Manjunath vs State Of Karnataka
2023 Latest Caselaw 4433 Kant

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                                                             NC: 2023:KHC:24591
                                                              CRL.A No. 692 of 2016




                               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                   DATED THIS THE 14TH DAY OF JULY, 2023

                                                   BEFORE
                                    THE HON'BLE MR JUSTICE K.NATARAJAN
                                      CRIMINAL APPEAL NO. 692 OF 2016
                          BETWEEN:

                          1.    MANJUNATH
                                S/O HODDEGOWDA,
                                AGED ABOUT 30 YEARS,
                                NAVANEBORANAHALLY,
                                KALLEMBELLA HOBLI,
                                SIRA TALUK,
                                TUMKUR DISTRICT - 572 130.
                                                                       ...APPELLANT
                          (BY SRI. M SHASHIDHARA, ADVOCATE)
                          AND:

                          1.    STATE OF KARNATAKA
                                BY BESCOM VIGILANCE,
                                TUMAKURU - 572 130
                                REPRESENTED BY S.P.P.
Digitally signed by
                                HIGH COURT OF KARNATAKA
BHAVANI BAI G
Location: High Court of
                                BENGALURU - 560 001.
Karnataka
                                                                     ...RESPONDENT
                          (BY SRI. VISHWA MURTHY, HCGP)

                               THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                          374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
                          ORDER DATED 08.03.2016 PASSED BY THE I ADDITIONAL
                          DISTRICT    AND    SESSIONS    JUDGE,    TUMAKURU    IN
                          SPL.C.NO.223/2014 - CONVICTING THE APPELLANT/ACCUSED
                          FOR THE OFFENCE PUNISHABLE UNDER SECTION 135 OF
                          ELECTRICITY ACT AND ETC.

                              THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
                          COURT DELIVERED THE FOLLOWING:
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                                           NC: 2023:KHC:24591
                                            CRL.A No. 692 of 2016




                          JUDGMENT

This appeal is filed by the appellant-accused under

Section 374(2) of Cr.P.C. for setting aside the judgment of

conviction and sentence passed by the I Additional District and

Sessions Judge, Tumakuru in Spl.Case No.223/2014 dated

08.03.2016 for having found guilty and convicted the appellant

for the offence punishable under Section 135 of the Electricity

Act, 2003 and sentenced him to pay fine of Rs.94,047/-, in

default of payment of fine, he shall undergo simple

imprisonment for a period of 1 year.

2. Heard the arguments of learned counsel for the

appellant and learned High Court Government Pleader for the

respondent - State.

3. The rank of the parties before the Trial Court is

retained for the sake of convenience.

NC: 2023:KHC:24591 CRL.A No. 692 of 2016

4. The case of the prosecution is that on 25.03.2013, at

about 7.00 p.m., on the credible information, the PW.1 along

with PW.3 inspected the land situated at Navaneboranahally,

Kallambella Hobli, Sira Taluk, Tumkur District, where this

appellant found that he had unauthorized electrical connection

to the bore well directly from the BESCOM main line and he has

used 5 H.P. motor to lift the water from the bore well and using

50% of water for commercial purpose i.e., for sand filtering

instead of agricultural purpose and thereby, he has committed

theft of 3,357 units of electricity and caused loss of Rs.51,349/-

The Inspection team got disconnected the electrical connection

and prepared the panchanama as per Ex.P.1 in the presence of

panchas, came to the police station and on the very next day,

filed the complaint before PW.3 as per Ex.P.2. In turn PW.3

registered the FIR as per Ex.P.4 and handed over the

investigation to PW.4. PW.4 in turn investigated the matter and

filed the charge sheet. The Trial Court being the Special Court

took the cognizance, framed the charges, the accused denied

the charges, hence, the prosecution examined four witnesses

as per P.Ws.1 to 4, got marked 6 documents as per Exs.P.1 to

6 and 1 material object. The statement of the accused under

NC: 2023:KHC:24591 CRL.A No. 692 of 2016

Section 313 of Cr.P.C was recorded. The case of the accused

was one of the total denial, but not led any evidence. After

hearing the arguments, the Trial Court found the accused guilty

and convicted the appellant which is under challenge.

5. The learned counsel for the appellant has contended

that there is no evidence to prove that the appellant was the

owner of the land and he was in position at the time of seizing

the wire. PW.2-panch witness or independent witness turned

hostile. Except PW.1 and evidence of PWs.3 and 4, no

independent witnesses have supported and examined by the

prosecution. As per Ex.P.5, the land belongs to the third

persons including the father of the appellant. When there is no

document to show that he is in possession of the property, he

was called to the spot after the seizure of the wire. There is no

reason assigned for filing charge sheet against the appellant

alone. Ex.P.6 is not proved by examining the Village Accountant

to show that it is used for treating the sand which is

commercial purpose. There is no sand or other materials

collected in the spot to show that he has used for commercial

NC: 2023:KHC:24591 CRL.A No. 692 of 2016

purpose. PW.3 has admitted that no material is required for

using the electricity for the purpose of agriculture. The Trial

Court without considering the same, found the appellant guilty

and convicted. Hence, prayed for the allowing the appeal.

6. Per contra, learned High Court Government Pleader

supported the judgment of the trial Court and contended that

the accused obtained illegal connection of the electricity wire

and used for both agricultural and commercial purpose.

Therefore, the Trial Court has rightly convicted the appellant.

Hence, prayed for dismissing the appeal.

7. Having heard the arguments and on perusal of the

records, the point that arises for my consideration are:

"1) Whether the prosecution proves beyond reasonable doubt that on 25.03.2013 at 7.00 p.m., the accused found installing the 5 H.P. motor to the bore well and using the 50% water for commercial purpose and caused loss or theft of 3,357 units and loss of Rs.51,349/- and thereby, committed the

NC: 2023:KHC:24591 CRL.A No. 692 of 2016

offence punishable under Section 135 of the Electricity Act ?

2) Whether the judgment of the Trial Court call for interference?"

8. Upon hearing the arguments of the learned counsel

and in order to re-appreciate the evidence on record, it is

necessary to have a cursory look into the evidence adduced by

the prosecution before the Trial Court which are as under:

(a) PW.1-H.M.Chidananda who is the Assistant

Executive Engineer working at BESCOM, Tumakuru. According

to his evidence, on 25.03.2013, in the evening, he had visited

the land belong to the appellant where the unauthorized

electricity connection was taken to the bore well by using 5

H.P. pump set or motor to lift the water and 50% of water was

using for sand filtering and remaining water was used for

agricultural purpose. Therefore, he disconnected the same,

prepared panchanama as per Ex.P.1 and lodged the complaint

as per Ex.P.2.

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(b) PW.2-Mudduraju who is the Villager and panch

witness has turned hostile and not supported the case of the

prosecution.

(c) PW.3-Siddagangappa, PSI received the complaint

and registered the FIR as per Ex.P4. According to his evidence,

he also accompanied PW.1 to the spot and thereafter, on the

next day, he received complaint from PW.1, registered the FIR

and investigation done by PW.4.

(d) PW.4-Umashankar, Investigating Officer has

deposed that after taking up the investigation, he collected the

RTC from the Village Panchayath and Ex.P.6-Certificate from

the Village Accountant which shows the accused was doing

sand filtering business.

9. On considering the entire evidence on record, which

reveals, especially Ex.P.1-panchanama prepared by PW.1 by

visiting the spot and seizing the wire. Admittedly, the Head of

the Vigilance went along with PW.3 on 25.03.2013, he said to

be found illegal connection of electricity. However, he has

NC: 2023:KHC:24591 CRL.A No. 692 of 2016

stated water is used for commercial purpose for filtering the

sand, but no documents or no photographs taken or no

evidence collected from the spot to show that this appellant

was using the water for filtering the sand near his agricultural

land. Though Ex.P.6 collected by PW.4 from the Village

Accountant but Ex.P.6 was not proved in accordance with law

by examining the Village Accountant. Even on perusal of

Ex.P.6, the Village Accountant has submitted that the accused

was filtering the sand, but as on the date of raid i.e., on

25.03.2013, the appellant was not present on the spot, but he

was called to the spot. Moreover, as per Ex.P.5-RTC collected

by the Investigating Officer reveals four persons were named

including the name of the father of this appellant, but there is

no evidence to show that this appellant was in possession of

the portion of the land and he was using the water for filtering

the sand. Even it is brought from the evidence that this accused

was using the water for agricultural purpose also. Absolutely,

there is no evidence to show that this appellant-accused was in

possession of the said land in Sy.No.204 which is measuring 6

acres 35 guntas. The cultivators name was shown as Lingappa

Mukannappa - Lt. Siddalingappa, Siddappa - Lt. Siddalingappa,

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Vaddegowda - Lt.Lingappa - Kenchappa including the name of

the father of the appellant, but two three names were

mentioned and there is no evidence to show that the portion of

the land was used by the accused for drawing the water for

either agricultural or commercial purpose. Therefore, once the

prosecution failed to prove the presence of the accused in the

land that belongs to him, the question of proving the factum of

using the water for commercial purpose or for agricultural

purpose and the question of filing the complaint or charge

sheet against the appellant does not arise. Absolutely, there is

no evidence on record to prove the case of the appellant in

accordance with law. Except PWs.1, 3 and 4, no independent

witnesses nor the Village Accountant was examined to prove

that this accused was in possession of the property and he has

taken the connection and using the same for filtering the sand.

As per the evidence of PW.3, no meter is required for using the

water for agriculture purpose. Therefore, I am of the view, the

Trial Court committed error in holding the appellant guilty

giving finding and convicting the appellant which is not correct.

Therefore, I hold the prosecution failed to prove the charges

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NC: 2023:KHC:24591 CRL.A No. 692 of 2016

against the appellant. Hence, judgment of conviction passed

by the trial Court is liable to be set aside.

10. Accordingly, the appeal is allowed.

The judgment of the Trial Court in S.C.No.223/2014

dated 08.03.2016 is hereby set aside. The appellant is

acquitted for the charges leveled against him and his bail bond

stands cancelled.

If any fine amount deposited, the same is ordered to

returned to the appellant.

Sd/-

JUDGE

GBB