The State Of Maharashtra vs Jitendrasingh Balbirsingh & Ors
2017 Latest Caselaw 2388 Bom

                                                                            apeal.519.02.217.doc


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                           CRIMINAL APPEAL NO. 519 OF 2002

            The State of Maharashtra
            (At the instance of Khopoli                         ...Appellant
            Police Station)                                  (Orig.Complainant)
                      Versus
            1.    Jitendrasingh Balbirsingh, 46 yrs.,

            2.     Rajpal Shriomprakash Singh, 38 yrs.
                   Both R/o. B.P.T Plot No. 52,
                   Victoria Overbridge Road,
                   New Darukhana, Mumbai No.10

            3.     Brijbihari Vasudeo Singh, 40 yrs.,
                   R/o. 18/7, Adoshi Road,
                   Mitra Steel Company,
                   Atkargaon.

            4.     Subodh Santosh Mahiti, 33 yrs.
                   R/o. Tagaria, Post-Kontai,                   ...Respondents
                   Tal. Kontai, Dist. Midanapur             (Orig.Accused 1 to 4)


            Mrs. P. P. Shinde for the Appellant-State

            None for the Respondents

                                            CORAM : REVATI MOHITE DERE, J.

MONDAY, 8th MAY, 2017

ORAL JUDGMENT :

1. Heard learned A.P.P for the Appellant-State.

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                                                                            apeal.519.02.217.doc

2. By this appeal, the appellant-State of Maharashtra, has

impugned the judgment and order dated 1 st February, 2002 passed by the

learned Judicial Magistrate First Class, Khalapur in regular Criminal Case

No. 151 of 1994, acquitting the respondents-accused of the offences

punishable under Section 379 r/w 34 of the Indian Penal Code and under

Sections 39 and 44 of the Indian Electricity Act.

3. A few facts as are necessary to decide the aforesaid appeal are

as under :

Prakash Dattatraya Ambale, Deputy Executive Engineer, is the

complainant. He has stated that he was serving as a Deputy Executive

Engineer, Flying Squad, Aurangabad in Maharashtra State Electricity

Board (`MSEB'). According to the complainant, it was the duty of the

Flying Squad to give surprise visits to places and find out, whether there is

any fraud or malpractice with regard to electricity, and take necessary

action, where required. According to the complainant, as per the directions

of the Director of Vigilance, Mumbai, he and his team came to Khopoli

during the period from 28th May, 1994 to 31st May, 1994. He has stated that

he had received information from the Director, that there was theft of

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electricity at Mitra Steel and Alloys Pvt. Ltd., at Atkargaon and was

directed to inspect the electricity meters. He has stated that as per the

directions of the Director, he and his team visited M/s. Mitra Steel

Company on 28th May, 1994 and inspected the meter body, meter terminal,

test terminal block and meter box seal and noted the same in the spot

inspection sheet. He has stated that during the load test, it was found that

KWH meter was working slowly and KWAH and RKVAH meters were

stopped. He has stated that they found material like M-Seal, affixed to the

tin of the meter and there was bulging and the same was accordingly

mentioned in the spot inspection sheet. On 30th May, 1994, the meters were

tested by the Executive Engineer of Testing Division, Pen and it was found

that the KWAH meter was working slowly by 21.67% and KVAH and

RKVAH meters were stopped. They also found that there were holes on all

the three meter bodies. After perusing the bills, they found that the

consumption of units was less and there was a difference in units in

consumption of various months. According to the complainant, he found

that by putting wires through these holes to the meters, M. D. was recorded

less and as such noticed that the consumer had committed theft of

electricity of 23 lakh units and had caused loss of approximately Rs. 41

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lakhs. Accordingly, a complaint was lodged with the police on 31 st May,

1994, which was registered vide C.R. No. 51 of 1994 with the Khopoli

Police Station. Thereafter, investigation was carried out, statements of

witnesses were recorded, etc. and charge-sheet was filed as against the

respondents-accused.

4. The accused pleaded not guilty to the charge and claimed to be

tried. The defence of the respondents-accused was of total denial. The

prosecution, in support of its case, examined 6 witnesses. PW 1-Taturam

Patil and PW 2-Ashok More were declared hostile. Prakash Ambale-the

complainant was examined by the prosecution as P.W.3. Prakash Ambale

has deposed that he had received instructions from the Director of

Vigilance that there were holes to the electric meter body of Mitra Steel

Company and was accordingly directed to check the said meters and to

submit a report with regard to the same. He has stated that on 28 th May,

1994, he along with his team, went to Mitra Steel Company and checked

the electric meters. He has stated that on inquiry, he learnt that Mr. Subodh

Maity (Respondent No.4) was the Electric Supervisor available there and

told him that they wanted to check the meters. P.W. 3-Prakash Ambale has

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stated that pursuant thereto, Mr. Maity took him to the place where the

electric meters were installed and accordingly spot panchanama was done.

He has stated that on testing the electric meters, they found that KWH

meter was working slowly and KVAH and RKVAH meters were stopped.

On checking the meter body, they found that there was one bulging (small)

at the bottom sheet of meter body below KWH and RKVAH meters and

accordingly, the same was mentioned in the spot inspection report. It was

also found that the KWH meter was working slowly by 21% and that the

other two meters i.e. KVAH and RKVAH meters were defective.

Accordingly, panchanama was prepared. According to the complainant,

they found that there was theft of electricity, as there was less recording of

meter and it was shown that there was lesser consumption than actual and

hence, a complaint was lodged as against the respondents-accused, alleging

all the aforesaid offences.

5. PW 4-Dilip Dudhwadkar was examined as a panch witness to

the panchanama that was carried i.e. Exhibit 66. PW 5-Raosaheb Patil is

the Assistant Vigilance Officer, who had accompanied PW 3-Prakash

Ambale and PW 6- API Suresh Jadhav, the Investigating Officer.

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                                                                            apeal.519.02.217.doc

6. After considering the evidence on record, the learned Sessions

Judge was pleased to acquit the respondents-accused on several grounds.

The learned Judge held that the prosecution had failed to prove, evidence of

theft as against the respondents-accused; and that the respondents-accused

had used any artificial means for commission of theft of electricity. The

learned Judge has observed, that the complainant had admitted in his cross-

examination, that if there was any abnormality in the meters when

inspected, then it was necessary for them to take photographs and it was the

responsibility of the MSEB to provide cameras and that admittedly, no

photographs were taken. The learned Judge has considered the admissions

of the complainant that when the meter boxes were inspected, he had found

that the said meter boxes were intact and that the Investigating Officer had

also admitted the same when he prepared the panchanama i.e. the seal of

the meter boxes were intact. The complainant had also admitted in his

cross-examination that there were no holes at the bottom of the meter

boxes, except cable holes. The learned Judge has observed that if the meter

boxes had holes, and there were no additional holes to the meter boxes,

then it was impossible to commit theft, by inserting/putting wires in the

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meters. It was observed that merely because there were holes to the meters,

is not sufficient to prove that there was abstraction of energy. The learned

Judge has further observed that the meters were not even produced before

the Court and it was not shown by the prosecution that there were

additional holes to these meters and as such, there was nothing to show that

there was tampering to the said meters. It was also observed that the

prosecution had failed to show that M-seal was affixed to these meters

above the holes, as the Investigating Officer had not seized the M-seal. It

was also noted that no wires from which abstraction of energy was alleged

to have been done, were seized. Learned Judge observed that unless

wire/wires is/are put in the said meters through the hole/holes, there cannot

be any abstraction of energy. As the said valuable material was not

collected, the learned Judge did not place any reliance on the said evidence.

Learned Judge has also observed that there was non-compliance of Section

20 of the Indian Electricity Act, inasmuch as, prior notice to the occupier of

their inspection was not given. Admittedly, PW 3 had not given any notice

about inspection to Mitra Steel Company. The learned Judge also observed

that the prosecution had failed to prove, that Subodh Maity was the

consumer or that he was the authorized person of the Company. He has

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observed that neither, the complainant had confirmed whether Subodh

Maity was an authorized person nor had the Investigating Officer collected

any material to show that Subodh Maity was the authorized person of Mitra

Steel Company and as such inspection of the meters was not done in the

presence of the authorized representative of the consumer. It was also

noted that although the meters were inspected on 28 th May, 1994, whereas,

the complaint was lodged with the police on 31 st May, 1994 and that the

said delay was unexplained.

7. According to the prosecution, the meter which was installed in

Mitra Steel Company, was repaired by the MSEB and thereafter, the same

meter was installed at Theramax Company. Learned Judge has observed

that PW 3-Prakash Ambale had admitted in his cross-examination that on

2nd December, 1991, one meter of SIMCO Company was newly installed at

the new meter room of Mitra Steel Company and that on 5 th May, 1993,

when that meter was checked, it was working slowly and hence a direction

was given to replace that meter and accordingly on 25 th May, 1993, the said

meter was replaced by meter No. 005941. The learned Judge has observed

that it has come on record that the meter No. 005941 which was seized by

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the Investigating Officer was installed in Mitra Steel Company on 25 th

May, 1993 and as such it was evident that before 25 th May, 1993, the meter

No. 005941 had not been installed in Mitra Steel Company and as such it

cannot be said that the theft was committed with the help of the said meter.

Apart from the aforesaid reasons, the learned Judge has given several other

reasons, for disbelieving the prosecution case, on the basis of the evidence

on record.

8. Perused the evidence on record as well as the impugned

judgment, by which the respondents-accused have been acquitted. The

view taken by the learned Judge is a plausible view and it cannot be said to

be either perverse or unsustainable. The reasons are cogent and are based

on the evidence and material on record. Considering the same, no ground

is made out for interfering the said impugned judgment and order.

Accordingly, the appeal is dismissed.

REVATI MOHITE DERE, J.

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