I
IN THE HIGH coum or= KARNATAKA AT BANGALORE
DATED THIS THE 15* DAY or £)ECEMBER;;j2:§f1I9"'.."
BEFORE
THE HON'BLE MR.JUSTIC;E~»A.RAL.:.VNyfiéwfifitfij.T; AV
CRIMINAL APPEAL ;'A(o;t_A8ft8:v2/;;E;'(') O;25* _
Between:
1. Smt.3ayashee|ath"ma _
W/0 late Boraiah; 'A
Aged about 55 yAea_r's»,, V
2. Natara{J'VIJ A§,'-ht
S/o,!ate..1Bo.ra'--:a'h,.__.._'~~.._ »
Age'd__a b_c_)'I;.:_t 30 yea~r's, t
Both re ttetS'itiV§.ng \.'.,';:1'I'af.';vara§f-iawlttlti
Viilage, Ka'saba"!i'a,bii», '
Maddur'Ta'!uk,' '
Mandya E)§.s4t%rE,r.t. ._ " APPELLANTS
'(By Sri V.M"S.vR_a_j€:ndra Prasad -~ Sr. Advocate)
e 594: t "
. 3t.af.e otf' lu'{.a--rh'aVte2 ka,
By--.44\_/igi_I.a~n_¢e Officer,
CESCOIVE, V
Mandya_.." RESPONDENT
= (By Sri A v Ramakrishna «- H c <3 P)
{:______('°"°""I""'4..r'x,___,,
3
Criminal Appeal is filed u/s 374(2) of the Code of
Criminal Procedure by the appellants against the judgment
and order of conviction and sentence dated .1~5;”2,2.008
passed by the Additional Sessions Judge_.anjd,’Sp~ecial
}udge, Mandya in Special Case (Elect)—i_No’.477–/2gOQ6i-.9
convicting the appellants for the offences pu_nisfh’abIe’u~/s
135 & 138 of Electricity Act of 20__O,3..__
This appeal coming on for”-:,hea’rrir:;g ébelfore the-.C’o1:urt
today, Court delivered the following:
;lUDG–!VlEiNT r
Accused Nos.1V &..V:i’2_,ii’é1gSjpeci’a’ljCase No.47/2006 on
the file of the learne;j.~-Avd_tji~tion,a.|_ Judge, Mandya
(hereinafterto ,””1′.-Vfallwl Cgurf’, for short),
have chalvlengediyyyinll the correctness of the
}udgtf1._ent ‘and”v’if)fi–.rjjer,,’claitéd15.7.2008 passed in the said
case convictin,gVVboth_the_h1 of the offence punishable under
sectglotns 135 at ‘–1s3_Ef3__Q.f Electricity Act of 2003,
l-tatnakrishna, learned High court Government
V -V Pie’a’der:iéVs directed to take notice on behalf of the CESCOM
(‘:”5*ri._Chamundeshwari Electricity Supply Company), the
llfreslpondent.
e«-.§””‘””‘”””‘”
3.- Stated in brief the cg§_e_ gf the grosggggign as alieged
in Ex.P2 complaint filed by the complainant namely’,-PW1 K
N Nagesh, the Assistant Executive EngineerW(CVE’§C§’i'<'i),
Maddur Subdivision, is as under:
(a) On 3.1.2006 at about 11 a.m. ‘thieffiftom§§jiaihaht,~«..X.
along with the police of
members of his staff inspected VRl§””Nos.VFi’
264 which were insta|iedV’V2’i’i~nwthe residienficeyjand shop
premises of the aCc_0s–ed -‘andRR..__i’é.o’.’M_P 1340 which was
instailed in the Flew!M.iii]et.th’e.eeeased. Since the
accused had’not’rnad:e”‘;3a~,fment of Rs.9678/- in respect
of 4Rs.(-3,522/– in respect of VH 264
,.«it3sta~l!ation”‘*~P¢_lt§i.awing to the residence and shop
preh1.i.ses”‘ahd also a sum of Rs.1-4,998.00 in respect of
ii”22’iis.’i2d:-fill 1340 instailed in the Flour Mill of the
uaruci”ised,i the electricity supply to the said installations
2’ *—wasflistopped from 24.1.2005 in respect of V H 263 and
‘D264 and from 28.12.2005 in respect of installation MP
1340.
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(b) After the electricity supply was disconnected by the
complainant in respect of the said installatioyns, the
accused illegally took electric supply directly?’frofrjifitvhe
electricity pole to the said installations.
date of inspection, it was found ‘th.a&_t7.,the.”accusedi’,«had ‘
taken electricity supply diyrectlyfroirnlthelelrectric
the said installations ai.a,,jmaeby ‘–comn_fi_ittle,dWtheft of’
electricity.
Hence the complaiVnia’nti-filjled t_h:e:is_a,ivd’complaint.
4. On apprec.iation:.iof’»the or_§_|_’ev’id,e’r’ivce of PWs.1 to 8
and the dOCLJVr;lV”iE§l::.,l;:S to P22 and MO No.1 Meter
Board and_”a,l,so’ “e:yidence of DWs.1 to 4 and the
docurnents at”Exs_,_lQJ., & D2 produced by the accused in
» s’u–»p_po.rAt’«of«th*ei_r defence, the Trial Court, by its impugned
convicted both the accused for the
orréncéltu/ss. 135 8′. 138 of Electricity Act, 2oo3.
5. ‘I.,__have heard the arguments of Sri M § Raiendra
V.”VV«.,E£a§ad, the learned Senior Counsel for the appellant –
(“____’~r””””\P”‘t-P””‘*o.a*
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accused and also Si-IA I/Ramakrishna, learned Highcourt
Government Pleader and perused the entire mate’r’iva:if”-found
in the original records obtained from the ‘
6. On a careful reading of the;”evid_’eri’ce 1of_t’he
examined for the prosecu”tEon~…VandA”a|Vso _the_ ‘ei/i’der’ice ofm
DWs.1 to 4 examinedfor the_.:rjcjcu’sed, .the–fo||o,’i}ving facts
are not in dispute: V i V n
(i) i»v”%§v-§\”‘VlVV\’ios.I/H 2g; and ya;
gggAwar’-5553st§.icIie§i:jiViiby«iQtne5cEscoM respectively in
:”the~. and shop premises of the
agcrusear in the name of late Boraiah
husband “o.f:a__c_cu.sed No.1 and father of accused No.2.
(‘ii§u.”_”Th’e”installation bearing RR No.MP 134;; was
ir’zsta’iied for the purpose of Flour Mill run by the
” accused and the same was standing in the name of
it Accused No.1 Smt.3ayashee|amma.
,.,…_r””‘–»—.
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(iii) The power supply to all the said installations
was disconnected by the complainant (CESCOM) for
the reason that the electricity charges were
by the accused.
(iv)The complainant visited the resi_denti:al, V.
Flour Mill premises of the accused,’ h
7. What is seriously disputed ‘b__y”~t_he accused’, is-,_”t’hat,_2
after the power supply tq;..,.:t’£<ie said.linysfallatéivonsy was'
disconnected, by ther'C:ESCO'lVi,=lthelaccused'"illedally took
power'suppEy"u'to-.,::i;il'ie""ls,a'i'd 'installations directly from the
electric 'pole _and_ committed theft of electricity.
Th.ei.de3'ence"'o§..tvheyaccused is that so far as residential
» 'pre,n*iises,a.nd. shop premises are concerned, they had been
H 'using 'lllarléhergy and so far as installation in the Flour
Mill" is 'conhcéerned, all the machineries, including the electric
"r'notor,"'huller etc., were sold in the month of September,
itself and they were taken away by the purchaser
it Wnameiy, DW2 Puttaswamy Gowda of the same village and
W
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therefore the accused had no occasion to commit theft of
electricity by taking electricity supply to
installation illegally directly from the electric i”
8. In order to substantiate:”i«gthe_’l”said.yvldefenlciei;..Tti*ie
accused No.1 has got herse.l_Vf’e_xami’ne’diagsl»-D\«ti1″*~airl’d sheet
has got examined D\Ns.2 to_.._zql:.”‘i3lso_,g’ arid D2 are
respectively the Mavrriaigei in respect of
marriage of th4e:’d.a’ugh’te’r’ and Ex.D2 is the
d0CUment::- “VaV_wilWt’he machineries by
accus_ed..,NoVI1_V’.i’n;»’1ia_vou.r’.’of”DlW—2..Puttaswamy Gowda.
9. {In __o.rclerf_to_”esta_t5liShiits case against the accused
that afterfthe’ d.isC’oAr*.nect”i’o’n of power Supply to the said
instaii’ations, accused took power supply illegally
direct|yh:Agfrorn._Vthe electric pole and thereby consumed the
.el’;’=;s5:fclri”cit\,:yu,»Vln»lV.r’u’nning the flour mill and also in lighting their
res”i.derijti’a~l.tand shop premises of the accused, the
V. iprosecution ahs placed reliance on the oral evidence of
l compiainant, the officer of CESCOM, PWs.2 and 3 the
c–~.§’\””\…..»-..
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panchas to E><.P2 scene of offence panchanarna,____PWs.6
and 7 the police constabie and head constable w"h.o"«-.clavvi'm
to have accompanied PW1 to the premises
on 3.1.2006 for inspection.
10. Of the said witnesse_s’;~~…V_PWs:2_ &_V3_A’restpiectiveiyttll
Mahesh and Dinesh,;__.panch_as:'”to”‘-fix.l52}’–:t_he_:§scene of
offence panchanamvaiviilhhaiirefC:ivtu”rii.e€i|éV:’hostile to the
prosecution. Tl*.’o_ughi’t’hei’i{‘:¢oi’detn_ceV’-estauhlishes that PW1
compiainant of the accused on
3.1.2ooa.,, that the Flour Mill
was paging of inspection by taking the
electricity’ the electric pole. Therefore,
the«.5«:e§/idencelnof.these PWs.2 & 3 is of no help to the
.’ prosec,uti.on:t’o estabiish the said fact.
zT’he”p.rosecution has relied upon Exs.P3 to P11 the
photographs, said to have been taken by CW? Ravi
lérakash, the CPC (Civil Police Constable) of Vigiiance Poiice
“station of CESCOM. Though PW6 Marisicidegowda, the
<~t–~«~<"""'""'~—t~—-:v
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police constable has stated in his evidence that CW7 took
the said photographs at the time of inspection
premises on 3.1.2006, the other prosecution
have not stated anything as to that
said photos on that day. Besides:”ithis.}:lthe1pro’segcuti’ol:ri«.has
not chosen to get CW7 Pral<ash~ 'has at
witness to prove that__the saAipd—-pfr?oto~g'raphs' wereii taken on
the said date of inspec'tion.. on perusal of
these photogra'ph_s, none of the
prosecution. Vseefh'. it qinllllllany of the said
photogVra.ph's~..to lesitalbll-vishiitiliati:th_e}same were taken at the
relevant t.imeVof» 'Though it is admitted by DW2,
the purch'aser_oi"t_h'eV.'.mac.hi4neries of the said Flour Mill that
theseitphotogra'p.hs_____pertain to the said Fiour Mill, by this
lagdrnission*,its.e.lf, it could not be held that the said
l"'ph(§.togvraAp"ljs'A';vv'ere taken as on the date and time of
insp'ecti'*oan§' "Further PW1 complainant has stated that some
"VVV":"','1.'fl¥iV"\'.'-"_e' customers and also the operator of the Flour Mill
Zwzelrel present at the premises at that relevant point of
"inspection, none of the said customers and the said
<~"'–3-"ft"-N"°"'–*""
I0
operator has been examined by the prosecution. None of
them has also been cited as a charge sheet witness.
Nothing prevented the cornpiainant from
photographs of any of the said customers,gthev4.o’pie’rato’ry
and other witnesses who ha.vev»..b’ee.=fi Vexalirninedja, forth’
prosecution.
12. On careful reading of-4_the iinpugnediifudégimegntyl
could be seen that the Trialiffilotiart hasidisbeviiieved the
evidence of DW1 asthe diefei’ic’ei”o.f_the accused that
Soiar Energy was bei_ng.:.u’sed._ his Vres_i–d’ential and shop
prerni’ses–.’ .IvtV”V’i1ja.§fi”disbei’ieve”d it on the ground that no
documen’t.._i§ ,produVced.ib}y4the accused to substantiate the
sa.ri51e”. “It is the?-seHttie.d principle that in a criminal case, the
» :a’ecused«.need__ not prove his defence beyond reasonable
H ‘-dAo’ubtn.”‘Ri’f..tii.e’Vdefence version is shown to be probable,
tha’tzwou’id.V be sufficient. Though the prosecution has
2 xsei_2uedV”‘MO No.1 wire to show that eiectricity supply was
Attafiken from the electric pole directly to the Ffour Mill by
‘using the said wire, no such wire has been produced by it
r–.,.._M§””‘-.,_.,.–»–»~…
to show that the electricity suppiy was taken illegally from
the eiectric pole directiy to the residential prem.iVse.s’i~and
shop premises of the accused.
13. As could be seen further from
judgment, the Triai Court has disbuelievedé the.Aie§/.idenc’eVi.of
DW2 on the ground that he did notpi’oduce.’ainy~cI>0cui’n*i~eVn’t,
to show that he obtained ~..p§’r:.missionifrotti Viitihieivvifiiliageii
Panchayat for running his’fiotirdi-.n’1i|I ‘by “using the
machineries purchasedivy:hiiiirii’frornii”Ai:ou’sed No.3,. DW2
has cleariy stated’:-i.n his ex’/idenceii”t_hat__tie’ purchased ail the
machiijeries .in’u’tfi’e_’sa’i4ci.i?i’ou’i'”Mil! during September, 2005
and he took the same on the day of their
purehase. Txh’e.rei___i_s discrepancy in his evidence as to the
» d’a»te o.n’«wi<i.,i_c':'i'i__he took possession of the said machineries,
wxr'i'ethe'rAV'Ai"ti:..viiias. 5.9.2005 or 6.9.2005? Referring to this
dis.crep'ainc3}.V, the Trial Court has disbeiieved the evidence
05–._[;)V\iV2. Whether he took possession of the said
iiiiinachineries on 5"' or 6"' of September 2005, the fact
V' "remains that he took possession of the same during the
.3-u.,–=—-£.'."'""""°**-"<…….»-=-.
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month of September, 2005. Therefore, as rightly
submitted by the learned Senior Counsel for the…accus_ed,
the Trial Court committed error in disbél'i'eyi'ri-gt,'
evidence of DWs.1 & 2.
14. Though it is the case’ of theiprosecutionCthatilafterii;
disconnection of the installationswf,the illegally took
supply of the electricityhfor’run_ni:n:’g__’,t.h,e~flour and also
for lighting the,._residen.tia_lj:vand,AA;5yhofi._.’pr-errnises, it has not
seized the ‘__n1e:ters_ said premises to
show that€th.e:.4.’ri;§ete’r stop by the accused by
takingpglectriicviftyfysupp’l”y:’:_:di~rec’tly from the electric pole to
the respecitiyve, The Trial Court has lost sight
ofgt:hiVs_lA’aspenct””-rofwthe case. Therefore, I am of the
‘ consid.eredi..o”pinion that the Trial Court committed serious
‘error inrfétfofrdwifvng its finding that the prosecution proved
its casé.ag’ainst the accused, beyond reasonable doubt, for
th’e”.offe’nce with which they were charged.
(‘-_§w«\’-%V”””‘\..-»—w
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15. For the reasons aforesaid, the Qresgnt gggeal is
allowed. The impugned Judgment and Order of ..c’o.n’v.tCtiVon
and sentence dated 15.7.2008 passed
No.47/2.006 on the file of the learned AcJ’di’ti’on_g3§
Judge, Mandya is hereby set aside: “i”_hse’;acct.1sed’»
are hereby acquitted of bot’:’iV__t’i=2..e oftevnces 138s’
of Efectricity Act of 2003. ;f__Vxan.y’fiVne .amo,uAnty,f§has been
paid by the accused, theys.a’me{–,s.hailVft:e’Arefunded to them’.
The ba” 90″?” .01′ We”–accUS§%ds5.t3’D«éi’i»’ants shail stand
cance!fed.__. ‘