Mohammadi Steel Pvt. Ltd. And Ors. vs State Of Maharashtra
2006 Latest Caselaw 237 Bom

ORDER

S.B. Deshmukh, J.

1. Heard learned Counsel Mr. Joydeep Chatterji for the applicants. Notice. Mr. Dilip Patil (Bankar), learned A.P.P. waives service for the respondent/State.

2. Few facts, necessary to understand the controversy between the parties, need to be summarised, as follows:

(a) The petitioner Mohammedi Steel Private Ltd., is a company engaged in iron bar manufacturing at M.I.D.C., Dhule. It is alleged by the applicants that the Company is high tension consumer of the Maharashtra State Electricity Board. On 4th March, 1998 authorities of the Maharashtra State Electricity Board lodged a complaint against the petitioners for the alleged offence under Sections 39 and 44 of the Indian Electricity Act, alleging commission of theft of 3500 units per month of electricity for the period of eighteen months worth Rs. 25,54,798.44 Ps. The authorities concerned, after completion of the investigation, filed charge-sheet against the present applicants. Now, it is numbered as Regular Criminal Case No. 21 of 1998, pending on the file of learned 4th Joint Judicial Magistrate, First Class, Dhule.

(b) The Maharashtra State Electricity Board had served a supplimentary bill to the company. This bill was subject-matter of the Special Civil Suit No. 61 of 1998. Special Civil Suit No. 61 of 1998 was heard and decided by the learned Civil Judge, Senior Division, Dhule. The bill served to the petitioner is declared to be null and void. Learned Counsel Mr. Chatterji fairly submits that the first appeal is filed by the Maharashtra State Electricity Board and is pending in the High Court Bench at Aurangabad.

(c) The Regular Criminal Case No. 21 of 1998, in due course of time, was listed for hearing. Witness No. 2 Mr. Shivaji Haribhau Chaphekarande, Deputy Executive Engineer entered the witness box to establish the allegations of theft of electricity. Evidence of witness No. 2 Mr. Shivaji, thus, is being recorded by the trial Court. In the examination-in-chief the witness No. 2 Shivaji deposed that on 24th February, 1998, a Junior Engineer Shri R. P. Kulkarni had been to the factory of the petitioners for recording meter reading, as part of his regular work. While taking the reading, he found that on the meter terminal voltages of three phases were not equal. Voltage on "B" phase was zero. The meter reading was taken, so also the meter terminal testing was conducted in the presence of Abdul Majid Shah, representative of the petitioner-company. Shri R. P. Kulkarni, in turn informed the witness No. 2 Shivaji about difference in voltage of meter terminal. Mr. Shivaji informed this fact to the testing division, Dhule. He requested for complete testing of the test terminal box and meter terminal. Accordingly, on 27th February, 1998 the witness Shivaji had been to the factory for testing purpose along with the team of testing division, Dhule. The Testing Division team of Dhule mainly consists of Mr. Rajurkar, Assistant Engineer and Aadhe, Junior Engineer and other employees. On this occasion also Abdul Majid Shah was physically present at the time of conducting testing. Witness Shivaji, thereafter, has referred to the entire process of testing and further deposed that while the testing was going on, Shri P. R. Deshpande, the Executive Engineer of the Board marked his presence and the joint inspection report was prepared in his physical presence. Copy of the joint inspection report was supplied to the representative of consumer and as a token of acknowledgement his signature was obtained. Said report is also placed on record, during his evidence, at Exhibit-55. This report, is duly established in the evidence of this witness. Thereafter, the witness turned to the further part of the evidence and deposed that "it is the same box for which testing was done. The witness has further deposed that "today (i.e. on the date of recording of his evidence, in that Court) he can perform the same test as was performed at the time of preparing joint inspection report. The test terminal box was first seized by the police and thereafter it was handed over to the Court Commissioner as per the order of the Court in a civil suit pending between the parties. The Court Commissioner then appointed, had also checked the test terminal box. After testing is conducted by the Court Commissioner, a separate seal is affixed by him (Court Commissioner)." At this point of time, permission, on behalf of the prosecution, was sought for breaking the seal of the test terminal box for performing test in the Court. This part of the evidence is in para 3 of the evidence of this witness No. 2 Mr. Shivaji. The learned Advocate appearing for the petitioner in the trial Court Mr. Runwal objected this procedure. His objection in nut-shell was regarding allegedly collection of the evidence by the prosecution. The learned Judge, after hearing the parties, recorded his opinion that the prosecution cannot be denied opportunity to explain the evidence which needs expertise. The learned trial Judge, therefore, permitted the prosecution to open the test terminal box and accordingly taken notes in the evidence i.e. in paragraph No. 3. At this point of time, time was sought for on behalf of the petitioner company to challenge this grant of permission by the learned trial Judge and said time was accordingly granted by the trial Judge. However, looking to the nature of the controversy and stature of the witness as Deputy Executive Engineer, the learned trial Judge proceeded with the recording of the evidence. Advocate Mr. Runwal for the petitioner in the trial Court has fairly conceded for proceeding with the recording of the evidence and now Mr. Chatterji, learned Counsel submits that the evidence of said witness is complete.

3. The order i.e. granting permission to the witness No. 2 Mr. Shivaji to break open the seal of test terminal box and perform the test in the Court itself, was an order with which the present petitioner was aggrieved. The present petitioner, therefore, had filed Criminal Revision Application No. 135 of 2005 before the learned Sessions Jude at Dhule. The learned 2nd Ad hoc Additional Sessions Judge, after hearing the parties, rejected the Revision Application by the judgment and order dated 20th February, 2006. This order is impugned in the present Criminal Application by the applicant.

4. The learned Counsel for the applicant has referred to the order passed the Revisional Court as well as to that of the trial Court. According to the learned Counsel for the applicant, the meter testing was done by the Commissioner in a civil suit and the Civil Court has ultimately decreed the suit filed on behalf of the applicant and declared that the bill issued was null and void. According to the learned Counsel for the applicant, this breaking open seal again in the Court, in this criminal case, was nothing less than collecting the evidence with the assistance of the Court. Reasoning of the revisional Court is also commented upon since Advocate for the applicant has given no objection only for proceeding with the recording of evidence of the witness. In other words, the applicant has never accepted or surrendered to the order passed by the learned trial Court regarding granting permission for breaking open the seal of the test terminal box for performing the test.

5. Undisputedly, the petitioner is facing a case of pilferage of electricity energy. Electricity energy is not a tangible object. Theft of the electricity energy has to be established by the prosecution. It involves technical expertise. The complaint has to establish the manner or procedure adopted, according to the case of the complainant, by the accused concerned while committing theft of the electricity energy. In this process, it is the case of the complainant that, it can be established by performing a test of the terminal box in the Court itself. In other words, the electricity is being taken by the consumer for its consumption through this terminal box and quantity of the electricity consumed by the consumer can be recorded legitimately for charging the said consumer. Therefore, it may be a mode for establishing the alleged theft of the electricity, If the prosecution wish to establish, by performing such test, in the Court, in my opinion, it cannot be said to be a collection of evidence by the prosecution with the assistance of the Court. On the contrary, it leaves no doubt of room for either of the party and the adjudicator i.e. the Court, hearing the case. The Court also can be at a benefit for arriving at a conclusion in relation to the allegations made by the complainant party. The accused shall have a fair opportunity to cross-examine the witness and get the Court to the truth of the allegations. This demonstration or performance of the test, by the witness, was, therefore, justifiably permitted by the trial Court. The trial Judge has properly and legally accorded the permission in favour of the prosecution for breaking open the seal of the terminal box and for performance of the test in the Court. In my view, no illegality or perversity is being committed by the Court below while granting such permission.

6. It seems from the record that, after grant of said permission, the evidence of said witness Mr. Shivaji is completed without breaking open the said seal and without performance of the test, which was to be performed by the witness, in the Court itself. If it is so, and evidence of said witness Shivaji is over, by this time, the Court concerned, after hearing the parties, may recall the witness and complete that part of the evidence. Mr. Dilip Patil (Bankar) has also drawn my attention to the observations of the Revisional Court, in para 6 of the judgment, justifiably.

7. In this view of the matter, this application needs to be dismissed in limine. The application accordingly is dismissed, however, without any order as to costs.