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CR.A/1191/2007 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1191 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
GOPALBHAI
CHANDUBHAI RANA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
C.G.Sharma with Mr.Shailesh C.Sharma for
Appellant.
Ms. Darshna S.Pandit, APP for the State.
MS MAYA S
DESAI for MGVCL.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 15/07/2008
ORAL
JUDGMENT
1. At the
outset, it may be noted that this appeal is taken up for final
hearing today as the same was fixed for expeditious hearing by the
Court (Coram: Akil Kuresh, J.) vide order dated 4-7-2008.
1.1 The present appellant-Gopalbhai Chandubhai Rana and one
Mr.Survirsinh alias Suresh Amarsinh Gohil were charge-sheeted for the
offence punishable under Section 135(1)(A) and (C) of he Electricity
Act, 2003 by the learned Special Judge, Kheda at Nadiad which is at
Exh.5 in Special Case (GEB) no.59 of 2006. At the end of the trial,
by judgment and order of conviction and sentence dated 2nd
August, 2007, passed by the learned Special Judge, Kheda at Nadiad,
the present appellant-Gopalbhai Chandubhai Rana was convicted for the
said offence and was sentenced to suffer R.I. For two years and fine
of Rs.2,63,000/- in default, further R.I. for six months while the
appellant- Survirsinh alias Suresh Amarsinh Gohil came to be
acquitted. It is against this judgment and order of conviction and
sentence that the present appellant has preferred this appeal under
Section 374 of the Criminal Procedure Code.
2. Brief facts of the prosecution case is as under:
2.1 On 26-4-2005, PW 4 Mr. H.L. Bhalsod Junior Engineer, Maha Gujarat
Vig.Co.Ltd.,(MGVCL), West Sub- Division, went to serve the notice as
per the Samadhan (compromise) scheme to recover the due amount of
electricity charges on one Smt. Anandiben A. Gohil, 5, Mahisagar
Society, Saibaba Complex, Opp. S.R.P. Nadiad, whose electricity
connection was permanently disconnected. During his visit, present
appellant Gopal C. Rana who was tenant of the said premises was
present there running a shop in the name and style of Harsiddhi
Electric Stores. At that time, the Officer found that though electric
connection of the said premises was disconnected, the service line
was on and he noticed that the present appellant- Gopal C.Rana had
illegally obtained electric connection directly from the pole by
using his private wire. It was also found by him that he had also
provided electricity from this connection to the accused no.2. By
this act, theft of electricity to the tune of Rs.87,798.94ps had been
committed by the present appellant-Gopal C.Rana. The said Officer
then immediately called for Helper from the Office, disconnected the
illegal electric connection and seized the wire which was used for
obtaining electric connection directly from the pole and also seized
the meter. He also prepared Rojnama as well as the map on the spot
and obtained the signature of the present appellant- Gopal C.Rana on
them. Thereafter, this Rojnama, map and Muddammal which was recovered
from the spot were sent to MGVCL, Nadiad. On the basis of this record
on 26th April,2005 Jasubhai Ishubhai Gadhvi (PW 1),
Incharge Deputy Engineer, MGVCL, Nadiad West lodged complaint Exh.10
before the PSI, MGVCL Police Station Gotri Circle Office Compound,
Vadodara. On the basis of the said complaint offence is registered
bing MGVCL Police Station CR no. I 231 of 2005 and after
investigation chargesheet was filed for the above referred offences
against the accused persons in the Court of the learned Chief
Judicial Magistrate, Nadiad. As the offence punishable under Section
135(1)(A) and (C)of the Indian Electricity Act, 2003 was exclusively
triable by the Court of Sessions, the learned Chief Judicial
Magistrate, First Class, Nadiad by its order dated 15-7-2006 under
Section 209 of the Criminal Procedure Code, committed the case to the
Court of Sessions, Kheda at Nadiad. Thereafter, the case came to be
registered as Special Case (GEB) no.59 of 2006.
3. In order to prove its case against the accused the prosecution has
examined the following witnesses:
PW1 Mr. J.I.Gadhvi, complainant at Exh.9.
PW2 Mr. Vinodkumar Sakar at Exh.13.
PW3 Mr. Muktarsing Shikh at Exh.14.
PW4 Mr.H.L.Bhalsod at Exh.15.
PW5 Smt.Anandiben Gohil at Exh.31.
PW6 Mr.A.I.Diwan at Exh.32.
PW7 Mr.Ashokbhai Ramsing, PSO at Exh.33.
PW 8 Mr.J.M.Makwana, I.O. at Exh.34.
4. The prosecution has also produced the following documentary
evidence:
Original F.I.R at Exh.10.
Rozkam at Exzh.16.
Sketch at Exh.17.
Notice at Exh.18.
Assessment Patrak at Exh.9.
Letter written by MGVCL to the accused.
Billing report at Exh.21.
Notice issued by MGVCL to Anandiben Gohil.
Supplementary bill of Rs.87,798.94ps.
Rent Note between Anandiben & Gopalbhai C.Rana.
Registered Sale-deed.
Receipt of Rs.1500/-deposited by Anandiben Gohil in MGVCL.
Receipt of Rs.10,000. Deposited by Anandiben Gohil in MGVCL.
5. After recording the evidence of prosecution witnesses further
statement of the accused under Section 313 of the Criminal Procedure
Code came to be recorded by the trial Court. It is submitted by both
the accused in their further statement that a false case is filed
against them and both the accused denied to examine any witness and
also denied to give evidence on oath.
6. After hearing the learned APP as well as the Advocate for the
accused, the learned Special Judge after taking into consideration
the evidence on record convicted the accused no.1 and acquitted the
accused no.2 of the charges levelled against them as referred to
hereinabove. Hence, the present appeal.
7. Heard learned Advocate Mr. C.G.Sharma for the appellant, learned
A.P.P. Ms. Darshna Pandit for the State of Gujarat and Ms. Mayaben
Desai for MGVCL as notice was issued by this Court against MGVCL.
7.1 It is pertinent to note here that no appeal was preferred by the
State of Gujarat against the acquittal of the accused no.2.
8. It is argued by learned Advocate Mr. Sharma that there was delay
of 25 days in filing the complaint. According to him, neither the
complainant nor Mr. Bhalsod has tendered explanation for such delay
which is fatal to the prosecution case. The learned Advocate,
therefore, submitted that the learned Special Judge has not
considered this aspect and by that committed error in convicting the
appellant-accused no.1. The learned Advocate next argued that PW1 Mr.
J.I.Gandhvi has no personal knowledge about the incident of theft of
electricity. It is also submitted by the learned Advocate that during
the investigation or at the time of visiting the premises in question
PW 4 Mr. Bhalsod had not prepared Panchnama of spot and that he had
also not recovered the Muddamal in presence of independent Panchas.
Further, no seizure memo was prepared and no procedure as laid down
under Section 100 of the Criminal Procedure Code was followed by him
which is fatal to the case of the prosecution. According to him, the
learned Special Judge has also not considered this aspect and
committed error in convicting the accused. It was next argued by Mr.
Sharma that at the fag end of the trial, charge Exh.5 was altered on
31st July, 2007 which caused great prejudice to the
interest of the accused, and therefore, not legal. It is also the
submission of the learned Advocate that the appellant-accused no.1
Gopalbhai had signed in the Rojkam which was prepared on the spot by
PW 4 Mr. Bhalsod as a representative of Anandiben and not as a
tenant, and therefore, the prosecution has failed to prove that the
appellant-accused no.1 Gopalbhai was tenant of the premises in
question, and therefore, the conclusion reached by the learned
Special Judge that the accused no.1 is a tenant of the premises in
question is erroneous and as such the accused no.1 has been wrongly
convicted. Mr. Sharma, learned Advocate next argued that the case
against the accused no.1 false under Section 126 of the Electricity
Act and not under Section 135 of the Electricity Act, and therefore,
the accused no.1 cannot be tried for the offence of theft of
electricity. It is also submitted by learned Advocate Mr. Sharma that
Rs.87,798.94ps assessed as charges toward electric bill is falsely
calculated by the complainant and relying upon such baseless
calculation the learned trial Judge has committed error in imposing
three times the fine and by that committed error. Mr. Sharma finally
submitted that the accused is entitled to get benefit of doubt and
the appeal deserves to be allowed.
9. As against that, learned APP Ms. Darshna Pandit submitted that
after appreciating the evidence on record, the learned Special Judge
has rightly convicted the accused. According to the learned APP the
learned Special Judge has passed a well reasoned judgment and order
which is quite legal and proper and hence not required to be
interfered with and the appeal deserves to be dismissed.
10. Learned Advocate Ms. Mayaben Desai appearing for MGVCL places on
record the calculation arrived at by the Officer as per the ABCD
formula under the Rules and no mistake is committed by the officer in
calculating the amount of Rs.87,798.94ps.
11. This Court has gone through the entire evidence on record oral as
well as documentary. The important witness PW 4 Hasmukhlal L. Bhalsod
who was Junior Engineer at the relevant time and who visited the
premises in question and found that by taking electric connection
directly from the pole using private wire the accused no.1-Gopalbhai
had committed theft of electricity. This Court has minutely gone
through the evidence of this witness. Before discussing the evidence
of this witness, it is pertinent to note that this witness is a
Government servant and he has no enmity with the accused persons . As
per the evidence of this witness, he visited the premises to serve
notice to one Smt. Anandiben A. Gohil whose electric connection was
permanently disconnected as per the Samadhan scheme to recover due
amount of electricity charges. During his visit he found that though
the electric connection was disconnected lines were on and illegally
by using private wire the accused no.1 had obtained electric
connection directly from the pole. As per his evidence, the accused
no.1-the present appellant Gopalbhai was present but the accused
no.2-Survirsinh alias Suresh Amarbhai Gohil was not present. He
identified the accused no.1 before the Court also. Immediately, on
the spot, he had also prepared the Rojkam and map of the place which
shows how the accused have committed theft of electricity directly
from the pole. Exh.16 is the Rojkam and Exh.17 is the map of the
place. He immediately called two linemen ? one Muktarsing Shikh, PW
3 Exh.14 and the other M.I. Diwan, PW 6 Exh.32. He also obtained
signature of both these linemen as well as one Senior Assistant
Mr.Vinodkumar S, PW 2, Exh.13 who was with him at the time of visit.
The accused no.1 also signed on the said Rojkam which is produced at
Exh.16 and also made an endorsement to the effect that the contents
of the said Rojkam are true and correct and that he had signed the
same on his own free will without any coercion or any kind of threat.
As per the evidence of this witness, he seized the wire which was
used for obtaining illegal electric connection directly from the pole
and also the meter and service wire and sent it along with Rojkam and
map to the MGVCL office, Nadiad. Nothing has come out from the
cross-examination of this witness which could falsify his version or
create doubt about the truthfulness of his deposition. This witness
admitted in cross-examination that he has neither prepared panchnama
of scene of offence nor recorded the statement of neighbours.
According to this witness, he has also not prepared seizure memo or
supplied copy of the seizure memo to the accused . He also admitted
that he has not lodged the complaint immediately against the accused.
He denied that he had not obtained the signature of Gopalbhai in
Rojkam. During the evidence of this witness rent note Exh.24 is
proved which clearly shows that the accused no.1 was tenant of the
premises. The evidence of Mr.H.L.Bhalsod, PW 4 is corroborated by the
evidence of Mr. Jasubhai Ishubhai Gandhvi, PW 1. He has specifically
stated on oath before the Court that along with the complaint, he has
produced the Muddamal meter as well as the wire before the PSO which
was produced by Mr. H.L.Bhalsod, PW 4 in office. The evidence of
Bhalsod is also corroborated by the evidence of PW 2 Vinodkumar who
accompanied him at the time of visit of the premises on the day of
incident and he also narrated the same story which is narrated by PW
4. He also specifically stated on oath that Muddamal meter and wire
were seized from the place and brought to the MGVCL office and
thereafter, it was sent to the Police Station. PW 3 Muktarsing and PW
6 Mohmed I. Diwan also supported the evidence of PW 4 Mr. Bhalsod. PW
6 M.I. Diwan stated on oath that he had PW 3 Muktarsing were called
by PW 4 Mr. Bhalsod on the spot and as per the instruction of PW 4
Mr. Bhalsod he climbed on the pole and cut off the connection. He
also stated on oath that thereafter Line Inspector Muktarsing PW 3
and Helper seized the meter and wire. He specifically stated on oath
that this meter is seized from the shop of Gopalbhai Rana and that
Gopalbhai Rana had illegally obtained the electric connection
directly from the pole. According to the evidence of this witness,
thereafter, the said meter and wire were deposited in the MGVCL
Office, Nadiad. This witness has also deposed that the accused
Gopalbhai Rana had also supplied electric connection from his illegal
connection to one person who was running flour mill. He also stated
on oath that at that time the accused Gopalbhai Rana was present. He
denied in cross-examination that from the place of Gopalbhai wire or
meter was not recovered or that he had not seen Gopalbhai on the
spot. The evidence of PW 4 H.L.Bhalsod is fully corroborated by the
evidence of complainant PW 1 Jasubhai I. Gadhvi and two other
Government servants ? PW 2 Vinodkumar who was with PW 4 Bhalsod and
PW 3 Muktarsing as well as PW 6 M.I. Diwan. It is interesting to note
that all these four witnesses have no enmity with the accused persons
and there is no reason to give false evidence against the accused
persons. Merely because procedure under Chapter VII of the Criminal
Procedure Code Section 99 to 101 is not followed by PW 4 Mr.
Bhalsod, it cannot be said that the whole case of the prosecution is
false and only on this sole ground, the prosecution case should be
thrown out. This lapse can be said to be merely an irregularity
committed by the officer and when the evidence of PW 4 is found to be
trustworthy and inspiring confidence which is corroborated by the
documentary as well as by the oral evidence, then only on the ground
of irregularity committed by this witness of not following the
procedure as stated above, the prosecution case cannot be thrown
out. PW 4 Mr. Bhalsod the premises in question in his capacity as
officer on duty and not in the capacity of Investigating Officer and
so it is not required to follow the procedure laid down in Chapter
VII Cr.P.C. Sections 99 to 101. Even assuming that the said procedure
is required to be followed, then also it can be said to be mere
irregularity and by that no serious prejudice can be caused to the
interest of the accused or the prosecution case. This Court has gone
through the entire judgment delivered by the learned Special Judge,
Kheda at Nadiad and found that the learned Special Judge has
appreciated the evidence in its true perspective and by his well
reasoned judgment had rightly acquitted the accused no.2 and
convicted the accused no.1.
12. As far as the delay in filing FIR is concerned, it is not fatal
to the case of the prosecution. This is not a case in which the
offence in question is punishable under IPC where there is a
requirement to lodge complaint immediately after the incident takes
place so that the complaint may not be lodged on an after thought.
In cases where offence is under IPC delay in filing FIR creates doubt
about the prosecution case. The instant case is registered under 135
of the Indian Electricity Act, 2003, and therefore, question of
filing complaint on an after thought or with ulterior motive to
implicate the accused does not arise. In the present case, on the
day of the incident Rojkam and map was prepared and Muddamal was
recovered and immediately sent to the office. There is no period of
limitation prescribed under the Electricity Act to lodge the
complaint within a prescribed time. When the signature of the accused
is obtained on Exh.16 Rojkam on the same day, then it can very well
be said that the incident took place on 26th April,2005.
As far as the legal position is concerned PW 4 Mr. H.L. Bhalsod
visited the premises only for serving the notice in the capacity of a
Junior Engineer, MGVCL and not as an Investigating Officer on getting
any information of theft. Therefore, the Rojkam which is prepared by
Mr. Bhalsold and signed by the accused no.1 Gopalbhai is admissible
in evidence as this cannot be construed as a statement before the
Police or Investigating Officer.
13. As far as the calculated of the amount of electricity charges due
is concerned, it is pertinent to note that the defence has not raised
any question during the recording of deposition of any witness
regarding any error in the calculation of Rs.87,978.94ps. Learned
Advocate Ms. Mayaben for the GEB has been able to convince this Court
that the amount of Rs.87,978.94ps. is rightly calculated under the
Rules as per ABCD formula.
14. There is also no substance in the argument of learned Advocate
Mr. Sharma that the present case falls under Section 126 of the
Indian Electricity Act i.e. of malpractice and not under Section 135
of the Indian Electricity Act with regard to theft.
15. As far as Section 126 of the Indian Electricity Act is concerned
it pertains to ?Sunauthorised use of electricity?? which is a
civil liability while Section 135 pertains to theft of electricity.
Reference in this connection may be had to the decision rendered in
the case of Torrent Power A.E.C.Ltd. v. Gayatri Intermediates,
2006(2) G.L.R. p.1580 wherein it has been held at para 12.3 as under:
?SOn interpretation, therefore, we hold that the expression
?Sunauthorised use of electricity?? in Section 126 only deals with
cases of unauthorised use even in absence of mens rea and such cases
are different from the theft cases enumerated and illustrated in
Section 135(1) which involve mens rea.??
16. There is also another decision in the case of PLASTO PROCESSORS &
ANR. V. GUJARAT ELECTRICITY BOARD & ORS, 2005(2) G.L.R. 993
wherein it has been held that Section 126 of the Indian Electricity
Act,2003 pertains to Assessment at enhanced rates for ?S
unauthorised use of electricity and that assessment at enhanced rates
would also apply in cases of theft of electricity. It would be
relevant to note here the observations made in para 10 of the
judgment which reads as under:
?S10………..Even if one goes by general proposition, the theft
of electricity can be said as unauthorised use of electricity because
the person who used the electricity is not so authorised to use of
electricity by the manner or through the method of committing theft,
and therefore, it can be said that all cases of theft of electricity
would also be included in the case of unauthorised use of
electricity, but the reverse is not true, namely, that all
unauthorised use of electricity are not necessarily the theft of
electricity, but all cases of theft of electricity are also
unauthorised use of electricity……………………??
17. Mr. Sharma learned Advocate for the petitioner has also relied on
the decision rendered in the case of THAKORE K. PATEL V. GUJARAT
ELECTRICITY BOARD, 2003(1) G.L.R 506, however, there, the facts are
on an entirely different footing and cannot be made application to
the facts of the present case.
18. In the case on hand, it is proved by the prosecution that theft
is committed by the accused by leading cogent and reliable evidence
and nothing has come out in the evidence which shows that accused is
involved in malpractice of power supply or that there is unauthorised
use of electricity excluding theft. Under the circumstances, it can
safely be concluded that the present case falls under Section 135 of
the Act and that the learned Special Judge has rightly convicted the
accused no.1 and imposed the fine as per the provisions of Section
135 of the Act.
19. Lastly, Mr. Sharma alternatively submitted that if the Court
comes to the conclusion that the judgment and order of conviction and
sentence does not deserve to be quashed and set aside, the Court may
consider the question of reducing the sentence awarded by the learned
Special Judge on the ground that the petitioner is the only earning
member in the family, that the accused no.1 has not committed any
other offence in past and he is a poor person. It is also the
submission of the learned Advocate Mr. Sharma that the petitioner is
in jail since more than 10 months.
20. As a result of the foregoing discussion, I do not think that this
is a fit case for taking a lenient view and reducing the sentence as
theft of electricity is ever increasing and it is a serious threat
being faced by Electricity Boards all over the country and it is
required to be curbed. It would be beneficial here to draw reference
to the judgment delivered by the Honourable Apex Court in the case of
JAGMOHAN MEHATABSING GUJARAL & ORS. V. STATE OF MAHARASHTRA,
2007(1) G.L.R. 643 wherein at paragraph 29 of the judgment as under:
?S Large-scale theft of electricity is a very alarming problem
faced by all the State Electricity Boards in our country, which is
causing loss to the State revenue running in hundreds of crores of
rupees every year. In our considered view, after proper adjudication
of the cases of all those who are found to be guilty of the offence
of committing theft of electricity, apart from the sentence of
conviction, the Court should invariable impose heavy fine, making
theft of electricity a wholly non-profitable venture. The most
effective step to curb this tendency perhaps could be to discontinue
the supply of electricity to those consumers temporarily or
permanently who have been caught extracting electricity in a
clandestine manner on more than one occasion. The legislation may
consider incorporating this suggestion as form of punishment by
amending Sec.39 of the Electricity Act.1910.??
21. The learned Special Judge after taking into consideration the
nature of offence convicted the accused no.1 and awarded the
sentence of R.I. for two years and fine of Rs.2,63,000/-, in default
R.I. for six months i.e. the minimum prescribed fine under Section
135 of the Act which is quite just and reasonable calling for no
interference at the hands of this Court.
22. The appeal, therefore, fails and is hereby dismissed.
(M.D.Shah,J.)
lee.
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