1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 55 OF 1995 THE STATE OF MAHARASHTRA .. APPELLANT (Org. complainant) Vs. NANASO VITHAL DESAI .. RESPONDENT (Orig. Accused) Mr. A. R. Patil, APP Mrs. V. V. Thorat for respondent. CORAM:SMT.RANJANA DESAI, J. DATE ON WHICH THE JUDGMENT IS RESERVED : 11TH APRIL, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 30TH APRIL, 2008 JUDGMENT: . The State of Maharashtra has challenged in this appeal judgment and order dated 30/9/94 passed by the Joint Judicial Magistrate, First Class, Patan in Criminal Case No. 113 of 1991. By the impugned judgment and order learned Magistrate acquitted the respondent of the offence punishable under Section 379 of Indian Penal Code ("I.P.C." for short). 2. Shortly stated the prosecution story is that 2 the respondent (hereinafter referred to as "the accused") is the resident of village Paparde. He is the Sarpanch of the said village. He is residing their with his parents. As he had defaulted in making payment to the Maharashtra State Electricity Board ("MSEB" for short), for consumption of electricity, the MSEB had disconnected his electric connection. Therefore, the accused had taken electric connection unauthorizedly from the meter fixed in the temple of Vithal Rakhumai. He had consumed electric energy of Rs.400/- unauthorizedly during the period July 1990 to 31/9/91. 3. One Atmaram Tukaram Desai, a villager had informed this to the office of the MSEB at Patan. After receiving this information Jr. Engineer of MSEB Algonda Kalgonda Patne and Asstt. Engineer Srikrishna Vishnu Ponkshe visited the spot immediately and confirmed the fact. Thereafter Asstt. Engineer Srikrishna Vishnu Ponkshe approached the Police Station and lodged his complaint against the accused. Crime was registered with Patan Police Station being C.R. No. 81/91 under Section 379 of the I.P.C. The police drew spot panchnama and seized electric wire 3 used for consuming energy and after completion of the investigation filed chargesheet against the accused. 4. Charge was framed under Section 379 of the I.P.C. Accused pleaded not guilty to the charge. His defence was one of denial. He denied that he resides with his father. He contended that he could not have been charged under Section 379 of the I.P.C. 5. In support of it’s case the prosecution examined four witnesses. They are PW 1 Vilas Patil, Panch witness, PW 2 Atmaram Desai, PW 3 Algonda Patne, Junior Engineer of MSEB, PW 4 Srikrishna Ponkshe, Asstt. Engineer of MSEB (who is the complainant), PW 5 Pandurang Desai, PW 6 Shankar Patil and PW 7 Ramesh Desai, who are the villagers. 6. After perusing the evidence on record the learned Magistrate came to a conclusion that the prosecution had proved that the accused had committed theft of electric energy. However, he was of the opinion that inasmuch as the accused was not charged under Section 39 of the Indian 4 Electricity Act 1910 ("the said Act" for short), the prosecution cannot be sustained. He, therefore, acquitted the accused. Being aggrieved by the said judgment and order, the State of Maharashtra has filed this appeal. 7. We have heard Mrs. Thorat learned counsel appearing for the appellant and Mr. Patil, learned APP. Since the electricity illegally consumed is worth Rs.400/- and since the acquittal is recorded on a technical ground, we had asked Mrs. Thorat to call the respondent/accused to the court so that possibility of compounding of the offence could be examined. Mrs. Thorat, however, submitted that the respondent/accused is not responding to her letters. We are distressed at this approach of the respondent/accused. He is a Sarpanch of the village. Such conduct is not expected from him. In the circumstances, we are left with no other alternative but to deal with the case as per the law. 8. Mrs. Thorat, learned counsel for the accused submitted that the view taken by learned Magistrate is legally correct and, hence should not be disturbed by this court. She submitted that it is 5 well settled that if the view taken by the trial court is a reasonably possible view, it should not be disturbed in an appeal against acquittal. She urged that in the circumstances, the appeal be dismissed. 9. Mr. Patil, learned APP on the other hand submitted that after having held that the accused has committed theft of electricity, it was improper for learned Magistrate to acquit the accused on technical ground. He submitted that theft of electricity is a serious matter and, therefore, learned Magistrate should have altered the charge and tried the case. He submitted that this is a fit case where this court should set aside the impugned judgment and remand the case to the trial court. In this connection learned APP relied on the Supreme Court judgment in Patel Jethabai Chatur v. State of Gujarat (1976) 4 SCC 522. 10. Mr. Chavan, learned counsel for MSEB was requested by me to assist me on the question of tenability of the complaint. He relied on the judgment of the Supreme Court in Jagmodhan Mehatabsingh Gujaral & Ors. v. State of Maharashtra (2006) 8 SCC 629 and submitted that 6 learned Magistrate has erred in observing that the complaint was not tenable because there is no evidence to show that the complainant had obtained permission from higher authorities or that he had power of attorney on behalf of the MSEB to file the complaint. He submitted that in view of amendment of Section 50 of the said Act, the complaint filed by PW 4 Shrikrishna Ponkshe, was perfectly maintainable. He submitted that the officers of MSEB are authorized to lodge complaint by a notification issued by the MSEB. 11. On evaluation of the evidence, learned Magistrate held that the prosecution has established that the accused had taken electricity connection from the temple of Vithal Rakhubai to his house. Learned Magistrate disbelieved the defence of the accused that he is not residing in the house where the stolen electricity was used. His defence that he is residing separately from his father is disbelieved. Learned Magistrate has observed that copy of electoral roll (Exh.58) clearly shows that, the accused is residing in the same house with his father. Learned Magistrate has held that it is absolutely clear from the evidence on record that the accused has committed theft of 7 electricity. 12. It is, therefore, apparent that the accused had taken up a false defence, that he was not staying with his father to create an impression that he is not concerned with the house where unauthorized connection of electricity was taken from a temple. The accused is a Sarpanch of the village. His act of stealing electricity that too, from a temple is reprehensible. Having recorded a finding that the accused had committed theft, learned Magistrate should not have acquitted him on a technical ground. I must now advert to the said technical ground. 13. According to learned Magistrate, theft of electricity comes under section 39 of the said Act. The accused was not charged under Section 39 of the said Act. According to learned Magistrate the accused can be held guilty for offence punishable under Section 39 of the said Act, but cannot be held guilty under Section 379 of the I.P.C. Section 39 of the said Act reads as under: "39. Theft of energy Theft of energy Theft of energy - Whoever dishonestly abstracts, consumes or uses 8 any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial means or means not authorized by the licence exist for the abstraction consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer." . Section 378 of the I.P.C. defines theft. But by itself it does not include theft of electricity. . Section 379 of the I.P.C. contains punishment for theft. It reads as under: "379. Punishment for theft Punishment for theft Punishment for theft - Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both". 14. In Avtar Singh v. State of Punjab, AIR 1965 9 SC 666, the appellant was prosecuted for theft of electrical energy from the Punjab State Electricity Board and was convicted. Before the Supreme Court the appellant did not challenge the finding that he had committed theft. His contention was that Section 50 of the said Act provides that no prosecution shall be instituted against any person for any offence against the said Act except at the instance of the Government or an Electrical Inspector or of a person aggrieved by the same. According to him his prosecution was for an offence against the said Act and it was incompetent as it had not been established that it had been instituted at the instance of the persons mentioned in Section 50. The courts below held that the prosecution was not for an offence against the said Act and hence Section 50 did not apply. While reversing the view of the courts below and holding that theft of energy under Section 39 was an offence against the said Act, the Supreme Court observed that Section 39 did not extend to Section 378 of the I.P.C. in the sense of amending it or in any way altering the language used in it. The Supreme Court further observed that Section 378 read by itself even after the enactment of Section 39 would not include a theft of electricity for 10 electricity is not considered to be moveable property. The only way in which it can be said that Section 39 extended Section 378 is by stating that it made something which was not a theft under Section 378, a theft within the meaning of that section. The Supreme Court recorded it’s conclusion as under: . "To put it shortly, dishonest abstraction of electricity mentioned in S. 39 cannot be an offence under the Code for under it alone it is not an offence; the dishonest abstraction is by S. 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely S. 39 of the Act, must be said to create the offence. Since the abstraction is by S. 39 to be deemed to be an offence under the Code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the 11 Code itself for under it abstraction of energy is not an offence at all." 15. In Satya Narain Prasad v. Bhagwan Ramdas alias Bhaowan Sen 1940 (O) GLHEL SC 25573 a complaint was filed under Section 39 of the said Act read with Section 379 of the I.P.C. against the accused on the ground that after the electric supply was cut the accused were running their mill by resorting to illegal connection with live wire. The Patna High Court on an incorrect reading of the judgment in Avtarsingh’s case (supra) quashed the proceedings holding that cognizance of offence under Section 379 of the I.P.C. was on the face of it illegal. The Supreme Court observed that the Patna High Court had overlooked the fact that Section 39 expressly made dishonest abstraction of electricity an offence punishable under the I.P.C. Section 39, therefore, makes something which was not a theft within the Penal Code, a theft within it and consequently that section also makes theft punishable in the manner provided in the I.P.C. because illegal abstraction of electricity is deemed to be a theft within the meaning of the I.P.C. and it must be deemed for all purposes a theft including the purpose of imposing the 12 punishment. The Supreme Court observed that, therefore, in deciding whether an offence of theft as provided under Section 39 is made out or not the court has to read Section 39 along with the provision of IPC dealing with theft. 16. These judgments make it clear that though the theft of energy is not included in Section 378 of the IPC which defines theft, by fiction it is deemed to be an offence under the IPC by reason of Section 39 of the said Act which provides for theft of energy. Learned Magistrate is, therefore, right in holding that the accused can be held guilty under Section 39 of the said Act but he cannot be held guilty simplicitor under Section 379 of the I.P.C. However, in my opinion, it was wrong on the part of learned Magistrate to acquit the accused on this count when he was convinced that the accused had committed theft. In such a case charge could have been amended by adding Section 39 of the said Act. The accused could have been charged under Section 379 of the I.P.C. read with Section 39 of the said Act. Learned Magistrate should have taken into account the fact that the accused is a Sarpanch of the village. His electric supply was cut because he had not paid the bills of 13 electricity. He was a defaulter. Thereafter he took illegal electric connection from the temple of Vithal Rakhumai to his house and committed theft of electricity. Theft of electricity must be viewed seriously. Electricity is national wealth. The country is experiencing acute shortage of electricity and incidents of theft are increasing. In my opinion, learned Magistrate dealt with a serious case of theft of electricity in a very light hearted manner. He had the option of altering the charge and trying the accused after giving him an opportunity to defend himself. Learned Magistrate failed to do so. 17. In Patel Jethabai’s case, the Supreme Court has held that in an appeal against the order of acquittal the High Court can set aside the order of acquittal and direct retrial of the accused. In that case the accused were tried for consumption of liquor. They were acquitted. The High Court set aside the order of acquittal of the accused of the offence of consumption of liquor and directed trial of the accused on the charge of possession of liquor. The High Court had, however, not considered whether the order of the trial court acquitting the accused for consumption of liquor 14 was right or wrong. The Supreme Court, therefore, directed the High Court to consider the appeal against acquittal of the accused of the charge of consumption of liquor on merits, but did not interfere with the order directing trial of the accused of the charge of possession of liquor. It is urged that in the light of the above judgment and having regard to Section 386 (a) of the Criminal Procedure Code 1973, this is a fit case which should be remanded for retrial. 18. There is substance in this submission. However, the offence was committed as far back in the year 1990-91. About 18 years have gone by. Learned Magistrate has observed that the prosecution has shown total inertia while conducting the case. It is observed that learned APP remained absent during the course of trial. Seven witnesses were examined by the court in the absence of APP. Investigating Officer was not examined by the prosecution. Even muddemal was not produced in the court. In the circumstances, in my opinion, remand of the case after 18 years is futile. 19. Learned Magistrate relying on the judgment in 15 Laxman Lal v. State of MP, 1985 Cri. L.J. held that there is no evidence on record to show that the complainant had obtained permission from higher authorities or he had a power of attorney to file complaint. My attention is drawn to Jagmodhan’s case where the Supreme Court has observed that by the amendment of Section 50 the said Act, the words "or a State Electricity Board" have been inserted and the officers of the State Electricity Board or a person aggrieved by the theft are authorized by the notification to lodge a complaint. A person aggrieved by the theft can also file a complaint. It is true that, if there was a notification the prosecution ought to have brought that notification on record. But on this ground alone the complaint could not have been thrown overboard because even a person aggrieved by the theft can file a complaint. But non-production of Notification is another serious lapse on the part of the prosecution. 20. In the ultimate analysis therefore, I am of the view that learned Magistrate took a hypertechnical view. He should have amended the charge and tried the accused after giving him a chance to defend himself. The prosecution has also failed to prosecute the case deligently. Even the 16 investigating officer was not examined. Learned Magistrate has observed that the prosecutor did not even remain present. If cases of theft of electricity are prosecuted like this there will be a havoc. The manner in which this case is prosecuted casts shadow of doubt on the bonafides of the officers of the MSEB and also learned APP who was assigned the case. The State and MSEB must look into this matter. 21. In the circumstances, the appeal will have to be dismissed. The office is directed to send a copy of this judgment to the Maharashtra State Electricity Board and to the concerned department of the State Government for information and necessary action. I thank Mr. Chavan, learned counsel for MSEB, who assisted me in this appeal. 22. Appeal is dismissed. JUDGE 17 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 55 OF 1995 DATE ON WHICH THE JUDGMENT IS RESERVED: 11TH APRIL, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:____TH APRIL, 2008 Transcription of Judgment / Order. Submitted for approval. 18 THE HON’BLE (SMT.) JUSTICE RANJANA DESAI: THE HON’BLE Shri JUSTICE : 1. Whether Reporters of Local Papers ) be allowed to see the Judgment? ) 2. To be referred to the Reporters 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 Judges? ) 6. Whether the case involves an impor- tant question of law and whether) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa) Offices? )