Saibanna S/O Mareppa vs The State Of Karnataka
2021 Latest Caselaw 6055 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

   DATED THIS THE 14TH DAY OF DECEMBER 2021

                            BEFORE

        THE HON'BLE MR. JUSTICE H.P.SANDESH

          CRIMINAL APPEAL No.200046/2015

BETWEEN:

SAIBANNA S/O MAREPPA
AGE: MAJOR, OCC: AGRICULTURE
R/O MANGALAGI VILLAGE
TQ. CHITTAPUR, DIST. KALABURAGI
                                              ... APPELLANT
(BY SRI SANJAY KULKARNI, ADVOCATE)

AND:

THE STATE OF KARNATAKA
THROUGH GESCOM VIGILANCE SQUAD
KALABURAGI, REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENCH AT GULBARGA
                                    ... RESPONDENT
(BY SRI SHARANABASAPPA M. PATIL, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 156 OF
THE    ELECTRICITY   ACT,   2003   R/W   SECTION   374(2)   OF
CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
17.03.2015   PASSED    BY   I-ADDITIONAL   SESSIONS   JUDGE,
KALABURAGI,    IN    SPL.CASE.NO.437/2010    AND    SET     THE
APPELLANT/ACCUSED AT LIBERTY.
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     THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

Heard the learned counsel appearing for the

appellant and the learned High Court Government Pleader

appearing for the respondent-State.

2. This appeal is filed under Section 156 of the

Electricity Act, 2003 r/w Section 374(2) of Criminal

Procedure Code, praying to set aside the judgment of

conviction and order of sentence dated 17.03.2015 passed

by I-Additional Sessions Judge, Kalaburagi, in

Spl.Case.No.437/2010

3. Factual matrix of the case is that the Police

Inspector of GESCOM, Kalaburagi, has filed chargesheet

against accused Nos.1 and 2 for the offence punishable

under Section 135 of the Electricity Act, 2003 r/w Section

379 of IPC making allegation that on 12.06.2009 at 3.00

p.m., when CW.1/complainant along with his staff visited

the flourmill belonging to accused No.1 situated at

Mangalagi village, they found that meter was tampered

and made the meter to run slowly to the extent of 54.22%

and thereby committed theft of electricity to the tune of

Rs.98,412/-. The accused persons were secured and they

did not plead guilty. The prosecution relied upon the

evidence of PWs.1 to 10 and documents at Exs.P1 to P6.

The Trial Court after considering both the oral and

documentary evidence convicted accused No.2 and

acquitted accused No.1. Accused No.2 was sentenced to

undergo imprisonment for a period of one and to pay fine

amount of Rs.98,412/- and in default of payment of fine,

ordered to undergo imprisonment for a period of six

months.

4. Being aggrieved by the judgment of conviction

and order of sentence passed by the Trial Court, the

present appeal is filed.

5. The learned counsel appearing for the

appellant/accused No.2 vehemently contended that as on

the date of alleged visit i.e., on 12.06.2009 at 3.00 p.m.,

accused No.1 was in Jail and hence, the Trial Court

acquitted accused No.1. The case of the prosecution is

that accused No.2 was running the flourmill. The learned

counsel also contended that independent witnesses who

have been examined before the trial Court have not

supported the case of the prosecution. The prosecution

mainly relies upon the official witnesses' evidence. The

panch witness who has been examined as P.W.9 has

turned hostile. The learned counsel further submits that

the appellant was in custody for a period of 35 days during

the trial. The other witness P.W.10 also made general

statement and it is elicited in the cross-examination that

he was having ill-will against accused No.1 since both of

them were not in good terms. The Trial Court has

committed an error in convicting the appellant. He would

also submit that P.W.2 in the cross-examination admitted

that accused No.1's father and brother were paying

electricity bill and hence, it is clear that the appellant was

not running the flourmill. The learned counsel also

submits that P.W.3 admits that he was handing over the

electricity bills to the persons who would be there in the

flourmill and some times he handed over the bill to the

brother of accused No.1. The learned counsel referring to

these admissions vehemently contended that it is clear

that father and brother of accused No.1 were paying the

electricity charges and brother of accused No.1 was also

collecting electricity bill from P.W.3 and no positive

evidence is before this Court to show that this accused was

running the flourmill. The learned counsel also submits

that in the complaint also no specific averment is made

that the appellant was running flourmill and it is only

stated that mahazar was drawn in his presence. Hence,

the appellant is entitled for acquittal.

6. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit

that though the independent witnesses have not supported

the case of the prosecution, but P.W.10 categorically

deposed that the appellant was running the flourmill. The

official witnesses were not having any animosity against

the appellant and their evidence is unequivocal that the

flourmill was running when they conducted inspection of

the flourmill and the appellant was running the flourmill.

The Trial Court has taken note of the same. Hence, there

are no grounds to interfere with the findings of the Trial

Court.

7. Having heard the learned counsel for the

appellant and the learned High Court Government Pleader

appearing for the respondent-State and also on perusal of

the material on record, the point that would arise for

consideration of this Court is,

Whether the Trial Court has committed an error in convicting the accused for the offence punishable under Section 135 of the Electricity Act, 2003 and sentencing him to pay fine in terms of back billing and compounding charges and to undergo imprisonment for a period of one year?

8. Having heard the learned counsel appearing

for the appellant and the learned High Court Government

Pleader appearing for the respondent-State and on perusal

of the judgment of the Trial Court, the Trial Court after

considering the evidence of PWs.1 to 10 as well as

documentary evidence and also defence of accused No.2,

comes to the conclusion that Exs.P1 to P6 are crystal clear

that accused No.2 was running the flourmill of accused

No.1 on lease basis and at that time, he tampered the

meter seal by preventing the consumption wheel slowly

and caused loss. It is also observed that contrary is not

proved by the accused and hence, comes to the conclusion

that accused No.2 was running the flourmill and convicted

the accused for the above said offence. The main

contention of the learned counsel for the appellant is that

though the prosecution witnesses have deposed that this

appellant was running the mill, but P.W.2 categorically

admitted that electricity bills are paid by father and

brother of accused No.1 and hence, the appellant is not

having any connection with the running of the flourmill

belonging to accused No.1. The learned counsel also

submitted that accused No.1 who has been examined as

D.W.1 deposed before the Court that he never gave

flourmill on lease to accused No.2 and when the GESCOM

people conducted raid he was in jail. In the cross-

examination, he has deposed that though he was having

acquaintance with accused No.2 from the last twenty five-

thirty years, he has not given any responsibility to any

person to run the flourmill. Having considered the

evidence of accused No.1, in his chief evidence nowhere he

has stated that he has not given flourmill to accused No.2,

but he only says that accused No.2 never met him when

he was in jail. It emerges from the records that when the

raid was conducted, accused No.1 was in jail and the said

fact is not disputed by the accused. It is also important to

note that D.W.1 in his cross-examination has stated that

he cannot tell whether electricity bill was paid when he was

in jail. No doubt, in the cross-examination of P.W.2, it is

elicited that brother and father of DW.1 were paying

electricity bill. But it is the evidence of P.W.3 that accused

No.2 i.e., appellant was running the flourmill and he used

to visit every month and verify the electricity meter and he

used to handover the bill to accused No.2. No doubt, in

the cross-examination, he admits that some times he gave

bill to brother of accused No.1. It is elicited in the cross-

examination that whenever he visit flourmill, he used to

hand over the bills to persons who were there in the mill.

The evidence of P.W.3 is consistent that he was handing

over the electricity bill to accused No.2 and he was running

the mill. Nothing is elicited in the cross-examination of

P.W.3 with regard to handing over of bill to accused No.2

except the suggestion made to him that he never handed

over the bill. He also admits that accused No.2 was in jail.

The other witnesses no doubt official witnesses who are

also raiding parties and their evidence is very clear that

the raid was conducted and at that time, this accused was

very much present in the flourmill. The learned counsel

for the appellant does not dispute that left thumb

impression of accused was also taken when the mahazar

was drawn. In the cross-examination of official witnesses

including Investigating Officer who conducted raid, nothing

is elicited that this accused was not present in the mill and

official witnesses unequivocally deposed before the Court

that this accused was very much present at the time of

conducting raid and also flourmill was running. Nothing is

elicited in the evidence that the mill was not running at the

time of conducting raid by raiding team. Hence, I do not

find any error committed by the Trial Court in convicting

the accused.

9. The learned counsel for the appellant

contended that this accused has not taken flourmill on

lease basis. The defence counsel suggested P.W.1 that

accused No.2 was running the flourmill on lease basis and

the said suggestion was denied. To other witnesses also

the very same suggestion was made. The learned counsel

for the appellant cannot approbate and reprobate that he

was not running the flourmill. The very defence of the

accused is that he was running the mill on lease basis.

When such being the case, the appellant cannot blow hot

and cold stating that he was not running the mill. The

evidence of the witnesses is consistent that this accused

was running the flourmill. Hence, I do not find any error

committed by the Trial Court in convicting the accused for

the offence punishable under Section 135 of the Electricity

Act, 2003.

10. Insofar as order of sentence passed by the trial

Court is concerned, the accused is sentenced to undergo

imprisonment for a period of one year and to pay fine

amount and in default of payment of fine, six months

imprisonment is also imposed. Having taken note of the

material on record, the appellant/ accused was in custody

for a period of 35 days. The offence alleged is theft of

electricity and the fine amount was imposed and the same

was three times i.e., fine of Rs.98,412/- is imposed.

Hence, it is appropriate to consider thirty five days of

custody and set off the imprisonment for the said period.

Accordingly, I answer the point partly in the affirmative.

11. In view of the discussions made above, I pass

the following:

ORDER

The appeal is allowed in part. The judgment of

conviction and order of sentence passed by the trial Court

imposing fine is confirmed. The order of sentence passed

by the Trial Court sentencing the accused to undergo

imprisonment for a period of one year is modified as thirty

five days since he was in the custody during the trial and

ordered to set off the same. In case of default of payment

of fine, he shall undergo imprisonment for a period of six

months as ordered by the trial Court.

The learned counsel for the appellant brought to the

notice of the Court that fine amount has already been paid

and the same has to be clarified. If the fine amount is not

deposited, issue warrant of sentence against the appellant.

Sd/-

JUDGE NB*