Sri Shivareddy vs The State Of Karnataka
2023 Latest Caselaw 1209 Kant

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                                                  CRL.A No. 174 of 2012




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 7TH DAY OF FEBRUARY, 2023

                                     BEFORE
             THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                        CRIMINAL APPEAL No. 174 OF 2012
             BETWEEN:

                SRI SHIVAREDDY
                S/O SRI LATE VENKATASWAMI,
                AGED ABOUT 56 YEARS,
                R/AT: MANA CHINTLAHAPALLI,
                CHINTHAMANI TALUK.
                                                           ...APPELLANT

             (BY SRI. N SRIRAM REDDY, ADVOCATE)
Digitally signed
by SANDHYA S AND:
Location: HIGH
COURT OF         THE STATE OF KARNATAKA
KARNATAKA
                POLICE INSPECTOR,
                BESCOM VIGILANCE POLICE,
                CHIKKABALLAPUR.
                                                        ...RESPONDENT

             (BY SRI S VISWA MURTHY, HCGP)

                   THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
             SET ASIDE THE ORDER DATED:16/18.1.12 PASSED BY THE
             DIST., AND S.J., CHICKBALLAPUR IN EACC No.21/10 -
             CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
             P/U/S     135    OF    ELECTRICITY    ACT.    AND    THE
             APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR 6
             MONTHS AND ALSO PAY FINE OF Rs.5000/- IN DEFAULT OF
             PAY FINE, HE SHALL FURTHER UNDERGO S.I. FOR 2 MONTHS
             FOR THE OFFENCE P/U/S 135 OF ELECTRICITY ACT.

                  THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
             THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                            CRL.A No. 174 of 2012




                          JUDGMENT

This appeal is filed against the judgment of

conviction and order of sentence dated 16.01.2012 passed

in EACC No.21/2010 by the District and Sessions Judge,

Chikkaballapur convicting the appellant/accused for the

offence punishable under Section 135 of Electricity Act,

2003 (hereinafter referred to as 'Act' for short) and

sentencing to undergo simple imprisonment for 06 months

and also to pay fine of Rs.5,000/- in default to pay fine, to

further undergo simple imprisonment for 02 months.

2. The factual matrix of the case is that on

receiving credible information that appellant/accused has

taken direct electricity connection to his house, PW.1-

Assistant Engineer has visited the house of

appellant/accused at Madachintapalli village and saw that

appellant/accused has taken direct connection of electricity

to his house from electric pole of the BESCOM and he has

not at all obtained any permission or licence to obtain the

CRL.A No. 174 of 2012

direct connection from the electric pole to his house and

accordingly, appellant/accused has utilized 1920 watt +

0.5 H.P. electricity illegally and therefore, PW.1-Assistant

Engineer has filed complaint at Ex.P1 and the case came

to be registered in BESCOM P.S.in crime No.4/2010 for the

offence punishable under Section 135 of the Act.

3. The charge sheet came to be filed against

appellant/accused for the offence under Section 135 of the

Act. The Trial Court has framed charge against

appellant/accused and appellant/accused denied the

charge and claimed to be tried.

4. The prosecution in order to prove its case,

examined five witnesses as PW.1 to PW.5 and got marked

five documents as Ex.P1 to Ex.P5 and one material object

as M.O.1 -aluminium electric wire measuring 5 mtrs. The

statement of appellant/accused under Section 313 of

Cr.P.C. was recorded.

CRL.A No. 174 of 2012

5. After hearing the arguments on both sides, the

Trial Court framed points for consideration and convicted

appellant/accused for the offence punishable under

Section 135 of the Act. The said judgment of conviction

and order of sentence has been challenged by the

appellant/accused in this appeal.

6. Heard the arguments of learned counsel for

appellant/accused and the learned HCGP for respondent-

State.

7. Learned counsel for appellant/accused argued

that the prosecution has failed to prove the mahazar at

Ex.P2 since the Pancha -PW.4 has not supported the case

of prosecution and another pancha CW.6 has not been

examined. He contended that what is the parameter to

ascertain quantity of electricity that has been subject of

theft is not forthcoming. Except the theft of electricity,

there is no allegation against appellant/accused. The

prosecution has failed to prove that appellant/accused has

CRL.A No. 174 of 2012

committed theft of electricity. With this, he prayed to

allow the appeal.

8. Per contra, learned HCGP would contend that

the appellant/accused in the cross examination of PW.1

has admitted that he has drawn the aluminium wire from

electric pole to his house and contended that temporary

connection has been taken and obtained permission from

BESCOM authorities. He also contended that the

appellant/accused has failed to establish that he has taken

temporary connection from the BESCOM authorities and

considering the evidence on record, the Trial Court has

rightly held that appellant/accused has committed theft

punishable under Section 135 of the Act. With this, he

prayed to dismiss the appeal.

9. On the grounds made out, the following points

arise for my consideration:

(i) Whether the Trial Court erred in convicting appellant/accused for offence

CRL.A No. 174 of 2012

punishable under Section 135 of the Act?

(ii) Whether the sentence imposed on appellant/accused to undergo simple imprisonment for period of 06 months and to pay a fine of Rs.5,000/- can be reduced to payment of fine alone?

My answer to the point No.1 is negative and point

No.2 in affirmative for the following reasons:

10. PW.1 is the Assistant Engineer. He has filed

complaint as per Ex.P1. PW.2 is the PSI, BESCOM

Vigilance P.S. who has drawn mahazar as per Ex.P2 in the

presence of PW.4 and PW.6 and he has recorded the

statement of PWs.4 to 6 and filed charge sheet.

11. PW.3 is pancha to Ex.P2-Mahazar and he is the

lineman who has disconnected the illegal connection taken

by appellant/accused.

CRL.A No. 174 of 2012

12. PW.4 is the pancha to Ex.P2 and he has not

supported the case of prosecution.

13. PW.5 is the Head Constable who has received

the complaint at Ex.P1 and sent FIR at Ex.P5 to the

jurisdictional Court. He has received Ex.P2 - mahazar and

M.O.1 - aluminium electric wire and also received

inspection report as per Ex.P3.

14. PW.1-Assistant Engineer, BESCOM Vigilance

P.S. gave evidence stating that on 05.01.2010, on

receiving credible information went to the house of

appellant/accused and saw that he has taken illegal

electricity connection from the electric pole to his house by

using aluminium electric wire and he filed complaint as per

Ex.P1. In cross-examination of PW.1, the counsel for

appellant/accused suggested that appellant/accused has

taken temporary electricity connection by using aluminium

wire from BESCOM authorities and the same has been

CRL.A No. 174 of 2012

denied. By the said suggestion, appellant/accused has

admitted that he has drawn aluminium electric wire from

the electric pole to his house and used electricity.

15. The appellant/accused has not placed any

material to show that he has taken temporary electricity

connection from BESCOM. PW.2 is the PSI, BESCOM

Vigilance, who went along with PW.1 and saw that

appellant/accused taking electricity from electric pole by

using 5 mtrs. aluminium wire to his house and he deposed

that PW.1 filing complaint and drawing mahazar as per

Ex.P2 seizing aluminium wire (M.O.1) under the said

mahazar.

16. PW.3 is the lineman. He has stated that he has

cut the wire by which appellant/accused has drawn

electricity from the electric pole to his house by using 5

mtrs. aluminium wire and he has also stated that he

CRL.A No. 174 of 2012

affixed his signature on Ex.P2-mahazar. There is no cross

examination by the counsel for appellant/accused to PW.3.

17. Pw.5 is the Head Constable who has stated that

on receiving the said complaint, sent the FIR as per Ex.P5

and received Ex.P2-mahazar, Ex.P3- inspection report,

M.O.1 - 5 mtrs. aluminium electric wire seized under

Ex.P2-Mahazar. The Trial Court on appreciating the

evidence on record has held that appellant/accused has

admitted that he has drawn electricity using 5mtrs.

aluminium wire from electric pole directly to his house and

he has failed to prove that he has taken temporary

connection from BESCOM. Therefore, I do not find any

error in the impugned judgment passed by the Trial Court

in holding that the prosecution has proved that the

appellant/accused has committed offence under Section

135 of the Act.

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CRL.A No. 174 of 2012

18. The appellant/accused has been sentenced to

undergo simple imprisonment for a period of six months

and to pay a fine of Rs.5,000/- in default to pay fine, to

undergo simple imprisonment for a period of two months.

The punishment provided for offence under Section 135 of

Act is imprisonment for a term which may extend to three

years or with fine or with both.

19. As per proviso (ii) of Section 135 of

Electricity Act,2003, if the admitted consumption or

admitted use exceeds 10 kilowatt, the fine imposed on

first conviction shall not be less than three times the

financial gain on account of such theft of electricity.

Therefore, this is the first conviction against

appellant/accused for the offence punishable under

Section 135 of the Act. As per draft bill of BESCOM,

Vigilance P.S., appellant/accused has consumed electricity

by commission of theft to the extent of 1920 vats+0.5

H.P. motor pump valuing to Rs.24,802/- and three times

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CRL.A No. 174 of 2012

of the said amount comes to Rs.74,406/-. Therefore, in

view of proviso (ii) to Section 135 of Act, fine to be

imposed is Rs.74,406/- i.e. not less than three times the

financial gain on account of such theft of electricity on first

conviction. Therefore, appellant/accused is liable to pay

fine of Rs.74,406/-.

20. Appellant/accused is aged about 66 years as on

today. He is an agriculturist and suffering from aasthma

and therefore, the sentence of imprisonment is required to

be modified to payment of fine of Rs.74,406/-.

21. Hence, I proceed to pass the following:

ORDER

i. The appeal is allowed in part.

ii. The conviction of appellant/accused for offence

under Section 135 of Electricity Act, 2003 is

affirmed.

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CRL.A No. 174 of 2012

iii. The sentence of imprisonment is modified to

fine alone and appellant/accused is ordered to

pay fine of Rs.74,406/- and in default of

payment of said fine, he shall undergo simple

imprisonment for period of six months.

iv. As this is the first conviction of

appellant/accused for theft of electricity, he

shall not be debarred from getting electricity

connection from BESCOM after he pays fine

imposed as above.

Sd/-

JUDGE

SSD