High Court · 2024

Legal Reasoning

-1- Cri.Appeal.385.2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.385 OF 2005Ganpat Lakadu Deore,Age : 48 years, Occu. : Service,R/o. Plot No. 54/55, IndraprasthaColony, Deopur, Dhule,District Dhule.… AppellantVersusState of Maharashtra… Respondent …..Shri Joydeep Chatterji, Advocate for AppellantSmt. Ashlesha S. Deshmukh, APP for Respondent - State….. CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 11 NOVEMBER 2024PRONOUNCED ON : 13 NOVEMBER 2024JUDGMENT : 1.In this appeal, there is challenge to judgment and orderof conviction passed by learned 1st Ad-hoc Additional SessionsJudge, Dhule recording guilt of the appellant for offence punishableunder section 135 as well as section 138 of the Electricity Act,2003 and is also made to pay fine. 2.In brief case of prosecution is that, accused no.1Ganpat resided with his wife on plot No.55. Accused no.1 and hiswife were consumers of M.S.E.B. and they had obtained connection -2- Cri.Appeal.385.2005of electricity meter. Meter stood in the name of wife of accusedno.1. On 05.12.2003, Assistant Engineer and staff visitedpremises of accused no.1. However, electricity meter showed lessreading and therefore inquiry was conducted by accused no.1.During the inquiry, it was revealed that accused no.2 tamperedwith the meter to show less reading, as a result of which, complaintcame to be lodged, on the strength of which, crime was registered. After investigation, both accused were charge-sheetedand tried by 1st Ad-hoc Additional Sessions Judge, Dhule videSpecial Case No. 11 of 2004 and on appreciating the evidence, byjudgment and order dated 26.05.2005 both accused came to beconvicted for offence punishable under sections 135 and 138 of theElectricity Act, respectively. Hence the instant appeal. SUBMISSIONSOn behalf of Appellant :3.Learned counsel pointed out that, case has not beenproved beyond reasonable doubt. That, in fact meter stood in thename of wife of accused no.1 and not accused no.1 himself.Secondly, it is pointed out that there is no evidence to show thatthe meter was tampered by accused no.2 as nothing is revealed bywhat mode there was tampering. He pointed out that, there was no -3- Cri.Appeal.385.2005theft of electricity and there is no convincing evidence. It is pointedout that information given during inquiry by accused no.1 cannotbe applied directly against accused no.2. Therefore, charges arenot proved. However, learned counsel hastened to add thatappellants have paid compounding charges and the same areaccepted and for said reason also, as nothing remains, he prays toset aside the impugned judgment as well as treat the matter ascompounded. He placed on record original receipts of payment ofcompounding charges.On behalf of Respondent – State :4.Learned APP strongly opposed on the ground that,flying squad during their visit, noticed that, meter was runningslow. There was tampering to the same. Accused no.1 duringinquiry named accused no.2 for tampering the meter. Aftercomplete investigation, charges have proved and hence she praysto dismiss the appeal for want of merits. EVIDENCE ON RECORD5.After hearing the submissions and on appreciating theevidence, it transpires that, vide Exh.1 both appellants werecharge-sheeted for offence punishable under sections 135 and 138of Electricity Act, respectively, on complaint of one RajendraChitodkar, Sub Engineer, MSEB (PW1). His evidence at Exh.16 -4- Cri.Appeal.385.2005shows that on 05.12.2003, flying squad visited premises of accusedno.1 and during inspection, they noticed that electricity meter wastampered and original seal was removed and duplicate seal wasaffixed and therefore, after drawing panchanama, he lodged report. While under cross at hands of accused no.1, headmitted that, electricity meter stood in the name of Leelabai andaccused Ganpat is not consumer. He admitted that, in the FIR thereis no mention that electricity meter was checked by accused and healso admitted that, complaint is in the handwriting of Shri A. S.Borse, Junior Engineer. He also admitted that, sometime intactelectric meter also shows running slow or excessive reading thanaverage. He admitted that, electricity meter is required to bereferred to the laboraty for testing and he candidly admitted thatseized electricity meter was not sent to the testing lab of M.S.E.B.He further admitted that, as proposal forwarded by their office,electricity bill was reduced to Rs.60,000/- and appellate authorityhad considered the application made by accused. While under cross at the hands of accused no.2,complainant has admitted that, statement of Leelabai was notrecorded and that only on say of accused no.1, crime wasregistered against accused no.2. -5- Cri.Appeal.385.20056.PW2 Sanjay, Assistant Engineer, also a staff member ofM.S.E.B., deposed about visit to the house of accused no.1 on05.12.2003, inspecting electric meter and noticing theft andthereafter drawing panchanama at Exh.18. While under cross he admitted that, at the time ofinspection, accused no.1 was alone present. He admitted aboutstating portion marked ‘A’ and also admitted about not recordingstatement of Leelabai. He also answered and admitted that, he didnot inform police that the seal of the electric meter was broken. Healso admitted that, meter being electronic one, there may be aproduction defect and either meter may run slow or excessivespeed. He admitted that, panchanama at Exh.18 does not bear hissignature. He further admitted that, there is no distinct evidence toshow that meter was tampered and duplicate seal was affixed. 7.PW3 P.S.I. Kashinath is the Investigating Officer, whocarried out investigation and charge-sheeted accused. Above is the only evidence.ANALYSIS8.On carefully appreciation the distinct features ofevidence, it is emerged that, firstly, electricity meter standing inthe name of wife of accused no.1 and not accused no.1. Secondly,accused no.2 is named by accused no.1 for tampering the -6- Cri.Appeal.385.2005electricity meter and on his statement, accused no.2 is impleadedand charge-sheeted. The answers given by PW1 Rajendra and PW2Sanjay in the cross have given severe dent to the prosecution. 9.Complainant himself, while under cross seems to haveadmitted that, accused no.1 is not himself a consumer of M.S.E.B.Secondly, he himself though claims to be informant, complaint wasadmitted penned down by Junior Engineer A. S. Borse and he is notexamined. Complainant himself has admitted that, sometimeselectric meters run slow or show excessive reading. There is vitaladmission that, electric meter was not sent to laboratory fortesting. Similarly, PW2 Sanjay, in cross examination, has alsogiven very crucial admissions that, during visit and inspection,accused no.1 alone was present, statement of wife of accused no.1in whose name meter stood, is not recorded. He admitted that hedid not state before police that seal of the electric meter wasbroken and he further admitted that there is no distinct evidenceregarding meter being tampered or seal being broken. Therefore,with such quality and nature of answers given by PW1 Rajendraand PW2 Sanjay while facing cross, case of prosecution regardingcommission of theft of electricity or tampering with the electricmeter comes under shadow of doubt. -7- Cri.Appeal.385.200510.Further original receipts placed on record show that,M.S.E.B. authority have accepted amount of Rs.1,40,266/- towardstheft of electricity. Therefore, in view of section 152 of ElectricityAct, once amount being accepted, matter is admittedly settled.Statute itself by way of above provision under section 152 ofElectricity Act provides for compounding. Therefore, on bothcounts, it is on merits as well as compounding to be permissible,appellant succeeds. Hence, the following order is passed :- ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to Ganpat Lakadu Deore inSpecial Case No.11 of 2004 by the 1st Ad-hoc AdditionalSessions Judge, Dhule on 26.05.2005 for the offencepunishable under Sections 135 and 138 of the ElectricityAct, 2003, stands quashed and set aside.III)The appellant stands acquitted of the offence punishableunder Sections 135 and 138 of the Electricity Act, 2003.IV)The bail bonds of the appellant stand cancelled.V)The fine amount deposited, if any, be refunded to theappellant after the statutory period. -8- Cri.Appeal.385.2005VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. (ABHAY S. WAGHWASE, J.) Tandale