High Court · 2024
Facts
Cri.Appeal.481.2005-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 481 OF 2005Vinod S/o. Mannalal Jain,Age : 45 years, Occu. : Business,R/o. Bazar Peth, Songir,Dhule, Taluka and District Dhule.… AppellantVersusThe State of Maharashtra… Respondent….Shri Anand P. Bhandari, Advocate for AppellantSmt. Chaitali Chaudhari – Kutti, APP for Respondent - State…. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 11 NOVEMBER 2024 PRONOUNCED ON : 13 NOVEMBER 2024 JUDGMENT :-1. In this appeal, there is challenge to the judgment andorder passed by 1st Ad-hoc Additional Sessions Judge and SpecialJudge, Dhule dated 20.06.2005 passed in Special Case No. 137 of2004 recording guilt of appellant for offence punishable under section138 of the Electricity Act.BRIEF FACTS OF THE CASE2.PW1 Narendra, Assistant Engineer in Maharashtra StateElectricity Board (M.S.E.B.) on 14.01.2004 visited house of appellant Cri.Appeal.481.2005-2- for detection of theft of electricity. While checking the electric meteraffixed at the residence, he noticed meter being tampered, cut outthe electric supply was continued, but joint was given to the incomingservice wire attached to switch board. Resultantly, supply was notpassing through electric meter and as such meter was not recordingthe reading of consumption of electricity, and therefore, he lodgedcomplaint Exh.10. On the strength of above complaint, crime was registeredfor offence punishable under sections 135 and 138 of the ElectricityAct and investigation was carried out by PW5 P.H.C. Ramesh, whoafter gathering evidence, charge-sheeted accused. Learned 1st Ad-hoc Additional Sessions Judge / SpecialJudge, Dhule framed charge, explained it to the accused andconducted trial vide Special Case No. 137 of 2004. On appreciatingthe evidence, case of prosecution has accepted as proving the chargeunder section 138 of Electricity Act and guilt was accordinglyrecorded.Feeling aggrieved by the above judgment and order,instant appeal has been preferred.
Legal Reasoning
Cri.Appeal.481.2005-8- “….. We are of the view that this is correct in lawinasmuch as the language of Section 152 specificallystates ….. “an offence of theft” which according toStroud’s Judicial Dictionary, as well as Ramanatha Iyer’sLaw Lexicon, states that one meaning of ‘an’ is ‘any’. Ifthe word ‘any’ is substituted for the word ‘an’ in Section152, it becomes clear that any offence relating to the theftof electricity is also within the ken of section 152. Section138 also relates to theft of electricity, be it throughmaliciously injuring meters, and is therefore also withinSection 152, and can therefore be compounded.”14.Therefore, when M.S.E.B. authorities have accepted thebill and compounding charges, in view of provision laid down insection 152 of Electricity Act, there is no reason to refuse relief asprayed. Hence, I proceed to pass the following order :- ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to Vinod S/o. Mannalal Jain inSpecial Case No.137 of 2004 by the 1st Ad-hoc AdditionalSessions Judge/Special Judge, Dhule on 20.06.2005 forthe offence punishable under Section 138 of the ElectricityAct stands quashed and set aside.III)The appellant stands acquitted of the offence punishableunder Section 138 of the Electricity Act.IV)The bail bonds of the appellant stand cancelled. Cri.Appeal.481.2005-9- V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the order inrespect of disposal of muddemal. [ABHAY S. WAGHWASE, J.]Tandale
Arguments
Cri.Appeal.481.2005-3- SUBMISSIONSOn behalf of Appellant :-3.The learned counsel, who pleaded innocence and allegedfalse implication and criticizing the judgment for erroneousappreciation, submitted that, at the outset, no offence has been madeout either for section 135 or section 138 of Electricity Act. He pointedout that, learned trial Judge acquitted accused from the charge undersection 135 of Electricity Act i.e. commission of theft of electricity, buterred in convicting appellant for the charge of section 138 ofElectricity Act in absence of cogent and reliable evidence to thatextent. 4.He pointed out that, at the threshold meters werestanding in the name of appellant. Secondly, there is no cogent andreliable evidence that meter was tampered with sole intention ofcommitting theft of electricity. Learned counsel took this courtthrough the evidence of complainant and also through the cross facedby him. He further pointed out that, independent witnesses likepanchas have not supported prosecution. That, there is nocorroboration to the evidence of complainant. According to him, forestablishing offence of such nature, there has to be expert’s evidence,but the same is missing here. He also took this court through the Cri.Appeal.481.2005-4- evidence of PW3 Nana as well as answers given by him in cross andwould submit that necessary ingredients for attracting the charges arepatently missing.5.Learned counsel further submitted that, even otherwiserespondent has accepted compounding charges on 17.01.2004. That,the statute itself provides for compounding. He took this courtthrough the provisions laid down in section 152 of Electricity Act andfurther took this court through the judgment of the Hon’ble ApexCourt in the case of Suresh Ganpati Halvankar v. State ofMaharashtra and Ors. in I.A. No.117535 of 2017 in Criminal AppealNo.156 of 2018 arising out of SLP(Cri.) No.3670/2017 as well as thejudgment of this Court (Nagpur Bench) in the case of Akash S/o.Deepak Soitkar v. State of Maharashtra through Police Station andOrs. in Criminal Application (APL) No.1185 of 2021 and points outthat, learned trial Court erred in holding that only section 135 ofElectricity Act is compoundable and not section 138 of Electricity Actand resultantly, on the strength to the same, prays to allow theappeal.On behalf of Respondent – State :- 6.Learned APP objected by pointing out that, though meter Cri.Appeal.481.2005-5- in question stood in the name of father of appellant, said father isalready expired and electricity authorities are issuing bill in the nameof appellant. That, during visit and inspection, PW1 Narendra noticedtampering with the electricity meter and its panchanama was drawnat the spot. That, evidence of complainant has remained intact.Therefore, learned trial court committed no error in holding charge tobe proved. However, she fairly conceded that, statute itself providescompounding and in this case appellant had paid necessary chargesand authorities have accepted the same.EVIDENCE ON RECORD7.After considering the submissions of both sides and ongoing through the papers, it seems that, prosecution was launchedagainst present appellant on receipt of PW1 complainant Narendra,an Assistant Engineer with M.S.E.B. department. He has set law intomotion, alleging that, during visit to the shop and residence ofappellant, he noticed two electric connections i.e. one to the shop andanother to the house. The connection to the shop was found to beintact, but to the electric meter affixed at residence joint was given tothe incoming service wire attached to the switch board and electricmeter was not reading of unites, and therefore, after drawingpanchanama, he lodged report Exh.10. Cri.Appeal.481.2005-6- While under cross, he admitted that accused hasdeposited the bill served to him as well as compounding chargescalculated by M.S.E.B. office. He also admitted that, after depositingthe charges by accused, he himself submitted report to reach SuperiorOfficer as well as to police. Rest is all denial. 8.Admittedly, as pointed out PW2 pancha has notsupported the prosecution. 9.PW3 Nana, Clerk in the M.S.E.B. office and who was saidto be accompanying complainant, stated that, electricity supply wasdiverted by tampering the electric meter by taking direct supply andelectric meter seal was found to be broken. While under cross there is omission about seal to bebroken. He admitted that, there was no seizure of cut out and switchboard. He admitted that, supply wire was having no concerned withelectric meter. He admitted that at periodic intervals billing clerkvisited house of accused and there was no complaint by any suchclerk for taking direct supply. He admitted that, electric meter itselfwas not seized and according to him meter was ‘OK’. 10PW4 Vijay the pancha, who did not support theprosecution. Cri.Appeal.481.2005-7- 11.PW5 Ramesh is the Investigating Officer. ANALYSIS12.Admittedly, on complaint of PW1 Narendra charge wasframed for sections 135 and 138 of Electricity Act, which provides fortheft of electricity as well as for causing injury or tampering with theelectric meter. Learned trial Judge has already acquitted accused fromthe charge under section 135 of Electricity Act, but conviction isrecorded for section 138 of Electricity Act. 13.The fundamental ground for allowing the appeal which ispressed into service is that, not only section 135 of Electricity Act, buteven section 138 of Electricity Act is permitted to be compounded byinvoking section 152 of Electricity Act. Learned counsel pointed outthat, trial court has also admitted about section 135 of Electricity Actto be compoundable, but learned trial court has refused to compoundsection 138 of Electricity Act in spite of electricity authoritiesaccepting compounding charges. In support of his submissions thateven section 138 of Electricity Act to be compoundable, he has placedon record ruling of Hon’ble Apex Court in the case of Suresh GanpatiHalvankar (Supra) and the relevant observations of the Hon’ble ApexCourt are as under :-