Shivanna vs The State By K.P.T.C.L
2023 Latest Caselaw 6721 Kant

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                                                              NC: 2023:KHC:34559
                                                           CRL.A No. 616 of 2012




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 22ND DAY OF SEPTEMBER, 2023

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                  CRIMINAL APPEAL No. 616 OF 2012


                       BETWEEN:

                       SHIVANNA
                       S/O GANGAPPA
                       REISDING AT HAVALA VILLAGE
                       TURUVEKERE TALUK
                       TUMKUR DISTRICT - 561 012.
Digitally signed by                                                 ...APPELLANT
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH         (BY SRI D R ANANDEESWARA, ADVOCATE)
COURT OF
KARNATAKA
                       AND:

                       THE STATE BY K.P.T.C.L.
                       TUMKUR,
                       REPT. BY STATE PUBLIC PROSECUTOR
                       HIGH COURT BUILDING
                       BANGALORE - 560 001.
                                                                  ...RESPONDENT

                       (BY SRI RANGASWAMY R, HCGP)

                             THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
                       SET ASIDE THE JUDGEMENT DATED 03.04.2012 PASSED BY
                       THE I ADDL. DISTRICT & S.J., TUMKUR IN SPL.C.No.91/2008 -
                       CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
                       P/U/S    135    OF    ELECTRICITY    ACT,    2003.   THE
                       APPELLANT/ACCUSED ARE SENTENCED TO SUFFER RIGOROUS
                       IMPRISONMENT FOR 1 YEAR AND TO PAY A FINE OF
                       RS.35,000/- (RUPEES THIRTY FIVE THOUSAND ONLY) AND IN
                       DEFAULT TO PAY IT, TO SUFFER RIGOROUS IMPRISONMENT
                       FOR 3 MONTHS FOR THE OFFENCE P/U/S 135 OF ELECTRICITY
                       ACT, 2003.
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                                                       NC: 2023:KHC:34559
                                                    CRL.A No. 616 of 2012




    THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                                 JUDGMENT

1. This appeal is filed against the judgment of

conviction and order of sentence dated 03.04.2012 passed

in Special Case No.91/2008, by the I Additional district

and Sessions Judge, Tumakuru, convicting the appellant -

accused for the offence punishable under Section 135 of

the Electricity Act, 2003 (for short hereinafter referred to

as 'the Act'), sentencing to undergo Rigorous

Imprisonment for a period of one year and to pay fine of

Rs.35,000/- and in default, to undergo Rigorous

Imprisonment for three months.

2. The factual matrix of the case is that; on

06.03.2004, at about 12.45 pm., when PW3 in the

presence of PWs.1 and 2 and another inspected

installation of irrigation pumpset belonging to the

appellant - accused situated at Havala Village at

Turuvekere Taluk, he found the appellant - accused

NC: 2023:KHC:34559 CRL.A No. 616 of 2012

committing theft of 8100 units valued at Rs.11,520/- by

drawing the wire of about 15 feet long to his 5 HP motor

connected to the borewell and thereby, committed the

offence under Section 135 of the Act. The Special Court

framed the charge for the offence under Section 135 of

the Act.

3. The prosecution examined seven witnesses as PWs.1

to 7 and got marked the documents as Exs.P1 to P6 and

MO.1. The statement of the accused under Section 313 of

Cr.P.C was recorded.

4. After hearing the arguments on both sides, the Trial

Court framed the points for consideration and convicted

the appellant - accused for the offence 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.

NC: 2023:KHC:34559 CRL.A No. 616 of 2012

5. Heard the arguments of learned counsel for the

appellant - accused and learned High Court Government

Pleader for the respondent - State.

6. Learned counsel for the appellant would contend that

the evidence on record does not establish that the

appellant - accused has committed theft of electricity.

The mahazar has been drawn as per Ex.P1, prior to filing

of the complaint by PW3 as per Ex.P3. The mahazar has

been drawn on 06.03.2004 and the complaint has been

filed on 07.03.2004. The evidence of PWs.1 to 3 has not

been supported by any independent witnesses. There is

no evidence to show that the alleged borewell and the

pumpset connected to the said borewell is in the land of

this appellant - accused. Without considering all these

aspects, the learned Sessions Judge has passed the

impugned judgment of conviction and order of sentence

which requires interference by this Court. He further

argued that this appellant - accused is now an aged

NC: 2023:KHC:34559 CRL.A No. 616 of 2012

person suffering from paralysis and prayed to modify the

sentence, only to fine as imposed by the Trial Court.

7. Learned High Court Government Pleader would

contend that the evidence of PWs.1 to 3 clearly establishes

that this appellant - accused has taken direct connection

from the electric pole to the pumpset installed to the

borewell and used the electricity and caused loss to the

Department. The R.T.C extract - Ex.P5 issued by PW7

shows that the land belongs to this appellant - accused.

The Trial Court considering the evidence of the

prosecution, has rightly convicted the appellant - accused

for the offence under Section 135 of the Act. With this, he

prayed to dismiss the appeal.

8. On the grounds made out and considering the

arguments advanced, the following points would arise for

my consideration;

(i) Whether the Trial Court erred in convicting the appellant - accused for the offence punishable under Section 135 of the Act?

NC: 2023:KHC:34559 CRL.A No. 616 of 2012

(ii) Whether there are grounds for reducing the sentence to fine alone, as prayed by learned counsel for the appellant - accused?

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

No.2 in the affirmative, for the following reasons;

PW1 is the Assistant Engineer of BESCOM. PW2 is the

Lineman. PW3 along with PWs.1 and 2 inspected the

electric installation in the land of the appellant - accused

and found unauthorized connection directly from the

electric pole taken to the pumpset installed to the borewell

which is having 5 HP motor. PW3 has prepared the

mahazar as per Ex.P1 in the presence of PWs.1 and 2 and

seized MO.1 - wire. PW2 has disconnected the said wire.

PWs.1 and 2 also deposed in consonance with the

evidence of PW3 regarding they visiting the land of the

appellant - accused and finding an unauthorized electricity

connection to the 5 HP motor and theft of electricity by the

appellant - accused. The R.T.C - Ex.P5 issued by PW7

NC: 2023:KHC:34559 CRL.A No. 616 of 2012

shows that the said agricultural land is standing in the

name of the appellant - accused. PW3, after drawing the

mahazar as per Ex.P1, has filed a complaint as per Ex.P3

and the same came to be registered by PW5 who has

issued F.I.R as per Ex.P6. PW6 has conducted further

investigation and filed the charge sheet. The Trial Court

considering the evidence of PWs.1 to 3, has rightly held

that the prosecution has proved that the appellant -

accused has taken an unauthorized connection of

electricity directly from the electric pole to his 5 HP motor

connected to the borewell and committed theft of

electricity.

10. On perusal of the entire prosecution evidence, this

Court did not find any error in the judgment of conviction

passed by the Trial Court convicting the appellant -

accused for the offence under Section 135 of the Act.

11. The appellant - accused has been sentenced to

undergo Rigorous Imprisonment for a period of one year

and to pay fine of Rs.35,000/- and in default, to suffer

NC: 2023:KHC:34559 CRL.A No. 616 of 2012

Rigorous Imprisonment for three months. The punishment

provided for the offence under Section 135 of the Act is

imprisonment for a term, which may extend to three years

or with fine or with both.

12. The proviso to section 135 of the Act provides that,

"the fine imposed on the first conviction shall not be less

than three times the financial gain on account of theft of

such electricity."

13. As per Ex.P4, the back billing charges is Rs.11,520/-.

The said amount of Rs.11,520/- is the financial gain by the

appellant - accused on account of theft of electricity.

Therefore, the fine to be imposed on the appellant -

accused shall not be less than three times the said

financial gain. The Trial Court has rightly imposed the fine

of Rs.35,000/- which is little more than three times the

financial gain on account of said theft of electricity. The

Trial Court apart from the fine amount has sentenced the

appellant - accused to undergo Rigorous Imprisonment for

a period of one year.

NC: 2023:KHC:34559 CRL.A No. 616 of 2012

14. Learned counsel for the appellant - accused has

argued that the appellant - accused is now suffering from

paralysis and prayed to restrict the sentence to fine only.

15. There is a discretion to the Court to impose the

sentence of imprisonment or fine or both. Considering

that this appellant - accused is an agriculturist and as he

is now suffering from paralysis, it is suffice to meet the

ends of justice to impose fine alone by doing away with

the sentence of imprisonment as awarded by the Trial

Court. Therefore, the appellant - accused has made out a

case for reducing the sentence to fine alone as imposed by

the Trial Court with default sentence of Rigorous

Imprisonment for three months. In the result, the

following;

ORDER

The appeal is allowed in part. The judgment of

conviction of the appellant - accused for the offence under

Section 135 of the Act as held in special Case No.91/2008

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NC: 2023:KHC:34559 CRL.A No. 616 of 2012

by the I Additional District and Sessions Judge, Tumakuru

is affirmed. The sentence imposed by the Trial Court is

reduced to fine, with a default sentence. The fine imposed

by the Trial Court is Rs.35,000/- and default sentence is

Rigorous Imprisonment for three months. The appellant -

accused to deposit the fine amount within one month from

today.

Sd/-

JUDGE

GH