Karnataka High Court
Sri G Venkatesh vs State Of Karnataka on 11 December, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2023:KHC:44864
CRL.A No. 1180 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 1180 OF 2011
BETWEEN:
1. SRI G VENKATESH
S/O. GURAPPA
AGED ABOUT 45 YEARS
R/AT.NO.35/2, KANNELLI GRAM
YESHWANTHPURA HOBLI
BANGALORE NORTH TALUK
BANGALORE-91.
...APPELLANT
(BY SRI. D.NAGARAJA REDDY, ADVOCATE AS AMICUS CURIAE)
AND:
1. STATE OF KARNATAKA
BY BESCOM
REPRESENTED BY
Digitally STATE PUBLIC PROSECUTOR
signed by HIGH COURT OF KARNATAKA
SUMITHRA BANGALORE.
R
...RESPONDENT
Location: (BY SMT. SOWMYA R., HCGP)
High Court
of Karnataka THIS CRL.A FILED U/S.374(2)CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT DATED 21/22.10.2011 IN
SPL.C.NO.105/2009 BY THE XXXV - ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S. 265(E)(d) AND
FOUND GUILTY UNDER THE OFFENCES SECTION 135 OF
ELECTRICITY ACT.
THIS APPEAL IS COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1180 of 2011
JUDGMENT
Being aggrieved by the judgment and order dated
21.10.2011 passed by the Court of Special Judge, XXXV
Additional City Civil and Sessions Judge, Bengaluru in
Spl.C.No.105/2009, convicting the appellant/accused for
an offence punishable under Section 135 of the Electricity
Act, the accused has come up with the instant appeal.
2. Heard the learned Amicus Curiae Sri D.Nagaraja
Reddy and the learned High Court Government Pleader
and perused the material on record.
3. The gist of the prosecution case is that, on a
credible information, the first informant/AEE (E) BESCOM,
Vigilance, Bengaluru visited the house of the accused
situated at Survey No.35/2, Kannelli Village,
Yashavanthapura Hobli, Bengaluru North Taluk and found
that the accused had committed theft of electricity, by
taking electricity connection to his house directly from the
pole, without any sanction from BESCOM and thereby
caused wrongful loss to the BESCOM to the tune of
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Rs.77,716/-, and committed an offence punishable under
Section 135 of the Electricity Act, 2003.
4. The prosecution has got examined 5 witnesses
before the trial Court and got marked Exs.P1 to P8 and
MO.1 - cable wire, to prove the guilt of the accused.
5. The trial Court has come to the conclusion that
the accused was very much in possession of the land in
Survey No.35/2 and relying on the evidence of the
prosecution witnesses, held that there are sufficient
material to believe the case of prosecution that the
accused has committed theft of electricity, even in the
absence of examining the panch witnesses.
6. Learned Amicus Curiae has raised several
contentions. He contends that there is delay in lodging the
complaint and discrepancy in the evidence of the
prosecution witnesses. He contended that the accused
was not the exclusive owner of the property in question
and it is admitted by the I.O.- PW.5 that a per Ex.P7, the
report of the Thasildar, the Government has taken
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possession of the property. It is also contended that the
mahazar was conducted after registration of the case and
the I.O. has not at all visited the spot and conducted any
mahazar. He has therefore contended that the
prosecution has failed to establish the guilt of the accused
beyond reasonable doubt.
7. Per contra, the learned High Court Government
Pleader has contended that PW.1 has visited the spot
along with his staff and lineman and found that the
accused was abstracting electricity directly from the
electric pole using a wire and after preparing the
inspection report and drawing a mahazar in the presence
of panch witnesses, complaint was lodged and case was
registered against the accused. She contends that the
witnesses namely PWs.1 to 3 have visited the spot,
wherein they noticed that the accused was committing
theft of electricity. She contends that the accused was
present at the spot at the time of inspection and therefore,
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the trial Court has rightly convicted him from the charged
offence.
8. As per Ex.P1 i.e., the complaint lodged by
PW.1, he received a credible information on 06.10.2007
about theft of electricity. He went to the spot along with
staff and lineman and prepared a report as per Ex.P2. He
has drawn a mahazar as per Ex.P3 and MO.1-cable wire
measuring about 20 feet, which was used to draw the
electricity from the pole was seized. According to the
witnesses accused was present at the spot while preparing
the mahazar.
9. It is the case of prosecution that the accused
was drawing electricity directly from the pole to his house,
though there was no power sanctioned and no electricity
meter installed by the BESCOM. PW.1 in his evidence has
stated that the accused was consuming 4.3 kilo watts of
electricity for the entire period. In the cross-examination
he has stated that the accused took electricity connection
for 5 SV lamps, 3 tube lights, 3 Bulbs and 2 HP water
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pump, TV and mixer. What is relevant to be seen is that
the prosecution has not placed any material to show as to
how an amount of Rs.77,716/- was arrived at. It is not
forthcoming from the records as to on what basis, the
prosecution has calculated the said amount. It is not
stated as to since when the accused was committing theft
of electricity by directly drawing electricity connection from
the pole to his house.
10. Admittedly, the complaint was lodged on
08.10.2007 and PW.5/I.O. registered the case at about
11.15 a.m., though the inspection report and mahazar was
conducted on 06.10.2007. The learned Amicus Curiae has
drawn the attention of the Court to the proviso to Section
135(1A) of Electricity Act, which states that a complaint
shall be lodged in writing relating to the commission of
offence in police station having jurisdiction within 24 hours
from the date of disconnection. The witnesses have stated
that the electricity connection was disconnected.
However, within the stipulated time the complaint was not
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lodged. The prosecution has failed to explain as to why
there was nearly two days delay in lodging the complaint.
The delay is not explained by the prosecution. None of the
witnesses have given any reason for the delay -
nevertheless, the prosecution is totally silent about the
delay in the registration of the case.
11. It is the specific case of the prosecution that the
house property bearing Survey No.35/2, Kannenahalli
Village belong to the accused. Firstly, there is no material
placed to show that the accused is the exclusive owner of
the property. In the cross-examination, PW.1 has stated
that the accused was the owner of the house. As per
Ex.P3-Mahazar, Smt.C.Shivamma i.e., wife of accused is
the owner of the house. Hence, it is relevant to appreciate
the evidence of I.O.-PW.5. In his deposition he has stated
that he requested the Tahsildar, North Taluk, Bengaluru to
furnish the particulars of Survey No.35/2 of Kannenahalli
Village. He received the reply from the Special Tahsildar,
Bengaluru North Taluk as per Ex.P7 along with a copy of
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RFR-Ex.P8. As per Ex.P7 till 2000-01 the khata was in the
name of Shivamma wife of Venkatesh. Thereafter, the
land was taken over by the Government. As per Ex.-P7, on
24.02.2005 the land was acquired by the Government. If
that is the case, it cannot be held that the prosecution has
established its case that the accused being the owner or in
occupation of the property has drawn electricity
unauthorizedly and committed theft of electricity. The
reasons assigned by the trial Court for convicting the
accused for the offence punishable under Section 135 of
Electricity Act, 2003 is therefore not in accordance with
law and the same is liable to be set aside. Accordingly,
the following:
ORDER
Appeal is allowed.
The judgment and order dated 21.10.2011 passed by
the Court of the Special Judge, XXXV Additional City Civil
and Sessions Judge at Bengaluru in Special.C No.105/2009
convicting the accused for the offence punishable under
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Section 135 of Electricity Act, 2003 is set aside. He is
acquitted and his bail bond stands cancelled.
Learned amicus curiae is entitled for honorarium of
Rs.5000/- (Rupees Five Thousand only) and it shall be
paid by the High Court Legal Services Committee.
SD/-
JUDGE
HB
