S. Kumar S/O Srikantaiah vs The State Of Karnataka
2022 Latest Caselaw 5913 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 01ST DAY OF APRIL, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL NO.507 OF 2010

BETWEEN

S KUMAR,
S/O SRIKANTAIAH,
AGED ABOUT 53 YEARS,
MULTI DYNMIC INDUSTRIES,
D.NO.148, METAGALLI,
MYSORE,
(R/O NO.794, 10TH MAIN,
'D' BLOCK, J.P.NAGAR,
MYSORE CITY).                                ... APPELLANT

[BY SRI.CHANDRASHEKAR, ADVOCATE FOR
 SRI. C.H.HANUMANTHARAYA, ADVOCATE]

AND

THE STATE OF KARNATAKA,
BY MESCOM VIGILANCE P.S.,
MYSORE CITY,
MYSORE DISTRICT.                          ... RESPONDENT

[BY SRI KRISHNA KUMAR K.K, HCGP]
                          ----
     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C, PRAYING TO SET-ASIDE THE JUDGMENT OF
CONVICTION OF SENTENCE PASSED BY THE I ADDL. SESSIONS
AND SPL.JUDGE, MYSORE IN SPL. C.NO.15/2004 DT.17/4/2010-
CONVICTING THE APPELLANT/ACCUSED OR THE OFFENCE
P/U/S/ 39 AND 44 OF INDIAN ELECTRICITY ACT. THE APPELLANT
/ACCUSED SENTENCED TO UNDERGO S.I. FOR ONE YEAR WITH
FINE RS.1,000/- AND IN DEFAULT TO PAY FINE, TO UNDERGO
                                2




S.I. FOR THREE MONTHS FOR THE OFFENCE P/U/S/ 39 OF
INDIAN ELECTRICITY ACT. THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO S.I. FOR A PERIOD OF TWO YEARS
WITH FINE OF RS.3,000/- AND IN DEFAULT TO PAY FINE, TO
UNDERGO S.I. FOR SIX MONTHS, FOR THE OFFENCE P/U/S/ 44
OF I.E. ACT. THE PERIOD OF SUBSTANTIVE SENTENCE OF
IMPRISONMENT    AWARDED    TO   ACCUSED   SHALL   RUN
CONCURRENTLY.

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


                         JUDGMENT

The accused in Special Case No.15/2004 on the file of

the Court of I Additional Sessions and Special Judge at

Mysuru has preferred this appeal challenging the judgment

and order dated 17.04.2010, wherein he has been convicted

and sentenced for offences punishable under Sections 39

and 44 of the Indian Electricity Act.

2. Heard both side and perused the material on

record.

3. The case of the prosecution is that on

17.07.1998, PW.1-working as Assistant Executive Engineer,

KEB (Vigilance) squad, Mysuru along with his staff inspected

the installation of meter bearing R.R.No.P.8022 belonging to

accused and found that he was dishonestly abstracting the

electric energy by cutting the sealing wire put to the meter

and fixing it to the seal by using adhesive and he had

tampered the electric energy and thereby committed

offences punishable under Sections 39, 39A and Section 44

of Indian Electricity Act, 1910 and Section 379 of IPC.

4. The learned Sessions Judge vide impugned

judgment acquitted the accused of the offence punishable

under Section 39A and convicted him for offences

punishable under Sections 39 and 44 of Indian Electricity

Act. Insofar as Section 379 of IPC is concerned it was

observed in the body of the judgment that the charge

framed under Section 379 IPC is superfluous and does not

call for any finding, as the dishonest obstruction of

electricity mentioned in Section 39 of Indian Electricity Act,

1910, cannot be an offence under the penal code, as the

offence under the Indian Electricity Act, 1910 is created by

raising a fiction which specifically creates the offence and

provides specific punishment thereto.

5. Before the trial Court, the prosecution has got

examined 8 witnesses and got marked Exs.P1 to P7 and

MOs.1 to 3. The defence got examined DW.1 and DW.2 and

got marked Exs.D1 to D8.

6. PW.1 is the Assistant Executive Engineer and he

is the complainant. He has visited the spot on 17.07.1998

along with PWs.2 and 3 and other staff. He has conducted

the spot mahazar as per Ex.P2 and seized MOs.1 and 2 i.e.

the meter as well as the main cover seal, plastic and lead

seal put to the meter box. The evidence of PWs.1 to 3

would reveal that they have visited the spot at 12.00 noon

and at that time the accused was present. They inspected

the meter box and found that it was tampered. PW.1 has

stated that, he inspected the records and found that the

accused had used an average of 5,500 units of electricity

per month. From the department 75 HP of electricity was

sanctioned to his unit and he was of the opinion that the

accused had unauthorisedly used electricity and caused loss

to the department to the tune of Rs.4,28,627. His evidence

is corroborated BY the evidence of PWs.2 and 3. There is

nothing elicited in the cross-examination to disbelieve their

evidence.

7. PW.4 was working in the meter testing division.

He has stated that after testing the meter and seal sent to

him he has given a report as per Ex.P3. His evidence also

goes to show that there was tampering of the meter.

8. PWs.5 and 6 have calculated the back billing

charges and given report as per Ex.P5. They have arrived at

a figure of Rs.4,28,627, which was due by the accused.

9. PW.7 is the lineman who has disconnected the

electricity supply to the unit of the accused and PW.8 is the

Deputy Electricity Engineer, who has issued Ex.D1 i.e. copy

of the sealing Registrar.

10. The accused has examined himself as DW.2 and

he has examined one more witness namely the Assistant

Executive Engineer as DW.1. However, their evidence is

not sufficient to disbelieve the case of prosecution. The fact

that PW.1 and other officials have visited the spot and

inspected the meter installed to the unit of the accused and

the accused having tampered the meter and caused loss to

the tune of Rs.4,28,627/- as per Ex.P5 has been established

by the prosecution. Even in the charges framed it is

specifically stated that accused has extracted the electricity

by tampering the meter and committed theft of 60.370

units of electricity amounting to Rs.4,28,627/-.

11. Learned counsel for appellant has filed a memo

along with the letter dated on 01.10.2005 of the Assistant

Executive Engineer (Vigilance) CHESCOM, V.V.Mohalla,

Mysuru, wherein, it is stated that the entire sum of

Rs.4,28,627 has been paid by the accused. It is seen that

the said amount was paid prior to 01.10.2005.

12. The incident is of the year 1998. The accused

has paid the entire amount in the year 2005 itself. In that

in view of the matter and in the facts and circumstances of

the case, the sentence of imprisonment imposed against the

accused by the trial Court for the offences punishable under

Sections 39 and 44 of the Indian Electricity Act can be set

aside. Accordingly, the following

ORDER

Appeal is allowed in part.

The conviction of the appellant for offences punishable

under Sections 39 and 44 of the Indian Electricity Act is

hereby confirmed.

The sentence of imprisonment imposed against the

appellant for offences punishable under Sections 39 and 44

of the Indian Electricity Act is hereby set aside.

The sentence of fine imposed for the said offences is

confirmed.

Sd/-

JUDGE HB/-