Bombay High Court
The State Of Mah. Thr. P.S.O. Walgaon vs Gulab Ali Sayyad Bannu on 15 October, 2025
2025:BHC-NAG:10943
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.264/2010
The State of Maharashtra,
through P.S.O. Walgaon,
Dist. Amravati.
...APPELLANT
VERSUS
Gulab Ali Sayyad Bannu,
aged about 54 yrs.,
R/o. Bajarpura Walgaon,
Dist. Amravati.
...RESPONDENT
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Mrs. S.V. Kolhe, APP for appellant/State.
Mr. A.P. Chaware, Advocate for respondent-sole.
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CORAM : M. M. NERLIKAR, J.
JUDGMENT RESERVED ON : 06.10.2025
JUDGMENT PRONOUNCED ON : 15.10.2025
JUDGMENT :
Heard.
2. The appeal is directed against the judgment and order
dated 27.11.2009 passed by the learned 2 nd Additional Sessions
Judge, Amravati passed in Special Case (Elect) No.22/2008,
wherein the accused i.e. present respondent is acquitted for the
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offence punishable under Sections 135 and 138 of the
Electricity Act,2003.
3. Brief facts:-
The Flying Squad visited Ice Factory of the accused on
15.06.2006, which included the informant and other members.
The accused/respondent is running the said Ice Factory. The
Electricity Meter was inspected by the Flying Squad in presence
of the accused. It was found that the meter was tampered with.
On conducting the pulse test, it was found that the meter was
running slow by 73.68% as compared to regular running of
meter. Inspection report was prepared in presence of witness
and the respondent, meter was opened and it was found that
there were three resistances in PVC cover. Accordingly, a
detailed Panchanama was drawn, inspection report was
prepared and meter was seized. Thereafter, it was found that
there was theft of electricity of 8768 units during the period of
last 24 months thereby, causing financial loss to the tune of
Rs.46,032/- to the Electricity Company. Accordingly, on
19.06.2006, the FIR was registered vide Crime No.3034/2006
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for the offence punishable under Sections 135 and 138 of the
Electricity Act. After completing the investigation by the
Investigating Officer, charge-sheet came to be filed against the
respondent. Cognizance was taken by the learned Judicial
Magistrate First Class, Court No.11, Amravati, however the case
was transferred by an order dated 20.12.2007 to the Special
Court. Accordingly, the charge was framed at Exh.7. The same
was read over and explained to the accused in the vernacular
language. Accused pleaded not guilty and claimed to be tried.
4. In order to substantiate the case, the prosecution
examined as many as three witnesses namely PW-1 Mr. Shrikant
Deshmukh (informant), PW-2 Mr. Suresh Dhawale (Vigilance
Officer of the Company) and PW-3 Rahul Kujare, (panch
witness) After leading the evidence, the Trial Court acquitted
the respondent. It is against this judgment, the present appeal
is preferred by the appellant/State.
5. I have heard both the parties. The learned APP
submitted that the prosecution has proved the guilt of the
accused beyond reasonable doubt, however on a technical
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ground, the accused was acquitted. The electricity was stolen
by the respondent and when the Flying Squad went to the Ice
Factory of respondent and it was found that the meter was
tampered with. Further, the pulse rate in pulse test conducted
using external resistive load was found to be low with reference
to the load and it was running slow by 73.68%. After following
the entire procedure like preparation of Panchanama and
inspection of the Electricity Meter, the FIR was registered. She
further submitted that the prosecution has proved through
evidence of PW-1 that there was theft of 8768 units which is to
the tune of Rs. 46,032/- and though PW-3 was declared hostile,
however the case was proved by PW-1 and PW-2. She
contended that the lodging of FIR by the PW-1 assuming he is
not authorized to lodge the report then also upon such report,
if the cognizance is taken by the competent Court then it would
amount to an irregularity and not illegality. Accordingly, she
prayed to allow the appeal and convict the accused.
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6. On the other hand, learned counsel for the respondent
submitted that the very foundation of the FIR by an
unauthorised person is not tenable, as PW-1 is not authorized
to lodge the report as per Section 151 of the Electricity Act and
Courts' below ought not to have taken cognizance under such
circumstances. He further submitted that the prosecution has
utterly failed to prove the case beyond reasonable doubt. He
invited my attention to the cross-examination of PW-1 which
mentions the date of inspection of the Electric Meter as
15.06.2006, whereas FIR was registered on 19.06.2006 i.e. 4
days later. Further, it has been admitted in the cross-
examination by PW-1, that the meter was with him for 4 days.
The learned counsel for respondent argued that from the date
of disconnection of the electricity, the FIR is to be lodged within
24 hours in view of Section 135(1A) of the Electricity Act and
the delay in lodging of the FIR creates suspicion about the story
of prosecution. Lastly, he submitted that there is no merit in
the appeal and the same be dismissed.
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7. Upon hearing the rival contentions, an important
question is raised, whether PW-1 was a proper authority to
lodge the FIR as contemplated under Section 151 of the
Electricity Act? In order to answer this question, it would be
necessary to consider the evidence of PW-1. Admittedly, FIR
was registered by the PW-1 being a member of the Flying
Squad. In cross-examination, he has admitted the fact that he
had not placed any document to show that he was empowered
to inspect the Electric Meter and he did not produce any
document before the Police while lodging the report showing
his authorisation to lodge the report on behalf of the Company.
He deposed in the cross-examination that he is in-charge
Deputy Executive Engineer. Under such circumstances, it
would be necessary to mention at this stage that Section 151 of
the Electricity Act was amended and State Amendment for
Maharashtra State came into effect on 23.06.2005. The offence
was registered on 19.06.2006. It would be useful to reproduce
Section 151 of the Electricity Act as under:-
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"151. Cognizance of offences- No Court shall take
cognizance of an offence punishable under this Act except,-
(a) upon a complaint in writing made by Appropriate
Government or Appropriate Commission or any of their
officer authorised by them or a Chief Electrical Inspector or
an Electrical Inspector or a licensee or the generating
company, as the case may be, for this purpose, or
(b) upon a police report of facts which constitute an
offence:
Provided that, such police report is based on the First
Information Report filed by a person who is authorised to
file a complaint (a)"
8. It could be gathered from reading of Section 151 that
the FIR can be lodged in writing by an Appropriate Authority or
Appropriate Commission or any of their officer authorized by
them or a Chief Electricity Inspector or an Electrical Inspector
or Licensee or the Generating Company, as may be the case. If
the categories which are mentioned in Clause(a) of Section 151
are complied with then the Court shall take cognizance,
however, except these authorities, if any other officer registers
the FIR then authorization contemplated under Clause(a)
would be mandatory. If there is no authorization to such officer
or authority then the Court cannot take cognizance of an
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offence punishable under the Electricity Act. With this
background, if designation of PW-1 is seen which is in-charge
Deputy Executive Engineer and therefore, he is not an
appropriate Commission or was not authorized by the Chief
Electrical Inspector or Electrical Inspector or Licensee or the
Generating Company, hence he was not competent to lodge the
FIR.
9. Taking cognizance goes to the root of the matter, when
the officer himself is not competent to lodge the FIR. Under
such circumstances, it can be said that there is a violation of
Section 151 of the Electricity Act.
10. As argued by the learned APP that this is mere
irregularity and not illegality cannot be accepted and under
such circumstances, the Court below could not have taken the
cognizance of the offences punishable under Sections 135 and
138 of the Electricity Act. The aforementioned illegality being
a fundamental flaw in taking cognizance is directly in violation
of provisions and therefore, cannot amount to an irregularity.
Therefore upon consideration of the above discussion, in my
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humble opinion, the entire trial is vitiated. As taking
cognizance is not an empty formality especially when there is
an express bar and the provision expressly provides for the
competent officer to lodge the FIR. The aforesaid provision
cannot be bypassed in view of rider under Section 151 of the
Electricity Act.
11. Considering the above facts and circumstances of the
case, this Court holds that PW-1 was not competent to lodge the
FIR and consequently taking cognizance by the Court, vitiated
the trial. The Trial Court without considering the very aspect of
taking cognizance, has only touched on the merits of the case
by holding that the prosecution has utterly failed to prove the
case. In this view of the matter, following order is passed:-
(I) Appeal is dismissed.
( M. M. NERLIKAR , J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PS To Honourable Judge
Date: 15/10/2025 17:17:22
