[Cites 18, Cited by 0]
Gujarat High Court
Navinbhai Karshanbhai Sojitra vs State Of Gujarat on 28 November, 2025
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Reserved On: 13/08/2025
Pronounced On : 28/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1013 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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NAVINBHAI KARSHANBHAI SOJITRA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
HL PATEL ADVOCATES(2034) for the Applicant(s) No. 1
MS LILU K BHAYA(1705) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 28/11/2025
CAV JUDGMENT
1. The present Revisional Application has been
preferred by the petitioner - original accused under
Section 397 read with Section 401 of the Code of
Criminal Procedure, 1973, challenging the judgment of
conviction passed by the Chief Judicial Magistrate, First
Class at Pardi in Criminal Case No. 440 of 2000 by
judgment and order dated 08.07.2005, whereby the
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petitioner has been convicted for the offence punishable
under Section 39 of the Indian Electricity Act, 1910
(hereinafter referred to as "the Old Act") and Section 379
and 114 of the Indian Penal Code. The petitioner has
been sentenced to undergo rigorous imprisonment for
one year and to pay a fine of Rs.2,000/- for each offence,
and in default of payment of fine, to further undergo
simple imprisonment for two months. The said judgment
of conviction has been confirmed by the Sessions Judge,
Valsad in Criminal Appeal No. 7 of 2005 vide order dated
20.12.2005.
2. It is the case of the prosecution that a complaint was
given by the original complainant before Pardi Police
Station alleging commission of the offence punishable
under Section 39 of the Old Act and Section 379 and 114
of the Indian Penal Code against the present petitioner-
accused No.1 - Mr. Navinbhai Karshanbhai Sojitra, and
accused No.2 - Mr. Mansukhbhai A. Thummar. On the
basis of the said complaint, an offence came to be
registered as I. C.R. No. 15 of 2000, alleging theft of
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electricity by the petitioner, for the offences punishable
under Sections 379 and 114 of the Indian Penal Code, as
well as Section 39 of the Old Act.
3. Thereafter, upon completion of the investigation, a
charge-sheet came to be filed against both the accused
persons, and the case was registered as Criminal Case
No. 440 of 2000. Both the accused, including the present
petitioner, pleaded not guilty, whereupon the matter
proceeded for trial and by the judgment and order dated
08.07.2005, the learned Judicial Magistrate, First Class,
Pardi convicted the present petitioner for the offences
punishable under Section 39 of the Indian Electricity Act,
1910 and Section 379 and 114 of the Indian Penal Code.
The petitioner was sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs.2,000/-
for each of the said offences, and in default thereof, to
undergo simple imprisonment for a further period of two
months. The co-accused, Accused No.2 - Mansukhbhai A.
Thummar, was acquitted of all the charges levelled
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against him.
4. Being aggrieved by the said judgment passed by the
learned Magistrate, the present petitioner preferred an
appeal before the Sessions Court, Valsad vide Criminal
Appeal No. 7 of 2005 and the said appeal came to be
dismissed by the Sessions Court and affirmed the
judgment of the learned Magistrate dated 20.12.2005
confirmed the judgment of the learned trial Magistrate
Judicial Magistrate First Class at Pardi. Hence, being
aggrieved and dissatisfied with the judgment of both the
Courts below, the present petitioner - original accused
preferred the present Revision Application under Section
397 read with Section 401 of the Code of Criminal
Procedure.
5. Heard learned advocate for the applicant, Mr. H.L.
Patel, submitted that there is no evidence on record to
establish that the premises in question belonged to the
present petitioner. It is submitted that no documentary
proof regarding the ownership or possession of the said
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premises by the petitioner has been produced by the
prosecution, and therefore, there is no material
connecting the petitioner with the alleged offence has
been produced. It is further submitted that although the
prosecution has claimed that the petitioner was in charge
or the administrator of the said premises, the learned
Trial Court has erroneously held that the petitioner was
also the power of attorney holder, even though no such
power of attorney has been produced on record for
reasons best known to the prosecution, creates a serious
doubt, and in the absence of such material, there is no
conclusive evidence linking the petitioner with the
property concerned. Learned advocate further submitted
that in view of Sections 101 and 106 of the Indian
Evidence Act, the burden of proof lies squarely upon the
prosecution to prove its case beyond reasonable doubt. It
is argued that the prosecution has mainly relied upon an
alleged confessional statement of the consumer,
purportedly involving the petitioner. However, the
petitioner has, from the very beginning, lodged his
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protest and objection to such confessional statements,
asserting that his signature was obtained merely as part
of the procedural formality and that the alleged
confession was not voluntary. It is submitted that the
petitioner has consistently retracted the said confession
before the Trial Court, and since the prosecution has
failed to prove that the statement was made voluntarily, it
cannot form the basis of conviction. In support of his
submissions, learned advocate has relied upon the
judgment of the Hon'ble Supreme Court in the case of
Noor Aga v. State of Punjab & Anr., reported in (2008) 16
SCC 417, wherein it has been held that a confession must
be shown to have been made voluntarily, and the onus
lies upon the prosecution to prove such voluntariness.
Failing this, the confession is hit by Article 20(3) of the
Constitution of India.
6. Further, it is submitted that both the Courts below
have relied upon the confession, which is not admissible
in evidence. Further, it is submitted that the complainant
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has not obtained any permission to file such complaint
even though, after the complaint was filed, the trial
proceeded, but the complainant did not produce any
proof of permission from the higher authorized officer.
This is in violation of Section 50 of the Electricity Act, and
for that he is relying upon the following authorities:
1. Avtar Singh vs. State of Punjab, reported in AIR 1965
SC 666;
2. Suresh Ramanlal Patel Vs. State of Gujarat, reported in
1979 (1) GLR 391;
3. State of Gujarat vs. Shanabhai Bhaijibhai Patel,
reported in 1985 (2) GLR 1103; and
4. State of Gujarat vs. Shabirbhai Ahemadbhai Shaikh,
reported in 2018 (4) GLR 3295.
It is submitted that there is a clear-cut violation of
Section 50, and hence the complainant had no authority
to file the complaint, and therefore the entire prosecution
is required to be quashed and set aside.
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7. Further, it is submitted that as per the charge at
Exh.6, the alleged offences were committed with the
abetment of the another accused, and therefore charges
were framed against two accused. In the trial, accused
No.2, who was also charged along with the present
petitioner, has been acquitted, and against that acquittal
no appeal or revision application has been preferred.
Hence, accused No. 1 could not have been convicted for
the same charge without a finding of abetment. Therefore
also, the judgments of the learned Courts below are
devoid of proper consideration of this aspect, and merely
on the basis of the examination-in-chief of the employee
of the Gujarat Energy Development Board the judgment
has been passed. Hence, both the Courts have committed
an error in convicting the present petitioner, the
judgment is perverse, and it is required to be quashed
and set aside, and the present petitioner is required to be
acquitted.
8. On the other hand, learned advocate for the
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respondent No. 2 - original complainant, Ms.Lilu K.
Bhaya, submitted that in the present case in hand, the
prosecution has proved its case beyond reasonable doubt.
Further, the learned Magistrate has found sufficient
evidence and recorded the findings, and held that the
charges against the present petitioner have been proved
beyond reasonable doubt and the present petitioner has
been convicted under Section 39 of the Indian Electricity
Act, 1910 and Section 379 and 114 of the Indian Penal
Code. Further, it is submitted that the present petitioner
has not even paid the amount of the bills. It is further
submitted that two incidents had taken place: the first on
13.01.2000 and the second incident on 19.01.2000. On
both occasions, the present petitioner was found
committing theft of electricity. Hence, considering this,
the learned trial Court has rightly convicted the present
petitioner. Thereafter, the same was challenged by
preferring an appeal before the Sessions Court. The
Sessions Court has not found merit in the appeal; the
appeal has been dismissed and the judgment of
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conviction passed by the trial Court has been confirmed.
It is submitted that, so far as the present petitioner is
concerned, there are concurrent findings of conviction by
both the Courts and therefore the scope of this Court in
revision is very narrow, and unless and until the Court
finds that the judgment is against the settled principles of
law or is perverse, only in such circumstances can it be
interfered with. At this stage, the oral evidence cannot be
re-appreciated. Hence, it is submitted that the present
revision application is devoid of merits and requires to be
dismissed and set aside.
9. Learned Assistant Public Prosecutor submitted that
Revision Application is devoid of any merit and required
to be dismissed.
10. After hearing the rival submissions of the learned
advocates for the respective parties, and after perusing
the judgment passed by the learned trial Court as well as
the judgment of the appellate Court, and also the record
and evidence, it appears that in the present case in hand,
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it is an established fact that the present petitioner is
facing concurrent findings of conviction by the Magistrate
Court and the District Court. So far as the scope of
revision at this stage is concerned, it is very narrow.
Unless and until it is found that the judgment passed by
the learned Courts is against the settled principles of law
or is perverse or erroneous, only in such circumstances
can this Court interfere with the findings recorded by the
Courts below.
11. Keeping in mind the aforesaid settled legal position,
it is necessary to examine the factual matrix of the
present case. The record reveals that the first written
complaint was submitted by Mr. Jayeshkumar Dineshbhai
Tanna, Deputy Engineer, Gujarat Electricity Board, GIDC
Sub-Division, Vapi. On 12.01.2000, he addressed a
written complaint to the Police Inspector, GIDC Police
Station, Vapi, stating that Plot No. 809/H/R, situated in
Chanod Colony, GIDC, Vapi, stands in the name of
Consumer Plastics, is being administered by Mr.
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Navinbhai Karshanbhai Sojitra, resident of Aradhna
Apartment, who had obtained an ad-hoc electricity
connection for construction purposes in the said plot. It
was further alleged that on 13.01.2000, during inspection
by the Junior Engineers of the Electricity Board, the seals
of the temporary connection meter were found tampered
with, indicating commission of electricity theft. The
inspecting staff thereafter removed the meter,
disconnected the electricity supply, and issued a bill of
Rs. 1,03,039.06 to the accused. Subsequently, on
19.01.2000, upon further inspection, the complainant and
other officials of the Electricity Board found that on the
said plot where Yogeshwar Apartment had been
constructed by the accused 16 flats had already been
built and further construction was in progress. It was
noticed that the accused had taken an illegal direct
connection from the transformer located near the
compound wall of Yogeshwar Apartment. Without any
electric meter, wires had been connected directly to the
transformer and electricity was being unlawfully
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consumed. The officials also obtained a confessional
statement from Mr. Navinbhai Karshanbhai Sojitra and
recorded the entire raid proceedings, including video
recording. A further a bill of Rs. 98,734/- was issued in
respect of the said illegal use of electricity. In view of
these, a written complaint was given by Mr. Jayeshkumar
Dineshbhai Tanna on 22.01.2000 before the GIDC Police
Station, Vapi, requesting initiation of criminal
proceedings against Mr. Navinbhai Karshanbhai Sojitra
and Mr. Mansukhbhai Ambabhai Kumar for offences
punishable under Sections 379 and 114 of the Indian
Penal Code and Section 39 of the Indian Electricity Act,
1910. Pursuant to the said complaint, investigation was
undertaken and a charge-sheet came to be filed against
the present petitioner and the co-accused for the
aforementioned offences.
12. The learned Magistrate has framed charge against
the accused persons vide Exh.6, and mainly the charge
has been framed by the Court against both the accused
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persons that on 13.01.2000 and on 19.01.2000 at about
12:20 p.m. at Mouse Vapi, Udyognagar, at Plot No.
809/H/Yogeshwar Apartment, both the accused had
directly connected electricity from the transformer of the
Electricity Board, and thereby they were found
committing theft of electricity, and they had committed
the offence under Section 39 of the Indian Electricity Act,
1910 and Section 379 and 114 of the Indian Penal Code.
Both the accused pleaded not guilty. Thereafter, the
prosecution examined a total of 8 witnesses, mainly:
PW-1 Jayeshkumar Dineshbhai Tanna (Complainant) -
Exh. 12;
PW-2 Virendra Dhansukhbhai Chauhan - Exh. 24;
PW-3 Anilbhai Madarbhai Patel - Exh. 25;
PW - 4 Pragatish Chandrakant Shah - Exh. 27;
PW -5 Ashokbhai Ramanbhai Mali - Exh. 29;
PW - 6 Maheshbhai Jivanbhai Patel - Exh. 34;
PW - 7 Vijaybhai Laxmanbhai Patel- Exh. 38;
PW - 8 Arvindbhai Shantilal Navagamiya - Exh. 44.
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A total of 4 documents have been relied upon by the
prosecution, mainly:
1. Statement of the consumer (Exh. 13).
2. Confessional statement/Admission (Exh. 14).
3. Police complaint (Exh. 15).
4. Panchnama of the place of offence (Exh. 39).
After the evidence of the prosecution was completed
and after hearing the rival submissions of the respective
advocates of both the side the learned Magistrate
convicted the present petitioner for the offences
punishable under Section Section 39 of the Indian
Electricity Act, 1910 and Section 379 and 114 of the
Indian Penal Code and sentence him to undergo 1 year's
imprisonment and fine of Rs.2,000/- and in default of
payment of fine, 2 months simple imprisonment and
whereas accused No. 2 was acquitted. The said judgment
was challenged by preferring an Criminal Appeal No.7 of
2005 before the District Court, and the District Court
dismissed the appeal. Hence, the present revision
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application has been preferred.
13. Considering the above factual aspects, the argument
pertaining to violation of Section 50 is that the
complainant was not authorized to file a complaint under
the Old Act. The learned advocate has relied upon certain
authorities, and it appears that the said aspect has
already been considered by the Sessions Court in the
appeal. As regards the Old Act, there was an amendment
on 12.08.1986 in Section 50, and in Section 50 of the
Principal Act, after the word "Government," the words
"or the State Electricity Board" have been inserted.
Therefore, all the authorities on which the learned
advocate for the petitioner has relied upon prior to the
amendment in 1986. Hence, the argument of the learned
advocate for the petitioner that Section 50 has not been
complied with and permission has not been sought from
the higher authority does not carry any force, as there
was an amendment in the Old Act in the year 1986. In the
present case, as per the allegations, the offence has been
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committed in the year 2000.
14. Now, the other argument advanced by the learned
advocate for the petitioner is regarding the fact that the
present petitioner has been convicted on the ground that
he was the administrator / power of attorney holder of the
construction known as Yogeshwar Apartment. In that
regard, it is an admitted position that no documentary
evidence has been produced by any of the witnesses, and
even the Investigating Officer has not clarified in what
capacity the present petitioner was connected with the
said building whether as an occupier, owner,
administrator, or power of attorney holder.
15. Further, from the evidence and from the case of the
prosecution, it is very much clear that on 13.01.2000 and
on 19.01.2000, the electricity theft was found in Plot No.
809/H/R Yogeshwar Apartment, Udyognagar Area, Vapi.
As per the complaint, it has been stated by the
complainant that the present petitioner is the
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administrator of the said plot, which is in the name of the
firm - Consumer Plastic, and the present petitioner is the
administrator of the said firm. It is also stated that in the
said plot, there is a construction consisting of 16
residential flats. In this regard, it is now required to
consider the oral evidence given by the complainant - Mr.
Jayeshkumar, who has been examined vide Exh.12. As per
his deposition, he has not stated anything that when on
19.01.2000 they reached the place of scene of offence,
the present petitioner came there, and thereafter, on the
checking sheet and on the statement of the consumer and
the confession statement, the signature of the present
petitioner was taken. However, he has not uttered a
single word regarding in what capacity the present
petitioner is connected with the said building, i.e.,
Yogeshwar Apartment - whether he is the owner,
occupier, or power of attorney holder. In the cross-
examination, the said witness has stated that the present
petitioner has been given a power of attorney for
administration of this plot/building, but nothing has been
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produced, and he admitted that he has not given a copy of
the power of attorney to the police. Further, another
witness, who is also a member of the raiding party,
namely Virendra Dhansukhbhai Chauhan, examined vide
Exh.24, has deposed that he was also present at the
premises on 19.01.2000. He has further stated that the he
had also gone for the raid on the said Apartment on
13.01.2000, and as per his deposition, the present
petitioner is the administrator of the Consumer Plastic
building, and they found that the body seal of the electric
meter was tampered, and they seized the said meter and
issued a bill of Rs.1,03,000/-. He has further stated that
on 19.01.2000, again he himself and the complainant
visited the said premises, and at that time, it was found
that direct electricity connection had been joined from
the distribution box of the transformer. It has also come
in his evidence that in this building of Consumer Plastic,
26 flats were there, out of which 13 flat-holders were
residing and they had not taken any electricity
connection, and therefore, a bill for electricity theft was
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issued. Another witness, who is also an employee of the
Electricity Company, Mr.Anilbhai Madarbhai Patel,
examined vide Exh.25, has also stated the same facts as
the other two witnesses, but he also has not uttered a
single word regarding under what capacity the present
petitioner was connected with the said premises. Another
witness, Mr. Pragatish Chandrakant Shah, examined vide
Exh.27, has stated that the meter has been issued in the
name of owner of Consumer Plastic and the present
petitioner, Mr. Navinbhai Sojitra, is the owner of
Consumer Plastic, and he was also present on 13.01.2000
and also on 19.01.2000. Thus, all the witnesses have
stated the same facts, and one another witness has also
been examined who visited on 13.01.2000. Considering
the overall evidence of the witnesses, it is an admitted
position that the building known as Yogeshwar Apartment
or the plot is concerned, as per the case of the
prosecution, is being owned by the present petitioner as
the owner or administrator of this plot. The said plot is in
the name of Consumer Plastic, and the present petitioner
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is either the administrator or owner or power of attorney
holder of the said plot, but no documentary evidence has
been produced to prove this fact that how the petitioner
is connected with the said plot.
16. Further, it is interesting to note that as per the case
of the prosecution, on 13.01.2000, when for the first time
they visited the said premises, it was found that some
electricity theft had been committed, and therefore, they
seized the meter and also prepared the checking sheet or
inspection sheet and issued a bill to the present
petitioner. Thereafter, on 19.01.2000, again when they
reached the said premises, the present petitioner was
called, and subsequently his statement as the consumer
was recorded, and his confession statement was
recorded, and a bill was issued. But surprisingly, so far as
the incident pertaining to 13.01.2000 is concerned, not a
single document has been produced by the prosecution
showing what was found when they visited the premises
on 13.01.2000 except bare words not a single document
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has been produced. In this regard, the prosecution has
examined PW-2 - Virendra Dhansukhbhai Chauhan,
whose deposition is required to be considered. In the
cross-examination, he admitted that it is true that
regarding the first incident of 13.01.2000, the
complainant of the present case has no personal
knowledge, and the electricity connection had been given
in the name of Consumer Plastic. He further stated that
on 13.01.2000, they seized the meter of the said premises
and prepared a panchnama in the presence of two
witnesses, one of whom was the brother of the accused.
After seizing the meter, it was sent to the laboratory for
testing. Further, another witness, Mr. Pragatish
Chandrakant Shah, examined vide Exh.27, in his cross-
examination, has stated that on 13.01.2000, they went for
checking and at that time they prepared a checking
sheet. Thus, from these witnesses, it is coming on record
that on 13.01.2000, when the raid was conducted, the
meter was seized, a panchnama was prepared, and a
checking sheet was prepared. It is an admitted position
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that at that time no complaint had been given, or even if
it had been given, those documents have not been
produced in the present case. The case of the prosecution
is that electricity theft was committed on 13.01.2000 and
19.01.2000, and for that this FIR has been filed. However,
regarding the incident of 13.01.2000, no document has
been produced, even though the prosecution was in
possession of those documents, namely the panchnama,
the checking sheet, etc., but none of them have been
produced pertaining to 13.01.2000.
17. Further, the incident as per the case of the
prosecution has taken place on 13.01.2000 and
19.01.2000, whereas the complaint came to be filed on
21.01.2000, and no satisfactory reason for the delay has
been given in the complaint. Further, as the plot is in the
name of Consumer Plastic, which is a firm, how the
present petitioner is concerned with the said premises
either in the capacity of an occupier, owner, power of
attorney holder, or administrator is concerned, nothing
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has come on record. Further, before the trial Court, so far
as the statement of the consumer and the confession
statement are concerned, both these documents have
been produced vide Exh.13 and Exh.14. The present
petitioner has signed both the documents under protest.
In the statement of the consumer, he has signed under
protest, and in Exh.14, which is the confessional
statement, it is specifically stated that the said confession
is objectionable and that he has signed under protest;
therefore, it is not voluntary. Further, it is an established
fact that the said plot, as alleged by the prosecution, is in
the name of Consumer Plastic, which is a firm, but the
firm has not been joined as an accused. Further, as per
Section 39 of the old Act, it pertains to theft of energy.
Section 39 of the Indian Electricity
Act, 1910 (hereinafter referred to as
"the Old Act")
"Whoever dishonestly abstracts,
consumes or uses any energy shall be
deemed to have committed theft within
the meaning of the Indian Penal Code;
and the existence of artificial means for
such abstraction shall be prima facie
evidence of such dishonest abstraction."
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18. So, looking to the Section itself, it is very clear that
there must be dishonest abstraction by the accused. But
in the present case in hand, except the allegation, nothing
has come on record to show in what capacity the present
petitioner was connected with the said premises, or
whether he had joined any wires directly from the
transformer. This is not coming out from the evidence of
any of the witnesses. It is established that in the said
building, there are 16 residential flats, and some persons
were occupying those flats, and they were also using
electricity in their flats without a meter. Therefore,
whether the present petitioner-accused has dishonestly
abstracted electricity or committed theft is concerned,
the said fact has not been proved by the prosecution
beyond reasonable doubt as discussed above.
19. Considering the above discussion, the prosecution
has miserably failed to prove the charge and both the
Courts have miserably failed to consider the aspect
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regarding how the petitioner has been concerned or
associated with the said building. Even the learned Trial
Court and the Appellate Court have stated that the
present petitioner is the power of attorney holder, but no
such document has been produced before the Court. Even
as per the case of the prosecution, on 13.01.2000 also
there was an incident of electricity theft, and at that time
the meter was seized, panchnama was drawn, checking
sheet was prepared, and bill was issued to the petitioner,
but no document pertaining to 13.01.2000 has been
produced before the Court. Except the bare wording,
nothing has been brought on record before the Court, and
there is no direct evidence against the present petitioner
that he is involved in the commission of theft of energy or
has dishonestly abstracted or consumed the electricity.
Hence, considering this, the findings recorded by both
the Courts are perverse as 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 the offence is attributed
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to the meter issued in the name of Consumer Plastic, i.e.
a Company. Hence, the findings recorded by both the
Courts require interference.
20. As discussed above, the present revision application
is hereby allowed. The judgment passed by the learned
Judicial Magistrate, First Class at Pardi in Criminal Case
No. 440 of 2000 convicting the present applicant under
Section 39 of the Indian Electricity Act, 1910 and Section
379 and 114 of the Indian Penal Code dated 08.07.2005,
and the judgment passed by the learned Sessions Judge,
Valsad in Criminal Appeal No. 07 of 2005 dated
20.05.2005 confirming the judgment of conviction by the
Trial Court, are hereby quashed and set aside. The
present petitioner is hereby acquitted from all the
charges. Rule is made absolute.
(L. S. PIRZADA, J)
STANCY GOMES
