Bombay High Court
The State Of Maharashtra vs Mohan Vishwanath Joshi & Anr on 20 January, 2018
Bench: A.M. Badar
APPEAL-728-2002.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMNAL APPEAL NO.728 OF 2002
THE STATE OF MAHARASHTRA )...APPELLANT
V/s.
1) MOHAN VISHWANATH JOSHI )
2) SATISH BAPURAO BHUJBAL )...RESPONDENTS
Mr.S.V.Gavand, APP for the Appellant - State.
Mr.Amol Gatne, Advocate for Respondent Nos.1 and 2.
CORAM : A. M. BADAR, J.
DATE : 20th JANUARY 2018
JUDGMENT :
1 By this appeal, the appellant/State is challenging the
judgment and order dated 22nd March 2002 passed by the learned
Judicial Magistrate First Class, Ghodnadi, Pune, thereby acquitting
the respondents/accused persons of offences punishable under
Sections 39 and 44 of the Indian Electricity Act, 1910, (hereinafter
referred to as the Electricity Act for the sake of brevity).
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2 Facts leading to the prosecution of the
respondents/accused persons, in nutshell, are thus :
(a) First Informant PW5 Arun Thorat, Deputy Executive
Engineer of the Maharashtra State Electricity Board
(hereinafter referred to as MSEB for the sake of brevity)
along with his squad, on 4th July 2001, inspected electric
meter of M/s.Vidyawati Agro Chemicals Private Limited
owned by respondent/accused no.1 Mohan Joshi. During
inspection of the electric meter, the inspecting party found
that the seal of the meter box was broken. Three lead seals
on the meter body were also found to be handled. Wire of
the lead seal on head of the meter was found broken and
wire of other two seals was found to be woven in one hole
of the screw, facilitating opening of the meter without
opening of the seal. Terminal cover of the electric meter
was also found missing. Upon testing, the meter was found
to be slow by 54% thereby showing less consumption of
electricity. It was also noted by the inspecting party that
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electric supply from the same meter was given to the
neighbouring factory named Divya Jjoti Engineering Works.
In this manner, though sanctioned load was only 30 horse
power, actually, 56 horse power electric energy was found to
be drawn from the said electric meter. In this way,
according to the prosecution case, the respondents/accused
persons had committed theft of electric energy to the tune of
143767 units causing Rs.6,28,980/- for the three years
period ranging from June 1998 to June 2001.
(b) During the course of inspection, the Joint Inspection Report
came to be drawn by PW5 Arun Thorat, Deputy Executive
Engineer, and on the very same day, he lodged report against
the respondents/accused persons, which has resulted in
registration of Crime No.28 of 2001 by Shikrapur Police
Station, District Pune. During the course of investigation,
the spot cum seizure panchnama Exhibit 33 was drawn and
the electric meter came to be seized.
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(c) On completion of routine investigation, charge-sheet for the
offence punishable under Sections 39 and 44 of the
Electricity Act came to be filed against the
respondents/accused persons. They abjured guilt and
claimed trial.
(d) In order to bring home the guilt to the respondents/accused
persons, prosecution has examined in all five witnesses.
PW1 Haribhau Bodkhe - is an employee of the MSEB, who
was member of the raiding team. Exhibit 22 is the Joint
Inspection Report. PW2 Vijay Yadav is a panch witness, who
turned hostile to the prosecution. Junior Engineer of the
MSEB namely Anil Bhakta is examined as PW3. He was also
present during inspection of the electric meter. Investigating
Officer Sridhar Jadhav, Assistant Police Inspector of
Shikrapur Police Station is examined as PW4. First
Informant Arun Thorat, Deputy Executive Engineer of the
MSEB is examined as PW5. Exhibit 37 is the First
Information Report (FIR) lodged by him.
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(e) Defence of the respondents/accused persons is that of total
denial. After hearing the parties, by the impugned judgment
and order dated 22nd March 2002, passed in Criminal Case
No.529 of 2001, the learned Judicial Magistrate First Class,
Ghodnadi, Pune, was pleased to acquit the
respondents/accused persons of offences punishable under
Sections 39 and 44 of the Electricity Act.
3 I have heard the learned APP appearing for the State.
He argued that evidence of PW1 Haribhau Bodkhe, PW3 Anil
Bhakta and PW5 Arun Thorat is consistent and is reflecting
commission of theft of electric energy by the respondents/accused
persons by tampering the meter. In submission of the learned APP,
Joint Inspection Report at Exhibit 22 as well as the FIR at Exhibit
37 lends assurance to the prosecution case. The learned trial
court erred in acquitting the respondents/accused persons.
4 As against this, the learned advocate appearing for the
respondents/accused persons argued that evidence on record goes
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to show that the entire inspection was photographed by the
officers of the MSEB. The photographer was also shown as a
panch to the Joint Inspection Report. However, neither the
photographer who had photographed the event is examined by
the prosecution nor the photographs are produced on record.
Even the seized meter was not produced and identified by the
prosecution witnesses. My attention is drawn to the evidence of
prosecution witnesses to show that electric consumption bill was
regularly paid.
5 I have carefully considered the rival submissions and
also perused the entire evidence on record including deposition of
witnesses as well as documentary evidence.
6 Evidence of PW5 Arun Thorat - First Informant is
crucial in the instant case. This witness was the leader of the
team which undertook inspection of electric consumption meter at
M/s.Vidyawati Agro Chemicals Private Limited. It is in his
evidence that on 4th July 2001, by disclosing his identity to the
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owner of the Company, he inspected the electric consumption
meter of the said factory. He deposed that, he found the meter
box seal in broken condition and lead seal of the meter box was
also out. As per version of PW5 Arun Thorat, he found the electric
meter running slow by 52 to 54%. All three seals of the meter
were broken. This witness further deposed that 50 mm cable was
connected from the meter to another factory namely Divya Jyoti
Engineering Works. Instead of 30 horse power load, the load
drawn was 56 horse power. This witness further deposed that then
he called Junior Engineer PW3 Anil Bhakta and Assistant Engineer
PW1 Haribhau Bodkhe and then Common Inspection Report was
prepared. The Common Inspection Report was then signed by
Mohan Joshi and Satish Bhujbal i.e. accused persons. Then, he
lodged report Exhibit 37. This witness further deposed that by
inspecting billing record, he found that the accused persons had
committed theft of 1,43,000 units, costing Rs.6,28,000/-. This
witness further stated that police seized the meter box.
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7 Cross-examination of PW5 Arun Thorat reveals that
once in a year, the electric meter was used to be inspected and
prior to lodging of the report, there was no complaint against the
accused persons. He further admitted that prior to filing the
report, accused persons had paid the bills for consumption of
electricity. Cross-examination of this witness further reveals that
he is unable to tell electric energy in exact units stolen by the
accused persons.
8 Evidence of this witness PW5 Arun Thorat, as such,
shows that initially he had inspected the electric meter and then
he called PW1 Haribhau Bodkhe, Assistant Engineer, and PW3
Anil Bhakta, Junior Engineer, working with the MSEB. PW1
Haribhau Bodkhe has deposed that when he visited the premises,
he found the meter box in broken condition and the electric meter
was not having terminal seal. Three seals of the meter were found
to be handled and electric energy of 58 horse power load was
drawn instead of sanctioned load of 38 horse power. This witness
further deposed that the Agro Chemical Company and the
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workshop were found running on the same electric meter which
was slow by 54%. Then, as per his version, Joint Inspection
Report, Exhibit 22 came to be prepared. Cross-examination of this
witness shows that meter reading of the subject electricity meter
was regularly taken during the year 1998 to 2000 but the person
taking the reading had never complained about broken seal of the
meter. This witness further deposed in cross-examination that
electric meter used to be inspected periodically in each year but
there was no complaint against the accused persons regarding
tampering of the electric meter. This witness further stated that
another customer had taken electric connection from the same
meter.
9 PW3 Anil Bhakta, Junion Engineer of the MSEB, has
not deposed about tampering of the electric meter, breaking or
handling of its seal and lead seals on the meter body. He has only
stated that after getting information regarding theft of electric
energy by breaking seal, he visited the spot. Load of the meter
was checked, the electric meter was tested and found to be
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running in slow speed. There was electric supply connection from
the said meter to another Company. This witness further deposed
that the accused persons committed theft of electric energy since
last three years.
10 The ocular evidence coming on record from these
three prosecution witnesses namely, PW1 Haribhau Bodkhe, PW3
Anil Bhakta and PW5 Arun Thorat goes to show that though PW1
Haribhau Bodkhe and PW5 Arun Thorat have deposed about
tampering of electric meter, PW3 Anil Bhakta, Junior Engineer,
has not spoken about this fact. Their evidence consistently shows
that reading of the electric meter was used to be taken regularly
by the employee of the MSEB, but that employee had not reported
about tampering or breaking open of seal of the electric meter.
Their evidence further shows that there used to be periodical
checking and inspection of the electric meter once in a year, but
on earlier occasions, there was no complaint against the
respondents/ accused persons. PW1 Haribhau Bodkhe has
candidly stated in the cross-examination that, another consumer
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had not taken electric connection from the meter in question.
Evidence of PW3 Anil Bhakta shows that electric meter used to be
checked once in three months. As against this, what is alleged in
the prosecution case is, theft of electric energy by the accused
persons for a period of three years ranging from June 1998 to
June 2000. As seen from the FIR Exhibit 37, First Informant PW5
Arun Thorat was not in a position to demonstrate as to how he
calculated the amount of alleged theft of electric energy. In the
wake of periodical inspection of meter once in each year, it cannot
be said that there was theft of electric energy for three years,
going unnoticed during the course of yearly inspection and
quarterly reading of the meter. The prosecution case becomes
suspect on this count.
11 Though the prosecution witnesses deposed that Joint
Inspection Report Exhibit 22 is signed by the accused persons,
perusal thereof does not show that any of the accused persons had
signed on the Joint Inspection Report Exhibit 22 prepared on 4 th
July 2001. Perusal of the said Joint Inspection Report shows that
the entire event was photographed. The tampered electric meter
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was secured by applying paper seal containing signatures of both
the accused persons. The said electric meter, as seen from
evidence of PW4 Sridhar Jadhav, Assistant Police Inspector, came
to be seized on the very next day, i.e. on 5 th July 2001, during the
course of investigation vide Spot cum Seizure panchnama at
Exhibit 33. Cross-examination of PW4 Sridhar Jadhav, Assistant
Police Inspector, shows that the seized electric meter was not
produced before the trial court nor it was shown to any of the
prosecution witnesses to demonstrate that it was tampered and
then it was secured by a paper seal containing signatures of both
accused persons. Tampered electric meter, in the case in hand, is
a valuable piece of evidence, which, it appears, is deliberately not
produced before the court for inspection. This fact coupled with
the fact that the assessment was made for three years, when there
used to be yearly inspection of the electric consumption meter,
makes the prosecution case doubtful. Even the photographs taken
during inspection were not produced and the photographer, who
is shown as a panch witness to Joint Inspection Report Exhibit 22,
is also not examined. In view of this discrepant prosecution
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evidence coming on record only from the mouth of the interested
witnesses, they being employees of the Electric Supply Company,
learned trial court rightly discarded case of the prosecution by
acquitting the respondents/accused persons.
12 At this juncture, it is apposite to quote judgment of the
Hon'ble Apex Court in the matter of State of U.P
. Vs.Babu & Ors. 1
wherein the Hon'ble Apex Court has made the following
observations :
"10 Recently in State of Punjab Vs. Karnail
Singh (2003 AIR SCW 4065) it was observed that
there is no embargo on the Appellate Court
reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal
shall not be interfered with because the presumption
of innocence of the accused is further strengthened
by acquittal. The golden thread which runs through
the web of administration of justice in criminal cases
is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view
which is favourable to the accused should be
1 2013 ALL MR(Cri) 2356 (S.C.)
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adopted. The paramount consideration of the Court
is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from
acquittal of the guilty is no less than from the
conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon
the Appellate Court to re-appreciate the evidence
even where the accused has been acquitted, for the
purpose of ascertaining as to whether any of the
accused committed any offence or not. [See
Bhagwan Singh Others Vs. State of Madhya
Pradesh (2002(3) JT (SC) 387) : [2003 ALL MR
(Cri) 564 (S.C.)] ]. The principle to be followed by
appellate Court considering the appeal against the
judgment of acquittal is to interfere only when there
are compelling and substantial reasons for doing so.
If the impugned judgment is clearly unreasonable, it
is a compelling reason for interference. These
aspect were highlighted by this Court in Shivaji
Sahabrao Bobade and another Vs. State of
Maharashtra (1973(2) SCC 793), Ramesh Babulal
Doshi Vs. State of Gujarat (1996)(9) SCC 225)
and Jaswant Singh Vs. State of haryana (2000(4)
JT (SC) 114)."
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13 Reassessment of evidence of the prosecution for the
reasons stated in the foregoing paragraphs, indicates that a
plausible view was taken by the learned trial court while
acquitting the respondents/accused persons of alleged offence.
Hence, no interference in the same is warranted by this court.
14 In the result, the following order :
ORDER
The appeal stands dismissed.
(A. M. BADAR, J.)
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