Gujarat High Court
State Of Gujarat vs Sureshbhai Harasubhai Der on 4 September, 2025
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R/CR.A/147/2013 JUDGMENT DATED: 04/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 147 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SURESHBHAI HARASUBHAI DER
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Appearance:
MS.C.M.SHAH, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR MILANKUMAR P DER(11086) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/09/2025
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 impugned
judgment and the order passed by the learned Special Judge,
Amreli (hereinafter referred to as 'the Trial Court') in Special
(Electricity) Case No. 36 of 2009 order dated 29.10.2012,
whereby, the learned Trial Court has acquitted the respondent
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from the offence punishable under Sections 135 of the Electricity
Act, 2003 (hereinafter referred to as 'the Act').
1.1 The respondent is hereinafter referred to as 'the
accused' as he 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. On 23.08.2004, Jayanthilal Hansrajbhai Rangapriya,
Deputy Engineer, PGVCL, Amreli Circle, Junior Engineer
Alpesh Nanjibhai Kamol, Meter Tester A. H. Vyas and Helper S.
R. Raval had gone for checking the electricity connections at
Karkoliya village and had visited the house of Sureshbhai
Harsurbhai Der at Karkoliya village. They found that the accused
was not a consumer of electricity but he was running a flour mill
to grind grains and a shop to repair punctures and had illegally
joined a yellow colour wire directly to the pole and the low
tension line and was using electricity. A 65 year old person was
found at the place and he had stated that the shop and the flour
mill belonged to the accused and the necessary procedure was
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done and it was found that the accused had committed theft of
electricity of Rs.4,44,248.75 paisa as he had joined a 12.5 HP
load motor and the complainant Rakeshkumar Fakirbhai
Chaudhary, Deputy Engineer, had filed the complaint at the
GEB Police Station under Section 135 of the Electricity Act,
which came to be registered at GEB Police Station II-CR No. 897
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 concerned jurisdictional Magistrate.
As the case was exclusively triable by the Court of Sessions,
after completion of the process under Section 209 of the Cr.P.C.,
the case was committed to the Sessions Court and the same was
registered as Special (Electricity) Case No. 36 of 2009.
2.3. The accused was 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
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the Code. A charge was framed by the learned Trial Court at
Exh.4 and the statement of the accused was recorded at Exh.5,
wherein, the accused denied all the contents of the charge and
the entire evidence of the prosecution was taken on record. The
prosecution has examined 05 witnesses and has produced 08
documentary evidences in support of the case.
2.4. After the closing pursis was submitted by the learned
APP at Exh.24, the further statement of the accused under
Section 313 of the Code was recorded wherein the accused
denied the evidence and refused to step into the witness box
and lead evidence. After hearing the arguments of the learned
APP and learned advocate for the accused and after perusing
the documents on record, the learned Trial Court, by the
impugned judgment and order, has acquitted the accused for
the offence punishable under Section 135 of the Act.
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
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Court is contrary to law, evidence on record and principles of
justice. The learned Trial Court has erroneously came to the
conclusion that 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 him. The learned Trial Court has not properly
appreciated the oral as well as documentary evidence on
record it its true spirit. The impugned judgment and order of
acquittal 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.C.M.Shah for the appellant -
State and learned advocate Mr.Milankumar P. Der for the
respondent. Perused the impugned judgment and order of
acquittal and have re-appreciated the entire evidence of the
prosecution on record of the case.
5. Learned APP Ms.C.M.Shah for the appellant - State
has taken this Court through the entire evidence produced by
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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 Trial Court is contrary to law, evidence on
record and principles of justice. 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
and impose maximum sentence on the accused.
6. 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
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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 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.
7. PW-1 Jayantilal Hansrajbhai Rangapariya examined
at Exh.6 is the Deputy Engineer, who had visited and checked
the electricity connection along with Junior Engineer Kalpesh
Nanjibhai Kamol, Meter Tester A. H. Vyas and Helper S. R.
Raval. The witness has supported the case of the prosecution
and has stated that at the time of the checking, they had seized
the 15 meters long yellow colour 6mm wire and 8 meter long
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7/20 copper wire but they did not seize the starter. The
mudamal was deposited in the Lathi Sub Division office and the
witness has produced the Rojkam at Exh.7 and the checking
sheet at Exh.8. During the cross-examination the witness has
admitted that they did not switch on the flour mill and check
whether the machine was in a working condition and the witness
has stated that as there was a single phase power, the motor
could not start, but the same is not mentioned in the Rojkam at
the time of checking. They did not take the name or address of
the 65 year old person, who was found at the place and only on
inquiry from him, it was found that the shop belonged to the
accused. There was no name of any person on the shop or the
tyre puncture shop and no documents were seized that the place
belonged to the accused and they did not seize any license or
revenue record of the same. The accused was not present at the
place and they did not take any evidence from the Talati-cum-
Mantri that the place belonged to the accused.
7.1. PW-2 Kalpeshkumar Nanjibhai Kamol examined at
Exh.9 was working as a Junior Engineer along with PW-1
Jayantilal Hansrajbhai Rangparia and he has supported the case
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of the prosecution. During the cross-examination, the witness
has stated that in his statement before the police, he did not
state that Meter Tester A.H.Vyas and Helper S.R.Raval were also
with them at the time of the checking and at the time of the
checking, they did not verify whether the flour mill was working
or not. As the motor was a 10 HP motor, they considered it to be
a 12.5 HP motor if it was working and they did not take any
document from the 65 year old person, who was found at the
spot. They did not find any document that the place where they
had checked belonged to the accused and they did not find the
accused at the place at that time. They did not have any
document to show that they were authorized to go for checking.
7.2. PW-3 Rakeshkumar Fakirbhai Chaudhury examined
at Exh.14 is the complainant, who has supported the case of the
prosecution and has filed the complaint and has produced the
complaint at Exh.15. The witness has also produced the Rojkam
at Exh.16, the checking sheet at Exh.17 and the bill given to the
accused at Exh.18. During the cross-examination, the witness
has stated that he had given the complaint on the basis of the
checking sheet but he has no personal knowledge about the
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checking and in the documents that were submitted to him there
was no evidence about the ownership or the possession of the
shop. Even in the Rojkam there was no evidence that the
property belonged to the accused. He did not go personally to
the Bhavnagar Police Station to file the complaint and there was
no document produced on record to show that he was
authorized to file the complaint.
7.3. PW-4 Umarbhai Manubhai Numadia examined at
Exh.20 is the PSO, who has registered the complaint and has
produced a copy of the FIR at Exh.22. During the cross-
examination, the witness has stated that the checking was
conducted on 23.08.2004 and the complaint was registered on
31.08.2004 but there was no explanation regarding the delay in
filing of the complaint and the complainant did not come
personally to the Police Station to file the complaint. Along with
the complaint, there was no permission given by any superior
authority to the complainant to file the complaint and the
complainant did not submit any documentary evidence to show
that the place where the checking was done belonged to the
accused.
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7.4. PW-5 Navalkishor Bhikhalal Joshi examined at Exh.23
is the Investigating Officer, who has narrated the procedure
undertaken by him during investigation. During the cross-
examination, the witness has admitted that he did not record the
statement of Helper S.R.Raval and there was no explanation as to
why the statements of Helper S.R.Raval was not recorded.
8. On minute appreciation of the entire evidence of the
prosecution, there is no evidence on record that the place
where the electricity connection was checked belonged to the
accused. As PW-1 Jayantilal Hansrajbhai Rangparia and PW-2
Kalpeshkumar Nanjibhai Kamol have both admitted that they did
not find the accused present at the place when they had gone
for checking, they did not seize any documentary evidence
regarding the ownership or possession of the place that
belonged to the accused. There is no muddamal wire produced
on record to prove that any wire was used to commit the theft of
electricity and the witness has stated that the wire was
deposited in the Lathi Sub Division Office, but the same was not
produced before the Investigating Officer and was not
produced before the learned Trial Court. As per the say of PW-1
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Jayantilal Hansrajbhai Rangparia, he had gone along with Meter
Tester A.H.Vyas and Helper S.R.Raval but the Investigating
Officer did not record their statements during investigation and
their evidence has not come on record. Admittedly, the
complainant Rakeshkumar Fakirbhai Chaudhury did not go for
checking and he had no personal knowledge about the theft of
electricity being committed by the accused and there is no
evidence on record that the accused was, in fact, committing
theft of electricity and the place where the theft of electricity
was taking place belonged to the accused as the accused was
not found at the place on the day of checking. Moreover, the
identity of 65 year old person, who disclosed that the shop and
the flour mill belonged to the accused, has not come on record
and he has not been examined as a witness before the learned
Trial Court.
9. 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
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opinion that the Trial Court was completely justified in
acquitting the accused of the charges leveled 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 the
present appeal is devoid of merits and resultantly, the same is
dismissed.
10. The judgment and the order passed by the learned
Special Judge, Amreli in Special (Electricity) Case No. 36 of
2009 order dated 29.10.2012 is hereby confirmed.
11. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI.....
