Aman Singh vs Kanishth Yantri Shri Prasahnt ...
2022 Latest Caselaw 3232 MP

                              1
                  Amaan Singh Lodhi Vs. Kanisth Yantri (Cr.A. No. 09/2008)

   HIGH COURT OF MADHYA PRADESH
          GWALIOR BENCH

                     SINGLE BENCH

                  G.S. AHLUWALIA J.

                   Cr.A. No. 09 of 2008

                   Amaan Singh Lodhi

                                   Vs.

             Kanisth Yantri
_______________________________________
Shri M.M. Tripathi, Counsel for appellant.


Date of Hearing                :    08-03-2022
Date of Judgment               :    08-03-2022
Approved for Reporting         :

                             Judgment

                         08- March -2022

Per G.S. Ahluwalia J.

      This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment dated 16.11.2007 passed by Special Judge,

(Electricity Act), Mungawali, Guna in Special Sessions Trial No.

39/2005 by which the appellant has been convicted for offence under

Section 138 of the Electricity Act and sentenced to undergo one year

R.I. and fine of Rs.1,000/-, with default imprisonment of three

months R.I.
                                 2
                    Amaan Singh Lodhi Vs. Kanisth Yantri (Cr.A. No. 09/2008)

2.     Appellant - Amaan Singh Lodhi has been produced by ASI

Rampal Jatav and Head Constable-Nasir Khan, posted in Police

Lines, Guna, in execution of the arrest warrant issued by the Court

by order dated 07.01.2022

3.     Since this appeal is pending from the year 2008, accordingly it

is heard finally.

4.     According to the prosecution case, the appellant was running a

flour mill. Initially he was having an electricity connection No.90-02-

4300 but since the electricity charges were outstanding, therefore, his

electricity connection was disconnected. However, on 04.07.2005, he

was found running the flour mill by taking direct connection from the

pole. Accordingly, the Junior Engineer, Electricity Department

Chanderi filed a criminal complaint for committing theft of

electricity.

5.     The statements of witnesses were recorded. On the basis of

those statements, the parties were heard on the question of framing of

charge and by order dated 08.03.2006, the Trial Court framed the

charge under Section 138 of the Electricity Act, 2003. Thereafter, the

complainant examined their witnesses and the appellant entered in the

witness box under Section 315 of Cr.P.C as defence witness No.1.

Prasakt Yadav (CW-1) stated that he was posted on the post of Junior

Engineer in Electricity Department Chanderi and on 04.06.2005, an

amount of Rs. 1,20,342/- was outstanding against the electricity

connection No.90-02-4300 which was in the name of appellant and
                                3
                   Amaan Singh Lodhi Vs. Kanisth Yantri (Cr.A. No. 09/2008)

accordingly a notice Exhibit P-1 was issued and when the outstanding

amount was not deposited, then on 19.06.2005, the electricity

connection was disconnected temporarily and it's panchnama is

Exhibit P-2. On 04.07.2005, when it was inspected, then he found

that appellant had reconnected the electricity connection in an illegal

manner and was running a flour mill and accordingly spot panchnama

Exhibit P-3 was prepared. In his further examination after the framing

of charge, this witness stated that the electricity bill of the last more

than 6 years was outstanding against the appellant and the electricity

connection was disconnected after giving a one month's notice, and it

was denied that the electricity connection was not disconnected. This

witness also stated that he is also aware of the fact that on earlier

occasions also the electricity connection was disconnected. He further

admitted that generally after some amount is deposited, the electricity

supply is restored, however, he expressed his ignorance about the fact

as to whether the appellant had deposited any electricity charges or

not. He further stated that the entire village is being supplied

electricity and the villagers are continuously making payment of

electricity charges of their domestic as well as irrigation electricity

meters. In the village, there are five consumers of domestic electricity

connection and five consumers are of irrigation electricity

connection.

6.    Babu Lal Kushwah (CW-2) has also narrated the incident in the

same manner and has supported the complainant.
                                4
                   Amaan Singh Lodhi Vs. Kanisth Yantri (Cr.A. No. 09/2008)

7.    The appellant entered into the witness box and admitted that he

had installed a flour mill after taking loan from the Bank and about 6

years back his electricity connection was disconnected and,

accordingly, made a complaint Exhibit D-1. When no action was

taken, then he had made a complaint to the Chief Minister Exhibit D-

2, from where he had received a reply Exhibit D-3 but no action was

taken on his complaint. The Panchnama from the villagers was

prepared which is Exhibit D-4 and the loan certificate is Exhibit D-6.

He had stated that earlier he had paid Rs.12,000/- and on one

occasion he had deposited Rs.3,000/- and on one occasion he had

deposited Rs.3,000/- and again he had deposited Rs.2000/- In cross-

examination, he admitted that he had taken an electricity connection

of 10 HP for running the flour mill and he had run the flour mill for 6

to 7 years continuously. However, he was not in a position to state

that in which year, he had purchased the flour mill. He also could not

explain that on what date he had given money to Nashkar Shahab. He

also admitted that he does not have any receipt of the payment made

by him. He further denied that in his complaint to Chief Minister

Exhibit D-2, he had mentioned that he is not in a position to deposit

the electricity charges. He admitted that the certificate Exhibit D-5

was got prepared by him from the villagers just one day prior to

recording of his evidence and he admitted that on the said certificate,

no date is mentioned. He further stated that the certificate issued by

the Bank Exhibit D-6 was obtained about six months back from the
                                5
                   Amaan Singh Lodhi Vs. Kanisth Yantri (Cr.A. No. 09/2008)

date of his evidence. He denied that on 04.07.2005 he had taken the

electricity connection directly without any electricity connection. He

denied that he had received any notice from the Electricity

Department. He denied that the electricity connection was

temporarily disconnected on 19.6.2005. He further admitted that

earlier he was aware of the fact that an amount of Rs.30,000/- was

outstanding.

8.    Thus, from the evidence of the complainant as well as certain

admissions made by the appellant in his evidence, it is clear that even

the appellant was aware of the fact that certain amount is outstanding

against him but still he did not deposit any electricity charges. He was

running the flour mill without making payment of the electricity

charges, and accordingly, his electricity connection was temporarily

disconnected after giving due time for depositing the outstanding

amount but again it was found that the appellant has started running

flour mill by taking direct connection from the pole in an illegal

manner, and thus he is held guilty of committing offence u/s. 138 of

Electricity Act and conviction recorded by Trial Court is upheld.

9.    Also heard on the question of sentence. It is submitted by

Counsel for appellant that appellant was aged about 45 years on

07.01.2006

which is evident from his personal bond executed by him.

Thus, in the year 2006, he was 45 years and now he is 61 years of

age. It is further submitted that after the prosecution was lodged, he

has stopped running the flour mill but fairly conceded that no such

Amaan Singh Lodhi Vs. Kanisth Yantri (Cr.A. No. 09/2008)

defence was taken by him in his defence when he appeared as a

defence witness (DW-1). Since the appellant himself had appeared as

a defence witness, therefore, the rights which an accused enjoy had

also come to an end and the burden was on appellant to explain his

conduct. Since in his defence himself, the appellant had admitted that

atleast an amount of Rs.30,000/- was outstanding against him and he

has not produced any document to show that any electricity charges

were ever deposited by him, this Court is of the considered opinion

that the jail sentence of one year awarded by the Trial Court cannot

be said to be on higher side. However, it is submitted by Counsel for

appellant that since the appellant is a poor person and after launching

of prosecution, he is surviving by doing some labor work and at the

age of 61 years if he is required to undergo the jail sentence of one

year then it may be slightly harsh for him and as no minimum

sentence is provided under Section 138 of the Electricity Act

provided the accused is the first offender and there is nothing on

record to show that appellant was ever prosecuted or convicted for

the similar offence on earlier occasion also, therefore, the jail

sentence may be set-aside by enhancing the fine amount. However, it

was also submitted by Counsel for appellant that the financial

position of appellant is not such so that he can deposit the enhanced

fine amount.

10. Since the appellant was not willing to deposit the fine amount

also, therefore, this Court was not inclined to interfere with the

Amaan Singh Lodhi Vs. Kanisth Yantri (Cr.A. No. 09/2008)

sentence awarded by the Trial Court, however, Smt. Anjali Gyanani,

Advocate who was present in the Court voluntarily offered her

services by offering to deposit a fine amount of Rs.10,000/- on behalf

of the appellant.

11. It is always expected from a member of the Bar that he or she

would rise to the occasion and if a member of the Bar is of the view

that the appellant for any reason is not in a position to deposit the fine

amount and the poverty should not come in the way of his liberty and

decides to deposit the fine amount on behalf of appellant, then such

offer made by the member of the Bar has to be appreciated.

12. Considering the submissions made by Smt. Anjali Gyanani, the

sentence awarded by the Trial Court is hereby modified. The jail

sentence of one year is set-aside by enhancing the fine amount from

Rs.1,000/- to Rs.10,000/-.

13. Since the appellant is already in jail, therefore, it is directed

that in case if the fine amount is deposited within a period of fifteen

days from today, then he shall be released immediately.

14. However, it is directed that in case if the fine amount is not

deposited within the stipulated period, then the jail sentence of one

year shall automatically stand revive and appellant shall not be

released on bail unless and until he undergoes the entire jail sentence.

15. With aforesaid modification, the judgment and sentence dated

16.11.2007 passed by the Special Judge (Electricity Act), Mungawali,

District Guna in Special Sessions Trial No.39/2005 is hereby

Amaan Singh Lodhi Vs. Kanisth Yantri (Cr.A. No. 09/2008)

modified.

16. Accordingly, the appeal is finally disposed of.

(G.S. Ahluwalia) Judge

Aman AMAN TIWARI 2022.03.08 18:15:17 +05'30'