Gujarat High Court
State Of Gujarat vs Aashish Jerambhai Faldu on 8 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 367 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
AASHISH JERAMBHAI FALDU
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Opponent/Respondent No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 08/04/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State
under Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') against the judgment and
order dated 30.11.2009 in Special (G.E.B.) Case No.133 of 2006
passed by the learned Special Judge, Jamnagar (hereinafter
referred to as 'the learned Trial Court'), whereby, the learned Trial
Court has acquitted the respondent from the offence punishable
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under Sections 135 of the Electricity Act, 2003 (hereinafter referred
to as 'the Electricity Act').
1.1. The respondent is hereinafter referred to as 'the
accused' as he stood in the original case, for the sake of
convenience, clarity and brevity.
2. The relevant facts leading to filing of the present
appeal are as under:
2.1. Ramjibhai Vashrambhai Nakum was a consumer of
electricity and was given Consumer No. 87101/59075/6 in Plot
No.385 situated in the G.I.D.C. in Darek area, Taluka Jamnagar
and on 17.03.2006 at around 11:20 hours, the members of the E.I.C.
Squad Jamnagar including Mr.J.J.Bhatt and other staff members
had done checking in Darek, Taluka Jamnagar and found the
accused Ashishbhai Jayrambhai Patel had tampered with the
meter seal and had made a hole in the top cover and had
committed theft of 31HP electricity. The necessary procedure was
done and a bill of theft of Rs.2,79,675.55/- was given to the
accused after the calculation as per rules, but the same was not
paid, and hence, the complainant, Nitinbhai Chimanlal Ghelani,
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Deputy Engineer, P.G.V.C.L., Jamnagar filed a complaint under
Section 135 of the Indian Electricity Act on 04.04.2006, which was
registered at G.E.B Police Station, Rajkot Zone at II-CR No. 257 of
2006.
2.2. After registration of the FIR, the investigation was
carried out by the concerned Investigating Officer and after having
sufficient material against the accused, the chargesheet came to be
filed before the concerned jurisdictional Magistrate which
culminated into Criminal Case No.5529 of 2006. As the case was
exclusively triable by the Court of Sessions, after completion of the
process under Section 209 of the Cr.P.C., the case was committed
to the Sessions Court and the same was registered as Special
(G.E.B.) Case No.133 of 2006.
2.3. The accused were duly served with the summons and
the accused appeared before the learned Trial Court and it was
verified whether the copies of all the police papers were provided
to the accused as per the provisions of Section 207 of the Code. A
charge was framed by the learned Trial Court at Exh.3 and the
statement of the accused was recorded, at Exh.4, wherein, the
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accused denied all the contents of the charge and the entire
evidence of the prosecution was taken on record. The prosecution
has examined 04 witnesses and has produced 13 documentary
evidences in support of the case.
2.4. After the closing pursis was submitted by the learned
APP at Exh.29, the further statement of the accused under Section
313 of the Code was recorded. After hearing the arguments of the
learned APP and learned advocate for the accused and after
perusing the documents on record, the learned Trial Court, by the
impugned judgment and order, has acquitted the accused for the
offence punishable under Sections 135 of the Electricity Act, 2003.
3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the Trial Court, the appellant -
State has filed the present appeal mainly stating that the impugned
judgment and order passed by the Trial Court is contrary to law,
evidence on record and principles of natural justice. The
impugned judgment and order of acquittal passed by the learned
Trial Court is based on inferences, not warranted by facts of the
case and also on presumptions, not permitted by law. The learned
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Trial Court has failed to appreciate that though there are direct
and indirect evidences connecting the respondent with crime in
produced in this case, the Trial Court has come to conclusion that
the prosecution has failed to prove the case beyond reasonable
doubt. The Trial Court has not properly appreciated the oral as
well as documentary evidence on record it its true spirit. The
learned Trial Court has not properly scrutinized and appreciated
the material and evidence on record which suggest that the
respondent has illegally committed theft of electricity. The Trial
Court has failed to appreciate that the complaint has been filed at a
belated stage and the prosecution has failed to give plausible
explanation with regard to the late filing of the complaint. The
Trial Court has erred in acquitting the accused though there are
ample and cogent evidence to connect the accused with the crime
and the offence registered against him. The impugned judgment
and order of acquittal passed by the Trial Court is illegal, invalid,
improper, perverse and bad in law and the same deserves to be
quashed and set aside.
4. Heard learned APP Ms.Jirga Jhaveri for the appellant -
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State. Though served, the respondent has not appeared either in
person or through an advocate. Perused the impugned judgment
and order of acquittal and have re-appreciated the entire evidence
of the prosecution on record of the case.
5. Learned APP Ms.Jirga Jhaveri for the appellant - State
has taken this Court through the entire evidence produced by the
prosecution and has vehemently argued that the Trial Court has
not appreciated the evidence properly and the prosecution has
produced cogent evidence to prove the the case and has
successfully proved the case against the accused but the Trial
Court has not considered the same and has acquitted the accused.
The judgment and order of acquittal passed by learned Judge is
contrary to law, evidence on record and principles of justice.
Learned APP has urged this Court to quash and set aside the
impugned judgment and order of acquittal and to find the accused
guilty for the said offence. Learned APP has urged this Court to
allow the present appeal and impose maximum sentence on the
accused.
6. At the outset, before discussing the facts of the present
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case, it would be appropriate to refer to the observations of the
Apex Court in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415, the Apex Court has
observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against
acquittal, the power of the Appellate Court is no less than the power
exercised while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be interfered
with, by an appellate court, where the judgment of the trial court is
based on evidence and the view taken is reasonable and plausible. It
will not reverse the decision of the trial court merely because a
different view is possible. The appellate court will also bear in mind
that there is a presumption of innocence in favour of the accused and
the accused is entitled to get the benefit of any doubt. Further if it
decides to interfere, it should assign reasons for differing with the
decision of the trial court". (emphasis supplied)
........ From the above decisions, in our considered view, the following
general principles regarding powers of appellate Court while dealing
with an appeal against an order of acquittal emerge;]
(1) An appellate Court has full power to review, reappreciate
and reconsider the evidence upon which the order of
acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate Court on the evidence before it may reach its
own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling
reasons', 'good and sufficient grounds', 'very strong
circumstances', 'distorted conclusions', 'glaring mistakes',
etc. are not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal. Such
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phraseologies are more in the nature of 'flourishes of
language' to emphasize the reluctance of an appellate
Court to interfere with acquittal than to curtail the power
of the Court to review the evidence and to come to its
own conclusion.
(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.
7. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation that
no interference has to be made in the order of acquittal unless after
appreciation of the evidence produced before the Trial Court, it
appears that there are some manifest illegality of perversity which
could not have been possibly arrived at by the Court. It is also a
settled principle that there is no embargo on the Appellate Court
to review the evidence but, generally the order of acquittal shall
not be interfered with as the presumption of innocence of the
accused is further strengthened by the order of acquittal. The
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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 of the prosecution i.e. (i) guilt of the
accused and (ii) his innocence, the view, which is in favour of the
accused, should be adopted, and if the trial Court has taken the
view in favour of the accused, the Appellate Court should not
disturb the findings of the acquittal. The Appellate Court can
interfere with the judgment and order of acquittal only when there
are compelling and substantial reasons and the order is clearly
unreasonable and where the Appellate Court comes to conclusion
that based on the evidence, the conviction is a must.
8. In light of the above, the evidence produced by the
prosecution on record is appreciated and the prosecution has
examined PW-1 Nitin Chimanlal Ghelani at Exh.7 and the witness
is the complainant, who has stated that he had received the
checking sheet, rojkam and other documents of Deputy Engineer
Mr.J.J. Bhatt and the Checking Squad on 25.03.2006, as per the
documents, even though the accused was not a consumer, he had
tampered with the seal of the metal meter box and had committed
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a theft of 32937 units of electricity and a bill of Rs.2,79,675.55/- was
given to him. That as he did not pay the amount, the complainant
filed the complaint, which is produced at G.E.B. Police Station,
Rajkot Zone by R.P.A.D. and the complaint is produced at Exh.11.
The complainant has produced the other documents including the
checking sheet, bill of theft etc. on record. During the cross-
examination by the learned advocate for the accused, the witness
has stated that whenever any team goes for fitting the meter,
Proforma-15 is filled up and the signature of the consumer is taken
in Proforma-15. That if damaged meters come to the laboratory
and they can be re-used and they are given to consumers and if
there is a hole on the top of the meter, it could be sealed. That in
the complaint, it is not mentioned that the hole was made by a drill
and in the document produced at Exh.9, there is no signature of
the maker of the bill and the bill was not given to the accused or
the consumer. The document produced at Exh.12 does not bear
the signature of the person, who has prepared the document and
the permission of the competent authority was not taken before
filing the complaint. The Investigating Officer did not go to the
place of incident and prepare any panchnama in the presence of
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the panch witnesses and no muddamal wire or meter or any other
electrical equipment was seized by the Police during investigation.
That muddamal wire was not handed over to the police by the
complainant or any members of the checking team.
8.1. The prosecution has examined PW-2 Jaydeep
Jayantbhai Bhatt at Exh.13 and the witness was working as a
Deputy Engineer in the E.I.C. Squad of P.G.V.C.L., Jamnagar and
on 17.03.2006, as a part of his duty, he had gone for checking to
Jamnagar G.I.D.C. Shed No.385. The witness has stated that he met
the accused at the place and on checking, it was found that the
seals of the meter box were tempered and there was a hole in the
top cover of the meter body and theft of electricity was taking
place. The checking sheet and other rojkam were prepared and
the meter was seized and packed in a paper and sealed and a
seizure memo was also prepared. The seized meter was deposited
in the G.I.D.C. (Industrial Sub-Division) Office and the witness has
produced the necessary documents at Exhs. 14 to 17. During the
cross-examination by the learned advocate for the accused, the
witness has stated that he did not have any documents or
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authority letter to show that he was authorized to check the
electricity connections and no panchnama was drawn in the
presence of independent witnesses at the time of the checking. The
procedure that was done was not done in the presence of the
panch witnesses and when the muddamal was seized, his
signature or the signature of the panch witnesses was not taken on
the paper packing.
8.2. The prosecution has examined PW-3 Prahladrai
Govindrai Valera at Exh.22 and the witness was working as the
P.S.O. in G.E.B. Police Station on 04.04.2006, when he had received
the written complaint of Nitin Chimanlal Ghelani, Deputy
Engineer, Industrial Sub-Ddivision, Jamnagar by post. The
complaint was registered with G.E.B Police Station II-CR No.257 of
2006 and the investigation was handed over to Police Inspector
Miyatra, but he had expired some time ago. During investigation,
Police Inspector Miyatra had recorded the statements of the
connected witnesses and had filed the charge sheet against the
accused. During the cross examination by the learned advocate for
the accused, the witness has stated that he had merely registered
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the complaint and during investigation, the Investigating Officer,
Mr. Miyatra had not drawn any panchnama in the presence of any
independent witnesses at the place of offence. The statements of
any independent witnesses were not recorded and no muddamal
was seized during investigation. There was no documentary
evidence that the complainant had the authority to file the
complaint and no such document was seized from the
complainant. The witness has stated that from Exh.10, it
transpired that the accused had filed Complaint No.123 of 2006
before the Consumer Forum, Jamnagar and had paid an amount of
Rs.2,79,676/- and Rs.1000/- as re-connection charges and as per
the interim order of the Forum, the electricity connection was
restored.
8.3. The prosecution has examined PW-4 Shantaben
Damjibhai Pambhar Exh.28 and the witness has stated that her
husband was the owner of G.I.D.C. Shed No.385 and her husband
had entered into a contract with the accused and had given the
shed on rent of Rs.3500/- and the document produced at Exh.26
was executed between them. That her husband had expired and
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she has identified the Rent Agreement at Exh.26. During the cross-
examination by the learned advocate for the accused, the witness
has stated that prior to giving the premises on rent to the present
accused, the premises were given on rent to some other person.
9. On minute appreciation of the entire evidence
prosecution, as per the case of the prosecution, the checking was
done on 17.03.2006 at 11:20 hours and the complaint was filed on
04.04.2006 at 13:15 hours and a written complaint was sent to the
G.E.B. Police Station by the complainant, but there is no
explanation regarding the delay in filing of the complaint. PW-2
Jaydeep Jayantbhai Bhatt examined Exh.13 is the sole witness, who
has stated that he had gone to do the checking at the place of
incident and has narrated the procedure that was undertaken by
him, but there is no evidence of any independent witnesses or any
member of his team to support his version and the procedure that
was undertaken on 17.03.2006. There is nothing on record to show
that the complainant was authorized to file the complaint or that
PW-2 Jaydeep Jayantbhai Bhatt was authorized to conduct the
checking and during the procedure, no muddmal was seized and
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no panchnama was drawn in the presence of independent
witnesses. PW-2 Jaydeep Jayantbhai has stated that he had taken
the meter and seizure memo was drawn, but the meter was not
handed over to the Investigating Officer, and it has not been
produced before the learned Trial Court. As per the document
produced at Exh.9, the bill for Rs.2,79,675.55/- was paid on
23.03.2006 and the receipt has been produced by the complainant
at Exh.10. An amount of Rs.1000/- has also been paid as
reconnection charges and from the document produced at Exh.12,
prima-facie. it appears that compounding charges of Rs.621/- was
demanded and the same was not paid. The complainant PW-1
Nitin Chimanlal Ghelani was not a member of the checking squad
and there is nothing on record to show that he was authorized to
file the complaint.
10. In view of the above, learned the trial Court has
appreciated the entire evidence in proper perspective and there
does not appear to be any infirmity and illegality in the impugned
judgment and order of acquittal. The learned trial Court has
appreciated all the evidence and this Court is of the considered
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opinion that the learned Trial Court was completely justified in
acquitting the accused of the charges leveled against them. The
findings recorded by the learned Trial Court are absolutely just
and proper and no illegality or infirmity has been committed by
the learned trial Court and this Court is in complete agreement
with the findings, ultimate conclusion and the resultant order of
acquittal recorded by the learned Trial Court. This Court finds no
reason to interfere with the impugned judgment and order and the
present appeal is devoid of merits and resultantly, the same is
dismissed.
11. The impugned judgment and the order dated
30.11.2009 in Special (G.E.B.) Case No.133 of 2006 passed by the
learned Special Judge, Jamnagar is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
