Delhi High Court
Anup Kumar Gupta vs The State (Nct Of Delhi) & Anr. on 1 July, 2015
Author: P. S. Teji
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 14th May, 2015
Judgment Pronounced on: 01st July, 2015
CRL.REV.P. 511/2008
ANUP KUMAR GUPTA ..... Petitioner
Through: Mr. F.K. Jha, Advocate.
versus
THE STATE (NCT OF DELHI) & ANR. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. Aggrieved by the judgment of conviction dated 09.02.2004 and
order on sentence dated 11.02.2004 passed by the learned
Metropolitan Magistrate, awarding the sentence to the petitioner to
undergo rigorous imprisonment for a period of two years and fine
of Rs.5,000/- for offence under Section 39/44 of the Indian
Electricity Act (in short the I.E. Act), in default of payment of fine
to further undergo simple imprisonment for five months and
upholding the judgment of conviction and sentence by the learned
Additional Sessions Judge vide judgment dated 05.09.2008, the
present revision petition has been filed by the petitioner. However,
the sentence was modified to one year rigorous imprisonment with
fine of Rs.5,000/- for the offence punishable under Section 39/44 of
the I.E. Act and in default of payment of fine to undergo simple
imprisonment for one month.
2. Factual matrix, as emerges from the record, is that the petitioner
was owner of M/s S.K. Rubber Udhyog and M/s J.M.O. Oils Pvt.
Ltd. at premises bearing Kh. No.46/8, Village Khera Kalan. A joint
raid was conducted by the electricity department at the said
premises where two electricity meters were found installed. On
29.04.1998, during inspection, it was observed that service line of
one connection was found tapped in changeover switch before
meter and electricity was being used by connecting the load directly
with changeover switch. A joint inspection report was prepared,
photographs of the spot were taken and material was seized. A
complaint was made on 01.05.1998 and then the FIR No.276/1998
was registered in PS S.P. Badli for offence under Section 39 of the
I.E. Act.
3. On completion of investigation, charge-sheet was filed against the
petitioner. Charge under Section 39/44 of I.E. Act was framed
against the petitioner. The petitioner pleaded not guilty to the
charge framed.
4. To prove its case, prosecution examined 8 witnesses. After
conclusion of prosecution evidence, the statement of the petitioner
was recorded under Section 313 Cr.P.C. in which he had claimed
innocence. The learned Metropolitan Magistrate vide judgment
dated 09.02.2004 held the petitioner guilty for the offence
punishable under Section 39/44 of the I.E. Act and convicted him
for the said offences. The order on sentence was passed on
11.02.2004.
5. Thereafter, the petitioner filed criminal appeal bearing Criminal
Appeal No.26/2006. The learned Additional Sessions Judge vide
judgment dated 05.09.2008 upheld the conviction and sentence
awarded to the petitioner. However, the sentence was modified.
6. Feeling aggrieved by the same, the petitioner has preferred the
present revision petition to set aside the judgments rendered by the
Courts below and claiming acquittal.
7. I have gone through the ratio of judgment in case of Ram Briksh
Singh and Others vs. Ambika Yadav and Another (2004) 7 SCC
665 in which it was observed that the revisional court does not
function as a court of appeal and, therefore, cannot re-appreciate the
evidence. Sections 397 to 401 of the Code are group of sections
conferring higher and superior courts a sort of supervisory
jurisdiction. These powers are required to be exercised sparingly.
The jurisdiction can be invoked to correct the wrong appreciation of
evidence. Though the High Court is not required to act as a court
of appeal but at the same time, it is the duty of the court to correct
manifest illegality resulting in gross miscarriage of justice. The
High Court is not required to interfere in the concurrent finding of
facts. This Court is of the considered opinion that the present case
is not a fit case where the revisional jurisdiction is required to be
exercised on the concurrent finding of facts recorded by the Courts
below.
8. During the course of arguments, learned counsel for the petitioner
did not press the present revision petition on merits and restricted
his arguments on the quantum of sentence. It is submitted that the
petitioner be released on probation under Section 4 of the Probation
of Offenders Act, 1958. Learned counsel has relied upon a
judgment in case of Virender Singh vs. State 110 (2004) DLT 632.
9. In case of Virender Singh (supra), the appellant was ordered to be
released on probation of good conduct. Relevant portions from the
judgment are reproduced as under :
"Having heard learned Counsels for the parties and
having given my careful consideration to the
material available on record, I am of the view that in
the present case, the petitioner has suffered agony of
trial lasting for about 7 years. Besides that, he has
already undergone some period in custody and there
is no allegation that the petitioner is a previous
convict.
Keeping these circumstances in mind and the fact
that the offence of which the petitioner has been
convicted is not punishable with life imprisonment,
he deserves the benefit of probation under Section 4
of the Probation of Offenders Act, 1958. In these
circumstances, while maintaining the conviction of
the petitioner, the sentence of imprisonment and fine
as awarded to him is set aside."
10. In the present case, the allegations against the petitioner are serious
in nature to the effect that he was found indulged in direct
electricity theft. The prosecution witnesses have specifically
deposed against the petitioner that while conducting inspection in
the premises of the petitioner, service line of one connection was
found tapped in changeover switch before meter and electricity was
being used by connecting the load directly with changeover switch.
The learned Additional Sessions Judge considering the
circumstances of the present case, already taken a lenient view and
modified the sentence of imprisonment awarded to the petitioner.
In view of this position of the matter, this Court is of the view that
no case is made out to release the petitioner on probation.
Therefore, the petitioner cannot get any assistance from the
judgment in case of Virender Singh (supra).
11. In view of discussion made above, this Court does not find any
procedural irregularity, overlooking of material evidence,
misreading of the same or miscarriage of justice. There is no
jurisdictional error in the judgments passed by the Courts below.
Neither there is any failure to exercise the jurisdiction or exceeding
of jurisdiction by the learned trial Court and appellate Court while
passing the judgment. Thus, the judgment of conviction and order
on sentence passed by the learned trial Court as well as the
judgment passed by the learned appellate Court are upheld. The
petitioner is directed to surrender before the concerned learned
Chief Metropolitan Magistrate to serve the remaining sentence of
imprisonment.
12. Consequently, the present revision petition is dismissed.
P.S.TEJI, J.
July 01, 2015
dd
