Gujarat High Court
State Of Gujarat vs Rajubhai Makanbhai Sachariya on 30 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1950 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
RAJUBHAI MAKANBHAI SACHARIYA & ANR.
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Appearance:
MS. CHETNA SHAH, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 30/06/2025
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 the order dated
09.08.2012 in Special (GEB) Case No.31 of 2009 passed by the learned
Special Judge, Jamnagar (hereinafter referred to as 'the learned trial
Court'), whereby, the learned trial Court has acquitted the respondents
from the offence punishable under Section 135 of the Electricity Act,
2003 (hereinafter referred to as 'the Act').
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1.1 The respondents are hereinafter referred to as 'the accused' in the
rank and file as they 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. The accused were the consumers of GEB and had consumer No.
87101/55091/6 in their business establishment known as Tulsi Enterprise.
On 26.08.2004, the Deputy Engineer- I/c Jamnagar - Mr. J. J. Bhatt and
other officers checked the electricity connection of the accused in Tulsi
Enterprise and found that they had taken a wire from all the three phases
and bypassed the meter and were committing theft of electricity. The due
procedure was followed and it was found that theft of electricity of
Rs.1,64,179.12/- was committed and on 04.10.2004, the complainant
Chandrakant Ramjibhai Patel, Deputy Engineer of Jamnagar Industrial
Sub Division filed the complaint under Section 135 of the Indian
Electricity Act, 2003, which was registered at G.E.B. Police Station being
II-C.R.No.1121 of 2004.
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
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concerned jurisdictional Magistrate. As the case was exclusively triable
by the Court of Sessions, therefore, after completion of process under
Section 209 of the Cr.P.C., the case was committed to the Sessions Court
and the same was registered as Special (GEB) Case No.31 of 2009.
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.4 and the statements of the accused were
recorded at Exh. 5 and 6, wherein, the accused denied all the contents of
the charge and the entire evidence of the prosecution was taken on record.
2.4. The prosecution produced four oral evidences and six
documentary evidences to bring home charge against the accused and
after the learned Additional Public Prosecutor filed the closing pursis at
Exh. 27, the further statements of the accused under Section 313 of the
Code of Criminal Procedure, 1973 were recorded, wherein, the accused
denied all the evidence of the prosecution on record. The accused refused
to step into the witness box or examine witnesses on their behalf and
stated that a false case has been filed against them. After the arguments of
the learned Additional Public Prosecutor and the learned advocate for the
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accused were heard, the learned trial Court by the impugned judgment
and order was pleased to acquit the accused from all the charges levelled
against them.
3. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned trial Court, the appellant -
State has filed the present appeal, mainly stating that the impugned
judgment and order passed by the learned trial Court is contrary to law,
evidence on record and principles of justice. That the 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 trial Court has not properly appreciated the oral as well
as documentary evidence on record it its true spirit. The prosecution has
failed to prove the case beyond reasonable doubt. The learned 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 them. The learned trial Court has also committed an error in
arriving at the conclusion that though the complainant and the
prosecution witnesses have fully supported the case of the prosecution
and there are no material contradictions, the learned trial Court has
acquitted the accused. The impugned judgment and order of acquittal
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passed by the learned 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. Chetna Shah for the appellant -
State. Though served to the respondents, they have not appeared either in
person or through an advocate. Perused the impugned judgment and order
of acquittal and has re-appreciated the entire evidence of the prosecution
on record of the case.
5. Learned APP Ms.Chetna Shah for the appellant - State has
taken this Court through the entire evidence produced by the prosecution
and has vehemently argued that the learned 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 learned 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. The judgment and order of acquittal passed by Judge
is based on inferences, not warranted by facts of the case and also on
presumption, not permitted by law. 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
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Court to allow the present appeal and impose maximum sentence on the
accused.
6. At the outset, before discussing the facts of the present 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, re-
striction or condition on exercise of such power and an appel-
late Court on the evidence before it may reach its own conclu-
sion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling rea-
sons', 'good and sufficient grounds', 'very strong circum-
stances', 'distorted conclusions', 'glaring mistakes', etc. are not
intended to curtail extensive powers of an appellate Court in an
appeal against acquittal. Such phraseologies are more in the na-
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ture 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 hav-
ing 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 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
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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
Prosecution Witness No. 1 Chandrakantbhai Ramjibhai Patel at Exh. 12
and the witness is the complainant, who has stated that on 26.08.2004,
Deputy Engineer - Mr. J.J. Bhatt and Junior Engineer Mr. A.J. Dave and
other members of the line staff had gone for checking and had checked
the electricity connection of Tulsi Enterprise. They found that the main
service line was cut and a red colour copper wire was joined, which was
joined to the load side and the meter was bypassed and theft of electricity
was being committed. The Checking Sheet produced at Exh.13 prepared
and the calculation sheet, which is produced at Exh.14 were prepared and
accordingly it was found that theft of electricity of Rs.1,64,179.12/- was
committed by the accused. The bill produced at Exh.15 was given to the
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accused and the amount was not paid by the accused, hence, the
complaint at Exh.16 was filed by the complainant on 4.10.2004 before the
Rajkot GEB Police station.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the alleged theft had occurred on
26.08.2004 and the complaint was filed on 04.10.2004. However, there is
no explanation for delay in filing the complaint mentioned in the
complaint, produced at Exh.16. No permission for filing the complaint
has been taken from any competent authority and the Investigating
Officer was not informed to seize the muddamal. No panchnama was
drawn in the presence of independent panch-witnesses and there is no
evidence seized by any officer regarding the ownership of the place,
where the theft was being committed. In the document produced at
Exh.15, which is the bill, no officer has signed and even in the
documents, there is no mention regarding the ownership of the place
where the checking had taken place.
8.1 The prosecution has examined Prosecution Witness No. 2
Jaydeepbhai Jayantkumar Bhatt at Exh.17 and the witness was working
as a Deputy Engineer on 26.08.2004 and he has stated that he and other
Junior Engineer Ashok Jayram Dave and other staff members had gone
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for checking the electricity connection of Consumer No. 87101/55091/6
at Tulsi Enterprise. They found theft of electricity being taken place and
the necessary documents were prepared and the Checking Sheet was
prepared by Junior Engineer Mr. Ashok Jayram Dave.
During the cross examination by the learned advocate for the
accused, the witness has stated that they had not taken any permission
from any competent authority for checking and the muddamal was not
taken by any panchnama in the presence of independent panch witnesses.
No statements of any neighbors were recorded and no documents
regarding the ownership of the property were taken by them.
8.2. Prosecution Witness No. 3 Prahaladray Govindaram Valera
examined at Exh.18 was working as a PSO at the GEB Police Station on
06.10.2004 when the complaint of the complainant Chandrakantbhai,
Ramjibhai Patel was received by post and the complaint was registered at
Rajkot GEB Police Station being II -C.R.No.1121 of 2004.
During the cross examination by the learned advocate for the
accused, the witness has stated that no documents and no muddamal were
sent along with the complaint. Moreover, there was no explanation for
delay in filing of the complaint.
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8.3. Prosecution Witness No. 4 Pravinsinh Nanbhai Jethva
examined at Exh. 26 6 is the Investigating Officer, who has narrated the
procedure undertaken by him during investigation. The witness has stated
that as there was sufficient evidence, he has filed the charge sheet.
During the cross-examination by the learned advocate for the
accused, the witness has stated that he did not seize any muddamal during
investigation and has not drawn any panchnama of the place of offence in
the presence of any panch witnesses. No statements of any witnesses
were recorded and the complainant did not take any permission from any
competent authority to file the complaint and no such authority was
produced along with the complaint. Moreover, he was not present at the
time of the checking and does not know what procedure was undertaken
by them at the time of the checking and during investigation no document
regarding the ownership of the place, where the alleged theft was being
committed, was seized by him.
9. On minute appreciation appreciation of the entire evidence
of the prosecution, the evidence that has come on record is that the
complainant Chandrakantbhai Ramjibhai Patel was not a member of the
raiding party and he had not gone for checking at Tulsi Enterprise and
hence was unaware about the procedure undertaken by the checking team
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at the time of checking. Moreover, as per the complaint, the checking was
undertaken on 26.08.2004 but the complaint dated 04.10.2004 was sent
by post to the Rajkot GEB Police Station and it was received at the Police
Station on 06.10.2004 and the FIR was registered at 06.10.2004 at 11:00
hours. In the complaint produced at Exh.16, there is no explanation
regarding the delay in filing the complaint and as per the case of the
prosecution, the theft was being committed in Tulsi Enterprise belonging
to the accused but no documentary evidence that the premises or Tulsi
Enterprise belonged to the accused, has come on record. Admittedly, the
place is a public place and independent witnesses would be available, but
no evidence of any independent witnesses has been brought on record.
The investigation officer has stated that he did not record the statements
of any witnesses and it is the case of the prosecution that the wires were
tapped into and a red colour copper wire was used to join the main line
and bypass the meter but no such wire was seized as muddamal by the
Investigating Officer. Moreover, there is no panchnama of the place of
offence that is produced on record and the procedure that was undertaken
by the checking party i.e. whether they had seized the muddamal and
where was the muddamal preserved has not come on record. Moreover,
Prosecution Witness No. 2- Jaydeepkumar Jayantkumar Bhatt examined
at Exh.17 has stated that he was a member of the checking squad and had
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gone along with the other officers who were checking, but there is no
documentary evidence produced on record that they had taken the
permission from the competent authority to go for checking or that he and
any other of his colleagues had actually gone for checking at the place of
the accused. As per Section 151 of the Act, the complaint must be made
in writing by the appropriate government or appropriate Commission or
any of their officer authorized by them or a Chief Electrical Inspector or
an Electrical Inspector but there is no evidence that the complainant was
authorized in any manner to file the complaint.
10. In view of the above, 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 Trial Court has appreciated all the evidence and this Court is of the
considered opinion that the Trial Court was completely justified in
acquitting the accused of the charges levelled against them. The findings
recorded by the Trial Court are absolutely just and proper and no
illegality or infirmity has been committed by the trial Court and this
Court is in complete agreement with the findings, ultimate conclusion and
the resultant order of acquittal recorded by the Trial Court. This Court
finds no reason to interfere with the impugned judgment and order and
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the present appeal is devoid of merits and resultantly, the same is
dismissed.
11. The impugned judgment and the order dated 09.08.2012 in
Special (GEB) Case No.31 of 2009 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)
VVM
