Karnataka High Court
State By Pi Mescon vs B Usman Beary on 4 August, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 1128 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1128 OF 2011
BETWEEN:
STATE BY PI MESCON
VIGILANCE SQUAD, UDUPI
...APPELLANT
(BY SRI RENUKARADHYA R D, HCGP)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH AND:
COURT OF
KARNATAKA
B USMAN BEARY
AGED ABOUT 40 YEARS
S/O LATE KALANDAR BEARY
RESIDING AT KADAVINA BAGILU HOUSE
GULVADI VILLAGE
GULVADI, KUNDAPURA TALUK.
...RESPONDENT
(BY SRI LINGARAJ, ADVOCATE)
THIS CRL.A. IS FILED U/S.377 OF CR.P.C PRAYING TO
MODIFY AND ENHANCE THE INADEQUATE SENTENCE IMPOSED
ON 6.6.11 IN SPECIAL CASE No.12/09 PASSED BY THE
SPECIAL/SESSIONS JUDGE UDUPI DISTRICT, UDUPI-
CONVICTING THE RESPONDENT ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 135 AND 138 OF ELECTRICITY
ACT, 2003 AND ETC.,
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1128 of 2011
JUDGMENT
1. The State has preferred this appeal praying to modify
and enhance the sentence passed in Special Case
No.12/2009 dated 06.06.2011 by the Sessions/Special
Judge, Udupi for the offences punishable under Sections
135 and 138 of the Electricity Act, 2003 (for short
hereinafter referred to as 'the Act').
2. Heard learned High Court Government Pleader for the
appellant - State and learned counsel for the respondent -
accused.
3. The respondent - accused has been convicted for the
offences under Sections 135 and 138 of the Act and
sentenced to pay fine of Rs.5,000/- for the offence under
Section 135 of the Act and fine of Rs.5,000/- for the
offence under Section 138 of the Act. In addition, the
respondent - accused has been directed to pay the
back billed amount of Rs.36,063/-. The respondent -
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CRL.A No. 1128 of 2011
accused has not challenged his conviction for the offences
under Sections 135 and 138 of the Act.
4. In the present appeal, the State has contended that
the minimum sentence for the offence under Section
135 of the Act shall not be less than three times the
financial gain on account of theft of electricity in the event
of first conviction, as provided under Section 135(1) of the
Act.
5. Learned High Court Government Pleader would
contend that the Special Court has imposed the sentence
less than the minimum sentence and therefore, the
sentence imposed on the respondent - accused requires to
be enhanced. He further submits that the sentence
imposed for the offence under Section 138 of the Act is
adequate and they have not sought for any enhancement
of sentence for the offence under Section 138 of the Act.
6. Learned counsel for the respondent - accused would
contend that the sentence imposed by the Special Court is
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CRL.A No. 1128 of 2011
proper and adequate. The respondent - accused has
already paid the back billed amount of Rs.36,063/-
7. Therefore, considering the above submissions of the
counsels, it is required to be ascertained as to whether the
sentence imposed on the respondent - accused for the
offence under Section 135 of the Act is proper or not.
8. Section 135 of the Act reads thus;
"135. Theft of electricity- (1) Whoever, dishonestly.-
(a) xxxx
(b) tampers a meter, installs or uses a tampered
meter, current reversing transformer, loop connection
or any other device or method which interferes with
accurate or proper registration, calibration or metering
of electric current or otherwise results in a manner
whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus,
equipment or wire or causes or allows any of them to
be so damaged or destroyed as to interfere with the
proper or accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
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CRL.A No. 1128 of 2011
(e) uses electricity for the purpose other than for which
the usage of electricity was authorized,
so as to abstract or consume or use electricity shall be
punishable with imprisonment for a term which may
extend to three years or with fine or with both:
Provided that in a case where the load abstracted,
consumed, or used or attempted abstraction or
attempted consumption or attempted use.--
(i) does not exceed 10 kilowatt, the fine
imposed or first conviction shall not be less
than three times the financial gain on
account of such theft of electricity and in the
event of second or subsequent conviction the
fine imposed shall not be less than six times the
financial gain on account of such theft of
electricity;"
9. As per the proviso (i) of Section 135(1) of the Act,
the fine imposed on the first conviction shall not be less
than three times the financial gain on account of such theft
of electricity. Then, what is the financial gain by this
respondent - accused by theft of electricity is required to
be ascertained from the evidence on record.
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CRL.A No. 1128 of 2011
10. PW3 is a Junior Engineer working in Talluru MESCOM
Section and he has deposed that, on the basis of average
use, he has calculated the back billing as per Ex.P4 and
given notice of the back billing and the back billing amount
as Rs.36,063/-. There is no cross examination with regard
to back billing amount of Rs.36,063/-. This back billing
amount has been arrived on the basis of the average
consumption by the respondent - accused and the
consumption of units recorded in the meter. Therefore,
the back billing amount is a financial gain by the
respondent - accused by commission of theft of electricity.
Therefore, the financial gain by the respondent - accused
is of Rs.36,063/-. Even, the Special Court, based on the
evidence on record has held that the back billing amount is
Rs.36,063/- and it is required to be paid by the respondent
- accused to the MESCOM.
11. The minimum sentence for the theft of electricity
under Section 135 of the Act for the first conviction is,
if the load used is less than 10 kilowatt, shall not be less
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CRL.A No. 1128 of 2011
than three times the financial gain. The financial gain by
this respondent - accused by the said offence of theft of
electricity is Rs.36,063/-. Therefore, the minimum fine is
three times the said amount of Rs.36,063/- which comes
to Rs.1,08,189/-.
12. The sentence imposed by the Special Court is
Rs.5,000/- for the offence under Section 135 of the Act.
Therefore, the sentence imposed by the Special Court for
the offence under Section 135 of the Act is less than the
minimum sentence and it is not proper. Therefore, the
sentence imposed by the Special Court for the offence
under Section 135 of the Act requires to be enhanced
which is three times the financial gain of Rs.36,063/- which
comes to Rs.1,08,189/-.
13. In the result, the following;
ORDER
The appeal is allowed.
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CRL.A No. 1128 of 2011
(i) The sentence imposed by the learned
Sessions/Special Judge for the offence under
Section 135 of the Act in Special Case No.12/2009
is modified and enhanced to Rs.1,08,189/-.
(ii) If the respondent - accused does not deposit
the said modified fine of Rs.1,08,189/-, within a
period of six months from today, the Special Court
shall recover the same from the respondent -
accused in accordance with law.
(iii) The respondent - accused, even permitted to
deposit the said modified fine amount in
installments.
Sd/-
JUDGE
GH
