Paramesh S/O Nanjundappa vs The State Of Karnataka
2021 Latest Caselaw 3810 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                        BEFORE:

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.778 OF 2010

BETWEEN

PARAMESH,
S/O. NANJUNDAPPA,
AGED 40 YEARS, OCC:AGRICULTURE,
R/O. CHOLAGHATTA VILLAGE,
VEMAGAL HOBLI,
TALUK & DIST. KOLAR.                            ...    APPELLANT

[BY SMT. SUKANYA H.D., ADVOCATE]

AND

THE STATE OF KARNATAKA
BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BELGAUM AND BESCOM (VIGILANCE)POLICE,
KOLAR.                                    ...         RESPONDENT

[BY SMT. RASHMI JADHAV, HCGP]
                           ***
      THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE
PASSED BY THE I-ADDL. DISTRICT AND SESSIONS JUDGE, KOLAR
IN EACC NO.19/2010 DATED 26.06.2010/07.07.2010 CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 135 OF THE
ELECTRICITY ACT, 2003 AND THE APPELLANT/ACCUSED IS
SENTENED TO PAY A FINE OF `1,00,120-00 TO ASSISTANT
EXECUTIVE ENGINEER (ELECTRICAL), BESCOM, KOLAR SUB
DIVISION IN DEFAULT, HE SHALL UNDERGO S.I. FOR SIX(6)
MONTHS.

       THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                              JUDGMENT

This appeal is directed against the Judgment and

Order dated 26.06.2010 and 07.07.2010 passed by the

Court of I Addl. Sessions Judge at Kolar in EACC

No.19/2010, whereby the accused/appellant was convicted

for the offence punishable under Section 135 of the

Electricity Act, 2003 [hereinafter referred to as 'Act' for

short] and sentenced to pay a fine of `1,00,120/- and in

default, to undergo simple imprisonment for 6 months.

2. Heard the learned counsel Smt. Sukanya H.D.,

for appellant and the learned HCGP for respondent/State.

3. In brief, the case of the prosecution is that on

24.07.2009 at about 4.15 p.m., the complainant Sri.

T.Venkatachalaiah, Section Officer, Holur branch, Kolar

BESCOM Sub-Division, on receiving a credible information

regarding theft of electricity, along with other officials

inspected the electric installation bearing R.R. No.KL-2015

installed in the house of the accused situated at

Cholaghatta village, Vemagal Hobli, Kolar Taluk and found

that he had illegally tapped the electricity connection

directly from the BESCOM electric main line, without using

any electricity meter and running 1 HP electric grinder and

2 KWs heater to run the hotel and committed theft of 7891

units of electricity and caused loss to the BESCOM to an

extent of `1,00,120/- and thereby committed an offence

punishable under Section 135 of the Act.

4. To establish the guilt of the accused, the

prosecution got examined P.Ws.1 to 8 and got marked

Exs.P1 to 13 and M.Os.1 and 2.

5. The trial Court considering the oral and

documentary evidence, held that the prosecution has

successfully proved the guilt of the accused beyond all

reasonable doubt and sentenced him to pay a fine of

`1,00,120/- to the Assistant Engineer [Electrical], BESCOM,

Kolar Sub-Division and in default, to undergo simple

imprisonment for 6 months.

6. It is the contention of the learned counsel for

the appellant that the Court below without appreciating the

evidence on record in the proper perspective has

erroneously convicted the accused. It is contended that

there is absolutely no material to show that the accused

was in fact running a hotel in his house and there are no

independent witnesses examined in this behalf. The

learned counsel has further contended that the seizure of

M.Os.1 and 2 from the spot under Ex.P1 is also not proved

and the back billing charges now claimed by the

prosecution is without any basis. It is contended that there

is difference in the timings with regard to the inspection

alleged to have been conducted by P.W.1 and further the

electric heater as well as the grinder for which according to

the prosecution electricity supply was directly taken from

the main line are also not seized. She contends that the

trial Court has erroneously convicted the accused and the

reasons assigned are not legal and proper and accordingly,

seeks to allow the appeal.

7. The learned HCGP would contend that on

receiving a credible information regarding theft of

electricity, P.W.1 and other staff of the BESCOM have

inspected the house belonging to the accused and found

that he had directly taken the electricity connection using a

cable wire-M.O.1 from the BESCOM main line for the

purpose of using a heater and grinder and he was running

a hotel. She contends that the prosecution by examining

P.W.6, who has issued Exs.P7 to 9 has established that the

house belong to the accused where the inspection was

conducted and the evidence of P.Ws.1, 2, 4 to 8 would

clearly establish that the accused was committing theft of

electricity and therefore the trial Court was justified in

convicting and sentencing the accused.

8. It is the specific case of the prosecution that the

accused was committing theft of electricity by drawing a

cable wire directly from the main line to the hotel run by

him in his house, situated at Cholaghatta village, Vemagal

Hobli, Kolar Taluk. It is alleged that he was using electric

heater and a grinder without installing any separate electric

meter.

9. P.W.1 is the complainant. He was working as a

Section Officer at Holur branch, BESCOM. He has stated

that on 24.07.2009 he received a credible information

regarding theft of electricity and therefore, along with

BESCOM Police [P.W.4] junior lineman [P.W.2] as well as

one Basavaraj [P.W.3] went to the spot at about 4.00 p.m.

He has deposed that there was a hotel and a house. They

put off the lights and switched on the grinder and motor,

but the meter was not showing any reading, as such they

removed the meter box and found that electric connection

was taken directly to the heater and grinder and therefore

they disconnected the electricity and seized the meter

under Ex.P1. In the cross-examination, he has stated that

there were 4 rooms in the said house and there were 3-4

persons present in the hotel. He admitted that the heater

and the grinder were not seized.

10. P.W.2 is the junior lineman, who accompanied

P.W.1 to the spot. He is also an attestor to Ex.P1. P.W.3

is the panchwitness to Ex.P.1. He has turned hostile. P.W.4

is a constable of the BESCOM Police Station, Kolar, who has

drawn the mahazar which is marked as Ex.P1.

11. Though P.Ws.2, 4 and 5 have supported the

case of prosecution and corroborated the evidence of

P.W.1, except their statements that the accused was

running a hotel in his house, there are no other material

placed by the prosecution that in fact the accused was

running a hotel and he was using the grinder and electric

meter for the purpose of running the hotel. There are no

independent witnesses either named or examined, though

P.W.1 has stated that at the time of conducting inspection

there were about 3-4 persons present. P.W.3 who is a

panchwitness to Ex.P1 under which the meter box and the

wire was seized, has turned hostile and he has given a

complete goby to the prosecution case. It is relevant to

see that P.W.6-Secretary of the Grama Panchayat, Malur,

who issued Exs.P7 to 9 has admitted in the cross-

examination that he would collect taxes separately for the

house and hotel and he is not aware that there was any

hotel run by the accused.

12. According to the prosecution, the accused

without installing a separate electricity meter, drawing

electricity to run 1 HP electric grinder and 2 KWs heater in

his hotel and he committed theft of 7891 units of electricity

and caused loss to the BESCOM to the tune of `1,00,120/-.

As already observed, the prosecution has not placed cogent

evidence to show that the accused was running a hotel.

The fact that there was an electricity meter installed in the

house which is seized and marked as M.O.2 would clearly

show that the accused had installed an electric meter and

he was using electricity through the said electricity meter.

To show that he was using 1 HP electric grinder and 2 KWs

heater to run the hotel, the prosecution has failed to seize

the electric grinder as well as the heater and therefore it

cannot be said that the prosecution has established that

the accused was using 1 HP electric grinder and 2 KWs

heater. It is not forthcoming as to on what basis P.W.5

viz., Assistant Executive Engineer of the BESCOM has come

to the conclusion that the accused was due for payment a

sum of `1,00,120/-. He has prepared Ex.P4-back billing.

However, in his evidence he has not stated on what basis

he arrived at the back billing charges. Be that as it may,

from the evidence adduced it cannot be said that the

prosecution has been able to establish that the accused has

committed an offence punishable under Section 135 of the

Act. The trial Court, observing that the witnesses have

clearly stated that the accused was residing in his house

and Exs.P8 and 9 viz., demand register extract and

assessment register extract reveals that the property

stands in the name of the accused and he has not obtained

any license from the Grama Panchayat to run the hotel in

the said premise, has proceeded to convict and sentence

the accused. The trial Court has failed to appreciate that

the prosecution has not been able to establish beyond

reasonable doubt that the accused was in fact running a

hotel in the premise in question and he was drawing

electricity from the main line to use the electric grinder and

heater bye-passing the electric meter. The reasons

assigned by the trial Court to convict the accused are not in

accordance with law. Hence, the following:

ORDER

Appeal is allowed.

The Judgment and Order dated 26.06.2010 and

07.07.2010 passed in EACC. No.19/2010 by the I Addl.

District and Sessions Judge, Kolar, convicting and

sentencing the accused/appellant for offence under Section

135 of the Electricity Act 2003, is hereby set aside.

Fine amount if any deposited, shall be refunded to

the appellant/accused.

Sd/-

JUDGE

Ksm*