Sheikh Chand Sheikh Jumma vs State Of Maharashtra, Through ...
2018 Latest Caselaw 682 Bom

                                              1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.429 OF 2014


 Sheikh Chand Sheikh Jumma,
 Aged about 67 years,
 R/o. Wani, Tahsil Wani,
 District Yavatmal                                                   ...APPELLANT


                           ...V E R S U S...


          
 The State of Maharashtra,
 Through Police Station Officer,
 Police Station Wani, District Yavatmal
         ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. A.S. Dhore, counsel for appellant.
 Ms. Ritu Kalia, Additional Public Prosecutor for respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                      ROHIT B. DEO, J. 

  DATE OF RESERVING THE JUDGMENT     
                                             
                                             : 22.12.2017
  DATE OF PRONOUNCING THE JUDGMENT        : 19.01.2018


 JUDGMENT

Challenge is to the judgment and order dated

11.7.2014 delivered by the learned Special Judge, Kelapur in

Special Case 14 of 2007, by and under which, the appellant

(hereinafter referred to as "the accused") is convicted for offences

punishable under section 135(1)(b) and 138(1)(d) of Electricity

Act and is sentenced to pay fine of Rs.1,00,000/- and in default to

suffer simple imprisonment for six months.

2 Heard Shri A.S. Dhore, the learned counsel for

accused and Smt. Ritu Kalia, the learned Additional Public

Prosecutor for the State.

3 The informant is PW 7 Vilas Hade, who was then

serving as Deputy Executive Engineer - Flying Squad, Maharashtra

State Electricity Distribution Company Limited (MSEDCL),

Yavatmal. Duty of the flying squad is to inspect electric meters

and to detect theft of electricity etc. The case of the prosecution as

is unfolded through the evidence of PW 7 is that the flying squad

raided the ice factory of the accused situated near Dipak Talkies at

Mominpura, Wani. PW 7 was accompanied by junior engineer

Shri. Angaitkar, vigilance officer Dadarao Sayam and others. The

flying squad tested the load on the meter for 45 minutes in the

presence of the owner of the factory, the meter recorded only 1

unit and the load counting pulse was slow. The meter was

removed and opened in the presence of the consumer and it was

found that R Y B CT secondary wires were found short at PCB

hampering the recording of the current. The meter was seized and

sealed. The seal of the meter was found tampered. After seizure

of the meter joint inspection report (Exh. 28) was prepared which

was signed by PW 7 and the vigilance officer. The consumer did

not sign the joint inspection report. Spot inspection report Exh. 29

was prepared, electric bill was obtained from the accused. The

total load in the factory was 19 HP and the meter was in use for

period for more than two years. Accordingly, assessment for

period of two years as per the load of HP was prepared and the

provisional assessment (Exh. 39) was submitted to the office,

extract of the account of the meter was obtained, the seized meter

was handed over to police during investigation and seizure

panchanama (Exh. 21) was prepared by the police. The seizure

panchanama prepared by PW 7 when the meter was seized at the

factory is Exh. 19. PW 7 lodged report at Wani Police Station

(Exh. 24)

4 The defence of the accused during the course of trial,

as is discernible from the trend and tenor of the cross examination,

is that the accused is neither the owner of the Bombay Ice Factory

nor the consumer. The suggestion given to PW 7 is that he did not

inspect Bombay Ice Factory. However, the further suggestion is

that when PW 7 entered the Bombay Ice Factory, the owner was

not present. The defence however is that the meter was not

tampered and was not seized. In reply to question 15 in the

statement recorded under section 313 of the Code of Criminal

Procedure, the accused states that he is not connected with

Bombay Ice Factory and is falsely implicated.

5 The prosecution examined PW 1 Mohammad Makdul

a witness to seizure panchanama Exh. 19. PW 2 Nago Ingole a

witness to seizure panchanama of electric meter by police Exh. 21,

PW 3 Noorsingh Rathod ASI who had received the report and

registered the offence also seized the electric meter. PW 4 Prakash

Wankhede is the Deputy Executive Engineer serving in MSEDCL

and was present at the time of spot panchanama Exh. 26. PW 5

Ritesh Chawardol is the junior engineer present in the flying squad

and present on the spot at the time of raid. PW 6 Namdeo

Mandalwar ASI who carried the spot panchanma, PW 7 Vilas Hade

is the complainant.

6 The evidence of PW 7 Vilas Hade is corroborated by

PW 5 Ritesh Chawardol who deposed that he accompanied PW 7

Shri Hade to Bombay Ice Factory. Accused was present, load test

was conducted and it was noticed that seal of the meter was

tampered and the meter was running slow. PW 7 Shri Hade

opened the meter and found evidence of tampering. PW 7 seized

the meter vide panchanama Exh. 19 and the seal was signed by

PW 5 and PW 7. Joint inspection report Exh. 28 and spot

inspection report Exh. 29 were prepared by PW 7. Accused

refused to sign panchanama Exh. 19.

PW 3 Noorsingh Rathod registered crime vide Exh. 24 and

seized the electric meter produced by PW 7 (Exh. 21).

PW 2 Nago Ingole is the panch to seizure of the electric

meter at Police Station Wani.

PW 6 Namdeo Mandalwar is the Investigating Officer who

visited the spot alongwith the panch witness and prepared spot

panchanama Exh. 26.

7 PW 4 Prakash Wankhede is a witness to spot

panchanama Exh. 26 who further deposes that PW 7 submitted

report about the theft of electricity on the basis of which he

prepared a bill of Rs. 3,61,920/- which was served on the accused.

8 The learned counsel for accused Shri. A.S. Dhore

submits that the prosecution witnesses are not independent

witnesses. Concededly, PW 7 is the complainant. The

Investigating Officer has not conducted any investigation worth

the name after registration of the offence. The seized meter is not

produced in the Court. In view of failure of the prosecution to

produce the seized meter in the Court, it would be unsafe to hold

that the prosecution has established the offence beyond reasonable

doubt, is the submission.

Shri. Dhore, the learned counsel relies on an order of the

learned Single Judge of the Rajasthan High Court in Criminal

Leave to appeal 35 of 2015 and particularly on the following

observations:-

"After perusing the evidence and judgment, it appears that the finding given by the trial Court does not require any interfere because it is the duty of the prosecution to prove its case beyond reasonable doubt and in this case the electricity meter in question has not been produced and not sent for examination, therefore, no error has been committed by the trial Court in acquitting the respondent from offence under Sections 135 and 138 of Electricity Act, 2003. In view of above, no case is made out to grant leave to appeal. Hence, this criminal leave to appeal is hereby dismissed."

9 Per contra, the learned Additional Public Prosecutor

invited my attention to the judgment of the learned Single Judge

of this Court in Anandrao Madhavrao Shinde Vs. The

Maharashtra State Electricity Distribution Company Ltd.,

through Chintaman Gendaji Marathe, 2011 ALL MR (Cri) 1773

and in particular on the following observations:-

"25. In the said context, it is necessary to mention that merely because no independent person was present at the time of inspection of the meter, it does not mean that evidence of both the witnesses of the respondent should be discarded, mechanically, and on close and careful scrutiny of their respective testimonies on the aforesaid aspect of tampering the electric meter, I am of the view that there is no deformity, fatal to the case of the respondent in respect of the said vital aspect, and the observations made by the learned trial judge in that respect, cannot be faulted with."

"27. As regards reliance placed by learned counsel for the appellant-accused on observations in the judicial pronouncement in the case of Harvinder Motors (supra), it is amply clear that the facts and circumstances of the said case and the facts and circumstances of the present case differ from each other, and in the said context, learned counsel for the respondent canvassed that, in fact, Section 126 of Electricity Act contemplates civil liability and it has no role to play in the instant case."

The submission of the learned Additional Public Prosecutor

is, the production of the seized meter is not sine quo non for

bringing home the charge. She submits that the observations of

the learned Single Judge of this Court must be considered in the

context of the admitted position that the meter was not seized.

She would submit that the evidence of the prosecution witnesses is

implicitly reliable and is not shaken in the cross examination. The

submission is that the accused has not put to serious challenge the

prosecution evidence and the main plank of the defence was that

he is neither the owner of the Bombay Ice Factory nor the

consumer.

10 I find considerable force in the submission of the

learned Additional Public Prosecutor. It is true that PW 7 is the

complainant. The material prosecution witnesses are employees

of the MSEDCL. In a given case, if the evidence of such witnesses

is found to be doubtful or otherwise infirm, the non production of

the seized electricity meter may assume some significance and

importance. However, I am not persuaded to take a view different

to that taken by the learned Single Judge of this Court which is...

that examination of independent witnesses is not sine quo non to

bring home the charge of theft. It is not even the case of the

defence that the witnesses had any reason to falsely implicate the

accused. An ex facie false defence was taken that the accused was

neither the owner of the factory nor the consumer. In the factual

matrix, I am not inclined to agree with the submission of the

learned counsel that non production of electricity meter is fatal to

the prosecution. The learned Judge of the Rajasthan High Court

was considering grant of leave to challenge the judgment and

order of acquittal. The factual matrix is not clear from the

judgment. The observation of the learned Single Judge of the

Rajasthan High Court must be restricted to the facts of the case.

That apart, there is no compelling reason demonstrated not to

follow the view taken by the learned Single Judge of this Court.

The appeal is sans merit and is rejected.

JUDGE

Belkhede, PA