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CR.MA/9562/2009 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9562 of 2009
In
CRIMINAL
APPEAL No. 1464 of 2009
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
KISHORBHAI
RAMJIBHAI GOHEL - Respondent(s)
=========================================================
Appearance :
PUBLIC
PROSECUTOR for
Applicant(s) : 1,
MR HM PRACHCHHAK for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 02/03/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The
present application for leave to appeal against the acquittal is
directed against the judgment and the order dated 28.04.2009 passed
by the learned Special Judge at Porbandar in Special (Electricity)
Case No. 52 of 2008 whereby the accused has been acquitted for the
offence under Section 135 of the Indian Electricity Act, 2003.
2. We
have heard Mr. Raval, learned Additional Public Prosecutor for the
State.
3. We
have considered the reasons recorded by the learned Special Judge.
4. It
appears that the learned Special Judge has found that in the
deposition of the complainant the case of the prosecution is not
supported. It is also found by the learned Special Judge that the
meter was not sent for testing to the independent Laboratory. The
circumstances under which the meter was preserved have also not come
on record and the investigation has been conducted in a careless
manner by the Investigating Officer. It is also found by the learned
Special Judge that merely because there was some mark on male and
female parts of the seal, in absence of any accuracy test or log test
as to whether the meter is recording the correct consumption or not,
it cannot be presumed that there is theft of electricity. The learned
Special Judge has found that the prosecution has not been able to
prove the case.
5. The
learned Additional Public Prosecutor contended that once the meter
was found tampered with, the offence can be said to be constituted,
therefore in the submission of the learned Additional Public
Prosecutor, there is an error committed by the learned Special Judge
in acquitting the accused.
6. As
such, whether there was tampering and tampering to the extent of
wrong recording of the consumption in the meter would also be
required to be proved. Further in what manner the accused played the
role and to what extent, which has resulted into theft of electricity
is also required to be proved. After checking-sheet was prepared, the
preservation of the meter, examination by the independent Laboratory
may also be relevant circumstances. Therefore, unless all record
comes to the satisfaction of proving the case of the prosecution, it
cannot be said that the accused has committed offence. The learned
Special Judge has rightly recorded the reasons that the prosecution
has not been able to prove the case beyond reasonable doubt.
7. We
are in agreement with the view taken by the learned Special Judge.
Even if two views are possible, it would not be a case for admitting
the appeal against the acquittal.
8. In
view of the aforesaid, the application for leave to appeal is
dismissed.
[JAYANT
PATEL, J.]
[RAJESH
H. SHUKLA, J.]
jani
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