CR.A/1191/2007 1/18 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 CR.A/1191/2007 2/18 JUDGMENT 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 CR.A/1191/2007 3/18 JUDGMENT 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 CR.A/1191/2007 4/18 JUDGMENT 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: 1. PW1 Mr. J.I.Gadhvi, complainant at Exh.9. 2. PW2 Mr. Vinodkumar Sakar at Exh.13. 3. PW3 Mr. Muktarsing Shikh at Exh.14. 4. PW4 Mr.H.L.Bhalsod at Exh.15. 5. PW5 Smt.Anandiben Gohil at Exh.31. 6. PW6 Mr.A.I.Diwan at Exh.32. 7. PW7 Mr.Ashokbhai Ramsing, PSO at Exh.33. 8. PW 8 Mr.J.M.Makwana, I.O. at Exh.34. CR.A/1191/2007 5/18 JUDGMENT 4. The prosecution has also produced the following documentary evidence: 1. Original F.I.R at Exh.10. 2. Rozkam at Exzh.16. 3. Sketch at Exh.17. 4. Notice at Exh.18. 5. Assessment Patrak at Exh.9. 6. Letter written by MGVCL to the accused. 7. Billing report at Exh.21. 8. Notice issued by MGVCL to Anandiben Gohil. 9. Supplementary bill of Rs.87,798.94ps. 10.Rent Note between Anandiben & Gopalbhai C.Rana. 11.Registered Sale-deed. 12.Receipt of Rs.1500/-deposited by Anandiben Gohil in MGVCL. 13.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 CR.A/1191/2007 6/18 JUDGMENT 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 CR.A/1191/2007 7/18 JUDGMENT 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 CR.A/1191/2007 8/18 JUDGMENT 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. CR.A/1191/2007 9/18 JUDGMENT 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 CR.A/1191/2007 10/18 JUDGMENT 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 CR.A/1191/2007 11/18 JUDGMENT 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 CR.A/1191/2007 12/18 JUDGMENT 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 CR.A/1191/2007 13/18 JUDGMENT 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 CR.A/1191/2007 14/18 JUDGMENT 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 CR.A/1191/2007 15/18 JUDGMENT 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 “unauthorised 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: “On interpretation, therefore, we hold that the expression “unauthorised 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 “ 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: CR.A/1191/2007 16/18 JUDGMENT “10...........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 CR.A/1191/2007 17/18 JUDGMENT 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: “ 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 CR.A/1191/2007 18/18 JUDGMENT 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