Hardatsingh Mahipatram Chaudhry vs The State Of Gujarat
2024 Latest Caselaw 4970 Guj

Gujarat High Court

Hardatsingh Mahipatram Chaudhry vs The State Of Gujarat on 19 June, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     R/CR.RA/472/2005                           ORDER DATED: 19/06/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 472 of 2005

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                   HARDATSINGH MAHIPATRAM CHAUDHRY
                                 Versus
                         THE STATE OF GUJARAT
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Appearance:
MR PARESH M DAVE(260) for the Applicant(s) No. 1
MR RS SANJANWALA(728) for the Applicant(s) No. 1
MR HARDIK MEHTA, ADDL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 19/06/2024

                             ORAL ORDER

1. Heard learned advocate Mr. Param Buch with learned advocate Mr. Hriday Buch for the petitioner.

2. By way of present petition, the petitioner has challenged the judgment of conviction and sentence passed by the learned 2nd Judicial Magistrate in Criminal Case No.214 of 1995 convicting the petitioner for the offence punishable under Section 39 of the Indian Electricity Act, 1910 (herein after referred to as 'the old Act') and sentenced to undergo rigorous imprisonment for One year with fine of Rs.5000/- and in default of payment of fine One year Simple imprisonment, which was confirmed by the learned Additional Sessions Judge, 2nd FTC, Surat in Criminal Appeal No.5 of 2004.

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R/CR.RA/472/2005 ORDER DATED: 19/06/2024

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2.2 It is the case of the petitioner that the FIR being C. R. No.139 of 1994 was registered with Palsana Police Station by the Gujarat Electricity Board. Inter alia alleging theft of electricity by the petitioner and accusing the petitioner of having committed offence punishable under Section 39 and 44 of the old Act. It is submitted that charge-sheet came to be filed and the case was registered as Criminal Case No.214 of 1995 before the trial Court. The petitioner pleaded not guilty and the offence was tried and by judgment dated 21.06.2004, the petitioner has been convicted for having committed offence under Section 39 of the Act whereas acquitted for the offence punishable under Section 44 of the Act.

2.3 Aggrieved by the said order, the petitioner preferred an appeal being Criminal Appeal No.5 of 2004 before the appellate Court. By judgment and order dated 31.05.2005, the appeal filed by the petitioner came to be dismissed by confirming the judgment and order of the trial Court.

2.4 Being aggrieved and dissatisfied with the judgments of both the Courts below, petitioner preferred present Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure.

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R/CR.RA/472/2005 ORDER DATED: 19/06/2024

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3. Learned advocate Mr. Buch states that petitioner was merely an employee and not the owner of the company. It is also submitted that the company being the sole beneficiary of the theft, the company was required tobe prosecuted. However, company was not joined as a party and prosecution has been lodged against the present petitioner on misconception. He has further submitted that the Court below has considered an extra-judicial confession produced at Exh.40 and as per his submission, such extra-judicial confession may not be considered since petitioner being an employee, it can be said that because of the pressure of the management of the company, he has given such confession.

3.1 It is also submitted that the trial Court has convicted the petitioner for the offence punishable under Section 39 of the old Act. As such, Section 39 would create a presumption of offence against the consumer while petitioner is not the consumer but as per the report he is shown as a manager of the company.

4. On the other hand, learned APP has submitted that petitioner has confessed before the Board and such confession was under his signature and produced at Exh.40 before the trial Court.

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4.1 He further submitted that total amount of the electricity theft has been paid but still an offence of theft has been committed and since the transformer of the company was not working and therefore by using transformer of the adjoining company theft has been committed.

5. Heard learned advocates appearing for the respective parties and perused the record.

5.1 Petitioner challenged the legality and propriety of the orders passed by both the Courts below. Provision of Section 39 of the old Act is brought to the notice of the Court, which reads as under;

"39. Theft of energy

.-Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer."

5.2 In this case, the panchnama was drawn and the place of offence is in the jurisdiction of Palsana village where company is situated. At the main gate, the raiding team found a

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transformer of LT company and while checking the light flow of power on that place electricity connection was found in a permanent state. Therefore, box was seized. The panchnama was drawn. The confession of the accused was noted. The evidence on record is at Exh.47 notes that the investigation report of consumer of the electricity connection was produced at mark 42/1 and it was alleged that accused making a private electricity connection had committed theft of electricity of Rs.14 lacs and sufficient evidence was found, charge sheet was filed.

5.3 The evidence suggest that applicant was Manager in the Spectrum Dyes and Chemicals Private Limited and the complainant could not be examined during the trial and the thus the confession which is alleged to be before the complainant could not be proved. PW Rameshbhai at Exh.16 states that direct power was used by the factory. The place of incident was on Baleshwar Highway. The electricity was through transformer which was going into the factory which is connected with the accused factory. There was direct connection without any meter and therefore it is stated that there was a case of electricity theft. As per the evidence of the witness who is Junior Engineer, Gujarat Electricity Board, incident had occurred at Spectrum Dyes and Chemicals Private Limited. According to the witness there was High Tension

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connection. Connection line given by the Board was discontinued by the factory person and it was found that private cable was connected to the transformer of factory adjoining to their factory.

5.4 The trial Court has relied upon the confession at Exh.40 and the Panchnama at Exh.15 but has failed to appreciate that a person before whom such confession has been given was not examined. As per the evidence of the Junior Engineer also usage was by factory person. As per Section 39 of the Old Act, it is provided to draw presumption against the consumer. The actual consumer would be Spectrum Dyes and Chemicals Private Limited, while the present petitioner is an employee of the company and actual consumer was not made an accused. The offence under Section 39 and 44 of the Act was registered against the petitioner. Section 44 could not be proved and petitioner came be acquitted and thus acquittal under Section 44 was for the only presumption of misuse of the energy which is considered as fault by using transformer of adjoining factory.

5.5 The appellate Court has reiterated the evidence of the trial Court but has failed to evaluate evidence that the consumer was required to be made an accused. Confession which is alleged of the present petitioner could not be proved

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by recording the evidence of a person before whom such confession was given.

5.6 In view of the reason given above, both the Courts below have failed to appreciate the evidence in its proper perspective, the company has not been joined as an accused, when the commission of offence would be attributed to the company and presumption would required tobe drawn as per Section 39 of the Old Act. Therefore, orders passed by both the Courts below are required to be quashed and set aside. The amount of Rs.8,44,950/- has already been deposited before the Board, which is observed by the appellate Court also in its judgment.

6. Thereby, judgment and order dated 30.06.2004 passed by the learned 2nd Joint Judicial Magistrate, Bardoli in Criminal Case No.214 of 1995 and also Judgment and order dated 31.05.2005 passed by the learned Additional Sessions Judge, 2nd FTC, Surat in Criminal Appeal No.5 of 2004 are hereby quashed and set aside. Petitioner is acquitted from all the charges leveled against him. Bail bond if any stands cancelled. Rule is made absolute to that extent.

(GITA GOPI,J) DRASHTI K. SHUKLA