(1) criap243.07
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 243 OF 2007
Bhanudas s/o. Supadu Wani .. Appellant
Age. 55 years, Occ. Agri.,
R/o. Ambode, Tal. & Dist. Dhule.
Versus
Maharashtra State Electricity Board, .. Respondent
Through - Prakash Vasudeorao Karmarkar,
Age. 59 years, Occ. Dy.Executive Engineer,
M.S.E.B. Flying Squad, Dhule,
R/o. Anand Nagar, Devpur, Dhule.
Mr. M.G. Kolse Patil, Advocate for the appellant.
Mr. H.M. Karwa, Advocate for sole respondent.
CORAM : S.S. SHINDE,J.
DATED : 03.03.2011.
ORAL JUDGMENT :-
1. This appeal is directed against judgment and order
dated 11.06.2007, passed by the Adhoc Additional Sessions
Judge, Dhule, in Special Case No. 11 of 2005.
2. The case of the prosecution in short is as under :-
. On 15th September, 2004, complainant Prakash
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Karmarkar along with Jr. Engineer Gyandeo Mansaram Dhande,
Mukti Branch, G.N. Patil – wireman, Raju Sanaf – Clerk from
flying squad and panchas, namely, Pandit Ananda Gadave and
Dilip Dada Sarag visited house of the accused. It is case of
the complainant that the accused was not a regular consumer
of the Board. No electric meter was installed in his house.
However, by putting wire on L.T. line, the accused was found
to have committed theft of electricity to which 3 bulbs of 60
watts each, one fan of 60 watts, one T.V. of 100 watts and
electric Shegadi of 100 watts, thus total 1340 watts were
connected and daily use of these electrical equipments was
for five hours. The complainant and the staff prepared
panchanama vide Exh.6. It is found as per the tariff of the
Board that the accused committed theft of total 2010 units
worth Rs. 14,070/-. Thereafter, the complaint was filed in
the Court of IIIrd Jt. J.M.F.C., Dhule, which in turn, issued
process against the accused vide order dated 19.10.2004,
under Section 135 of the Electricity Act, 2003. Since the
offence was exclusively triable by the Special Judge, the
case was committed to the Sessions Court.
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3. The appellant/accused pleaded not guilty and
claimed to be tried and therefore after recording evidence
and hearing arguments and after framing the points, the
Special Judge convicted the appellant for the offence
punishable under Section 135 of the Electricity Act, 2003 and
sentenced to suffer simple imprisonment for three months and
to pay a fine of Rs. 500/- (Rupees Five Hundred), in default
of payment of fine, the appellant is directed to suffer
further simple imprisonment for 15 days. The appellant is
also directed to pay compensation of Rs. 14,100/- (Rupees
Fourteen Thousand One Hundred) to the complainant M.S.E.B.
Board, vide Section 357 (3) of Cr.P.C. and in default of
payment of compensation, the appellant is directed to suffer
simple imprisonment for one month.
4. The Counsel appearing for the appellant submits
that the name of the appellant herein is Bhanudas s/o. Supadu
Wani. On perusal of panchanama Exh.6, name of the appellant
does not find place. According to him, no panchanama is
carried out about the house of the present appellant Bhanudas
s/o. Supadu Wani. To read panchanama of one Bhanudas s/o.
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Mahadu Wani, in another Criminal matter would be something
beyond judicial scope. Therefore, the learned Counsel would
submit that when the panchanama is not prepared in respect of
the house of the appellant, there is no question of fastening
liability of fine and compensation or sending him to jail for
three months. He further submitted that the learned Adhoc
Court relied upon evidence of only two witnesses and relying
on said evidence, the learned Judge convicted the
appellant/accused. Even if it is assumed that the panchanama
Exh.6 is in respect of the appellant herein, in that case the
very said panchanama is not proved by the prosecution.
Therefore, without having been proved the panchanama, merely
relying on the evidence of the prosecution witnesses, no
conviction could be sustained. Therefore, the appeal may be
allowed. The learned Counsel for the appellant further
submitted that out of 14 accused, 11 accused are acquitted.
5. On the other hand, the Counsel for the respondent
submitted that the evidence of two witnesses came to be
recorded. There was no cross-examination on behalf of the
appellant. Therefore, their evidence went unchallenged.
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There is no requirement of corroboration, if the evidence of
witnesses is found to be trustworthy. He submits that the
appeal is devoid of merit and the same may be dismissed.
6. I have given due consideration to the submissions
of the learned Counsel appearing for the parties. Upon
perusal of Exh.6 and the discussion in the impugned judgment
and order, I find that the learned Judge has discussed that
in spot panchanama Exh.6 specific boundaries of the house of
the accused have been given and electrical equipments which
were connected to the illegal supply of the electricity was
taken by putting wire hook on L.T. line. Except this
observation there is nothing in the impugned judgment that
Exh.6 has been duly proved by the prosecution. That apart,
there is observation of the learned Judge regarding witnesses
who have given statement on behalf of the prosecution that as
they are public servants, they cannot have personal grudge
against the accused. In my opinion, in such matter, unless
sufficient and cogent evidence is brought on record, no
conviction can be given. In the impugned order, there is
also direction to pay compensation to M.S.E.B., in absence of
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any calculation or in absence of having assessment sheet
placed on record. The Special Court was in error in
accepting the case of the prosecution. On careful perusal of
Exh.6, it appears that, name of one Bhanudas Mahadu Wani is
given and name of appellant – Bhanudas Supadu Wani is not
mentioned in said panchanama. Even the prosecution has not
examined independent witness like Gramsevak, to ascertain
that the house in which there is alleged illegal electrical
supply, belongs to the appellant/accused. As stated here-in-
before, the prosecution has not proved panchanama at Exh.6.
Except statement of P.W.1 & P.W.2, nothing has been brought
on record by the prosecution.
7. Therefore, for all these reasons, in my opinion,
the impugned judgment cannot be sustained, merely relying on
two witnesses, who are from the department. It would not be
out of place to mention that those are interested witnesses
to see the result of the case, on complaint filed by their
department. Therefore, merely relying on their evidence, no
conviction can be sustained. On careful perusal of the
original record I find that panchanama Exh.6 is not proved by
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the prosecution. There is no discussion in the impugned
judgment about the said pancanama. There is no exercise of
calculating how much units have been consumed and how figure
of Rs. 14,100/- towards compensation has been arrived by the
learned Judge. There is no basis to assume that, electricity
is consumed five hours in a day.
8.
For all these reasons, the impugned judgment and
order is set aside. The appellant is acquitted from the
offence punishable under Section 135 of the Electricity Act.
The fine amount of Rs.500/- (Rupees Five Hundred) which is
deposited by the appellant should be returned to him. As a
result, there is no question of paying compensation by the
appellant as directed by the 1st Adhoc Additional Sessions
Judge to the M.S.E.B. The appeal is allowed and stands
disposed of. Bail bond of the appellant stands cancelled.
. It is made clear that in the Criminal matter,
strict standard of proof is required and in the present
matter evidence brought on record by the prosecution is not
sufficient to convict the appellant and therefore the
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impugned judgment is quashed and set aside and this has
nothing to do with the civil liability, if any.
[S.S. SHINDE,J.]
snk/2011/FEB11/criap243.07
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