State Of Karnataka vs Hanamant S/O. Kallappa Mali @ Malagar

Karnataka High Court

State Of Karnataka vs Hanamant S/O. Kallappa Mali @ Malagar on 4 July, 2024

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                                                 CRL.A No. 100182 of 2017



               IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                       DATED THIS THE 04TH DAY OF JULY, 2024
                                        BEFORE
                      THE HON'BLE MR JUSTICE G BASAVARAJA
                        CRIMINAL APPEAL NO.100182 OF 2017
              BETWEEN:

              STATE OF KARNATAKA
              REPRESENTED BY THE POLICE INSPECTOR,
              VIGILANCE POLICE STATION,
              HESCOM, BAGALKOT
              THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
              ADVOCATE GENERAL OFFICE,
              HIGH COURT OF KARNATAKA,
              DHARWAD BENCH.
                                                       - APPELLANT

              (BY SRI MADANMOHAN M.KHANNUR, AGA)

Digitally signed by AND:
VINAYAKA B V
Location: HIGH
COURT OF            HANAMANT S/O. KALLAPPA MALI @ MALAGAR,
KARNATAKA           AGED ABOUT 56 YEARS, OCC:AGRICULTURE,
              R/O. KALABEELAGI, TQ:JAMKHANDI,
              DIST:BAGALKOT.
                                                        -    RESPONDENT

              (BY SRI A.M. GUNDAWADE, AMICUS CURIAE)

                   THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
              (1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE
              AND TO SET ASIDE THE JUDGMENT AND ORDER OF
              ACQUITTAL DATED 11.01.2017 PASSED BY THE I ADDL.
              DISTRICT AND SESSIONS COURT, BAGALKOT, SITTING AT
              JAMAKHANDI IN SPL.C.NO.43 OF 2015 AND ETC.,


                   IN THIS CRIMINAL APPEAL ARGUMENTS HAVING BEEN
              HEARD AND RESERVED ON 07.06.2024 AND COMING ON FOR
              "PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
              DELIVERED THE FOLLOWING:
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                                      CRL.A No. 100182 of 2017



                          JUDGMENT

The State has preferred this appeal against the judgment of acquittal passed by the learned Special (First Additional Dist. & Sessions) Court, Bagalkot, sitting at Jamkhandi, in Special Case No.43/2015 dated 11.01.2017.

2. Parties are referred to as per their ranking before the trial Court, for the sake of convenience.

3. The brief relevant facts leading to this appeal by the State are that the Inspector of Police, Vigilance Squad Police Station, HESCOM, Bagalkot, filed charge sheet against the accused/respondent for commission of offence punishable u/S 135 of The Electricity Act, 2003. It is stated in the charge sheet that, on 11.11.2014 at about 3.00 pm when the Assistant Executive Engineer (Vigilance), HESCOM, inspected the farm of the accused-Hanamant Maali, the complainant observed that the accused obtained electricity by using 4 lane service wire from the LT pole and connected to the panel board situated near the open well in the said farm land. Further, the said electrical energy is being used illegally without any permission from the HESCOM to run electric motor of 3 HP, thereby committed theft of electricity to the tune of 4833 units and caused loss of Rs.45,287/- (compounding fine of Rs.6,000/-). -3- CRL.A No. 100182 of 2017 Thus the accused committed offence punishable under Section 135 of the Electricity Act, 2003.

4. After filing the charge sheet, cognizance was taken by the concerned Special Court, case was registered in Special Case No.43/2015.

5. In response to the summons, the accused appeared before the said Court and obtained bail. Charges framed by the Special Court for the commission of offence punishable u/S 135 of the Electricity Act, 2003. Same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried.

6. To prove the guilt of the accused, prosecution has examined 11 witnesses as PW1 to PW11, 14 documents were marked as Exs.P1 to P14 and one service wire was marked as MO1. On closure of prosecution evidence, statement u/S 313 Cr.P.C. was recorded as to the incriminating circumstances appearing against the accused. The accused has totally denied the evidence of Prosecution witnesses, but he has not chosen to lead any defence evidence on his behalf. Having heard the arguments of both sides, the Special Court has acquitted the accused. Being aggrieved by the judgment of acquittal, the State has preferred this appeal.

CRL.A No. 100182 of 2017

7. Sri Madanmohan M. Khannur, learned Additional Government Advocate appearing for the appellant would submit that the judgment of acquittal recorded by the trial Court is contrary to law, facts and evidence placed on record. The judgment is neither based on oral nor any documentary evidence placed on record and as such, the same is bad in law. The impugned judgment is not sustainable as the same was against the established principle of law as well as canons of justice. PW1-complainant visited the spot on 11.11.2014 and found that accused had obtained electricity illegally by using 4 lane service wire from the LT pole through service line connecting the same to 'Nirantara Jyoti line' and connected to the panel board situated near the well in the said farm land, without prior permission from the authority.

8. PW2 is the Junior Engineer. His evidence supports the evidence of complainant that while inspecting farm land of the accused, he found that the accused had unauthorizedly obtained the electricity. Though, these two witnesses visited the spot and after verification found that accused obtained connection illegally, but in the cross-examination nothing has been elicited from these witnesses. Under these circumstances, the trial Court ought to have convicted the -5- CRL.A No. 100182 of 2017 accused. Further, he submits that the trial Court came to the wrong conclusion that while conducting raid, only service wire was seized and electricity motor was not seized from the spot but the witnesses have categorically stated that motor was fitted inside the well but at that time could not seize the same but immediately on 14.11.2014, the complainant along with the staff went to the spot to seize the motor, but the same was not found in the well. Hence they gave notice to the accused.

9. Under these circumstances, the trial Court ought to have considered that service wire which is used to connect the motor was not seized and the complainant along with other staff identified the spot where the accused illegally obtained electricity but the trial Court, without considering these materials on record, acquitted the accused. He further submits that there was minor discrepancy in the evidence of staff of HESCOM but the trial Court came to the conclusion that they are the interested witnesses. It is to be noticed that there was no personal grudge between the accused and the official witnesses, but the trial Court has committed error in coming to the conclusion that they are interested witnesses. -6- CRL.A No. 100182 of 2017

10. PW3 is the Village Accountant. In his evidence he has deposed that as per Ex.P.14-record of rights, the well is situated in the farm of respondent/accused and the same belongs to the respondent accused. PW6 is the Tahasildar who issued ration card to show that the accused belonged to the same village. His evidence is supported by evidence of PW9 and PW10-officials of the HESCOM authority and PW11- Investigating Officer. However, the trial Court ventured outside the scope of the Evidence Act in appreciating the evidence on record. The trial Court has not properly appreciated the evidence on record in accordance with law and facts and sought for allowing this appeal.

11. As against this, learned counsel for respondent/ accused would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts which needs no interference of this Court. On all these grounds, sought for dismissal of the appeal.

12. Having heard the arguments of both sides and on perusal of appeal papers and original records the following points would arise for my consideration:

1) Whether the impugned judgment and order of acquittal passed by the trial Court requires interference?

2) What order?

13. My answer to the above points is as under:

1. Point No.1 : In the negative

2. Point No.2 : As per final order.

Regarding Point No.1:

14. I have examined the material placed before this Court. Before appreciation of evidence on record it is appropriate to extract the provision of Section 135 of Part XIV of The Electricity Act, 2003. The same reads thus:

"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,

(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 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 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 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.

(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 authorized 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:

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, authorized 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 2[has been or is being,] used unauthorisedly;

(b) search, seize and remove all such devices, instruments, wires and any other facilitator

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or article which has been, or is being, used for unauthorized 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, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act."

15. It is the case of the prosecution, as alleged in the charge sheet, that the accused has obtained electrical energy illegally to his 3 HP pumpset installed to the open well in his farm land bearing survey No.1/5 measuring 0.25 guntas standing in the name of Hanamantha S/o Kallappa Maali. To substantiate this, the prosecution has produced Exhibit P14- RTC extract of the year 2014-15 pertaining to land bearing

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survey No.1/5 of Kalabilagi village measuring one acre, out of which, 0.25 gunta is standing in the name of Hanamantha Kallappa Maali. Column 11 of pahani extract reveals that Dundappa has got half share and Hanamanth and Mayappa have got one-fourth share each in the open well. The pahani extract reveals that the above three persons have got right/share in the open well. Exhibit P6 issued by PW5-village accountant does not indicate as to whether the open well is situated in the land of the accused or not. The Investigating Officer has not explained the other two owners, viz. Dundappa and Mayappa, or who has installed the pumpset to lift water from the well and who has obtained electricity energy from the electricity line. Investigating Officer has also not explained anything as to non-examination of the material witnesses viz. Dundappa or Mayappa who have got half and one-fourth share respectively in the open well. In the absence of this material piece of evidence, it is difficult to come to conclusion that the is accused is the sole owner of the well said to have been situated in the land in Survey No.1/5 of Kalabilagi village and the accused has committed theft by obtaining electricity connection to the pumpset installed in the well.

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16. It is the case of prosecution that on 11.11.2014, the accused being the owner of the land bearing survey No.1/5 of Kalabilagi village has obtained electrical energy from local transmission electricity line to the pumpset installed in the open well of the said land. It is admitted fact that at the time of inspection, the accused was present. Though the accused was present at the time of inspection, the complainant-Assistant Executive Engineer has not stated in the complaint as to the survey number of the land. Even in mahazar Exhibit P1 also there is no reference as to the survey number. The Investigating Officer has not explained anything as to non- mentioning of survey number of the land in the complaint or in mahazar Exhibit P6. The letter addressed by Police Inspector, Vigilance Squad, HESCOM, Bagalkot, reveals that the P.N. Pawar-Village Accountant has furnished information as to the address and survey number, as requested by the Police Inspector on 17.03.2015. The date of commission of offence is 12.11.2014. It is only, after a lapse of 4 month 5 days, the Investigating Officer came to know about the survey number as 1/5 and extent of land is 0.25 guntas and the same is standing in the name of Hanamanth S/o Kallappa Maali, which submitted is before the Court at the time of filing charge sheet, i.e. on 28.05.2015. If really the accused had committed theft of

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electrical energy as alleged by the prosecution, the Assistant Executive Engineer would have ascertained as to the survey number and extent of land from the accused and would have mentioned in the first information report. Even at the time of conducting panchanama also the Investigating Officer has not ascertained the survey number of this land. These material lapses will create doubt about the alleged incident.

17. It is evident from Exhibit P3-Provisional Bill prepared by HESCOM, that the date of inspection is 11.11.2014; time of inspection is not shown; name and address of the consumer is shown as Hanamanth Kallappa Maali of Kalabilagi village, Jamakhandi taluk and the connected load is shown as 3 HP 2.238 kilowatts; sanctioned load claimed is left blank; type of installation is shown as LT-4 pumpset (open well); nature of theft is shown as D/C; period of calculation: BBC 12 months; and Consumption pattern of installation is shown as 12 months; the energy pilfered is shown as 4834.08 units and the total amount is shown as 42,723.72 and 6% tax of EC+FC is shown as Rs.2,563.42 total and the total amount is shown as Rs.45,287.14 and the total units pilfered is shown as 48.33 units. Compounding charges is shown as Rs.6,000/-. On what basis the HESCOM has prepared this provisional bill has not

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been explained by the prosecution. The Investigating Officer has not collected any material as to from which date the accused has committed the theft of electrical energy. However, the Exhibit P3 is prepared by HESCOM authorities calculating the units of 4833 and fixing the amount of Rs.4,2723.72 and compounding charges is shown as Rs.6,000/-. The material witness-Lineman Raju Mallappa Kallari, who is examined as PW10, has not whispered anything as to theft of electricity energy for about twelve months. He has deposed that only on the basis of the basis of credible information on 11.11.2014, the Police officials summoned him and two panchas went to the land of Hanamanth Kallappa Maali at Kalabilagi village at about 3.00 pm and on inspection they found as to the unauthorized electricity connection to the pumpset of the accused. It is the duty of the lineman who is deputed to maintain lines, cables and equipment to ensure smooth and quality power supply to the consumers as prescribed by the HESCOM authorities. The Authorities have also prescribed the Powers and Duties of the Officers and Employees, wherein it is clearly stated as to the duty of the Lineman, Assistant Engineer or a Junior Engineer as to the maintenance of lines, cable and equipment to ensure smooth and quality power supply to consumers. Though this lineman, who was appointed by the HESCOM to maintain lines

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and to supervise theft of electrical energy, has not taken any steps till the Vigilance Squad visited to the spot of incident. PW10 has not explained anything as to why he has not observed the theft of electrical energy prior to inspection by vigilance squad. However, the HESCOM authorities, assuming that the accused has committed theft of electricity energy since twelve months prior to 11.11.2014, calculated the amount as per their whims and fancies without any evidence and the same is not sustainable under law. The concerned Lineman and also his other immediate higher officials have failed to discharge their duties in accordance with Rules and Regulations prescribed by HESCOM authorities. Even after the inspection also, the Investigating Officer has not properly investigated the case in accordance with law. As already discussed, the Investigating Officer has failed to collect materials as to survey number of the land where the open well is situated; extent of land, etc, at the earliest point of time. It is only after after collecting the information, the Investigating Officer came to know names of the owners of the said land as shown in Pahani Extract, however, the Investigating Officer has failed to examine them to ascertain as to who has installed 3 HP pumpset to the open well as three persons, including the accused, are the share-holders of the open well.

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18. It is the case of the prosecution that the pumpset was installed in the open well and accused got electricity connection unauthorisedly and seized four lane service were to the tune of 40 feet length but they have not seized the pumpset or the starter box. They have not issued any endorsement as to the seizure of service wire under mahazar though the accused was present at the time of mahazar. During the course of cross-examination of PW1, he has clearly admitted that at the time of inspection there was a service wire, a pumpset and a starter box were found on the spot, but they have seized only the service wire of 40 feet length. The Investigating Officer has not explained anything as to non- seizure of pumpset and the starter box. Even the Investigating Officer has not taken the photos of the said motor pumpset and starter box to show the existence of 3 HP pumpset and the starter box installed in the open well. These material lapses will create reasonable doubt as to the theft of electrical energy as alleged by the prosecution. It is an admitted fact that the accused was present at the time of inspection and mahazar. Though the accused was present at the time of inspection, the Investigating Officer has not enquired or interrogated to ascertain the survey number where the incident had taken place. The Prisoners Search Register Extract produced by the

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Police Inspector, Vigilance Squad Police Station, HESCOM, Bagalkot reveals that the Police have released this accused on 12.01.2015 at 7.30 hours as per the order dated 29.12.2014 passed by the District and Sessions Judge, Bagalkot in Crl.Misc. No.706/2014. Along with the bail order, the accused has appeared before the police station and then only the Investigating Officer arrested him and released him on bail as per order of the Court. If really the accused has committed the cognizable offence punishable under Section 135 of the Electricity Act, 2003 and when he was present at the time of conducting panchanama and also at the time of inspection, the Investigating Officer would have arrested him or would have issued a notice as required under Section 41A of the Code of Criminal Procedure. But, he has not done so. Only after appearance of the accused before the police along with the bail order after lapse of 48 days from the date of filing First Information Report, the Investigating Officer has arrested and released him on bail. Moreover, the Investigating Officer has also failed to comply with the mandatory provisions of Section 135 of the Electricity Act and also the provisions of Code of Criminal Procedure relating to search and seizure of the property. This conduct of the Investigating Officer reveals that the accused was not present at the time of inspection and for that reason, the Investigating

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Officer has not inserted the survey number of the land in the complaint or in the mahazar. A perusal of Exhibit P10-Notice issued by the HESCOM Authorities reveals that the accused has filed statement of objections to the authorities and the same is referred in the notice as Customer Application dated 01st December, 2014. Exhibit P11 which is also Notice issued by the HESCOM authorities to the accused, also reveals as to the reference of the customer's application dated 01st December 2014 and 21st January, 2015. Therefore, it is evident that the accused has filed application/objections to the HESCOM Authorities. Though the accused has submitted his written objections, the Investigating Officer has not placed the same before this Court. The Investigating Officer has not explained as to non-production of statement of objections/applications filed by the accused. Non-production of these material pieces of evidence will also create doubt as to the alleged incident. The Investigating Officer has failed to put-forth the true facts before this Court and mechanically filed the charge sheet without collecting proper or cogent material before the Court. Accordingly, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt.

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19. The trial Court has properly appreciated the evidence on record in accordance with law and facts and on re- appreciation, reconsideration and re-examination of the entire evidence placed before this Court, I do not find any illegality/legal infirmity in the impugned judgment of acquittal. Accordingly, I answer point No.1 in the negative. Regarding Point No.2:

20. For the reasons and discussion aforestated, I proceed to pass the following:

ORDER Criminal Appeal is dismissed.

Sd/-

JUDGE BVV/LNN