Karnataka High Court
Syed Kareem vs State By Kptcl on 13 April, 2023
Bench: Mohammad Nawaz
-1-
CRL.A No. 93 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 93 OF 2012
BETWEEN:
1. SYED KAREEM,
S/O. SYED HUSSAIN,
AGED ABOUT 49 YEAR,
2. SYED FAROOQ,
S/O. SYED HUSSAIN,
AGED ABOUT 45 YEARS,
BOTH ARE R/O MARALUR VILLAGE,
KUNIGAL ROAD, KURIPALYA,
TUMKUR TOWN.
...APPELLANTS
(BY SRI. A.N. RADHA KRISHNA, ADVOCATE FOR
Digitally APPELLANT NO.2 (PH);
signed by APPEAL AGAINST APPELLANT NO.1 IS DISMISSED
LAKSHMI T AS ABATED VIDE ORDER DATED 31/3/2023)
Location:
High Court AND:
of
Karnataka STATE BY KPTCL,
TUMKUR.
...RESPONDENT
(BY SRI. K. RAHUL RAI, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:21.12.11 PASSED BY THE I
ADDL.DIST., AND S.J., TUMKUR IN SPL.C.110/06 -
-2-
CRL.A No. 93 of 2012
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE
P/U/S 135 OF ELECTRICITY ACT 2003. AND THE
APPELLANTS/ACCUSED IS SENTENCED TO SUFFER R.I. FOR
ONE YEAR AND TO PAY A FINE OF RS.10,000/-EACH AND IN
DEFAULT TO PAY IT. THEY SHALL SUFFER R.I. FOR 6 MONTHS.
FOR THE OFFENCE P/U/S 135 OF ELECTRICITY ACT 2003.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment of
the Trial Court convicting the appellants/accused no.1 and 2 for
the offence punishable under Section 135 of the Electricity Act,
2003.
2. The Trial Court has sentenced the appellants to suffer
rigorous imprisonment for a period of 1 year and to pay fine of
Rs.10,000/- each and in default to pay the fine amount, to
suffer rigorous imprisonment for a period of 6 months.
3. Heard the learned counsel for the appellants and the
learned High Court Government Pleader for respondent/State
and perused the Trial Court records.
4. Briefly stated, case of the prosecution is that, on
27.06.2003, at about 12.30 p.m, the BESCOM officials
CRL.A No. 93 of 2012
inspected the installations bearing TRP No. 285 and 489 of one
New Modern Polymers, belonging to the appellants, situated in
Maralur village of Tumkur town and found that the accused, by
tampering the seal of the installations, had made them to
record 75% and 69% less and consumed 13,557 and 23,810
units of electric energy, and thus caused loss to the BESCOM to
the tune of Rs.1,63,247/- and Rs.2,88,755/-
5. Initially, charges were framed against the accused/
appellants for the offence punishable under Section 39 of the
Indian Electricity Act, 1910. Charges were re-framed and the
accused were charged for the offence punishable under Section
135 of the Electricity Act, 2003.
6. To bring home the guilt of the accused, the
prosecution got examined 11 witnesses as PWs 1 to 11 and got
marked 16 documents and M.Os.1 to 3. The defense got
marked Exs.D1 to D3.
7. During the pendency of this appeal, accused no.1 was
reported to be dead and therefore, the appeal against him
stood abated as per order dated 31.03.2023.
CRL.A No. 93 of 2012
8. PW1 is the Assistant Executive Engineer, Rural Sub-
Division, BESCOM, Tumkuru. He has stated that he received a
report as per Ex.P1 from the Vigilance Officer regarding slow
reading of the two meters viz; TRP 285 and TRP 489. He issued
Ex.P2 and P3 after calculating the back billing charges by taking
into consideration the average unit from January 2003 to June
2003.
9. PW2 is the Section Officer, BESCOM. He has given the
details in respect of the two meters, namely RRNo.TRP 489 and
TRP 285 as per Exs.P4 and P5.
10. PW3 is the Officer of the City Municipality, Tumkuru,
who issued Ex.P6 with regard to the license issued to the
concerned factory.
11. PW4 is the Officer of the Vigilance Squad BESCOM,
who accompanied PW5 namely, the Assistant Executive
Engineer, Vigilance Squad, BESCOM and the complainant in this
case and conducted raid on the installations. He was present at
the time of inspection and seizure of MO1 and MO2.
12. PW 6 to 8 are the panch witnesses to Ex.P7- seizure
Mahazar, and PW9 is the Police Inspector who received the
CRL.A No. 93 of 2012
complaint from PW5 and registered the case and issued the
FIR/Ex.P10. He conducted part of the investigation.
13. PW10 is the Police Inspector who took over the
investigation from PW9 and after completion of the
investigation, filed the charge sheet.
14. PW11 is the Section Officer of BESCOM, who
accompanied PW4 and PW5 to the spot. He was present at the
time of conducting the inspection and seizure of MO1 and MO2
under Ex.P7.
15. The specific case of the prosecution is that on
27.06.2003, at about 12.30 p.m, PW5, along with other
officials, inspected the two meters installed in the factory
premises of the appellants and found that the accused had
tampered the said meters and there was slow reading and
thereby the accused committed theft of electricity.
16. According to PW5, TRP 285 was reading 75% less and
TRP 489 was reading 69% to 70% less and on inspection, they
found that the metal cover put on the meter was removed and
the company seal and MT seal were also removed and after
tampering the meter, once again the seal put to the
CRL.A No. 93 of 2012
meters were joined. PW4 was said to be present when the
meters were inspected, but he has not specifically stated as to
whether the metal cover of the meter was inspected, whether
the company seal and the MT seal was removed and tampered
and joined again. What he has stated is that, when he
inspected, both the seals were found tampered. Both these
witnesses have stated that meters we re reading slowly. It is
not forthcoming from their evidence as to how they found that
said meters were reading slowly to an extent of 75% and 69%
respectively as mentioned in Ex.P10.
17. PW5 has stated that he prepared a report as per
Ex.P1 and sent it to the Engineer, Rural Sub-Division, Tumkuru.
PW1 in his evidence has stated that he received Ex.P1 sent by
the Vigilance Officer and on the basis of the same, he prepared
the back billing charges. PW1 has stated that as per the said
report, TRP 285 and 489 were showing slow reading to an
extent of 75%, however, a perusal of Ex.P1 does not show that
there was any mention that the said two meters were reading
slow to an extent of 75%. On the other hand, the specific case
of the prosecution as per Ex.P10 -the complaint lodged by PW5
CRL.A No. 93 of 2012
is that two meters were reading less to an extent of 75% and
69% respectively.
18. It is relevant to see that in the cross-examination,
both PW4 and PW5 have admitted that they had visited the
factory on 26.03.2003 itself. PW5 has stated that he gave the
inspection report to accused no.1, which was marked by the
defense through the said witness as Exs.D1 and D2. PW5 has
admitted that in Ex.D1, it is only mentioned that the meters
were showing slow reading, but it is not mentioned that meters
were tampered. Further, as per Ex.D2 there is no mention of
tampering of the meter and showing slow reading. Similarly,
PW4 in his cross-examination has categorically admitted that
on 26.06.2003 itself, they inspected the installations, and it
was found that the meters were reading slowly. He has stated
that he has not given any inspection report on that day. Thus it
is seen that on 26.06.2003 itself, both PW4 and PW5 inspected
the installations, but the same has been suppressed by them.
19. As per Ex.P10, installations were inspected on
27.06.2003. It is not mentioned anywhere that on the previous
day i.e., on 26.06.2003, the meters installed to the factory of
CRL.A No. 93 of 2012
the accused persons were inspected. When it is admitted by
PW5 in the cross-examination that when they inspected the
installation on 26.06.2003, they found that the meters were not
tampered and only there was slow reading, it is difficult to
accept that there was theft of electricity by the accused
persons. If on 26.06.2003, PW4 and PW5 had visited the
factory and inspected the installations, they should have found
that the meters were tampered, and they should have seized
the meters on that day itself. PW5 has also admitted in the
cross-examination that the appeal preferred before the
appellate authority by the accused against the back billing
charges has been allowed.
20. PW5 has admitted in the cross-examination that on
26.06.2003, they have not seized the meter board. PW4 has
categorically admitted in the cross-examination that, when they
inspected the meter on 26.06.2003 they did not find the slow
reading of the meter. In view of the said admission given by
PW4 to PW5 regarding inspection of the meter on a day prior to
the seizure of the same and not finding any tampering of the
meter, it is difficult to accept the case of prosecution that the
accused have tampered the meter etc.
CRL.A No. 93 of 2012
21. The panch witnesses PW6 to PW8 to the seizure of
MO1 to MO3 have turned hostile and they have not supported
the case of prosecution. The evidence of PW4, 5 and 11 does
not inspire confidence of the Court to hold that the prosecution
has established the case against the appellants beyond all
reasonable doubt.
The Trial Court has not properly appreciated the above
aspects and thus, has come to an erroneous conclusion and
convicted the accused for the charged offence.
ORDER
The judgment and order dated 21.12.2011 passed
by the Court of the First Additional District and Sessions
Judge, Tumkuru, in Spl.Case No.110/2006, is hereby
set aside.
The bail bonds of the accused and their sureties
stand cancelled.
Appeal preferred by accused no.2 is allowed.
Sd/-
JUDGE
AVB
