Karnataka High Court
State Of Karnataka vs Hanamant S/O. Kallappa Mali @ Malagar on 4 July, 2024
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CRL.A No. 100182 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100182 OF 2017
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE POLICE INSPECTOR,
VIGILANCE POLICE STATION,
HESCOM, BAGALKOT
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
- APPELLANT
(BY SRI MADANMOHAN M.KHANNUR, AGA)
Digitally signed by AND:
VINAYAKA B V
Location: HIGH
COURT OF HANAMANT S/O. KALLAPPA MALI @ MALAGAR,
KARNATAKA AGED ABOUT 56 YEARS, OCC:AGRICULTURE,
R/O. KALABEELAGI, TQ:JAMKHANDI,
DIST:BAGALKOT.
- RESPONDENT
(BY SRI A.M. GUNDAWADE, AMICUS CURIAE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE
AND TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 11.01.2017 PASSED BY THE I ADDL.
DISTRICT AND SESSIONS COURT, BAGALKOT, SITTING AT
JAMAKHANDI IN SPL.C.NO.43 OF 2015 AND ETC.,
IN THIS CRIMINAL APPEAL ARGUMENTS HAVING BEEN
HEARD AND RESERVED ON 07.06.2024 AND COMING ON FOR
"PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CRL.A No. 100182 of 2017
JUDGMENT
The State has preferred this appeal against the judgment
of acquittal passed by the learned Special (First Additional Dist.
& Sessions) Court, Bagalkot, sitting at Jamkhandi, in Special
Case No.43/2015 dated 11.01.2017.
2. Parties are referred to as per their ranking before
the trial Court, for the sake of convenience.
3. The brief relevant facts leading to this appeal by the
State are that the Inspector of Police, Vigilance Squad Police
Station, HESCOM, Bagalkot, filed charge sheet against the
accused/respondent for commission of offence punishable u/S
135 of The Electricity Act, 2003. It is stated in the charge
sheet that, on 11.11.2014 at about 3.00 pm when the Assistant
Executive Engineer (Vigilance), HESCOM, inspected the farm of
the accused-Hanamant Maali, the complainant observed that
the accused obtained electricity by using 4 lane service wire
from the LT pole and connected to the panel board situated
near the open well in the said farm land. Further, the said
electrical energy is being used illegally without any permission
from the HESCOM to run electric motor of 3 HP, thereby
committed theft of electricity to the tune of 4833 units and
caused loss of Rs.45,287/- (compounding fine of Rs.6,000/-).
Thus the accused committed offence punishable under Section
135 of the Electricity Act, 2003.
4. After filing the charge sheet, cognizance was taken by
the concerned Special Court, case was registered in Special
Case No.43/2015.
5. In response to the summons, the accused appeared
before the said Court and obtained bail. Charges framed by the
Special Court for the commission of offence punishable u/S 135
of the Electricity Act, 2003. Same was read over and explained
to the accused. Having understood the same, the accused
pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, prosecution has
examined 11 witnesses as PW1 to PW11, 14 documents were
marked as Exs.P1 to P14 and one service wire was marked as
MO1. On closure of prosecution evidence, statement u/S 313
Cr.P.C. was recorded as to the incriminating circumstances
appearing against the accused. The accused has totally denied
the evidence of Prosecution witnesses, but he has not chosen to
lead any defence evidence on his behalf. Having heard the
arguments of both sides, the Special Court has acquitted the
accused. Being aggrieved by the judgment of acquittal, the
State has preferred this appeal.
7. Sri Madanmohan M. Khannur, learned Additional
Government Advocate appearing for the appellant would submit
that the judgment of acquittal recorded by the trial Court is
contrary to law, facts and evidence placed on record. The
judgment is neither based on oral nor any documentary
evidence placed on record and as such, the same is bad in law.
The impugned judgment is not sustainable as the same was
against the established principle of law as well as canons of
justice. PW1-complainant visited the spot on 11.11.2014 and
found that accused had obtained electricity illegally by using 4
lane service wire from the LT pole through service line
connecting the same to 'Nirantara Jyoti line' and connected to
the panel board situated near the well in the said farm land,
without prior permission from the authority.
8. PW2 is the Junior Engineer. His evidence supports
the evidence of complainant that while inspecting farm land of
the accused, he found that the accused had unauthorizedly
obtained the electricity. Though, these two witnesses visited
the spot and after verification found that accused obtained
connection illegally, but in the cross-examination nothing has
been elicited from these witnesses. Under these
circumstances, the trial Court ought to have convicted the
accused. Further, he submits that the trial Court came to the
wrong conclusion that while conducting raid, only service wire
was seized and electricity motor was not seized from the spot
but the witnesses have categorically stated that motor was
fitted inside the well but at that time could not seize the same
but immediately on 14.11.2014, the complainant along with the
staff went to the spot to seize the motor, but the same was not
found in the well. Hence they gave notice to the accused.
9. Under these circumstances, the trial Court ought to
have considered that service wire which is used to connect the
motor was not seized and the complainant along with other
staff identified the spot where the accused illegally obtained
electricity but the trial Court, without considering these
materials on record, acquitted the accused. He further submits
that there was minor discrepancy in the evidence of staff of
HESCOM but the trial Court came to the conclusion that they
are the interested witnesses. It is to be noticed that there was
no personal grudge between the accused and the official
witnesses, but the trial Court has committed error in coming to
the conclusion that they are interested witnesses.
10. PW3 is the Village Accountant. In his evidence he
has deposed that as per Ex.P.14-record of rights, the well is
situated in the farm of respondent/accused and the same
belongs to the respondent accused. PW6 is the Tahasildar who
issued ration card to show that the accused belonged to the
same village. His evidence is supported by evidence of PW9
and PW10-officials of the HESCOM authority and PW11-
Investigating Officer. However, the trial Court ventured outside
the scope of the Evidence Act in appreciating the evidence on
record. The trial Court has not properly appreciated the
evidence on record in accordance with law and facts and sought
for allowing this appeal.
11. As against this, learned counsel for respondent/
accused would submit that the trial Court has properly
appreciated the evidence on record in accordance with law and
facts which needs no interference of this Court. On all these
grounds, sought for dismissal of the appeal.
12. Having heard the arguments of both sides and on
perusal of appeal papers and original records the following
points would arise for my consideration:
1) Whether the impugned judgment and order of
acquittal passed by the trial Court requires
interference?
2) What order?
13. My answer to the above points is as under:
1. Point No.1 : In the negative
2. Point No.2 : As per final order.
Regarding Point No.1:
14. I have examined the material placed before this
Court. Before appreciation of evidence on record it is
appropriate to extract the provision of Section 135 of Part XIV
of The Electricity Act, 2003. The same reads thus:
"135. (Theft of Electricity):-
(1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection
with overhead, underground or under water lines or
cables, or service wires, or service facilities of a
licensee or supplier as the case may be; or
(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,
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for
which the usage of electricity was authorised,
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 on
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;
(ii) 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 and in the event of second or
subsequent conviction, the sentence shall be
imprisonment for a term not less than six
months, but which may extend to five years and
with fine not less than six times the financial gain
on account of such theft of electricity:
Provided further that in the event of second and
subsequent conviction of a person where the load
abstracted, consumed, or used or attempted abstraction
or attempted consumption or attempted use exceeds 10
kilowatt, such person shall also be debarred from getting
any supply of electricity for a period which shall not be
less than three months but may extend to two years and
shall also be debarred from getting supply of electricity for
that period from any other source or generating station:
Provided also that if it is proved that any artificial
means or means not authorized by the Board or licensee
or supplier, as the case may be, exist for the abstraction,
consumption or use of electricity by the consumer, it shall
be presumed, until the contrary is proved, that any
abstraction, consumption or use of electricity has been
dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of this
Act, the licensee or supplier, as the case may be,
may, upon detection of such theft of electricity,
immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or
supplier, as authorized for the purpose by the Appropriate
Commission or any other officer of the licensee or
supplier, as the case may be, of the rank higher than the
rank so authorised shall disconnect the supply line of
electricity:
Provided further that such officer of the licensee or
supplier, as the case may be, shall lodge a complaint in
writing relating to the commission of such offence in
police station having jurisdiction within twenty four hours
from the time of such disconnect:
Provided also that the licensee or supplier, as the
case may be, on deposit or payment of the assessed
amount or electricity charges in accordance with the
provisions of this Act, shall, without prejudice to the
obligation to lodge the complaint as referred to in the
second proviso to this clause, restore the supply line of
electricity within forty-eight hours of such deposit or
payment.]
(2) Any officer of the licensee or supplier as the case may
be, authorized in this behalf by the State Government
may -
(a) enter, inspect, break open and search any
place or premises in which he has reason to
believe that electricity 2[has been or is
being,] used unauthorisedly;
(b) search, seize and remove all such devices,
instruments, wires and any other facilitator
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or article which has been, or is being, used
for unauthorized use of electricity;
(c) examine or seize any books of account or
documents which in his opinion shall be
useful for or relevant to, any proceedings in
respect of the offence under sub-section (1)
and allow the person from whose custody
such books of account or documents are
seized to make copies thereof or take
extracts therefrom in his presence.
(3) The occupant of the place of search or any person on
his behalf shall remain present during the search and a
list of all things seized in the course of such search shall
be prepared and delivered to such occupant or person
who shall sign the list:
Provided that no inspection, search and seizure of
any domestic places or domestic premises shall be carried
out between sunset and sunrise except in the presence of
an adult male member occupying such premises.
(4) The provisions of the Code of Criminal
Procedure, 1973, relating to search and seizure shall
apply, as far as may be, to searches and seizure under
this Act."
15. It is the case of the prosecution, as alleged in the
charge sheet, that the accused has obtained electrical energy
illegally to his 3 HP pumpset installed to the open well in his
farm land bearing survey No.1/5 measuring 0.25 guntas
standing in the name of Hanamantha S/o Kallappa Maali. To
substantiate this, the prosecution has produced Exhibit P14-
RTC extract of the year 2014-15 pertaining to land bearing
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survey No.1/5 of Kalabilagi village measuring one acre, out of
which, 0.25 gunta is standing in the name of Hanamantha
Kallappa Maali. Column 11 of pahani extract reveals that
Dundappa has got half share and Hanamanth and Mayappa
have got one-fourth share each in the open well. The pahani
extract reveals that the above three persons have got
right/share in the open well. Exhibit P6 issued by PW5-village
accountant does not indicate as to whether the open well is
situated in the land of the accused or not. The Investigating
Officer has not explained the other two owners, viz. Dundappa
and Mayappa, or who has installed the pumpset to lift water
from the well and who has obtained electricity energy from the
electricity line. Investigating Officer has also not explained
anything as to non-examination of the material witnesses viz.
Dundappa or Mayappa who have got half and one-fourth share
respectively in the open well. In the absence of this material
piece of evidence, it is difficult to come to conclusion that the is
accused is the sole owner of the well said to have been situated
in the land in Survey No.1/5 of Kalabilagi village and the
accused has committed theft by obtaining electricity connection
to the pumpset installed in the well.
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16. It is the case of prosecution that on 11.11.2014, the
accused being the owner of the land bearing survey No.1/5 of
Kalabilagi village has obtained electrical energy from local
transmission electricity line to the pumpset installed in the open
well of the said land. It is admitted fact that at the time of
inspection, the accused was present. Though the accused was
present at the time of inspection, the complainant-Assistant
Executive Engineer has not stated in the complaint as to the
survey number of the land. Even in mahazar Exhibit P1 also
there is no reference as to the survey number. The
Investigating Officer has not explained anything as to non-
mentioning of survey number of the land in the complaint or in
mahazar Exhibit P6. The letter addressed by Police Inspector,
Vigilance Squad, HESCOM, Bagalkot, reveals that the P.N.
Pawar-Village Accountant has furnished information as to the
address and survey number, as requested by the Police
Inspector on 17.03.2015. The date of commission of offence is
12.11.2014. It is only, after a lapse of 4 month 5 days, the
Investigating Officer came to know about the survey number as
1/5 and extent of land is 0.25 guntas and the same is standing
in the name of Hanamanth S/o Kallappa Maali, which submitted
is before the Court at the time of filing charge sheet, i.e. on
28.05.2015. If really the accused had committed theft of
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electrical energy as alleged by the prosecution, the Assistant
Executive Engineer would have ascertained as to the survey
number and extent of land from the accused and would have
mentioned in the first information report. Even at the time of
conducting panchanama also the Investigating Officer has not
ascertained the survey number of this land. These material
lapses will create doubt about the alleged incident.
17. It is evident from Exhibit P3-Provisional Bill prepared
by HESCOM, that the date of inspection is 11.11.2014; time of
inspection is not shown; name and address of the consumer is
shown as Hanamanth Kallappa Maali of Kalabilagi village,
Jamakhandi taluk and the connected load is shown as 3 HP
2.238 kilowatts; sanctioned load claimed is left blank; type of
installation is shown as LT-4 pumpset (open well); nature of
theft is shown as D/C; period of calculation: BBC 12 months;
and Consumption pattern of installation is shown as 12 months;
the energy pilfered is shown as 4834.08 units and the total
amount is shown as 42,723.72 and 6% tax of EC+FC is shown
as Rs.2,563.42 total and the total amount is shown as
Rs.45,287.14 and the total units pilfered is shown as 48.33
units. Compounding charges is shown as Rs.6,000/-. On what
basis the HESCOM has prepared this provisional bill has not
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been explained by the prosecution. The Investigating Officer
has not collected any material as to from which date the
accused has committed the theft of electrical energy. However,
the Exhibit P3 is prepared by HESCOM authorities calculating
the units of 4833 and fixing the amount of Rs.4,2723.72 and
compounding charges is shown as Rs.6,000/-. The material
witness-Lineman Raju Mallappa Kallari, who is examined as
PW10, has not whispered anything as to theft of electricity
energy for about twelve months. He has deposed that only on
the basis of the basis of credible information on 11.11.2014,
the Police officials summoned him and two panchas went to the
land of Hanamanth Kallappa Maali at Kalabilagi village at about
3.00 pm and on inspection they found as to the unauthorized
electricity connection to the pumpset of the accused. It is the
duty of the lineman who is deputed to maintain lines, cables
and equipment to ensure smooth and quality power supply to
the consumers as prescribed by the HESCOM authorities. The
Authorities have also prescribed the Powers and Duties of the
Officers and Employees, wherein it is clearly stated as to the
duty of the Lineman, Assistant Engineer or a Junior Engineer as
to the maintenance of lines, cable and equipment to ensure
smooth and quality power supply to consumers. Though this
lineman, who was appointed by the HESCOM to maintain lines
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and to supervise theft of electrical energy, has not taken any
steps till the Vigilance Squad visited to the spot of incident.
PW10 has not explained anything as to why he has not
observed the theft of electrical energy prior to inspection by
vigilance squad. However, the HESCOM authorities, assuming
that the accused has committed theft of electricity energy since
twelve months prior to 11.11.2014, calculated the amount as
per their whims and fancies without any evidence and the same
is not sustainable under law. The concerned Lineman and also
his other immediate higher officials have failed to discharge
their duties in accordance with Rules and Regulations
prescribed by HESCOM authorities. Even after the inspection
also, the Investigating Officer has not properly investigated the
case in accordance with law. As already discussed, the
Investigating Officer has failed to collect materials as to survey
number of the land where the open well is situated; extent of
land, etc, at the earliest point of time. It is only after after
collecting the information, the Investigating Officer came to
know names of the owners of the said land as shown in Pahani
Extract, however, the Investigating Officer has failed to
examine them to ascertain as to who has installed 3 HP
pumpset to the open well as three persons, including the
accused, are the share-holders of the open well.
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18. It is the case of the prosecution that the pumpset
was installed in the open well and accused got electricity
connection unauthorisedly and seized four lane service were to
the tune of 40 feet length but they have not seized the
pumpset or the starter box. They have not issued any
endorsement as to the seizure of service wire under mahazar
though the accused was present at the time of mahazar.
During the course of cross-examination of PW1, he has clearly
admitted that at the time of inspection there was a service
wire, a pumpset and a starter box were found on the spot, but
they have seized only the service wire of 40 feet length. The
Investigating Officer has not explained anything as to non-
seizure of pumpset and the starter box. Even the Investigating
Officer has not taken the photos of the said motor pumpset and
starter box to show the existence of 3 HP pumpset and the
starter box installed in the open well. These material lapses
will create reasonable doubt as to the theft of electrical energy
as alleged by the prosecution. It is an admitted fact that the
accused was present at the time of inspection and mahazar.
Though the accused was present at the time of inspection, the
Investigating Officer has not enquired or interrogated to
ascertain the survey number where the incident had taken
place. The Prisoners Search Register Extract produced by the
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Police Inspector, Vigilance Squad Police Station, HESCOM,
Bagalkot reveals that the Police have released this accused on
12.01.2015 at 7.30 hours as per the order dated 29.12.2014
passed by the District and Sessions Judge, Bagalkot in Crl.Misc.
No.706/2014. Along with the bail order, the accused has
appeared before the police station and then only the
Investigating Officer arrested him and released him on bail as per
order of the Court. If really the accused has committed the
cognizable offence punishable under Section 135 of the Electricity
Act, 2003 and when he was present at the time of conducting
panchanama and also at the time of inspection, the Investigating
Officer would have arrested him or would have issued a notice as
required under Section 41A of the Code of Criminal Procedure.
But, he has not done so. Only after appearance of the
accused before the police along with the bail order after lapse of
48 days from the date of filing First Information Report, the
Investigating Officer has arrested and released him on bail.
Moreover, the Investigating Officer has also failed to comply with
the mandatory provisions of Section 135 of the Electricity Act and
also the provisions of Code of Criminal Procedure relating to
search and seizure of the property. This conduct of the
Investigating Officer reveals that the accused was not present at
the time of inspection and for that reason, the Investigating
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Officer has not inserted the survey number of the land in the
complaint or in the mahazar. A perusal of Exhibit P10-Notice
issued by the HESCOM Authorities reveals that the accused has
filed statement of objections to the authorities and the same is
referred in the notice as Customer Application dated 01st
December, 2014. Exhibit P11 which is also Notice issued by
the HESCOM authorities to the accused, also reveals as to the
reference of the customer's application dated 01st December
2014 and 21st January, 2015. Therefore, it is evident that the
accused has filed application/objections to the HESCOM
Authorities. Though the accused has submitted his written
objections, the Investigating Officer has not placed the same
before this Court. The Investigating Officer has not explained
as to non-production of statement of objections/applications
filed by the accused. Non-production of these material pieces
of evidence will also create doubt as to the alleged incident.
The Investigating Officer has failed to put-forth the true facts
before this Court and mechanically filed the charge sheet
without collecting proper or cogent material before the Court.
Accordingly, the prosecution has failed to prove the guilt of the
accused beyond all reasonable doubt.
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19. The trial Court has properly appreciated the evidence
on record in accordance with law and facts and on re-
appreciation, reconsideration and re-examination of the entire
evidence placed before this Court, I do not find any
illegality/legal infirmity in the impugned judgment of acquittal.
Accordingly, I answer point No.1 in the negative.
Regarding Point No.2:
20. For the reasons and discussion aforestated, I
proceed to pass the following:
ORDER
Criminal Appeal is dismissed.
Sd/-
JUDGE
BVV/LNN
