to seven persons, who were checking the houses. P.W.2 stated that initially they were examining the meter, and almost about five to ten minutes would be consumed to inspect a single house, and three persons in one team would be checking each of the house.
12.1 As per the deposition at about 5:30 hours, they had entered the house of Kadarbhai. Initially P.W.2 entered the house and thereafter three of them followed him. The meter was in the lobby in a wooden box and he had checked the meter. The witness stated that there were about five to six rooms. The deposition of witness Page 35 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined Junior Engineer is that there was tampering of seal on the body of meter and there was no lock on the box. This evidence runs contrary to what is stated by the complainant, where he had seized the meter, which he found to be in running condition and had not seen any tampering. 12.2 The Junior Engineer (P.W.2) further stated that the switch was on the rear side of the house and searching so they reach there, but witness could not name the Company for make of the switch. The deposition further notes that he had not seized the switch. The witness also had no knowledge of any appliances with volt being used in the rooms. He had not named the appliances even in his police complaint, nor the company's name of the appliance had been informed by him. He stated that there was light blue colour 'Bambo' in the house of Kadarbhai, which was for heating water. The witness clarified that he had not stated about any appliances. The incident was Page 36 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined almost of 6:15 p.m. He stated that during this period he only noted the load, while no other writing was done. The rest of two persons along with him were at the service pole outside. When they had gone for inspection, about 25 to 30 people had gathered there. None of the persons of Kadarbhai had shown him any instrument. At about 6:30, he had gone to the Government Dispensary. Though, he had narrated the incident to the police at 7 O' clock at the Police Station, but he had not informed the police of giving the complaint.
12.3 The deposition thus, clarifies that no Rojkam was drawn. Though, witness stated that it was recorded in writing, but he had not produced the writing in the Court to establish the fact of his checking the meter or of having seen the switch. The switch had not been recovered.
13. P.W.3 - the helper, who was along with Junior Engineer (P.W.2), stated that they had Page 37 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined checked the house of Kadarbhai, where the earthing was given by the accused. Accused was by-passed and the meter was closed and there was electricity theft. He stated that Kadarbhai and his son during that process had assaulted them. P.W.2 was injured by a chair and by fisticuffs. The Rojnama was prepared in the office. The witness stated that in the house, there were four Kilowatt load. The staff had checked the load and the switch was at the rear side of the house. 13.1 In the cross-examination, it has been brought on record that after leaving the office at about 4:30, they had checked about one society, and stated that about 15 to 20 houses were checked by them. He personally had checked two to three houses. They were only checking the meters and were not entering into the house of any person. While stated that at about 5:30 they had gone inside the house of Kadarbhai and five persons were along with him, who were checking Page 38 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined different places, and three houses in the line of Kadarbhai's house were checked. Kadarbhai's house was in the middle of the houses in the lane. He stated that in the house of Kadarbhai, three persons had entered. The light was off and they had gone near the D.P. for placing the fuse in the main connection, and when the meter was checked they had found deem light in it. After placing the fuse, they could see full light. The jeep driver was along with him. When they had gone for inserting the fuse, three of them had entered the house. He came to know that his officer and two of the persons had entered the house of Kadarbhai. While had no information as to what work was done by the officer. 13.2 The witness clarified that he had not entered into the house of Kadarbhai, nor he had the knowledge of any appliances in the house of the accused, while stated that he had seen the earthing switch, which was found by his officer. Page 39 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025
NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined The witness further stated that about eight to ten persons had gathered there. His superior officer was standing near the meter box of Kadarbhai and he stated that the seal of that meter was broken, and on removing the neutral wire they found that inspite of removing the neutral wire, the light supply was still going on and therefore, they had suspicious of theft, and that earthing switch was found.
13.3 According to P.W.3, the meter was closed and on switching light the condition of the meter was static that means it was closed. He also verifies the fact that the switch was not seized, nor he had any information about the company of the switch. The witness stated that it was M.C.C.B. type of switch. If the evidence of this witness is read in totality, then it appears that this witness had not entered the house of Kadarbhai. He was with other persons engaged in fixing the fuse in the main line. The witness Page 40 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined could not state of the appliances, which were in use in the house of accused. He could state that he had seen the earthing switch, and according to the witness, the meter was tampered. However, the persons, who had seized the meter, the complainant (P.W.1), could not corroborate the said fact.
13.4 These witnesses, though had observed of electricity theft and tampering with the switch as well as seal of the meter had not drawn any Rojnama at the place of incident. The assault was on P.W.2 and other two employees, as named by P.W.2. The rest of the persons could have drawn the Rojnama of the place of incident. While, as per P.W.2, he had drawn the Rojkam Exh.12 at the office. Such Rojkam does not bear signature of the accused.
14. P.W.4 and P.W.5 as panchas of the Panchnama Exh.19, have not supported the police. The panchnama - Exh.19 would have no significance, as Page 41 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined the panchnama appears to have been drawn on 24.01.2006, while the incident was of 19.01.2006. 14.1 P.W.6 as P.S.O. of Sabarmati G.E.B. Police Station stated that he received the complaint Exh.8 by post on 23.01.2006 and on that basis the offence was registered and further investigation was handed over to P.S.I. Goswami. The witness as P.S.O. could state that there were no details in the complaint as to how many persons had gone for inspection and could not state of any other corresponding documents with the complaint. 14.2 P.W.7 as Investigating Officer - Govindgiri Goswami could state that the offence of I- Cr.No.76/06 of G.E.B. was received by him by a depute order, which he produced at Exh.23. He took over the investigation, recorded the statements of the witnesses and had drawn the panchnama Exh.19 of place of incident and had arrested the accused. He started the investigation and visited the G.E.B. office of Page 42 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined Kadi, where the statements were recorded and report was made for muddamal. He stated that he had only copy of F.I.R., complaint, bill and Rojkam, and as per the document he could not know how many of the houses were inspected. He also had no knowledge whether any signature of the accused was taken, when the meter was seized. The Investigating Officer deposed that the meter was not handed over to him, nor the M.C.C.B. switch was seized from the place of the accused. He had visited the house of the accused.
14.3 P.W.7 further stated that the witness - Hamnendra had not stated before him that he was injured by a wooden chair on being assaulted. The witness stated that he had the information that injured had visited the dispensary. Dasrathbhai had not stated in his statement that they had seen switch at the rear side of the house of accused. He received a bill during his investigation.
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NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined 14.4 The evidence of the Investigating Officer thus, proves that he had not received any laboratory report of the meter to prove the meter tampering. There is no technical report, as stated by learned advocate Mr. Saiyed, no expert witness had been examined to prove the fact that there was actual tampering of the meter. The M.C.C.B. switch, which was alleged to be used for theft of electricity has not been seized or produced as a muddamal, to prove the fact that with the use of such unauthorised means there was abstraction, consumption or use of electricity, which could be presumed for theft of electricity. The prosecution witnesses failed to prove the case against the accused.
15. On total appreciation of evidence of all the witnesses, it can be concluded that the mandatory provision of Section 135 of the Act had not been followed. The complaint has not been filed within 24 hours of the incident. The officers of the Page 44 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined Electricity Board had gone for inspection at the evening hours. The evidence of complainant proves that he had entered the house of accused after the sunset. The presence of the accused as male member of the house has also not been proved from any evidence during the seizure of the meter. The Rojnama does not bear the signature of the accused. No list has been produced to show seizure of anything, as alleged as of switch, nor the documents with regard to the meter has been produced, to prove the electricity theft.
16. No independent witness has been examined to substantiate the fact of inspection on that day. No register in support of the inspection has been produced to prove that the electricity theft was noticed on that day, where in a case, Section 135 of the Act mandates that the search and seizure and the removal of the devices and instruments, wires and other facilitator or article which has been used for unauthorised use of electricity Page 45 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined should be recorded and the list of all the things seized in course of such search shall be prepared and delivered to the occupant or the person who shall sign the list. None of such exercise has been undertaken in the present matter. The Investigating Officer has also not supported any such act of the witnesses of the Electricity Board. The prosecution has miserably failed to prove its case. The observation of the trial Court in convicting the accused is contrary to the evidence recorded during the trial and even against the provision of law.
17. In the result, in view of the reasons given hereinabove, the appeal is allowed. The judgment of conviction and sentence dated 10.08.2006 passed by the learned Special Judge, Mehsana in Special Electricity Case No.16/2006 is set aside. The appellant is acquitted from all the charges. Bail bond stands discharged. The suspension order in the present appeal was conditional on the Page 46 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025 NEUTRAL CITATION R/CR.A/1446/2006 JUDGMENT DATED: 01/10/2025 undefined deposit of the amount of Rs.60,499.17 paise, which the accused had deposited in the trial Court. Now on acquittal of the accused, the said amount be returned back with accrued interest, if at all on the same, on verification of identity. Registry is directed to send the Record and Proceedings back to the concerned Trial Court forthwith.
(GITA GOPI,J) Pankaj/6 Page 47 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 07 2025 Downloaded on : Tue Oct 07 22:41:57 IST 2025