Gujarat High Court
Kadarbhai Rehmanbhai Vepari vs The State Of Gujarat on 1 October, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1446 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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KADARBHAI REHMANBHAI VEPARI
Versus
THE STATE OF GUJARAT
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Appearance:
MR IRFAN H.SAIYED ADVOCATE FOR O. I. PATHAN(7684) for the
Appellant(s) No. 1
MR ROHAN H.RAVAL APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/10/2025
ORAL JUDGMENT
1. The challenge is given to the judgment of
conviction and sentence passed by the learned
Special Judge, Mehsana on 10.08.2006 in Special
Electricity Case No.16/2006, whereby the
appellant - accused was found guilty of offence
under Section 135(1)(b) of the Electricity Act,
2003 (hereinafter referred to as 'the Act' for
short) and was sentenced to two years rigorous
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imprisonment with fine of Rs.2,00,000/-. The
default stipulation was that in failure of paying
fine amount, the appellant - accused was to
undergo further six months simple imprisonment.
2. Learned advocate Mr.Irfan H.Saiyed with
learned advocate Mr. O.I. Pathan for the
appellant submitted that the witnesses of the
Electricity Company had not followed the
procedure laid down under the Act. Advocate Mr.
Saiyed submitted that the officers of the
Electricity Board cannot run away from the
mandated provision of Section 135 of the Act,
where the whole procedure of conducting search
and seizure has been laid down very specifically,
where there can be no escape from the statutory
provision.
2.1 Advocate Mr. Saiyed submitted that the
complaint has to be filed within 24 hours when
such act of alleged theft of electricity comes to
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the notice of the officer of supplier. The search
and seizure should be in presence of occupant of
the place and in the present matter the case was
of a residential house, hence, being a domestic
place, no inspection, search and seizure could be
carried out between sunset and sunrise, unless
the presence of any adult member occupying the
premises could be said to be proved.
2.2 Referring to the facts of the matter,
learned advocate Mr. Saiyed submitted that the
trial Court failed to appreciate that there was
no theft of electricity established by the
prosecution to held the appellant-accused guilty
under Section 135 of the Act.
2.3 Advocate Mr. Saiyed referring to the
deposition of the complainant stated that he
himself had not carried out any checking, no
meter or service wire were recovered from the
residential place of the appellant. There was no
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checking of electric appliances, which were
installed in the house and there was no report of
meter checking from expert of the laboratory.
Advocate Mr. Saiyed stated that the switch, which
was alleged to have been used for committing
theft of electricity was never recovered by the
checking squad, and from the deposition of the
complainant the only fact that gets reflected is
the allegation of theft of electricity, while the
deposition does not state of actual theft of
electricity by the accused - appellant. Advocate
Mr. Saiyed, thus, stated that the learned Trial
Court Judge failed to appreciate the aforesaid
aspect and has wrongly convicted the appellant in
the matter.
2.4 Referring to the deposition of Hamendra
Dahyalal, Junior Engineer, it is contended by
learned advocate Mr. Saiyed that the switch,
which was alleged to have been used, was not
recovered. The witness even was not having the
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knowledge as to where the switch was installed
and without appreciating the aspect, the learned
Special Judge has convicted the accused.
2.5 Learned advocate Mr. Saiyed submitted that
the checking squad had entered into many houses
and premises in the area in that evening. The
actual data has not been brought on record and
nothing has been proved on record to fortify the
fact that inspection was carried out in the house
of the appellant-accused.
2.6 Advocate Mr. Saiyed referring to the
judgment of Kadi Judicial Magistrate, First Class
in Criminal Case No.317/2006, submitted that a
Criminal Case was filed under Sections 324, 323,
353, 332 and 114 of Indian Penal Code against
three of the accused, where all the accused came
to be acquitted on 03.04.2017 by the Judicial
Magistrate. Referring to the observation of
learned Judicial Magistrate, First Class, learned
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advocate Mr. Saiyed submitted that the learned
Judge has appreciated the fact that the injuries
were not proved, and even the Doctor was not
examined to prove any of the claim of injury, nor
the place of offence or the recovery panchnama
could be proved in the criminal trial.
2.7 Learned advocate Mr. Saiyed submitted that
a criminal offnce was created to show the gravity
of the matter, where actually, advocate Mr.
Saiyed stated that if the officers of the
Electricity Board had conducted themselves in
accordance to the provision of Section 135 of the
Act, there would not have been any criminal
complaint.
2.8 Learned advocate Mr. Saiyed submitted that
deposition of the Junior Engineer (P.W.2), would
prove the fact that Rojkam Exh.12 was prepared in
the office and not at the place of incident. No
signature of occupant of the place was received
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on the Rojkam. The reported switch, which was
alleged to be used for the illegal activity was
not recovered from the place. There was no
writing on the place of incident and as per
deposition of the Junior Engineer (P.W.2), only
load was recorded. However, under what format
such observation was made and where it was
recorded has not been proved.
2.9 Learned advocate Mr. Saiyed submitted that
deposition of the Junior Engineer itself proves
that more than 25 to 30 people of the
neighborhood had gathered there. The accused was
not present and the witnesses do not state of any
presence of accused. The deposition of the victim
rather was to the effect that the persons of
Kadarbhai had not shown him any material. He
himself was not ready to give any police
complaint. Advocate Mr. Saiyed submitted that
though all the staffs had gone to Police Station
on that very day, however, no complaint under
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Section 135 of the Act was lodged.
2.10 Learned advocate Mr. Saiyed submitted that
as per deposition of the witness P.W.3, at about
5:30 in the evening they had entered in the house
of accused, but it was not verified as to whether
accused was present in the house, and nothing
comes on record that accused was on that day
present, when the inspection was done by the
team, rather the deposition of Junior Junior
Engineer would prove that he had not entered the
house and he had not personally taken any tools
or appliances from the house of accused, and the
witness further has failed to recover the switch,
which was alleged to be used for the illegal
activity.
2.11 Referring to the deposition of P.W.6 -
P.S.O., advocate Mr. Saiyed submitted that the
incident had occurred on 19.01.2006, while the
P.S.O. of G.E.B. Police Station, Sabarmati,
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received the complaint by post Exh.8 on
23.01.2006, hence, the complaint was also not
filed as per the mandated provision.
2.12 Placing reliance on the testimony of I.O. -
Govindgiri Ganpatgiri Goswami, learned advocate
Mr. Saiyed submitted that the Investigating
Officer was required to ask from the witnesses
about the muddamal for trial. Though, he had
recorded the statements and was to take muddamal,
however, it does not come on record that he had
actually taken any alleged muddamal from the
witnesses. Mr. Saiyed submitted that the
Investigating Officer received copy of F.I.R.,
the complaint, bill and the Rojnama. The
Investigating Officer has not stated that he had
received any mudammal in the form of switch,
rather his evidence would prove that he was not
handed over the meter, and the Investigating
Officer himself had not gone to even seize the
M.C.C.B. switch.
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2.13 Advocate Mr. Saiyed stated that the witness
- P.W.2 has deposed in his statement that bath
water was heated by 'Bambo', which is a
traditional way of heating water using wooden
logs and the witness has also deposed about the
colour on it, which as per the witness was light
blue hence, the presence of 'Bambo' was proved.
Advocate Mr. Saiyed submitted that the
complainant cannot be relied upon since he had
not visited the place. He had only gone to the
Police Station, but had not made any efforts
to visit the place of incident along with
checking squad, nor had filed complaint under
this Act.
2.14 Advocate Mr. Saiyed, thus, submitted that
the observation of the learned Trial Court Judge
is not consistent to the provision of law or the
evidence on record hence, urged to acquit the
accused.
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3. Per contra, learned APP Mr. Rohan Raval
referring to the charge submitted that the case
against the accused was that when the officers of
the Uttar Gujarat Electricity Company visited at
about 5 O' clock on 19.01.2006, they found during
the checking in the lane opposite Sahara Guest
House, that the accused through earthing by
M.C.C.B. Switch, had tampered the meter for
electricity theft and even during that checking,
had assaulted the checking staffs with the
weapons. The checking disclosed the total use of
electricity as 3,920 Volt, and a bill of
Rs.60,499.17 was issued and since the payment was
not made, the complaint was filed.
3.1 Referring to the deposition of complainant,
learned APP Mr. Raval submitted that the
complainant as a Deputy Engineer of Kadi had
oversee the work of the staff and as per his
deposition on 19.01.2006, the Junior Engineer -
S.B. Chaudhary (P.W.2) along with the staffs had
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gone in the lane opposite Sahara Guest House,
where the raid was conducted of electricity
theft. Along with him, there were other staffs
and the Junior Engineer had thereafter come and
narrated before him that there was use of
earthing switch and the meter had stopped
working. The complainant had produced the
complaint at Exh.8 and the Rojkam at Exh.12.
3.2 Learned APP Mr. Raval submitted that the
bill issued to the accused was produced at Exh.9,
notice at Exh.10 and the report at Exh.11.
Referring to the complaint Exh.8 and the
deposition of P.W.2 Junior Engineer - Hamendra
Dahyalal Chaudhary, learned APP submitted that
the evidence of witness Shri Chaudhary would
fortify the fact that there was tampering with
the meter and the earthing switch was joint, as a
result the polarizing change would be found in
the service line and the meter would not work
inspite of the usage. The Rojnama proves the
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incident.
3.3 Learned APP stated that the fact has been
supported by the helper, who was there along with
P.W.2, whose deposition as P.W.3 - Dasrathji
Mafaji Thakor, refers the fact that such an
incident had taken place. The Investigating
Officer after receiving the complaint had made
relevant investigation and accordingly charge
sheet had been filed against the accused. Thus,
learned APP stated that the case had been proved
by the witnesses, supporting the impugned
judgment learned APP submitted that the
conviction is required to be confirmed.
4. Having heard learned advocates for both the
sides, it would be apt to refer to Section of 135
of the Act prior to appreciation of the evidence.
Section 135 of the Act is extracted hereinbelow
for ready reference:
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"135. Theft of Electricity.- (1) Whoever,
dishonestly,-
(a) taps, makes or causes to be made any
connection with overhead, underground or
under water lines or cables, or service
wires, or service facilities of a licensee
or supplier, as the case may be; or
(b) tampers a meter, installs or uses a
tampered meter, current reversing
transformer, loop connection or any other
device or method which interferes with
accurate or proper registration, calibration
or metering of electric current or otherwise
results in a manner whereby electricity is
stolen or wasted; or
(c) damages or destroys an electric meter,
apparatus, equipment, or wire or causes or
allows any of them to be so damaged or
destroyed as to interfere with the proper or
accurate metering of electricity; or
(d) uses electricity through a tampered
meter; or
(e) uses electricity for the purpose other
than for which the usage of electricity was
authorised,
so as to abstract or consume or use
electricity shall be punishable with
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imprisonment for a term which may extend to
three years or with fine or with both:
Provided that in a case where the load
abstracted, consumed, or used or attempted
abstraction or 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
the fine imposed shall not be less than six
times the financial gain on account of such
theft of electricity;
(ii) exceeds 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, 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
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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 for that period from any other
source or generating station:
Provided also that if it is proved that
any artificial means or means not authorised
by the Board or licensee or supplier, as the
case may be, exist for the abstraction,
consumption or use of electricity by the
consumer, it shall be presumed, until the
contrary is proved, that any abstraction,
consumption or use of electricity has been
dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of
this Act, the licensee or supplier, as the
case may be, may, upon detection of such
theft of electricity, immediately disconnect
the supply of electricity:
Provided that only such officer of the
licensee or supplier, as authorised for the
purpose by the Appropriate Commission or any
other officer of the licensee or supplier,
as the case may be, of the rank higher than
the rank so authorised shall disconnect the
supply line of electricity:
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Provided further that such officer of
the licensee or supplier, as the case may
be, shall lodge a complaint in writing
relating to the commission of such offence
in police station having jurisdiction within
twenty four hours from the time of such
disconnect:
Provided also that the licensee or
supplier, as the case may be, on deposit or
payment of the assessed amount or
electricity charges in accordance with the
provisions of this Act, shall, without
prejudice to the obligation to lodge the
complaint as referred to in the second
proviso to this clause, restore the supply
line of electricity within forty-eight hours
of such deposit or payment.
(2) Any officer of the licensee or supplier
as the case may be, authorised in this
behalf by the State Government may-
(a) enter, inspect, break open and search
any place or premises in which he has reason
to believe that electricity has been or is
being, used unauthorisedly;
(b) search, seize and remove all such
devices, instruments, wires and any other
facilitator or article which has been, or is
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being, used for unauthorised use of
electricity;
(c) examine or seize any books of account
or documents which in his opinion shall be
useful for or relevant to, any proceedings
in respect of the offence under sub-section
(1) and allow the person from whose custody
such books of account or documents are
seized to make copies thereof or take
extracts therefrom in his presence.
(3) The occupant of the place of search or
any person on his behalf shall remain
present during the search and a list of all
things seized in the course of such search
shall be prepared and delivered to such
occupant or person who shall sign the list:
Provided that no inspection, search and
seizure of any domestic places or domestic
premises shall be carried out between sunset
and sunrise except in the presence of an
adult male member occupying such premises.
(4) The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974), relating to
search and seizure shall apply, as far as
may be, to searches and seizure under this
Act."
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4.1 Section 135 of the Act refers to the act of
theft and classifies the dishonest act from
clause (a) to clause (e), where it penalises the
dishonest act to abstract or consume or use
electricity, making it punishable with
imprisonment for a term, which may extend to
three years or with fine or with both. However,
sub-section (1) is with the proviso under clause
(i) that in a case where the load abstracted,
consumed, or used or for that purpose attempts
are made, it 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, the
fine imposed shall not be less than six times the
financial gain on account of such theft of
electricity.
4.2 The second clause to the proviso is, in
case, where the load exceeds 10 Kilowatt, the
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fine imposed on first conviction shall not be
less than three times the financial gain on
account of such theft of electricity, however, in
the event of second or subsequent conviction, the
sentence would be imprisonment for a term not
less than six months, but which may extend to
five years with fine not less than six times the
financial gain on account of such theft of
electricity. Further under second proviso to Sub-
section (1) it is made clear that in event of
second and subsequent conviction and in a case of
more than 10 Kilowatt use, abstraction or
consumption, or any attempt for that purpose,
then such person would 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 for that
period from other source or generating station.
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4.3 The penal provision are stringent in nature.
In that circumstances, the provisions so made
under Section 135 of the Act for the suppliers or
the officers of the licensee are also required to
be stringently followed.
4.4 The third proviso to Sub-section (1) is on
the basis of presumption, where in case an
artificial means or means not authorised by the
Board or licensee or supplier, exist for the
abstraction, consumption or use of electricity by
the consumer, then the proviso mandates the
statutory presumption, unless a contrary is
proved that such abstraction, consumption or use
of electricity has been dishonestly caused by
such consumer. The third proviso thus, would want
the prosecution to prove in case of detection of
any artificial means or means not authorised by
the Electricity Board being used, to be proved on
record during the trial.
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5. Here, the allegation is that M.C.C.B. switch
was used for earthing and there was tampering of
meter for electric theft. The total load of the
house was shown as 3,920 Volt. Unless and until,
such seizure of artificial means or any other
means not authorised by the Electricity Board is
proved, the statutory presumption would be
difficult to be drawn for the accused to rebut
such presumption.
6. The second proviso to Sub-section (1A) makes
it compulsory for the officer of the licensee or
the supplier to lodge a complaint in writing
relating to the commission of such offence in
police station having jurisdiction within twenty
four hours from the time of disconnection of the
electricity supply, which the officer is
authorised to do so, in case of detection of
theft of electricity. Such disconnection of
supply of electricity could be immediate on
detection of theft of electricity.
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6.1 By way of third proviso to Sub-section (1A)
the licensee of the supplier on deposit or
payment of the assessed amount or electricity
charges in accordance with the provisions of Act,
may restore the supply of electricity within
forty eight hours of deposit or payment of money,
which shall be without prejudice to the
obligation to lodge the complaint, as referred to
in the second proviso of Sub-section (1A).
6.2 By way of Sub-section (2) of Section 135 of
the Act, the officers of the Electricity Supply
Board on behalf of the State Government are
authorised to enter, inspect, break open and
search any place or premises in which the officer
would have the reason to believe that electricity
has been or is being used unauthorisedly. While
making such an inspection, the officer during the
search can seize and remove all such devices,
instruments, wires and other facilitators or
articles which they consider is being used for
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unauthorised use of electricity. The Act also
permits them to examine and seize books of
account or documents which would be relevant in
respect of the proceedings for the offence.
6.3 Sub-section (3) of Section 135 of the Act
clarifies that the occupant of the place of
search or any person on his behalf shall remain
present during the search, and the list of all
things seized in course of such search shall be
prepared and delivered to the occupant or the
person who shall sign the list. The proviso to
sub-section (3) mandates to the officers that no
inspection, search and seizure of any domestic
places or domestic premises to be carried out
between sunset and sunrise except in presence of
the adult male member occupying such premises.
7. The evidence of P.W.1 as a complainant -
Kantilal Shivlal Patel, records of the raid being
conducted by P.W.2 Junior Engineer - S.B. Chauhan
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with the staffs on 19.01.2006. The place of raid
was in the lane opposite Sahara Guest House. The
raid was in connection to electricity theft. The
complainant stated that the theft was by use of
earthing switch. The flow of the electric supply
would be there, while deter wire would show no
reaction resulting into stoppage of meter. The
complaint Exh.8 was produced by the witness on
identification of his signature. P.W.1 stated
that thereafter, he had given the bill to the
accused. The copy of the bill was produced at
Exh.9 and the notice along with copy of bill at
Exh.10. The complainant had also produced the
report, which he made at Exh.11, and the Rojnama
of the Junior Engineer at Exh.12.
7.1 As per the complainant thereafter he had
gone to the place of incident and by drawing a
Rojnama the meter was removed, whereupon the
witness identified his signature and signature of
S.R. Patel and S.B. Patel on the Rojkam Exh.13.
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7.2 The further evidence of the complainant
records that when the Junior Engineer had gone to
the place, there was quarrel and police was
informed. The report he produced at Exh.14. The
deposition of P.W.1 records that the accused had
not deposited the bill amount and also stated
that it was the first offence of the accused.
8. Learned advocate Mr. Saiyed has referred to
the order dated 17.08.2006 passed by this Court
in Criminal Misc. Application No.8833 of 2006 in
Criminal Appeal No.1446 of 2006 (Coram: J.R.
Vora, J., as he then was), where the application
had moved for suspension of sentence and the same
was granted on condition that the applicant-
appellant would deposit the amount of
Rs.60,499.17 paise being the amount of
supplementary bill, when it was noticed that fine
amount of Rs.2,00,000/- had not been paid by him.
8.1 The prayer made in Criminal Misc.
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Application No.5915 of 2008 for refund of the
amount came to be rejected observing that it was
the amount deposited as a condition of bail,
while the Court exercising the power under
Section 389 of Cr.P.C., observed that it would
have no connection whatsoever in respect of fresh
electric connection which might have been
requested by the applicant and the amount
deposited was made subject to the outcome of the
present Criminal Appeal.
9. In cross-examination of the complainant, the
defense could bring on record that service time
of the employees starts from 8:00 in the morning.
While they had started checking at 5:00 in the
evening. Junior Engineer - S.B. Chaudhary had
gone with License Inspector N.S. Patel, A.K.
Katara, B.M. Thakor, Helper, K.M. Chawda and the
driver for checking. The witness stated that even
after 6 O' clock, they would go for inspection
with regard to electricity theft.
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9.1 The complainant denied the suggestion that
on that day, the checking was of the houses in
rural area at 7:30. He had gone to the house of
accused, and the team met him there at 7:30. The
witness stated at that time, he was at Kadi
Police Station and all the persons who had gone
for inspection met him at the Police Station. He
had no information of the place, where the staffs
had gone prior to that. He also had no
information of number of houses that had checked
at 7:30 in the evening.
9.2 The witness as complainant also had no
knowledge of how many people were present there
when he visited the house of accused, while three
of them had gone to the house of accused. When he
was at the police station, the staffs had
informed him that there was quarrel and they had
gone for medical treatment. Out of all the
staffs, three employees were injured. The witness
also stated that in that lane, there were many
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houses. He had no information whether the houses
opposite the house of the accused were inspected.
The witness stated that he had personally not
made any checking in the house of the accused.
9.3 The deposition of the complainant thus,
proves that he had no personal knowledge with
regard to alleged theft of electricity in the
house of accused. He could not even name the
person nor could identify that accused was
present at 7:30, when he had visited the house.
What was his reason to enter the house of the
accused at 7:30 does not get clarified.
10. The law under sub-section (3) of Section 135
of the Act with proviso clarifies that there
would be no inspection, search or seizure of any
domestic premises or places between sunset and
sunrise except in the presence of adult male
member occupying such premises. The complainant
neither identified, nor could name the persons
who were present in the house, when he visited
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the residential premises of the accused. The
witness thus, further states that after the
complaint was recorded at the Police Station of
assault, he appears to have visited the house of
accused, where his deposition gives the time as
7:30. The complainant states that he had seized
meter and service wire. Further clarified that in
the house of accused, he had not inspected any
other electrical appliances being used in the
premises. After seizing the meter, he reached the
office at about 8:00. The witness had no
knowledge as to where his staffs were, when he
had gone for seizing the meter. The witness
affirmed that the meter was not sent for
laboratory test and further clarified that no
signature of the accused was received when the
meter was seized.
10.1 It appears that the complainant has no
knowledge of the provision of law that no such
inspection can take place between sunset and
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sunrise. He denied of any such provision in the
cross-examination. The witness further clarified
that he had the information that the inspection
can be done after sunrise and prior to sunset.
The complainant further stated that when he had
reached the office at 8 O' clock, he had not
produced the documents with regard to the
checking. He further stated that the seized meter
was in running condition, there were no tampering
in the meter, he had not seized the switch. He
stated that the meter was removed, the electric
connection was temporarily disconnected and the
bill was given to the customer.
10.2 The evidence of the complainant thus, shows
that he had visited the house of accused after
sunset. The meter was seized, which was in
working condition. There is no laboratory test
reporting any irregularities with regard to the
meter, while the witness as complainant stated
that there was no tampering of the meter. He had
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not seized the switch M.C.C.B., which was alleged
to have been used for earthing by tampering the
meter for electricity theft. As per the evidence
of the complainant there was no tampering of the
meter and it was in running condition.
10.3 The Junior Engineer (P.W.2) deposed that he
had seen the earthing switch, which was being
applied. On 19.01.2006, he and his staff for
performance of their duty had gone in the lane
opposite Sahara Guest House in connection with
the electricity theft, which was residential area
and he had checked the electricity connection of
trader Kadarbhai, who was a customer. He found
the end of wire of earthing switch connected with
the meter. P.W.2 stated that there was polarizing
change in the service line and because of that,
the meter was not functional inspite of
consumption of electricity.
10.4 P.W.2 stated that the accused was present
there and the fact of theft was informed to him.
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Further stated that the accused gave no response
and started beating them. He received injury on
his head, as the attack was with wooden chair.
The witness also stated that his staff was also
attacked and threat was given to their lives. The
accused did not allow them to cut the connection
therefore, they informed their superior officer.
They thereafter had gone to Government
Dispensary, where he, Satishbhai and one Katara
took medical treatment and thereafter, they gave
police complaint at Kadi Police Station, and from
there they went to their office. The witness
stated that the Rojnama Exh.12 was prepared in
the office. According to him, there was load of
3,920 Volt.
11. It has been argued and brought to the notice
of this Court by learned advocate Mr. Saiyed that
in Criminal Case No.317/06, where upon the
complaint of this witness the criminal proceeding
was initiated, but the criminal trial ended into
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acquittal since the injury could not be proved
beyond reasonable doubt and prosecution had
failed to examine any Doctor. The medical
certificates produced were also not proved. The
uncontroverted fact, as per the deposition
remains that the Rojnama was not drawn at the
place of incident. P.W.2 stated that they were
assaulted and threat to life was there and
therefore, they left the place.
12. It is unfortunate that though the whole team
as checking squad was checking the residential
houses in the lane opposite Sahara Guest House,
they had not asked for any police protection.
There was no security person along with them.
Admittedly, the checking was in the late evening.
In the cross-examination, the defense could bring
on record that the witness could not maintain any
record with regard to raid, nor could they
maintain any register. As per the witness only
when theft was found the register thereafter was
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prepared. The witness had not brought the
register during the course of his deposition. The
raid conducted by the witness could not be proved
by the corresponding corroborative document,
which they were required to prove, where an
allegation of criminal complaint was made by
them. There were about five to seven persons, who
were checking the houses. P.W.2 stated that
initially they were examining the meter, and
almost about five to ten minutes would be
consumed to inspect a single house, and three
persons in one team would be checking each of the
house.
12.1 As per the deposition at about 5:30 hours,
they had entered the house of Kadarbhai.
Initially P.W.2 entered the house and thereafter
three of them followed him. The meter was in the
lobby in a wooden box and he had checked the
meter. The witness stated that there were about
five to six rooms. The deposition of witness
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Junior Engineer is that there was tampering of
seal on the body of meter and there was no lock
on the box. This evidence runs contrary to what
is stated by the complainant, where he had seized
the meter, which he found to be in running
condition and had not seen any tampering.
12.2 The Junior Engineer (P.W.2) further stated
that the switch was on the rear side of the house
and searching so they reach there, but witness
could not name the Company for make of the
switch. The deposition further notes that he had
not seized the switch. The witness also had no
knowledge of any appliances with volt being used
in the rooms. He had not named the appliances
even in his police complaint, nor the company's
name of the appliance had been informed by him.
He stated that there was light blue colour
'Bambo' in the house of Kadarbhai, which was for
heating water. The witness clarified that he had
not stated about any appliances. The incident was
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almost of 6:15 p.m. He stated that during this
period he only noted the load, while no other
writing was done. The rest of two persons along
with him were at the service pole outside. When
they had gone for inspection, about 25 to 30
people had gathered there. None of the persons of
Kadarbhai had shown him any instrument. At about
6:30, he had gone to the Government Dispensary.
Though, he had narrated the incident to the
police at 7 O' clock at the Police Station, but
he had not informed the police of giving the
complaint.
12.3 The deposition thus, clarifies that no
Rojkam was drawn. Though, witness stated that it
was recorded in writing, but he had not produced
the writing in the Court to establish the fact of
his checking the meter or of having seen the
switch. The switch had not been recovered.
13. P.W.3 - the helper, who was along with
Junior Engineer (P.W.2), stated that they had
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checked the house of Kadarbhai, where the
earthing was given by the accused. Accused was
by-passed and the meter was closed and there was
electricity theft. He stated that Kadarbhai and
his son during that process had assaulted them.
P.W.2 was injured by a chair and by fisticuffs.
The Rojnama was prepared in the office. The
witness stated that in the house, there were four
Kilowatt load. The staff had checked the load and
the switch was at the rear side of the house.
13.1 In the cross-examination, it has been
brought on record that after leaving the office
at about 4:30, they had checked about one
society, and stated that about 15 to 20 houses
were checked by them. He personally had checked
two to three houses. They were only checking the
meters and were not entering into the house of
any person. While stated that at about 5:30 they
had gone inside the house of Kadarbhai and five
persons were along with him, who were checking
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different places, and three houses in the line of
Kadarbhai's house were checked. Kadarbhai's house
was in the middle of the houses in the lane. He
stated that in the house of Kadarbhai, three
persons had entered. The light was off and they
had gone near the D.P. for placing the fuse in
the main connection, and when the meter was
checked they had found deem light in it. After
placing the fuse, they could see full light. The
jeep driver was along with him. When they had
gone for inserting the fuse, three of them had
entered the house. He came to know that his
officer and two of the persons had entered the
house of Kadarbhai. While had no information as
to what work was done by the officer.
13.2 The witness clarified that he had not
entered into the house of Kadarbhai, nor he had
the knowledge of any appliances in the house of
the accused, while stated that he had seen the
earthing switch, which was found by his officer.
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The witness further stated that about eight to
ten persons had gathered there. His superior
officer was standing near the meter box of
Kadarbhai and he stated that the seal of that
meter was broken, and on removing the neutral
wire they found that inspite of removing the
neutral wire, the light supply was still going on
and therefore, they had suspicious of theft, and
that earthing switch was found.
13.3 According to P.W.3, the meter was closed
and on switching light the condition of the meter
was static that means it was closed. He also
verifies the fact that the switch was not seized,
nor he had any information about the company of
the switch. The witness stated that it was
M.C.C.B. type of switch. If the evidence of this
witness is read in totality, then it appears that
this witness had not entered the house of
Kadarbhai. He was with other persons engaged in
fixing the fuse in the main line. The witness
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could not state of the appliances, which were in
use in the house of accused. He could state that
he had seen the earthing switch, and according to
the witness, the meter was tampered. However, the
persons, who had seized the meter, the
complainant (P.W.1), could not corroborate the
said fact.
13.4 These witnesses, though had observed of
electricity theft and tampering with the switch
as well as seal of the meter had not drawn any
Rojnama at the place of incident. The assault was
on P.W.2 and other two employees, as named by
P.W.2. The rest of the persons could have drawn
the Rojnama of the place of incident. While, as
per P.W.2, he had drawn the Rojkam Exh.12 at the
office. Such Rojkam does not bear signature of
the accused.
14. P.W.4 and P.W.5 as panchas of the Panchnama
Exh.19, have not supported the police. The
panchnama - Exh.19 would have no significance, as
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the panchnama appears to have been drawn on
24.01.2006, while the incident was of 19.01.2006.
14.1 P.W.6 as P.S.O. of Sabarmati G.E.B. Police
Station stated that he received the complaint
Exh.8 by post on 23.01.2006 and on that basis the
offence was registered and further investigation
was handed over to P.S.I. Goswami. The witness as
P.S.O. could state that there were no details in
the complaint as to how many persons had gone for
inspection and could not state of any other
corresponding documents with the complaint.
14.2 P.W.7 as Investigating Officer - Govindgiri
Goswami could state that the offence of I-
Cr.No.76/06 of G.E.B. was received by him by a
depute order, which he produced at Exh.23. He
took over the investigation, recorded the
statements of the witnesses and had drawn the
panchnama Exh.19 of place of incident and had
arrested the accused. He started the
investigation and visited the G.E.B. office of
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Kadi, where the statements were recorded and
report was made for muddamal. He stated that he
had only copy of F.I.R., complaint, bill and
Rojkam, and as per the document he could not know
how many of the houses were inspected. He also
had no knowledge whether any signature of the
accused was taken, when the meter was seized. The
Investigating Officer deposed that the meter was
not handed over to him, nor the M.C.C.B. switch
was seized from the place of the accused. He had
visited the house of the accused.
14.3 P.W.7 further stated that the witness -
Hamnendra had not stated before him that he was
injured by a wooden chair on being assaulted. The
witness stated that he had the information that
injured had visited the dispensary. Dasrathbhai
had not stated in his statement that they had
seen switch at the rear side of the house of
accused. He received a bill during his
investigation.
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14.4 The evidence of the Investigating Officer
thus, proves that he had not received any
laboratory report of the meter to prove the meter
tampering. There is no technical report, as
stated by learned advocate Mr. Saiyed, no expert
witness had been examined to prove the fact that
there was actual tampering of the meter. The
M.C.C.B. switch, which was alleged to be used for
theft of electricity has not been seized or
produced as a muddamal, to prove the fact that
with the use of such unauthorised means there was
abstraction, consumption or use of electricity,
which could be presumed for theft of electricity.
The prosecution witnesses failed to prove the
case against the accused.
15. On total appreciation of evidence of all the
witnesses, it can be concluded that the mandatory
provision of Section 135 of the Act had not been
followed. The complaint has not been filed within
24 hours of the incident. The officers of the
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Electricity Board had gone for inspection at the
evening hours. The evidence of complainant proves
that he had entered the house of accused after
the sunset. The presence of the accused as male
member of the house has also not been proved from
any evidence during the seizure of the meter. The
Rojnama does not bear the signature of the
accused. No list has been produced to show
seizure of anything, as alleged as of switch, nor
the documents with regard to the meter has been
produced, to prove the electricity theft.
16. No independent witness has been examined to
substantiate the fact of inspection on that day.
No register in support of the inspection has been
produced to prove that the electricity theft was
noticed on that day, where in a case, Section 135
of the Act mandates that the search and seizure
and the removal of the devices and instruments,
wires and other facilitator or article which has
been used for unauthorised use of electricity
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should be recorded and the list of all the things
seized in course of such search shall be prepared
and delivered to the occupant or the person who
shall sign the list. None of such exercise has
been undertaken in the present matter. The
Investigating Officer has also not supported any
such act of the witnesses of the Electricity
Board. The prosecution has miserably failed to
prove its case. The observation of the trial
Court in convicting the accused is contrary to
the evidence recorded during the trial and even
against the provision of law.
17. In the result, in view of the reasons given
hereinabove, the appeal is allowed. The judgment
of conviction and sentence dated 10.08.2006
passed by the learned Special Judge, Mehsana in
Special Electricity Case No.16/2006 is set aside.
The appellant is acquitted from all the charges.
Bail bond stands discharged. The suspension order
in the present appeal was conditional on the
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deposit of the amount of Rs.60,499.17 paise,
which the accused had deposited in the trial
Court. Now on acquittal of the accused, the said
amount be returned back with accrued interest, if
at all on the same, on verification of identity.
Registry is directed to send the Record and
Proceedings back to the concerned Trial Court
forthwith.
(GITA GOPI,J)
Pankaj/6
