Madhya Pradesh High Court
Phoolchand Kachhi vs The State Of Madhya Pradesh on 27 May, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 27 th OF MAY, 2024
CRIMINAL APPEAL No. 2471 of 2006
BETWEEN:-
PHOOLCHAND KACHHI S/O GULLA KACHHI, AGED
ABOUT 46 YEARS, R/O GRAM BANDHI THANA
SALEEMNABAD, TAHSIL BAHORIBAND, DISTRICT
KATNI (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SHISHIR SONI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
ASSISTANT ENGINEER, SUB DIV.2, MPSEB, SIHORA,
THANA SIHORA, DISTT. JABALPUR (MADHYA
PRADESH)
.....RESPONDENT
(NONE)
Reserved on : 15.05.2024
Pronounced on: 27.05.2024
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court delivered the following:
JUDGMENT
In this criminal appeal, the judgment delivered on 30.11.2006 in Special
Sessions Trial No.260/2006 by Special Judge, Katni, has been challenged
whereby the appellant (hereinafter referred to as "accused") was convicted of
the offence of Section 135(1)(b) of the Electricity Act (for short, "Act") and
was sentenced to one year rigorous imprisonment, fine of Rs.500/- and
additional one month's rigorous imprisonment in case of non-payment of fine.
He was also saddled with the civil liability to pay Rs.2,622/- within a month of
judgment to the complainant, otherwise that amount would bear an interest at
6% per annum.
2. Facts relevant for the decision of this criminal appeal are that Assistant
Engineer D. K.Soni posted in Sihora region of Madhya Pradesh State Electricity
Board visited village Bandhi along with his staff to check the electricity line and
also its consumption by consumers; during checking, he found that accused
was using 1.5 HP electric motor for irrigating his agriculture field; he was not
having any valid electricity connection to run this motor and consume
electricity; the seizure memo and inspection memo were prepared but the
accused refused to sign the documents. A complaint was sent to the
Superintending Engineer, Sihora region, regarding this theft of electricity; the
civil liability was assessed at Rs.2,797/-; after completing all the necessities, a
complaint was filed in the court under Section 135 of the Act in which charge
was framed and the trial followed. Under the impugned judgment, the learned
trial court held the accused guilty and punished him as aforesaid.
3. The grounds raised in this criminal appeal are that the impugned judgment,
being against facts and law, deserves to be set aside for the simple reason that
no evidence was collected on whether the agriculture field, which was being
irrigated by 1.5 HP motor belonged to the accused; no independent witness was
present to corroborate the allegations; only on the basis of assumption, it was
being claimed that the accused owned that field; even the capacity of motor
pump was written only on the basis of assumption; neither the motor pump nor
the wire was seized nor were they handed over in the custody of accused; the
whole case was the result of enmity for the reason that there was a delay in the
payment of bill relating to electricity connection issued in favour of accused and
for this, only the interested witnesses were arranged. It was, therefore, prayed
that the appeal should be allowed and the accused should be acquitted.
4. No one appeared on behalf of respondent (hereinafter referred to as
"complainant") to contest this appeal. Arguments only on behalf of the counsel
for accused have been heard and the record has been perused.
5. Record of the trial court reveals that total three witnesses were examined on
behalf of complainant and they were D. K. Soni (P.W.1), Naresh Chaturvedi
(P.W.2) and Ajay Kumar Nanda (P.W.3). Ajay Kumar Nanda merely filed the
complaint on the basis of the documents of Exs.P-1 and P-2, therefore his
testimony is not relevant to prove the incident. D. K. Soni (P.W.1) and Naresh
Chaturvedi (P.W.2) were the persons who went for inspection and were the
signatories of inspection memo (Ex.P-1) and the report (Ex.P-2) submitted to
Nodal Officer regarding the theft of electricity.
6. According to inspection memo (Ex.P-1), the accused was found to be
using electricity direct from LT line to run his motor pump of the capacity of
1.5 HP. This memo does not reveal the place of theft of electricity. The entire
inspection memo is also silent about the description of place at which the motor
pump was installed. The report made to the Nodal Officer, marked as Ex.P-2,
gives only this much additional information that the pump was an irrigation
pump but this document is silent on the place where it was installed or the place
which was being irrigated.
7. It has been admitted by D. K. Soni (P.W.1) and Naresh Chaturvedi
(P.W.2) that there was no independent witness present on the spot. According
to D. K. Soni, he found the motor pump installed in a well which, according to
the information given by Naresh Chaturvedi, belonged to the accused. He
further admits that to verify the ownership of the well or the agriculture field, he
did not obtain any report from the Patwari. His admission made in para 8 is
very much relevant here whereby he has expressed his ignorance whether the
accused owned any agriculture field or not but he assumed that the field
belonged to him since he was present in that agriculture field. This admission
reflects that merely for the reason of presence of the accused on an agriculture
field, a written complaint was made against him claiming that the accused was
responsible for theft of electricity, which was being used for irrigating the field.
Further, this witness does not claim that accused himself was involved in
irrigating the field.
8. Naresh Chaturvedi (P.W.2) is the witness on whose information accused is
implicated in this case as he claimed that the agriculture field where the theft of
electricity was detected belonged to accused. In para 2 of his cross-
examination, Naresh Chaturvedi (P.W.2) has asserted that as he was posted in
Kaudia region, he had knowledge about the agriculture fields of all the farmers
but in the very next para i.e. para no.3 he has admitted that he was not aware
about the ownership of the agriculture field in which the theft of electricity was
detected and only on the basis of information given by accused, he became
aware about this ownership. He has further admitted in the same para that he
was also not aware of the ownership of agriculture fields lying in the vicinity of
place of incident. These admissions reveal that Naresh Chaturvedi (P.W.2) was
not aware of the ownership of the well where the motor pump was installed and
of the agriculture field which was being irrigated. His claim about the
involvement of accused in this theft of electricity is boastful and based on
assumption. He cannot be relied on the fact that accused himself had given
knowledge about his ownership over the place inspected by the team of
Madhya Pradesh Electricity Board. Had the accused been so cooperative and
cordial then he would not have refused to sign the inspection memo, which is
Ex.P-1. This memo discloses that the accused had objections about the
contents of Ex.P-1 and, therefore, he refused to put his signature on it.
9. On the basis of above discussion of facts and evidence, it is evident that
prosecution took no measures to verify either at the time of inspection or at any
time later but before filing the complaint whether the motor pump installed in the
well was owned by accused and whether the agriculture field, which was being
irrigated by consuming electricity illegally, was of his ownership. Further, the
statements of Naresh Chaturvedi (P.W.2) revealed that the capacity of motor
pump was also assessed only on the basis of assumption. Thus, the entire case
is based only upon assumptions and surmises and there is no explanation why
the complainant was reluctant to verify the fact of ownership before instituting
the complaint.
10. In the light of foregoing discussion, the conviction of accused under
Section 135(1)(b) of the Electricity Act is set aside and he is acquitted. He is on
bail and his bail-bonds stand discharged. The fine amount and the amount of
civil liability, if any, deposited by the accused be refunded to him.
11. This appeal is accordingly disposed of.
12. Let a copy of this judgment along with its record be sent to the trial court
for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
ps Digitally signed by PRASHANT
SHRIVASTAVA
Date: 2024.05.28 14:10:19 +05'30'
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