Hanmanthrao S/O Mallikarjun vs The State Through Gescom (V) P.S
2021 Latest Caselaw 7118 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 23RD DAY OF DECEMBER 2021

                       BEFORE

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

        CRIMINAL APPEAL No.200056/2014

BETWEEN:

HANMANTHRAO S/O MALLIKARJUN
AGE: MAJOR, OCC: PVT. BUSINESS
R/O NIZAMPUR, GULBARGA
                                          ... APPELLANT
(BY SRI SHARANABASAPPA K BABSHETTY, ADVOCATE)

AND:

THE STATE THROUGH
GESCOM (V) P.S.
GULBARGA
                                         ... RESPONDENT
(BY SRI SHARANABASAPPA M. PATIL, HCGP)


    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 156 OF
THE ELECTRICITY ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DT.22.03.2014 PASSED BY THE COURT OF I ADDL.
SESSIONS JUDGE AT GULBARGA, IN SPL. CASE NO: 173/2011,
CONVICTING THE ACCUSED-APPELLANT FOR THE OFFENCE
UNDER SECTION 135 OF THE ELECTRICITY ACT, 2003 AND ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON     07.12.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
                               2




                        JUDGMENT

This appeal is filed by the accused No.1 challenging

the judgment of conviction and sentence dated 22.03.2014

passed in Spl. Case No.173/2011 on the file of I Additional

Sessions Judge, Gulbarga for the offence punishable under

Section 135 of Electricity Act, 2003.

2. In nutshell, the case of the prosecution is that

on 01.10.2010 at about 1.00 p.m. near Sultanpur Ring

Road, Gulbarga, the GESCOM Vigilance Squad raided on

the Water Service Centre of this appellant situated at

Sultanpur Ring Road, Gulbarga and found that using the

electricity power through electricity installation bearing

No.RSPRT-9956 stealthily by tampering the main cover

seal and removing the company seal by rotating back

reading of the meter and thereby intentionally committed

theft of electricity by causing loss of Rs.3,15,601/- to the

GESCOM and he is liable to pay the said amount towards

back billing charges and Rs.94,000/- towards compounding

charges and thereby committed an offence punishable

under Section 135 of the Electricity Act, 2003 (for short

'the said Act of 2003') read with Section 379 of IPC.

3. The prosecution in order to prove the charges

leveled against the accused Nos.1 and 2, relied upon the

evidence of PW1 to PW6 and documents at Exs.P to P5

and MO1 and MO2. The Trial Court after considering both

the oral and documentary evidence, acquitted the accused

No.2 and convicted this appellant and sentenced to pay a

fine of Rs.9,46,803/- for the offence punishable under

Section 135 of the said Act of 2003, in default, he shall

undergo simple imprisonment for a period of four months

and this appellant was given 30 days time to deposit the

fine amount and if he failed to do so, it shall be recovered

as if it is arrears of electricity charges. MO1-meter and

MO2 -wire are ordered to be returned to the complainant

after the appeal period is over.

4. Being aggrieved by the judgment of conviction

and sentence, the present appeal is filed by the

appellant/accused No.1. The main contention of the

appellant is that the Trial Court has passed the conviction

based on the presumptions and assumptions and the

prosecution has utterly failed to prove the charges leveled

against him beyond reasonable doubt. The charges are

not at all proved and without any proper appreciation of

oral and documentary evidence, comes to a wrong

conclusion. It is also contended that no expert of the

department has been examined to prove the rotating back

of the meter is concerned. The complainant-PW5 is not an

expert, even then he has prepared the meter test report at

Ex.P4 and arrived to the conclusion that back billing of

Rs.3,15,601/- and for compounding offence of Rs.94,000/-

without any base. The evidence of PW5 is that he visited

along with others and meter was kept running but as per

the evidence of PW4, meter was not rotating and it was

off. Hence, the evidence of PW4 and PW5 are not

corroborating each other and hence, the Trial Court ought

to have given benefit of doubt in favour of the appellant

herein. It is contended that nobody has reported the

tampering of the meter and even the lineman who has

visited the unit on every month not complied the same and

from arrival of back billing of Rs.3,15,601/- is not proved.

The witnesses who have been examined before the Court

are interested witnesses and the very presence of PW4

lineman is doubtful.

5. Per contra, the counsel appearing for the

respondent-State would submit that the meter test report

is marked as Ex.P4 and presence of the accused at the

time of conducting the raid is also not in dispute. The

meter was tested and the report also placed before the

Court and apart from that MO1 and 2 was also seized. The

seizure of MO1 and 2 is also proved by examining PW1

who is a independent witness. The counsel also submits

that though the spot witnesses are official witnesses and

nothing is elicited in the cross-examination with regard to

any enmity between the accused and these official

witnesses. Under the circumstances, the Court cannot

disbelieve the evidence of witnesses of the prosecution.

6. Having heard the respective counsel and also on

perusal of the material available on record, the point that

would arise for consideration of the Court is:

(1) Whether the Trial Court has committed an error in

convicting the appellant herein for the offence

punishable under Section 135 of the said Act of

2003?

   (2)     What order?


Point No.1:

7. Before considering the documentary evidence,

this Court would like to in nutshell mention the oral

evidence of the prosecution witnesses. The prosecution

relied upon the evidence of PW1 to PW6 and out of PW1 to

PW6, PW1 is an independent witness who is the neighbour

of the accused and in his evidence he says that GESCOM

authorities have called him to the water service centre of

the accused and showed him the meter and drew up the

panchanama. He attested his signature in Ex.P1 as

Ex.P1(a). It is also his evidence that CW3 also present at

that time and they have prepared the inspection report-

Ex.P2 and he himself and CW3 have signed the same. He

also identified his signature at Ex.P2 as Ex.P2(a). It is also

his evidence that at the time of drawing panchanama and

preparing inspection report, both accused Nos.1 and 2

were present and they seized the meter and wire which

are marked as MO1 and 2. In the cross-examination, the

accused counsel himself got elicited that he is owning the

building by the side of the water service centre belonging

to the accused. It is suggested that the police have not

drawn up the panchanama at the spot in his presence and

the same was denied. Nothing is elicited in the cross-

examination of PW1 except eliciting that he is a owner of a

building by the side of the water service centre belongs to

the accused. The other witness is PW2 - Assistant

Engineer, GESCOM. In his evidence, he says that on

inspection, they noticed that seal put to the meter was

broken and the company seal was tampered and the same

was showed to the panchas and drawn the manazar and

seized the wire and meter and at that time both the

accused were present. Accused No.2 also signed on Ex.P1

and P2, he also identifies MO1 and 2.

8. In the cross-examination, it is elicited that if a

meter is rusted since long, there may be chances of

causing a hole therein and he did not notice any external

insertion in the meter. It is suggested that he did not visit

the spot and the same is denied except eliciting the answer

that if the meter is rusted since long, there may be

chances of causing a hole therein. No suggestion that in

the case on hand meter was rusted.

9. The other witness is PW3, who is the Head

Constable, who has received the complaint as per Ex.P3

and registered the FIR and he had received the MO1 and

2. In the cross-examination, it is suggested that CW1 has

not lodged the complaint as per Ex.P3 and not produced

Exs.P1 and 2 and MO1 and 2 before him, the same was

denied.

10. PW4 is the Lineman who accompanied the raid

team and he says that CW1 inspected the meter and

instructed him to bifurcate the wire from the meter and

accordingly, he bifurcated the wire from the meter. He

also identified MO1 and 2. In the cross-examination it is

elicited that the meter was not rotating and it was off

when they went to the water service center of the accused.

11. PW5 is the Assistant Executive Engineer and he

also reiterated that the company seal put on the meter

was removed and the meter was tampered and it was

found that meter was made to rotate back. He says that

he himself prepared the inspection report in terms of Ex.P2

and also prepared panchanama in terms of Ex.P1. He also

prepared the meter test report which is marked at Ex.P4

and both the accused were present at the time of raid.

Accused No.2 also signed on Ex.P2 and P3. It is evident

that he went to the police station and lodged the complaint

and the said complaint is marked as Ex.P3. In the cross-

examination, he says that he has verified the 12 months

bill pertaining to the accused service centre and average

monthly units consumed by the accused comes to 200

units. The consumption of the unit is depending upon as

to how the machine put by the accused runs. It is his

evidence that meter was kept running and if anything is

inserted in the meter, the running of meter will be stopped

and they did not found any external insertion in the meter.

He also deposed that in every month, bill collector used to

go to the unit of the accused in order to record the

consumption of the units and also they have an expert in

their department to examine as to whether the meter is

kept rotating back. It is suggested that accused have not

tampered the meter and the same was denied.

12. The other witness is PW6. PW6 is CPI, and

deposed that he took up the further investigation and after

completing the investigation and receiving the report in

terms of Ex.P5, he had filed the charge sheet.

13. Having considered both the oral and

documentary evidence, no doubt, the prosecution mainly

relies upon the evidence of PW1 to 6. I have already

pointed out that PW1 is an independent witness and he

supported the case of the prosecution and he is also

neighbour of the accused and the defence counsel himself

got elicited that he is the neighbour of the accused having

the building very next premises of the accused and nothing

is elicited from the mouth of PW1 that he was having any

enmity against the accused to give evidence before the

Court and hence, the evidence of PW1 who is an

independent cannot be discarded and in order to discard

his evidence also nothing is elicited except suggesting that

the police have not drawn up the mahazar in his presence

and the same was denied. He also identifies his signatures

on the documents at Ex.P1 and P2 and apart from that he

also identifies MO1 and 2. No doubt, in the cross-

examination of PW2 who is also the part of the raid, he

admits that if a meter is rusted since long, there may be

chances of causing a hole therein but though this answer is

elicited from the mouth of PW2 but nothing is suggested to

PW2 that the meter which was seized at the spot was

rusted and hence, the answer elicited from the mouth of

PW2 with regard to the rusting of meter is concerned, no

useful evidence is elicited from him to disbelieve the

evidence of PW2.

14. The other witness is PW3, his evidence is not

helpful to the case of the prosecution because he received

the complaint and registered the case and also received

MO1 and 2 only. The other witness is PW4-Lineman. He

also categorically says that CW1 inspected the meter and

on instruction, he only bifurcated the wire from the meter

and he also witness to the seizure of MO1 and 2. No

doubt, in the cross-examination, it is elicited that the

meter was not rotating and it was off. But there are

contra evidence with regard to the evidence of PW4 and 5.

PW5 says that the meter was kept running. But he

categorically says that if anything is inserted in the meter,

the running of the meter will be stopped. But no such

insertion was found in the meter. But mere contradictions

in the evidences of PW4 and 5 with regard that the meter

was not running and it was off and the meter was kept

running cannot take away the case of the prosecution. It

is evident that PW5 prepared the meter test report as per

Ex.P4 and in terms of Ex.P4, meter was reversed and seal

was removed and main cover seal was tampered and

hence, it is clear that the main cover was tampered and

company seal was removed and terminal cover seal also

found tampered and nothing is suggested in the cross-

examination of PW5 that meter was in order. PW5

categorically stated that he has prepared Ex.P1 and 2 i.e.,

Panchanama and report and he also prepared the loss

statement to the tune of Rs.3,15,601/- and the said

consumption is also made based on the average bill of

preceeding 12 months reading unit. It is also his evidence

that the meter was made to rotate back and except the

suggestion that he did not visit to the unit of the accused

nothing is elicited and only suggestion was made that

accused was not tampered the meter and the same was

denied. But not denied the preparing the test report of the

meter and no doubt it is elicited that on the every month,

the bill collector used to visit the unit of the accused in

order to record the consumption of electricity units. But it

is not the case of the accused that meter reader was not

visited his unit and when PW5 has categorically deposed

that he had verified the previous 12 months bill pertaining

to the accused and the average monthly units consumption

was 200 unit and the same is also got elicited from the

mouth of PW5 by the defence counsel itself.

15. The Trial Court also while considering the

evidence of prosecution witnesses taken note of the

evidence of PW1 who is a independent witness. I have

already pointed out that nothing is elicited from the mouth

of PW1 with regard that any enmity between him and the

accused and mahazar was drawn in terms of Ex.P1 and

inspection report was also prepared in terms of Ex.P2 and

these two documents also examined before the Trial Court

and it is also not disputed that MO1 and 2 not installed in

their service centre and apart from that accused No.2 is

the owner of the said water service centre. Accused No.1

is the son of accused No.2 who was running the said

service centre. Accused No.2 also attested to the

documents and there is no dispute in respect of

identification of MO1 and 2. Independent witness as well

as other official witnesses deposed the same. The Trial

Court also taken note of the evidence of PW1 that he is a

neighbour of the accused having own building. Though

minor discrepancy in the evidences of PW4 and 5 that

meter was kept running or it was off, the same will not go

to the very root of the prosecution case. Nothing is

elicited from the mouth of the official witnesses that they

were having any enmity against the accused and even

though no effort was made for suggesting the same.

When all these materials taken note of both oral and

documentary and also on re-appreciation of evidence

available on record as this Court being the appellate Court,

I do not find any error committed by the Trial Court. The

Trial Court also taken note of Section 114 of the Evidence

Act since evidence of prosecution has not rebutted by the

accused except making formal suggestion in the cross-

examination and hence, I do not find any merit in the

appeal to reverse the finding of the Trial Court to comes to

a other conclusion that the Trial Court has ignored both

the oral and documentary evidence.

      16.     No    doubt,      the     main    contention     of   the

appellant's   counsel     that    contradictions       found   in   the

evidence of PW4 and 5 regarding the condition of the

meter is concerned. The Trial Court failed to take note of

the same. I have already pointed out that the said

contradictions will not take away the case of the

prosecution and test report is also not in dispute which has

been marked as Ex.P4. Test report is very clear that seal

was removed and main cover also removed and terminal

cover seal was also found tampered and also this is a

categorical finding that reverse the reading counter and

the contents of Ex.P3 is also in consonance with the report

of the meter i.e, Ex.P4. The complainant made the specific

allegation in the complaint that the manner in which the

electricity theft was committed and inspection report also

in consonance with Ex.P4. Ex.P1 mahazar also was drawn

at the spot and witnesses also reiterated the same

including the independent witness PW1. Taking note of the

evidences available on record both oral and documentary

evidence there are no reasons to interfere with the findings

of the Trial Court and prosecution has proved the charges

leveled against the accused that the electricity meter seal

was removed and main cover was removed and the MC

seal was tampered by rotating back reading of the meter

and hence, there are no grounds to set aside the order of

conviction and sentence.

17. With regard to the sentence is concerned, the

Trial Court considering the back billing charges as well as

compounding charges imposed three times of sentence n

respect of back billing and not ordered for any

imprisonment, only in default of payment of fine ordered

to undergo simple imprisonment for a period of four

months apart from that 30 days time was also given to

deposit the amount. And in case of default also ordered to

recover the same as arrears of electricity charges and

hence, there are no grounds to interfere even with the

sentence is concerned and sentence is also commensurate

with the back billing charges and compounding charges.

Hence, Point No.1 is answered as Negative.

Point No.2:

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

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SAN