[Cites 9, Cited by 0]

Gujarat High Court

Chaudhary Shankerbhai Kesharbhai vs State Of Gujarat on 2 December, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                            R/CR.A/1406/2008                                       JUDGMENT DATED: 02/12/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 1406 of 2008

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MS. JUSTICE GITA GOPI

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                                    Approved for Reporting                        Yes           No

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                                           CHAUDHARY SHANKERBHAI KESHARBHAI
                                                         Versus
                                                   STATE OF GUJARAT
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                       Appearance:
                       MR. YOGENDRA Thakore(3975) for the Appellant(s) No. 1
                       MR. ROHAN H. RAWAL APP for the Opponent(s)/Respondent(s) No. 1
                       ========================================================

                         CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                              Date : 02/12/2025

                                                              ORAL JUDGMENT

1. The appellant is the accused of the proceedings,

conducted before the learned Special Judge,

Mehsana in Special Electricity Case No.54 of

2007 under Section 135(1)(b) of the Electricity

Act, 2003. The conviction order was passed on

24.03.2008 sentencing the appellant-accused for

nine months rigorous imprisonment with a fine of

Rs.30,429/- with a default stipulation that in

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failure to pay, further seven months rigorous

imprisonment has to be undergone. Benefit of set

off was granted under Section 428 of the Code of

Criminal Procedure (for short 'Cr.P.C.'). The

endorsement of the Nazir on the judgment shows

that the accused had deposited the fine amount

of Rs.30,429/- on the very same day of the

judgment.

2. Being aggrieved and dissatisfied by the judgment

of conviction, the appellant is before this

Court under Section 374 of the Cr.P.C. on the

ground that the order of conviction passed by

the learned Special Judge, Mehsana is contrary

to the provisions of law and against the

evidence on record. It is contended in the

grounds inter alia that the order of conviction

and sentence is against the weight of evidence

on record. The prosecution had not examined any

independent witness, though available. The

Officers of UGVCL are the prosecution witnesses,

who cannot be considered as independent and

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their evidence would create doubt on their own

proceedings. One of the ground raised is that

the signature, which has been shown in the

investigation report Exh.9 was subsequently

taken. The Trial Court has erred in putting

implicit reliance on the prosecution evidence

while holding the appellant guilty of offence

alleged to have been committed.

3. Learned Advocate Mr. Yogendra Thakore for the

appellant-accused, referring to the provisions

of Section 135 of the Electricity Act, 2003,

submitted that the case against the present

appellant-accused was totally bad in law.

Advocate Mr. Thakore submitted that the

prosecution was required to prove that the

accused was the customer of UGVCL or was the

occupier of the premises, where the meter of

UGVCL in the name of customer was installed and

the use of the electricity was by the accused as

an occupier of the house.

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3.1 Learned advocate Mr. Thakore submitted that the

witness of UGVCL had failed to prove the

ownership of the house and even failed to prove

the allegation of tampering with the meter or

using loop connections or other devices or

methods to interfere with the flow of the

electric current, thereby stealing the

electricity.

3.2 Referring to the depositions of the witnesses,

Advocate Mr. Thakore submitted that it was a

bulk raid conducted in the area of village

Sangthada, Kheralu Taluka and the Officers of

the UGVCL had to show their work and therefore,

without any proper verification, the complaint

had been lodged. The inspection report records

the name of consumer as Choudhary Kesharbhai

Dalabhai, while signature of the present

appellant-accused was taken on the inspection

report. Advocate Mr. Thakore submitted that it

was the duty of the UGVCL Officer to have

inquired about the consumer himself, but had

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failed to do so. Advocate Mr. Thakore stated

that the inspection report rather states that

the theft is by the customer, while the record

clearly proves that the present appellant-

accused is not the customer of the electricity

connection, which had been provided.

3.3 Further referring to the inspection report,

Advocate Mr. Thakore stated that the appliances

which were used in the house had been noted and

the bill of Rs.10,141/- was issued to the

present appellant-accused, but the prosecution

witness had failed to even find out the

ownership of the appliances, which were noted in

the inspection report as well as ownership of

the house.

3.4 Advocate Mr. Thakore submitted that Exh.10, the

notice dated 19.07.2006, was after the raid on

18.07.2006. The notice was given in the name of

the customer with the customer number. Notice at

Exh.10 was issued to Choudhary Kesharbhai

Dalabhai, who was the father of the appellant-

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accused. The said notice at Exh.10 states that

the incident of electricity theft had occurred

earlier too and the present incident dated

18.07.2006 was second of its kind and therefore,

the notice was given for compounding the offence

on payment of Rs.10,143/-, which was shown as a

supplementary bill. Advocate Mr. Thakore, thus,

submitted that the prosecution witness had given

the notice to the customer and not to the

occupier, who is alleged to be the present

appellant - the son. Advocate Mr. Thakore, thus,

stated that the evidence has come on record by

way of the Investigating Officer that Kesharbhai

Dalabhai had died on 30.04.1984. The document at

Exh.17 is the death certificate produced by the

police. In view of the fact, Advocate Mr.

Thakore, thus, submitted that the notice Exh.10

dated 19.07.2006 is to a dead person. The UGVCL

Officer had failed to even verify about its

customer. The prior incident of electricity

theft has been recorded. If that had been so and

the payment was made for reconnection, UGVCL

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would have certainly found out that the customer

himself has not prayed for reconnection and

should have asked the appellant-accused about

the evidence of ownership of the house for

change in the customer's name.

3.5 Advocate Mr. Thakore submitted that the

prosecution has failed to prove the present

appellant-accused even as an occupier of the

house and the evidence has not been produced to

prove beyond reasonable doubt that the

electricity theft was by the present appellant-

accused as an occupier of the place.

4. Countering the arguments vehemently, learned APP

Mr. Rohankumar H. Rawal submitted that it cannot

now lie in the mouth of the appellant-accused to

dispute the ownership of the house when he

himself had admitted the Panchnama Exh.19 as

well as the Panchayat Tax Receipt Exh.20 in the

name of the accused as well as the depute order

Exh.18 of the police. Learned APP Mr. Rawal

submitted that the notice Exh.10 was issued for

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giving the opportunity to the present appellant-

accused to compound the offence by paying the

money. That itself was an opportunity for the

accused to even disclose before the UGVCL

Officer about the ownership of the house and for

change in customer's name. Learned APP Mr. Rawal

submitted that the conduct of the accused before

the officer was as of the owner of the premises,

where the raid was conducted the signature on

the inspection report fortifies that fact and

that the admission of the signature on

inspection report is sufficient for accepting

the case of electricity theft.

4.1 The charge was framed below Exh.5 in Special

Electricity Case No.54 of 2007 against the

present appellant-accused with the facts that on

18.07.2006, the UGVCL Officers had done the

checking at Village Sangthada, Taluka Kheralu

at the house of the appellant-accused, and it

was found that, at a little distance from the

meter, the service wire was sharpened and the

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additional link wire was joined directly in the

fuse without top. Therefore, no reading was

recorded by the meter for the electricity

consumption. Therefore, the accused was found

guilty of offence under Section 131(1)(b) of the

Electricity Act, 2003. The charge also noted

that earlier on 31.05.2005, the appellant-

accused was also found guilty of electricity

theft and a bill was issued to him, and that it

was a second offence of theft.

5. PW-4 Maheshbhai Narsinhbhai Solanki was a head-

constable at Sabarmati Police Station. He was

given the investigation by the depute order. He

had recorded the statement of Bahmaniya and

Prajapati and had drawn the Panchnama. He had

received the Panchayat Certificate which he

proposed to produce at Mark 7/8, and the

Panchnama at Mark 7/6. The witness PW-4 stated

that during his investigation, it was found that

there was electricity theft through the meter

and the original owner of the meter was

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Kesharbhai Dalabhai. The death certificate of

Kesharbhai Dalabhai was produced at Exh.17 and

according to Investigating Officer, the meter

was used by his son - Shankarbhai Kesharbhai

Chaudhary, who is the present appellant-accused.

Therefore, he arrested the accused and charge-

sheet was filed. In the cross-examination, the

Investigating Officer stated that he had no

information about the sons and daughters of

deceased Kesharbhai. There were many

neighbouring houses at the place of the raid and

the Muddamal meter and wire were not seized. He

himself has not investigated at the place

regarding electricity theft.

5.1 The death certificate shows that Kesharbhai had

died on 30.04.1984. The Panchnama which was

admitted by the accused at Exh.19 was drawn by

the police on 03.09.2006 in presence of panchas

which was shown to be the house of Shankarbhai

Kesharbhai Choudhary. The adjacent places were

recorded. On the eastern side, there was an open

road, on the western side was Panchal Vas, on

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the northern side was the house of Choudhary

Dayiben Dalsanbhai, while the southern side

adjoining the compound was the house of

Govindbhai Abhirajbhai. On examining the house,

they found the electricity connection was in

force and was noted that it was reconnected by

GEB, Kheralu. The Panchnama notes that nothing

was collected from that place.

5.2 Panchnama Exh.19 does not record the Panchayat

house number. It had not happened that the

accused himself had shown the house. The

complainant Rajeshbhai Gopalsingh Bahmaniya

showed the place as the house of accused. The

document Exh.20 which has been relied upon by

the I.O. is the tax receipt issued by the Talati

of Sangthada Gram Panchayat. The house number is

A/30. The receipt date is 11.03.2006 for the

year 2005-06. In absence of Pedhinama and

verification of the heirs of the deceased

Kesharbhai, the occupier of the place of the

house of Kesharbhai could not be considered to

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have been proved.

5.3 The UGVCL Officer was required to ask for the

documentary evidence from the occupier himself

to show the ownership of the house. They are

entitled to ask for such documents, if it

becomes relevant in their opinion for the

proceeding. Such authority is given under sub-

section (2) of Section 135 of the Electricity

Act, 2003. The vital aspect which becomes

relevant is that the charge framed recorded of

the earlier theft which was dated 31.05.2005.

The notice which was issued at Exh.10 has not

named the present appellant-accused. Rather, it

was in the name of the deceased father -

Choudhary Kesharbhai Dalabhai and the notice

describes the theft of electricity by the

consumer who was Choudhary Kesharbhai Dalabhai.

The consumer number with the electricity

connection for residential use has been

recorded, though earlier the electricity theft

was found, the UGVCL Officer had not verified

the ownership of the house for reconnection of

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the electricity supply. On deposit of the money,

the supply line of electricity has to be

restored within a period of 48 hours. It was

also required to be proved by the officer-

prosecution witness as to who had made the

payment of the supplementary bill, earlier in

connection with the incident of 31.05.2005.

5.4 The inspection report Exh.9 bears the signature

of the accused, who in his statement under

Section 313 Cr.P.C., has stated that the

signature on the inspection report was taken by

the officer later on. Exh.9 shows the

endorsement that when the meter was checked upon

the place, they found the manipulation in the

service line as referred hereinabove and

therefore, has noted that the meter was not

recording the usage. There was a meter by-pass.

The endorsement specifies as such that the

customer has committed the theft of electricity

and it was a case of electricity theft. The name

of the customer at Exh.9 was Choudhary

Kesharbhai Dalabhai. The appliances which were

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shown to be put to use were one TV, one fridge,

one grinding machine, four fans, two lamps and

two tubes.

6. The evidence of PW-1 - Rajeshkumar Gopalsingh

Bahmaniya refers to the checking on 18.07.2006.

The customer no. 22618/00124/9 and the name of

the customer is shown as Choudhary Kesharbhai of

Sangthada village. It was recorded that the

service line which was joined with the meter was

sharpened and an additional link wire was used

and from the outgoing link wire from the meter,

additional link wire was joined to the fuse

without top and from that outgoing connection,

the electricity was used, though the meter was

stagnant and such tampering showed the case of

electricity theft. During the checking, they

found the theft of load of 1566 kilowatts, the

signature of the present appellant-accused -

Shankar Kesharbhai Chaudhary was received on the

checking sheet. The bill for electricity theft

was assessed as Rs.10,141/- and that was sent to

the accused with a communication forwarded by

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Registered Post A.D. Thereafter, the power

supply was stopped and service wire and the

meter were seized.

6.1 The witness has stated of giving the police

complaint. The complaint was shown as mark-A

which has been led in evidence at Exh.15. The

complaint is dated 21.07.2006. Section 135 of

the Electricity Act, 2003 in the second proviso

to sub-section (1A) makes it mandatory for the

officer of the licensee or the supplier to lodge

the complaint in relation to the commission of

such offence in the police station, having

jurisdiction within a period of 24 hours from

the time of such disconnection. From the

evidence of PW-1, it appears that there was a

disconnection of supply of electricity

immediately after the raid. The officer has not

clarified the exact time of disconnection of the

electricity supply, however, considering the

evidence of PW-1, the complaint was required to

be filed on 19.07.2006, which came to be

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registered on 21.07.2006. The delay itself

becomes fatal. The mandatory provision directing

the officers to file the complaint immediately

within 24 hours is to avoid any scope of

infraction or misdemeanor from any of the side.

The third proviso to sub-section (1A) further

clarifies that on deposit of the assessed amount

for the electricity charges in accordance with

the provision of the Act, without prejudice to

the obligation to lodge the complaint as

referred in the second proviso, the licensee or

the supplier would restore the supply line of

electricity within 48 hours of such deposit of

payment. In the present matter, the charge

framed shows that earlier on 31.05.2005, there

was a case of electricity theft. The father had

died on 30.04.1984. The money as assessed would

have been recovered from the present appellant-

accused. What had happened of that earlier case

of theft has not come on record, whether any

complaint was lodged against the accused as an

occupier of the place has not proved, no efforts

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have been made from the side of the UGVCL to

change the name of the customer. PW-1 further

states that the signature of the son of the

customer was taken on the inspection sheet and

the bill for the theft was given to the accused

with a notice.

6.2 According to the officer, the Muddamal which was

seized was returned back by the police to them

by receipt at Exh.12. The document Exh.12 is

produced by Head Constable, GEB Police Station,

Sabarmati, which is to the Deputy Engineer,

Kheralu Sub-Division, with the subject for safe

possession of the Muddamal, instructing the

Kheralu Sub-Division to produce the Muddamal as

and when called for by the Court. From the place

of incident, wire and meter were seized. No such

wire and meter was produced by PW-1. Witness

stated that no complaint was filed for the

earlier electricity theft. The appellant-accused

had paid the money of the theft. In the cross-

examination, PW-1 states that no compound charge

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was taken for the earlier case of theft. When

they had conducted the raid, there were many

people from the public. No signature has been

received of any person from the public. He

affirmed that the Muddamal which was seized was

not sealed and the meter was not sent for

laboratory examination.

6.3 The evidence, thus, would prove that the

complaint has not been filed within 24 hours.

Though the earlier theft of 31.05.2005 was found

of the electricity, no complaint was filed

against the appellant-accused. The money was

though stated to have been deposited by the

accused, the compound charge was not received.

Section 135 of the Electricity Act, 2003 refers

to the provision of first conviction, second and

subsequent conviction. The relevant provision of

Section 135 of the Electricity Act, 2003 is

abstracted hereinbelow:

"Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or

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attempted consumption or attempted use-

(I) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction of the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;

(II) exceeds 10 kilowat, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:

Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity of electricity for that period from any other source or generating

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station:"

6.4 On first conviction, the fine imposed shall not

be less than three times of financial gain on

account of such theft of electricity, if in a

case, where the load abstracted, consumed or

used or attempted abstraction or attempted

consumption or attempted use does not exceed 10

kilowatts. In the event of second or subsequent

conviction, the fine imposed shall not be less

than six times of financial gain on account of

such theft of electricity. Here, the complaint

shows that there was a total electricity theft

of 1566 kilowatts, which as provided in Clause

(ii), the fine imposed on first conviction shall

not be less than three times of financial gains.

On account of such theft of electricity and in

event of second or subsequent conviction, the

sentence shall be imprisonment for a term not

less than six months but which may extend to

five years and with a fine not less than six

times of financial gain on account of such theft

of electricity.

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7. The prosecution witness no.1 was required to

prove the fact of the earlier electricity theft.

In what way the offence was compounded would

become a relevant aspect in wake of the penal

provision. The electricity bill at Exh.11 shows

the consumer as deceased Chaudhary Kesharbhai

Dalabhai. PW-2 - Kaushikbhai Joitaram Prajapati

was the Junior Engineer, who has also referred

to the incident dated 18.07.2006. He clarifies

that they had gone to the house of Choudhary

Shankarbhai Kesharbhai. If that had been so, the

officer was required to ask for the necessary

documents regarding the ownership or occupation

of the house, since the relevant evidence as the

customer of the meter was Choudhary Kesharbhai

Dalabhai, which witness has admitted in his own

evidence. PW-2 also states that the signature of

the accused was taken on the checking sheet. The

meter customer number is recorded as

22618/00124/9 which makes it clear that both the

witnesses PW-1 and PW-2 were aware of the fact

that the electricity meter was not running in

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the name of the accused.

7.1 PW-3, Shantilal Bhodanath Nayi, the P.S.O of

Sabarmati Police Station states that on

08.08.2006, he received a complaint through post

and he had registered it and deputed it for

investigation to In-charge Head Constable

Maheshbhai Solanki - PW-4. The complaint was

admitted in evidence at Exh.15. This fact also

makes it clear that the raid which was conducted

on 18.07.2006 for which complaint dated

21.07.2006 was sent through post and was

received by the police station only on

08.08.2006. The delay in filing the complaint

also goes against the provision of Section 135

of the Electricity Act, 2003.

8. Section 135 in the third proviso of Section (1)

lays down the statutory presumption which is

required to be raised, where the prosecution

initially is required to prove that the

artificial means or means not authorized by the

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Board or a licensee or a supplier exist for

abstraction, consumption or use of electricity

by the consumer. The presumption is required to

be drawn, that the abstraction, consumption or

use of electricity has been dishonestly caused

by such consumer. The contrary can be brought on

record to dislodge the presumption.

8.1 Here in the present case, the wire as well the

meter stated to be seized had not been produced

before the Court to prove such unauthorized use.

The presumption could be drawn as provided only

against the consumer, while in the present case,

the prosecution has failed to prove that the

accused was a consumer of UGVCL. The rebuttal

evidence has been self-explanatory on the

record, where the prosecution witnesses as

Officers of UGVCL have not clarified that the

case of theft as recorded was by the consumer

himself or by the occupier with the use of

unauthorized mean. The accused has not been

proved to be the occupier of the premises.

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8.2 The Electricity (Rights Of Consumers) Rules,

2020 defines the "consumer" as under Section

2(f) and "occupier" under Section 2(k). The

definition is abstracted here-in-below:

"(f) "Consumer" means any person who is supplied with electricity for his own use by a distribution licensee or the Government or by any other person engaged in the business of supplying electricity to the public under the Electricity Act, 2003 or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a distribution licensee, the Government or such other person, as the case may be.