Gujarat High Court
State Of Gujarat vs Jayantibhai Tapubhai Sachdev on 18 June, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/1044/2010 JUDGMENT DATED: 18/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1044 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
JAYANTIBHAI TAPUBHAI SACHDEV
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Appearance:
MR. SOAHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the
Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MR.DARSHAN A. DAVE(7921) for the Opponent(s)/Respondent(s) No.
1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 18/06/2025
ORAL JUDGMENT
[1] This is an Appeal, under Section 378 of the Code of
Criminal Procedure, 1973 (for short 'the Code'), filed by the
appellant- State of Gujarat challenging the judgment and order
passed by the learned Additional Sessions Judge, Rajkot on
23.03.2010 recorded in Special Criminal Case No.105 of 2006
(G.E.B.), whereby respondent - accused came to be acquitted of
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an offence punishable under Section 135 of the Indian Electricity
Act, 2003 (for short 'the Act, 2003').
[2] The case of the prosecution, as pleaded, that
Hiteshbhai Mukundray Mankad who was Dy. Engineer in
Gujarat Electricity Board (G.E.B.), Sub Division Rajkot, on
25.02.2004 along with his Junior Engineer - Shri Sanjaybhai
Nanalal Parmar, went for checking of electricity connections in
their area being Village- Munjka. When they reached near
Ramkrushna Hostel, they found one cabin wherein there was a
compressor machine carrying out puncture of tyre and electricity
was abstracted from low tension line directly with the use of
wires and it is being used. As claimed by the Dy. Engineer, such
use was by Jayantibhai Tapubhai i.e. the accused. Therefore, at
the site, he checked the same and checking-sheet was filled-in
seizing even wires used for abstracting illegal electricity directly
from the low tension line. Therefore, vide communication dated
10.04.2004 addressed to Police Inspector, Paschim Vidhyut
Board Police Station, Rajkot, a complaint came to be filed
against the accused for a theft of electricity to the tune of
Rs.35,784 and18 paisa.
[2.1] Pursuant thereto, an FIR came to be registered by the
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Police on 06.05.2004 at about 10:45 p.m. After registering an
FIR and carrying out the investigation, Police submitted a
charge-sheet against the accused in the competent Court. To
prove case against the accused, the prosecution examined 4
witnesses and produced 5 documents on record.
[2.2] Learned Judge, on conclusion of the evidence and
hearing arguments of the parties, acquitted the accused of the
charge levelled against him. Therefore, present Appeal is filed.
[3] Mr. Soaham Joshi, learned Additional Public
Prosecutor for the appellant - State vehemently submitted that
the Engineers of the Electricity Company have no axe to grind
against the accused and as and when they find any illegal
abstraction of electricity, they are duty bound to disconnect the
same and book the person who commits an offence of
abstracting or consuming or using electricity illegally. As per
their official duty, while carrying out the checking of connection,
it was found that respondent - accused was running his shop of
sugarcane juice and preparing puncture of vehicle tyre through
illegally abstracted electricity and therefore, as per the procedure
prescribed, he filled-in the checking-sheet showing the name of
the accused and seized the red-colored copper wires with the
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help of which direct connection was taken by the accused.
Therefore, Dy. Engineer disconnected the wire from the pole and
recommended to initiate action against the accused under the
provisions of law. Since accused refused to sign the checking
report, it was so mentioned in the checking-sheet.
[3.1] He has further submitted that the depositions of Dy.
Engineer and Junior Engineer who had carried out the checking
of the place wherefrom it is found that there is illegal abstraction
of electricity, there is no reason to discard the depositions before
the Court. Therefore, he has submitted that an order of acquittal
be interfered with and accused may be suitably punished.
[4] As against that, Mr. Darshan Dave, learned advocate
for the respondent - accused submitted that there is no evidence
brought on record by the prosecution by way of independent
corroboration that the said illegal abstraction of electricity was
by the accused himself. He has further submitted that no
independent witnesses of the locality, though available, are
associated with the rojkam / checking-sheet being prepared and
signed.
[4.1] Drawing attention of the Court to sub-section (4) of
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Section 135 of 'the Act, 2003', it is submitted that the provisions
of 'the Code', relating to search and seizure shall apply, as far as
may be, to searches and seizure under 'the Act, 2003' as well.
Therefore, he has submitted that to lend assurance to the official
duty carried out by the Officers of the G.E.B. and when offence is
made punishable with imprisonment for a term which may
extend to three years or with fine or with both, they have to
follow the procedure prescribed under 'the Code' to lend an
assurance to their official work being carried out. Therefore,
according to his submission, two independent persons from the
locality must be associated either with drawing of panchnama or
preparing even a checking-sheet so as to lend assurance to their
deeds.
[4.2] Drawing attention of this Court to Exhibit-14, it is
submitted that though names of two persons are shown in the
checking-sheet at Sr Nos.2 & 3, their signatures are also not
obtained in the checking-sheet to show that checking /
inspection is being carried out in presence of two independent
persons of the locality. He has further submitted that though
checking -sheet Exhibit-14 reflects that in the place of signature
of a consumer, as recorded by the Officer "refused to sign", there
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is no material to show except the statement of the Dy. Engineer
and Junior Engineer that the accused has "refused to sign" the
same. Again it is also not in the presence of independent persons
of the locality so as to depose before the Court about refusal to
sign by the consumer. Therefore, he has submitted that when
two views are possible, the view which is favourable to the
accused is to be accepted. When order of acquittal is recorded by
the learned Judge and it is not shown that no other view is
possible than the view that accused has committed an offence
under 'the Act, 2003', that too, beyond reasonable doubt, this
Court may not interfere in the order of acquittal passed by the
learned Judge.
[5] Having heard the learned APP for the appellant -
State as also learned advocate for the respondent - accused and
going through the depositions as also the impugned judgment
and order, let me examine whether any case is made out to
interfere with an order of acquittal passed by the learned Judge
or not?
[6] Though on first reading of the judgment, learned
Judge has laid stress on the fact that complaint is filed late by at
least 180 days for which no explanation is offered, it is factually
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incorrect. Though checking of the illegal connection which was
carried out on 25.02.2004 and reported to the Police within one
and half months i.e. on 10.04.2004, Police appears to have
recorded the FIR only on 06.05.2004. Even if those dates are to
be considered, in no case, it would be beyond two and half
months. Therefore, when learned Judge records that FIR is filed
6 months late without any explanation offered, it is factually
incorrect.
[7] Be that as it may, let me examine whether case calls
for any interference or not.
[8] Going through the deposition of (PW-1) Hiteshbhai
Mukundray Mankad, who is Dy. Engineer in G.E.B., who had
carried out checking of electricity connection where he found
illegal abstraction of electricity by placing wire on low tension
line directly by the accused, is claimed by him and a checking-
sheet is prepared. Though he claims that said illegal electricity
was being used to run the compressor of carrying out puncture
of tyre and running a machine of sugarcane juice by the
accused, there appears no material except his bare words that it
was done by the accused. Though the place where illegal
abstraction of electricity is found in an area thickly populated
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and availability of independent person, no independent person is
associated while carrying out the checking of the connection by
the Officers of the G.E.B. Not only that, to lend assurance to
their official duty made in public whereby an offence is said to
have been committed under 'the Act, 2003' and provisions of 'the
Code' is also, as far as may be, made applicable, the Officers are
not absolved from following the procedure of 'the Code'. When
they write the names of two independent persons at Sr. Nos. 2 &
3, as reflected from the checking-sheet, though neither Dy.
Engineer nor Junior Engineer, so stated taking it to be
independent witness, no signature of them is obtained in the
checking-sheet. Not only that, no independent panchnama of the
place of occurrence whereby it can be proved that there is
abstraction of illegal electricity from a low tension line, is carried
out by the Officers of G.E.B. At the same time, refusal to sign the
checking-sheet by the accused is also not supported by any
independent material in the form of deposition or even a
documentary evidence.
[9] Not only that, neither the G.E.B. Officers nor the
Police Officers who recorded the FIR, carried out any
investigation in proof of establishing that the cabin running
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compressor of making puncture of tyre and running sugarcane
juice machine, is being run by none else but the accused and he
owned that premises. Though for the ownership thereof, no
documents are available, it could have been ascertained through
independent witnesses by drawing panchnama even in presence
of the accused. Not only that, neither any photographs nor any
videography is being undertaken by Officers of G.E.B. to show
that illegally abstracted electricity from low tension line is being
used by the accused to run compressor of making tyre puncture
and sugarcane juice machine. The photograph or videography
may have even proved the presence of the accused and illegal
direct connection from low tension line which connects both the
machines. Not only that, there may be a switch-box to run those
machines, the Officers of G.E.B. did not even notice anything
except those machines are being run on that illegally abstracted
electricity.
[10] On top of it when their checking-sheet reflects that
from the electricity pole by the use of red-colored copper wire,
direct connection from low tension line is being taken in the
cabin to run aforesaid two machines, when muddamal wires,
though not produced and seized by the police, it was produced
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by (PW-1) - Hiteshbhai Mukundray Mankad at the time of his
deposition. However, he had to admit in his cross-examination
that muddamal wires which are produced, they are of different
colors. Though one bunch is of red-color, witness claimed that
those wires were seized from the cabin of accused which were of
red-colored only, whereas he produced two bunches of different
colored wires which can never be, according to his own case in
the checking sheet of different colors. Not only that, that wire is
seized at the spot is also not mentioned in the checking-sheet at
Exhibit -14. Not only that, they might have removed those wires
from the place but while filing complaint, it is not produced
either before the Police or before the Court when they lodged the
FIR.
[11] On top of it, there appears no seal over the said wire
reflecting information that it has been seized from a particular
place. (PW-1) - Hiteshbhai Mukundray Mankad has to further
admit that no documentary evidence is produced to show that
checking-sheet as also muddamal wires were deposited in the
office. Though normally electric poles bear distinct numbers,
there is nothing to show that it had any number incorporated of
the pole in the checking sheet.
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[12] (PW-2) - Sanjaybhai Nanalal Parmar, Junior Engineer
had to admit in his cross examination that Exhibit-14 reflects
that "refused to sign", it has not been mentioned that accused-
Jayantibhai Tapubhai Sachdev has refused to sign. Therefore,
there is no guarantee that accused was ever asked to sign the
same and he refused to sign.
[13] For the purpose of collection and recovery of any
dues, either as a consumer or by way of theft any electricity is
consumed, both can be dealt with for recovery of the same under
'the Act, 2003' / 'the Code' or any other provisions which may
not require strict proof to such an extent but when any person is
to be prosecuted criminally under Section 135 of 'the Act, 2003'
for unauthorized illegal abstraction of electricity, strict proof of
the offence, that too, beyond reasonable doubt is required.
Therefore, prosecution has to prove that none else but the
accused who is owner or even occupier of the cabin wherein
illegal electric connection directly from low tension line is taken,
has committed an offence, he cannot be punished.
[14] In view of the fact that no independent witnesses are
associated with the checking, absence of signature of persons
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who have been referred to in checking-sheet at Exhibit-14 as
independent person at Sr No.2 & 3, absence of any oral evidence
of independent witness or documentary evidence to show that
such illegal abstraction of electricity is done by the accused, no
Court of law, that too, criminal Court can convict an accused for
an offence under 'the Act, 2003'.
[15] Though learned Judge has failed to assign all the
reasons to record an order of acquittal, in view of discussions
made hereinabove on re-appreciation of the evidence, I see no
reason to interfere with the order of acquittal recorded by the
learned Judge.
[16] In view thereof, this appeal is without any merit, it is
hereby dismissed. Record and proceedings, if any, be sent back
to the concerned Trial Court.
(UMESH A. TRIVEDI, J.)
Lalji Desai
