Karnataka High Court
M.D.Kumbar vs The State Of Karnataka on 7 December, 2021
Bench: H.P.Sandesh
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL No.200028/2015
CONNECTED WITH
CRIMINAL APPEAL No.200105/2014
In Crl.A.No.200028/2015
BETWEEN:
M.M.CHANAGOND
AGE: MAJOR, OCC: SEC.III
HESCOM, VIJAYAPUR @ PRESENT
ASSISTANT EXECUTIVE ENGINEER (E)
RURAL SUB-DIVISION
VIJAYAPUR
... APPELLANT
(BY SRI NANDAKISHORE BOOB, ADVOCATE)
AND:
THE STATE THROUGH HESCOM
VIJAYAPUR
... RESPONDENT
(BY SRI GURURAJ V HASILKAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 156 OF
THE ELECTRICITY ACT, 2003 PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE AND
2
FINE IMPOSED ON THE APPELLANT BY THE II ADDL. SESSIONS
JUDGE AND SPL. JUDGE, VIJAYAPUR IN KPTCL
SPL.C.NO.33/2010 DATED 07.08.2014 FOR THE CHARGES U/S
150(2) OF ELECTRICITY ACT, 2003 AND ETC.
In Crl.A.No.200105/2014
BETWEEN:
M.C.KUMBAR
AGE: MAJOR, OCC: OVERSEER SECTION-III
HESCOM, BIJAPUR (RETD.)
R/O HEBBAL, TQ: B.BAGEWADI
DIST: BIJAPUR
... APPELLANT
(BY SRI SUDHIRSINGH R VIJAPUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH POLICE INSPECTOR VIGILANCE
PS HESCOM, BIJPAUR
REP. BY SPP
HIGH Court BENCH BULBARGA
... RESPONDENT
(BY SRI GURURAJ V HASILKAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 156 OF
ELECTRICITY ACT R/W SECTION 374 (2) OF THE CRIMINAL
PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMETN
AND SENTENCE DATED 07.08.2014 PASSED BY THE II ADDL.
SESSION JUDGE AND SPECIAL JUDGE BIJAPUR IN KPTCL
SPECIAL CASE No.33/2010 AND ACQUIT THE APPELLANT AND
ETC.
THESE APPEALS COMING ON FOR ARGUMENTS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3
ORDER
These two appeals are filed by the accused No.1 and
3 challenging the judgment of conviction and sentence
dated 07.08.2014 for the offence punishable under
Sections 150(2) of the Electricity Act, 2003 to pay a fine of
Rs.25,000/- and in default of payment of fine, they shall
undergo simple imprisonment for a period of three
months.
2. The factual matrix of the case is that the
counsel for the respondent/State submits that on
22.10.2009 when the HESCOM Vigilance Police, Bijapur
raided the shop of Ramanna Hanamant Patroti at 11.00
a.m. in the presence of the complainant V.S. Rathod, AEE,
CW4/Mitare, CW12/R.B.Halli, CW14/H.I.Naik,
CW15/R.B.Koli, CW16/Anand Patange, CW17/H.R.Naik
have inspected the installed R.R.No.70770. It was noticed
that deleted accused No.2/Ravikumar was running the
mobile shop through this meter from 26.10.2006 and on
further inspection it was revealed that from 26.10.2006 till
22.10.2009, no bill was paid having consumed the
electricity through that meter. It is further case of the
prosecution that on further enquiry to the deleted accused
No.2, he informed that he had entrusted the work of
getting electricity connection and installation of meter to
the accused No.2-Basavaraj Gotagunaki, Electric
Contractor, process through the accused No.1-Section
Officer and accused No.3 - M.D.Kumbar, who was working
as Overseer at that time and that he was informed that his
number is not yet fed into to the computer system,
therefore, he is not getting the bill and that he would get
bill as and when the RR number is fed to the computer
system. It is an allegation of the prosecution that on
further verification of records, it was found that there were
records pertaining to the installation of this RR No.70700
and by misusing the work order sanctioned in the name of
CW7/Kamalabai, making a false entry in RR register,
accused Nos.1 to 3 with a common intention, have
managed to get electricity service through the shop of
deleted accused No.1 belonging to deleted accused No.1
through RR No.70700 illegally, thereby, abetted the
deleted accused Nos.1 and 2 to steal the electricity to the
extent of 750 units worth Rs.4,418/- and thereby causing
loss to the HESCOM and hence, after the investigation, the
charge sheet has been filed against these petitioners.
3. After filing the charge sheet by the concerned
HESCOM Vigilance Police, the Court has taken cognizance
and secured the presence of the accused Nos.1 to 3. They
denied the charges leveled against them and the
prosecution relied upon the evidence of PW1 to PW11 and
got marked the document at Exs.P1 to P10 and M.O.1 to 3.
The accused were subjected to 313 statement and
thereafter they have not led any defence evidence. The
Trial Court after considering both the oral an document
evidences convicted these petitioners and hence, the
present appeal is filed.
4. The appellant who is the accused No.3 in
Crl.A.No.200105/2014 vehemently contend that the Courts
have committed an error in accepting the evidence of the
prosecution. The witness who have been examined before
the Trial Court are the interested witnesses and the Trial
Court mainly relied upon the evidence of PW7 who is the
lineman, has categorically deposed that MO3B is in his
handwriting and he made the entry in the register. He
also admits in the cross-examination that MO3B there are
hand writing of different persons and that he has made
two entries. When such being the facts of the case, the
Trial Court ought not to have accepted the evidence of
PW7 as he admits that the other entries are also found.
The witness who have supported the case of the
prosecution are all interested witnesses and the same has
to be analyzed with more caution and failed to take note of
the inconsistency and instead of it, the Trial Court
considered the evidence of PW7 and PW8 committed an
error in convicting the accused/appellant.
5. The counsel of the appellant in
Crl.A.No.200028/2015 in his arguments vehemently
contend that when the beneficiaries have admitted the
guilty and paid the fine amount, the Trial Court ought not
to have proceeded against these petitioners. The PW1 has
not supported the case of the prosecution regarding
abetment given by him to delete accused Nos.1 and 2 who
are the main accused persons. Even PW11 on whose
name the said meter was allotted, she has also not made
any complaint to the appellant and she has been allotted
separate meter and she has clearly said that she do not
know about the appellant and to whom the said meter was
allotted. The counsel would submit that PW7 who has
struck the name of PW11 and entered the name of deleted
accused No.1 as per the say of the appellant. But there is
no order in writing and no initials on corrections of the
appellant and the said document at Exs.P5 and 6 are not
original and they are the Photostat copies and the same
cannot be admitted. When the deleted accused Nos.1 and
2 have paid the entire fine amount regarding theft as per
Electricity Act before the Court, there is no question of
proceeding against the appellant and others and the
evidence of PW7 not corroborates and hence, it is a fit case
to reverse the finding of the Trial Court.
6. Per contra, the learned High Court Government
Pleader for the State would submit that the evidence of
PW7 is clear that only on the instructions of the accused
No.3, he has changed the name of the Kamalabai Bajantri
and inserted the name of accused No.1. PW3 also
supported the case of the prosecution. He admits that no
enmity between PW7 and accused to give evidence against
the accused. When such being the facts of the case, the
question of disbelieving the evidence of both PW3 and PW7
do not arise. The counsel would submit that the other raid
witnesses have also supported the case of the prosecution
and hence, there is no any reason to interfere with the
findings of the Trial Court.
7. Having heard the respective counsel and also
on perusal of material on record, the points that would
arise for consideration of this Court are
(1) Whether the Trial Court committed an error
in convicting the appellants?
(2) What order?
Point No.1:
8. Having heard the respective counsel, this Court
has to re-appreciate the material available on record. The
prosecution in order to prove the case of abetment against
these petitioners relied upon the evidence of PW1 to PW.11
and also relied upon the documents at Exs.P1 to P10.
These appellants have not led any rebutable evidence
before the Trial Court. MO1 to 3 are also marked through
the witnesses. Whether these witnesses evidences prove
the case of the prosecution has to be looked into by re-
appreciating the evidence on record.
9. The case of the prosecution is that on
22.10.2009 when they conducted inspection of RR
No.70700 installed in the shop of one Ramanna Hanamant
Patroti situated in front of bus stand, Bijapur and though
the said meter was installed on 26.10.2006, no bill was
paid by the same from the date of installation till the date
of inspection. Hence, the allegation is made against these
appellants that they being the Section Officer and Overseer
of the Department, they were hand in glow with the
original accused Nos.1 and 2 and they have abetted in
committing the offences. The prosecution mainly relies
upon the evidence of PW3 who is running the mobile shop
belonging to the deleted accused No.1/Ramanna
Hanamant Patroti as lessee, has deposed that
Veerabhadreshwar Electric Contractors have got fixed the
meter 47 and has identified MO1 meter that was fixed in
his shop and later seized by the HESCOM Vigilance Police.
In his cross-examination it is elicited that in the year 2000
itself, RR No.70700 was there in the shop and again it is
elicited that said meter was got fixed through
Veerabhadreshwar Electric Contractors and one lineman
had also came for fixing the same. It is also deposed by
him in the cross-examination that the owner had filled
certain forms and handed over the same to the officials. It
is also the evidence that he never paid any electricity
charges when he took the premises from the accused No.1
and when he enquired, it is told to him that the name is
not fed in the computer system therefore, he is not getting
the bill but PW3 identified the MO1. The said MO1 is not
an instrument that is easily available in the market and
any one can purchase it and install it in their establishment
for drawing electricity. Necessarily the meter would be
supplied only by the sanctioning authority.
10. The prosecution also relied upon the evidence
of PW4. He also admits that on certification of Technical
Assistant, the meter would be supplied to the consumer
and for which they collect the price for the meter and issue
the receipt. He deposed that during 2006-2009, PW6 was
working as Technical Assistant, he has identified MO1 as
one issued by him as against the invoice No.30131. He
has also deposed that original receipt would be given to
the consumer and first copy to the HESCOM Office and
second copy would be retained by him. The accused No.1
who was working as Section Officer and accused No.2 was
Electric Contractor and whereas accused No.3 was working
as Overseer. But he admits that he is unaware what
offence these three have committed. Work order one
provided to PW11/Kanmalabai Bajantri dated 11.07.2006
is shown to him and against that, on 26.10.2006, on the
permission letter given to Patroti, he has issued the meter.
So this shows that there was no sanction order, no any
formality was done in issuing the meter but the existing
work order of PW11 was misused and by producing the
same before PW4, the meter has been obtained.
11. The other evidence relied upon by the
prosecution is PW7. PW.7 who is the operator working in
KEB in his evidence says that accused No.3 was doing
work of maintaining register. He used to do the work of
recovery and line maintenance. When he was not having
any work, he was also discharging duty as per the
instructions of accused No.3. He says that accused No.3
used to instruct him to write register and he used to write
the register. It is his evidence that accused No.3
instructed him to write the name of Patroti in respect of RR
No.70700 and he identifies M.O.3 RR register. He also
says that writing found in the register is his handwriting
and the same is written based on the instructions of
accused No.3 and the said register was in the custody of
accused No.3. He made statement regarding this before
the police. He came to know that without permission the
name of the Patroti was entered and committed crime and
the meter was installed in the mobile shop of Patroti. He
was subjected to cross-examination. In the cross-
examination, he admits that from 2002-2007 he was
working at Bijapur branch as Lineman. He also admits
that shop of Patroti comes within the power house feeder
and he was working as Lineman at that time. It is also his
evidence that prior to this incident, accused No.1 was
instructing him to write the register. However, he admits
that in M.O.3 register the other persons have also made
entries. He admits that in the said register in respect of
26.10.2006 his handwriting is available in respect of two
meters. He admits that while making entry they used to
see file. He also admits that in respect of meter No.70700
there was no complete documents hence, he informed
accused No.3 that he will not make any entry at that time
accused No.3 told him that let him write the register,
afterwards he will fill up the same. It is suggested that in
respect of meter No.70700 no instructions was given by
accused No.3 on 26.10.2006 to write the same. The said
suggestion was denied. He also admits that in M.O.3(B)
there was a correction in respect of Kamalabai work order
and the work order of Kamalabai was strike down and
name of Patroti was inserted, but he did not bring it to the
notice of the senior officers. It is suggested that he only
involved in all this and the said suggestion was denied. It
is suggested that RR register at M.O.3 was not in the
custody of accused No.3 and the same was denied.
12. The other witnesses are the Investigating Officer
who has been examined as P.W.8; P.W.9 is also Lineman
and he also speaks with regard to the correction in respect
of name of R.H.Patrorti; P.W.10 is the Police Inspector who
conducted investigation and filed charge sheet; P.W.11 is
the owner of the house and she says that she got installed
electricity connection from Mamadapur and every month
she used to get bill and also she says that she came to
know electricity connection which was sanctioned to her
house was scratched and her name was substituted by
others names and connection was given. This witness has
turned hostile with regard to in whose name it was
corrected.
13. Having taken note of both oral and documentary
evidence and keeping the contentions raised by the
respective counsels, this Court has to re-appreciate the
material on record.
14. Having taken note of the evidence available on
record, it is not in dispute that meter No.70700 was given
in favour of Kamalabai. The case of the prosecution is that
on account of abetment of these appellants, accused Nos.1
and 2 have committed offence of commission of theft of
electricity for the period from 26.10.2006 till 22.10.2009.
The prosecution in order to prove the case of the
prosecution mainly relied upon the evidence of P.W.3 who
is running mobile shop in the shop belongs to R.H.Patroti.
He says that he was not getting any bill. But he says that
meter number was not fed in the computer and hence, he
was not getting bill. The evidence of P.W.7 is clear that on
the instructions of accused No.3, he changed the name of
R.H.Patroti in respect of sanction order of Smt. Kamalabai.
Said Kamalabai is also examined as PW.11 and she also
says that her name was corrected. She turned hostile with
regard to in whose name correction was made. The
evidence of P.W.7 makes it clear that name of R.H.Patroti
who is the owner of the building to which electricity
connection was given was mentioned in M.O.3, Register
and also his evidence is clear that on the instructions of
accused No.3, he only corrected. PW.7 is Lineman working
in the department and in order to disbelieve his evidence
nothing is elicited in the cross-examination of PW.7 that he
was having any enmity against accused Nos.1 to 3 to
depose against them. The fact that accused No.1 is the
Section Officer and accused No.3 is the Overseer is not in
dispute. It is also not in dispute that bill was not issued
from 2006 to 2009 in respect of particular meter and there
was tampering of the name in respect of original
installation of Smt. Kamalabai who has been examined as
PW.11. The other witnesses, no doubt are the official
witnesses, but their evidence also cannot be disbelieved
only on the ground that they are official witnesses. Here
case is also against officials who have performed the work
of Section Officer and Overseer. It is their duty to see that
whether bills are issued in respect of installation of
electricity connection in respect of shop of PW.3 in which
he was running mobile shop. Admittedly, no bills are
issued from 2006 to 2009. As I have already pointed out
the electricity bills are not issued from 26.10.2006 and
PW.7 who claims that he is Lineman working in the same
department and only on the instructions of accused No.3,
he made corrections in M.O.3. I have already pointed out,
nothing is elicited from PW.7 that the said witness was
having any enmity to depose against the appellants. The
trial judge having considered the material available on
record particularly Ex.P7 which is also copy of Ex.P5(a)
wherein name of Kamalabai has been systematically
erased and in its place name of R.H.Patroti is mentioned
and number T.6436 is retained. No doubt, in the cross-
examination of PW.7 it is elicited that there were other
entries made by other persons but in respect of particular
document of Ex.P7 and Ex.P5(a) he identifies the entry
and categorically says that he made entry as per the
instructions of accused No.3. The trial Judge also taking
note of the evidence available on record comes to the
conclusion that even after coming to know about this fact
of manipulation both accused Nos.1 and 3 have not lodged
complaint against any of the subordinates alleging that
during their absence the work order of Kamalabai and RR
register have been stolen from the place where they were
generally kept and they have been tampered with. It is
also important to note that the said register should be in
the custody of accused No.3. Though it is suggested to
PW.7 that the register is not in the custody of accused
No.3, he categorically denied. Accused No.3 has not
explained how the said register which was in his custody
had gone to the custody of PW.7. The fact that PW.7 is
subordinate to accused No.3 is not in dispute and it is also
his evidence that he used to give instructions to him to
write register and it is also his case that he gave
instructions to write the register and he would fill the
remaining. When such being the evidence of PW.7 and also
the trial Court taken note of both oral and documentary
evidence particularly evidence of PW.3 who was running
mobile shop in the shop belongs to the owner-Patroti and
when the documentary evidence substantiated the case of
the prosecution, I do not find any error committed by the
trial Court in convicting accused Nos.1 and 3 being the
officers of the KPTCL serving as Section Officer and
Overseer. When the electricity theft was committed that
too for a period of three years, they ought to have taken
action against persons who tampered the documents as
well as not paid bill for period of three years. No action is
initiated at the instance of these appellants who are the
responsible officers working as Section Officer as well as
Overseer. When there is positive evidence against the
accused persons, the very contention of the learned
counsel for accused Nos.1 and 3 that they have been
falsely implicated in the case cannot be accepted. Hence, I
do not find any merit in the appeals to reverse the finding
of the trial Court and hence, I answer Point No.1 as
negative.
Point No.2:
15. In view of the discussions made above, I pass
the following:
ORDER
The appeals are dismissed.
Sd/-
JUDGE
SAN/NB
