Gujarat High Court
State Of Gujarat vs Farook Rasulbhai Shaikh on 22 September, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/296/2010 JUDGMENT DATED: 22/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 296 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
FAROOK RASULBHAI SHAIKH
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Appearance:
MR. BHARGAV PANDYA, ADDL. PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR MA KHARADI(1032) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 22/09/2025
ORAL JUDGMENT
[1] This Appeal is filed under Section 378 of the Code of
Criminal Procedure, 1973 (for short 'the Code') challenging the
judgment and order of acquittal passed by the learned Special
Judge (Electricity) & 3rd Additional Sessions Judge, Panchmahal
at Godhra dated 11.11.2009 in Sessions Case No.33 of 2006
(Electricity), whereby respondent - accused is acquitted of the
charge under Section 135(1)(a) of the Indian Electricity Act, 2003
(for short 'the Act, 2003').
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[2] Brief facts of the case are here as under:
[2.1] As per the case of the complainant, Krushnabhai
Ramjibhai, Dy. Engineer, Madhya Gujarat Vij Company Limited
(for short 'MGVCL'), Godhra, Rural Sub Division Godhra,
registered a complaint on 22.04.2006 at 'MGVCL' Police Station,
Vadodara, and when premises of the respondent - accused was
inspected on 10.04.2006 at Village- Gadh (Chanchelav) along
with other Officers of the Company, it was found that respondent
- accused though not consumer of the company, he made direct
electricity connection with low tension electricity line passing
just behind the house of the accused, through red-colored wires
of 1/18 gauge phase wire and neutral wire, and consumed 1.911
kilowatt electricity directly, for which, a bill of Rs.1,51,910.40
came to be issued to the respondent - accused. However,
accused has not paid the said amount. Thus, it is alleged that
despite respondent-- accused is non-consumer, he committed
theft of electricity, as aforesaid.
[2.2] On such complaint being registered, Head Constable
- Rohit Chimanbhai Pandya, took over the investigation. He
recorded the statement of witnesses and since there was
sufficient evidence against the accused, he filed charge-sheet in
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the Court of Chief Judicial Magistrate, Godhra. Since case was
exclusively triable by the Special Judge, it was committed to the
Court of Sessions.
[2.3] On ensuring compliance of the provisions of 'the
Code' with regard to copies of papers of charge-sheet and other
things, learned Special Judge framed the charge against the
accused for an offence under Section 135(1)(a) of 'the Act, 2003'.
Since the accused denied the charge and claimed to be tried,
prosecution examined 4 witnesses and produced and proved
nearly 6 documents to prove the guilt of the accused.
[2.4] On conclusion of the evidence and hearing the
arguments on behalf of the prosecution as also the accused, the
aforesaid judgment and order of acquittal has come to be passed
by the learned Special Judge, against which, the present appeal
is preferred.
[3] Heard Mr. Bhargav Pandya, learned Additional Public
Prosecutor for the appellant - State. He took me to the impugned
judgment and order of acquittal as also the evidence led before
the Court and documents produced in minute detail. He
submitted that prosecution has examined witnesses, produced
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and proved the documents, which are corroborated by the
witnesses. Since the accused caught red handed committing
theft of electricity through connecting with overhead low tension
electric line through red-colored wires and he found that at the
place of offence, a checking-sheet came to be prepared which is
signed by him. Since prosecution has proved beyond reasonable
doubt that accused has committed theft of electricity, which is
punishable under Section 135(1)(a) of 'the Act, 2003', this appeal
be allowed and accused be convicted for the offence charged.
[4] As against that, Mr. M.A.Kharadi, learned advocate for the
respondent - accused vehemently submitted that prosecution
has miserably failed to prove the case against the accused. From
the evidence led before the Court, according to submission of Mr.
Kharadi, learned advocate, it has not been proved that accused
was present and he signed the checking-sheet, as claimed by the
prosecution witnesses, beyond reasonable doubt. He has further
submitted that though independent witnesses are available, no
statement of any of them is recorded or examined before the
Court. He has further submitted that even after registration of
an offence, Police has completed the rituals, taking statements of
only officers, who were members of the raiding party, and
virtually, there was no investigation at all into the crime against
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the accused. He has further submitted that since copy of
checking-sheet where prosecution witnesses claimed that it has
signature of the accused is not proved before the Court, as it was
a xerox copy which was exhibited subject to production of
original. Though, it is claimed by the witnesses that original is
produced in the Suit filed against the accused, the witnesses
have not bothered to produce certified copy thereof before the
Court, so as to show to the Court whether accused has signed
the checking-sheet or not?
[4.1] He has further submitted, drawing attention of the
Court to the copy of plaint filed against the accused, as claimed
in the suit, that neither the accused nor his representative
signed the checking-sheet, whereas as claimed by the witnesses
in the present case, checking-sheet was signed by the accused.
As such, since it is not proved on record of this case, no
cognizance of such evidence be taken against the accused. He
has further submitted that no rojkam or panchnama prepared
by the inspecting Officer on the date of inspection, as admitted
by them in the cross examination.
[4.2] He has further submitted that no independent panch
witnesses have come to be associated even to prepare a
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panchnama or list of documents seized or muddamal seized.
Therefore, he has submitted that since the prosecution has
miserably failed to prove the case against the accused, learned
Judge should have recorded an order of clean acquittal and
instead, he has given benefit of doubt. Therefore, he has
submitted that this Court may not interfere, while exercising
appellate powers, that too, in this acquittal appeal. He has
submitted that even if two views are possible on the basis of
evidence adduced before the Court, the view which is favourable
to the accused is to be accepted. When there is no view than the
view taken by the learned Judge is possible, this Court may not
interfere in this acquittal appeal and may dismiss the same.
[5] Having heard the learned Additional Public
Prosecutor as also the learned advocate for the respondent -
accused and going through the judgment and order of acquittal
as also the evidence led before the Court and documents
produced and proved, let me examine, on re-appreciation of
evidence, whether impugned judgment and order of acquittal is
bereft of any evidence on record or not?
[6] Complainant- Krushnabhai Ramjibhai Desai, who is
examined at Exhibit-6, claimed that he was working as Dy.
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Executive Engineer with 'MGVCL', Godhra Rural and on
10.04.2006, he along with H.S.Dave, N.C.Solanki and Ghadiyali
had gone for electricity inspection at Village- Gadh, Chudadi and
Ladpur. Other linemen were also there along with them. At
about 10:00 p.m. on that day, they inspected the premises of
respondent - accused, Farook Rasulbhai Shaikh and they found
that from the low tension line passing just behind the house of
the accused, he made direct connection through two red-colored
wires, 1/18 gauge wire of 5 meters and committed theft of
electricity. They found total 1.911 kilowatt load consumed at
that time in the premises. Therefore, a bill of Rs.1,51,910.40
came to be issued. From the place, wire was seized. Since the
accused was present, at that place checking-sheet was prepared
in original, which is produced in the Suit filed against the
accused. He claimed that it contained his and other Officers'
signature as also Staff. He has asserted that signature of
accused was also taken in the checking-sheet. Next day in the
office, calculation sheet was prepared and a bill has come to be
issued to the accused. During his evidence, he produced
calculation sheet at Exhibit-8 and supplementary bill at Exhibit-
9. Therefore, a complaint Exhibit-10 came to be given by him to
the Police Station. He further claimed that till today, accused
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has not paid this amount of supplementary bill. He identified the
muddamal and the accused before the Court. As such, he
claimed that father of the accused is their consumer. According
to his evidence, father of accused was found to have committed
theft of electricity thrice earlier and he also did not pay any
amount of supplementary bill.
[7] However, he has specifically admitted in his cross
examination that muddamal which is seized, he did not prepare
any list and copy was also not served to the accused. He has
further admitted that in checking-sheet, no signature of any
neighbour is taken. For the very same premises, 'MGVCL' has
filed a case against Rasoolbhai Sattarbhai, who is father of the
accused. He has admitted that such muddamal wire is available
in the market, whether the muddamal wire is live or not, no test
report is obtained. He has further admitted in the cross
examination that muddamal is neither seized in presence of
panch witnesses, nor even panchnama is drawn. Complaint has
come to be sent through post. As such, he denied that signature
of the accused in the checking-sheet is created by them. He has
admitted in his cross examination that for ownership of the
premises, documentary evidences are available with the
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Government Offices. He has further admitted that before
preparing checking-sheet, house number / property number is
not attempted to be even obtained. He has admitted in his
evidence that in the surrounding of the premises, there are other
residential premises as well. He has further admitted that in
their presence, Police had not carried out any panchnama of the
place of incident. He has further admitted that at the time of
complaint, Police seized the muddamal but no panchnama is
prepared.
[8] On analyzing such evidence, learned Judge has said
that on the date of checking, whether the premises belongs to
the accused, no documentary evidence is ever produced, no such
things have been mentioned in the checking-sheet. While copy of
checking-sheet was produced, it was specifically noted by the
Court that since it contained signature of responsible Officer, on
condition of producing original, checking-sheet mark 5/3 was
given Exhibit-7. Though it was exhibited on condition of
producing the original, no such original or even true copy was
attempted to be produced by any of the witnesses. As claimed by
the witness, checking-sheet was also signed by the accused.
However, copy of plaint produced by the accused along with his
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written submissions of Regular Civil Suit No.452 of 2007, in
paragraph 3 thereof, it is specifically mentioned that checking
Officers prepared a detailed report of inspection in presence of
accused / representative of the accused and such report was
prepared in prescribed form, which did not contain signature of
either the accused or his representative as they did not sign it. It
is further mentioned therein that on the basis of such a report,
electricity company is entitled to recover amount of
supplementary bill pursuant to the electricity theft. Thus, it is
clear that the said report prepared by the Officer concerned is in
respect of checking-sheet. Therefore, there appears contradictory
evidence led before the Court. Therefore, perhaps prosecution
has not produced the original of checking-sheet Exhibit-7. Since
Exhibit-7 was exhibited on condition of production of original,
which was never produced, it has to be eschewed from the
evidence. If checking-sheet prepared by the Officer concerned,
who inspected the premises, is taken out of evidence, there
remains nothing on record, whereby it can be said that on that
day premises was checked and it is found as claimed by the
prosecution witnesses.
[9] Not only that, if original checking-sheet is produced
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in the Suit, they could have obtained certified copy thereof from
the Civil Court and produced before the Special Court to lend
assurance to the evidence of prosecution witnesses that
checking-sheet was also signed by the accused. As such,
averments in the Suit reflects that neither the accused nor his
representative have ever signed checking-sheet or any report
prepared by them.
[9.1] No rojkam or panchnama prepared on the date of
inspection and if prepared, it is not produced on record before
the Court, which creates doubt about the genuineness of the
assertion made by the prosecution witness. Though late filing of
the complaint may not assume that much importance, in view of
the fact that there appears contradictory version about the
signature of the accused in the checking-sheet / report prepared
by the Officer concerned, even late filing of the complaint
assumes importance, more particularly, when neither the
original nor true copy of checking-sheet is produced by the
prosecution. At the same time, nothing is mentioned about
checking-sheet in the written complaint Exhibit-10, sent to the
Police Station by the complainant, however, copy of the
checking-sheet is claimed to have been annexed with that
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complaint. Therefore, nothing is mentioned about the same in
the complaint, is of no use. But, at the same time, that checking-
sheet has to be produced and proved before the Court. Since
calculation sheet at Exhibit-10 and bill at Exhibit-9, though
xerox copy, looses its significance, in absence of checking-sheet
being produced and proved.
[10] Prosecution has examined another witness viz.
Himmatbhai Hargovindbhai Dave at Exhibit-18. He has also
given corroborative evidence to that of the complainant. He has
also asserted that checking-sheet was prepared and signature of
the respondent-accused was taken in that checking-sheet as
also signed by the checking Officers as well. Cross examination
of this very witness is also in line of the cross examination of the
complainant, bringing out whatever is already brought out in the
cross examination of the complainant. Therefore, nothing further
is required to be referred to in this judgment about the evidence
of this witness.
[11] Third witness examined is Manish Yashwant
Ghadiyali, who is also a part of checking Officers, examined at
Exhibit-20, and he has also given corroborative evidence to that
of the complainant. Lastly, Investigating Officer - Rohitkumar
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Chimanlal Pandya is examined at Exhibit-21. He claimed that on
investigation being entrusted to him on registration of FIR, he
recorded the statement of the witnesses. Since statements of the
witnesses are supporting the complaint and there is sufficient
evidence against the accused, he filed charge-sheet against him.
Muddamal, while complaint was given, produced before the
Police and, therefore, when PSO has given him yadi, which was
produced at Exhibit-22. He has admitted that, in this case, no
panchnama of place of incident is drawn by him. He has also not
verified whether the muddamal, which is mentioned in the
checking-sheet, is actually used in the commission of an offence
or not? He has also not verified the supplementary bill given to
the accused. As such, on registration of FIR, Investigating Officer
is supposed to visit the place of incident and record statements
of surrounding witnesses available, no such action is taken by
the Investigating Officer. He has only recorded the statement of
the Officer concerned of the raiding party.
[12] Considering the overall evidence led before the Court
and on re-appreciation thereof, it appears that since no
checking-sheet is proved before the Court containing signature
of the respondent- accused, prosecution has miserably failed to
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prove the case against the accused along with other evidence on
record. As such, evidence of official witnesses need not be
discarded, if it is corroborated by other independent witnesses.
However, in the present case, not only statements of
independent witnesses were not recorded, even they are not
examined before the Court, to lend assurance to the claim made
by the prosecution witnesses. Though xerox copy of checking-
sheet is admitted in the evidence at Exhibit-7, subject to
production of original, the prosecution and, more particularly,
the witnesses have miserably failed to produce the same. Even if,
it is produced in the Suit filed by them against the accused, they
could have obtained the certified copy from the Court concerned
and produced the same before the Special Court. Neither of it
has taken place and, therefore, checking-sheet remained to be
not proved on record, lending assurance that on the date of
incident, any checking / inspection was made by them, as
claimed. Even otherwise, as required under Section 135(3) of 'the
Act, 2003', a list of all things seized in the course of search
carried out shall be prepared and delivered to the occupant or a
person who shall sign the list. However, no such list is prepared
of the things seized, as admitted by witnesses and no such copy
was ever given to the accused. Therefore, there is infraction of
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sub-section (3) of Section 135 of 'the Act, 2003'. Though, it may
not be determined whether it is mandatory or not, fact remains
that checking-sheet is not produced and proved on record. At the
same time, as admitted, no such list of things seized from the
place like wire etc., to which theft of electricity is committed,
inspiring no confidence from the evidence led before the Court.
[13] Though the provisions of 'the Code' relating to search
and seizure, as far as may be, shall apply to searches and
seizures under 'the Act, 2003', no independent witnesses of the
locality were associated for carrying out search or seizure
lending assurance to the search and seizure made by the
prosecution witnesses. Coupled with the fact that in two
different proceedings filed by the very institution, different claim
is made in respect of signature of the accused over the report /
checking-sheet, and therefore, non-production of original or even
certified copy of checking-sheet subject to which it is given
Exhibit-7, assumes importance. If it is produced, they would
have been exposed, though Suit filed by the Dy. Executive
Engineer of 'MGVCL' Rural Sub Division Godhra contains
assertion that the report / checking-sheet prepared at the place,
accused / his representative did not sign the same. Whereas,
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very Dy. Executive Engineer claimed before the Criminal Court
claims that checking-sheet was signed by the accused. Though
the complainant in his deposition stated that load of 1.911
kilowatt was being consumed at the time of inspection, what
were the electric apparatus used at the time of inspection is not
even noted in any report or even stated before the Court so as to
issue supplementary bill of Rs.1,51,910.40.
[14] At the same time, though independent witnesses
were available in the surrounding area, neither they were
associated with the search or seizure, their statements were also
not recorded and if recorded, they have not been produced before
the Court and they have not been examined before the Court to
lend assurance / corroboration to the deposition of the Officers
concerned, which is under a cloud.
[15] Therefore, it is clear that on correct appreciation of
the evidence led before the Court and I find it to be correct one
on re-appreciation of evidence, when benefit of doubt is given to
the accused, it requires no interference in this appellate
jurisdiction where innocence of the accused is even strengthen
by the order of acquittal recorded in his favour. In any view of
the matter, when two views on the evidence is available, the view
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which is in favour of the accused has to be accepted, there
appears no other view possible than the view taken by the
learned Judge on the evidence adduced, I see no reason to
interfere in this appeal.
[16] In view thereof, this appeal fails and it is hereby
dismissed. Record and proceedings, if any, be sent back to the
concerned Trial Court immediately.
Sd/-
(UMESH A. TRIVEDI, J)
Lalji Desai
