1 criapl-345.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 345 OF 2007 Bhausaheb s/o Bansi Wagh, age 31 years, occup. agril. r/of Selu, Taluka Georai, District Beed. Appellant-accused. versus 01. State of Maharashtra. 02. Maharashtra State Electricity Distribution Company Limited, through Assistant Vigilance Officer, M.S.E.D.C.L. Flying Squad, Adarsha Nagar, Beed, Kashinath Laxmanrao Jadhav, age 53 years, occup. service, r/of Beed. Respondents. -------- Shri S.J. Salunke, Advocate, for the appellant. Shri S.G. Nandedkar, A.P.P. for Respondent No. 1. Shri P.B.Paithankar, Advocate for Respondent No.2 Coram : Shrihari P. Davare, J. Date : 30th March, 2011. Oral Judgment (Per : Shrihari P. Davare, J.) 01. Heard learned counsel for the parties. 02. Present appeal is directed against the judgment and order dated 16.8.2007, rendered by the learned Additional Sessions Judge-II and Special Judge, Beed, in Special Case No.25 of 2006, thereby convicting the appellant-original accused for offence 2 criapl-345.07 under Section 135 of the Electricity Act, 2003, and directing him to suffer rigorous imprisonment for one month and to pay fine of Rs.20,000/=, and in default of payment of fine, to suffer simple imprisonment for fifteen days. 03. The factual matrix of the matter is that, the complainant, namely, Kashinath Laxmanrao Jadhav (PW-2) was working as Assistant Vigilance Officer, and was attached with flying squad of M.S.E.D.C.L., Beed i.e. Respondent No.2 herein, and had filed a complaint against the appellant-original accused, in the court of Dist. and Sessions Judge, and Special Judge, Beed, on 28.3.2006, for committing theft of electricity, contending that since he (complainant) was attached to flying squad of M.S.E.D.C.L., it was his duty to detect the theft of electricity and also to detect unauthorised users of electricity and to initiate legal action against them, in accordance with the provisions of the Electricity Act, 2003. 04. It is alleged that it was reported that the appellant-original accused, namely, Bhausaheb Bansi Wagh, did not obtain any electricity connection legally, for user in his house and also for flour mill, and still he was unauthorizedly using the same. Hence, on 20.10.2005, the complainant and other officers of Resp.No.2-company, visited the house of the appellant-accused 3 criapl-345.07 situated at village Selu, Taluka Georai, District Beed, for inspection and found that the accused was present in the house. The complainant and other officers disclosed their identity to the accused and informed him that they had come for checking the electricity meter, whereupon the accused replied that there was no electricity meter in his house. The complainant and other members of flying squad, inspected the location of the house of the accused, and noted the boundaries thereof and found that there was an electricity poll of low tension line (LT line) at a distance of about 25 ft. towards east of the house of the accused and one hook was fixed unauthorizedly on the said poll and electricity supply was taken therefrom by service wire, for the user of the same in the house of the accused and for his business. It was also noticed that there were four rooms in the house of the accused and he was carrying business of the flour mill and the electricity was being used for the motor of the flour mill, as well as for bulbs in the house, by way of theft of the same, as aforesaid. Accordingly, it was found that the apellant- accused had used electricity of 1612 units, stealthily, amounting to Rs.15,566/=. 05. It is also the case of the complainant that, spot panchanama (Exh.25), as well as seizure panchanama (Exh.26) were prepared in presence of the accused and panchas and the 4 criapl-345.07 signatures of the panchas and of officials of the complainant's company, were obtained thereon, as well as copies of the said panchanamas were handed over to the accused. Moreover, it is also alleged that the aforesaid service wire and hook used by the accused, were seized under seizure panchanama. 06. Further, it is also alleged that the accused-appellant herein was made aware of the provisions of Section 152 (1) of the Electricity Act, 2003, and it was informed to him that there was 3 H.P. connected load while committing theft of electricity and compounding charges were Rs.60,000/=, and he was asked to compound the offence by paying the said compounding charges of Rs.60,000/=, and also the electricity bill of Rs.15,566 for illegal and unauthaorised use of 1612 units of electricity. 07. It is further the case of the complainant that after completing the necessary formalities, as stated earlier, the complainant filed complaint on 28.3.2006 before the learned Additional Sessions Judge and Special Judge, Beed, against the accused for having committed offences under Sections 135 and 138 of the Electricity Act, of which the cognizance was taken by the learned Additional Sessions Judge and Special Judge, on 4.5.2006, and the said case was numbered as Special Case No.25 of 2006. Accordingly, the accused-appellant herein appeared in 5 criapl-345.07 the matter, after receipt of summons. Thereafter, charge was framed against the accused on 13.6.2007 under Exhibit 15 for the offences punishable under Sections 135 and 138 of the Electricity Act. The accused pleaded not guilty to the said charges, and claimed to be tried. The defence of the accused is of total denial, claiming that he is innocent and that the complainant had filed false complaint against him. 08. To substantiate the charges levelled against the accused, complainant has examined two witnesses mentioned below. (1) PW-1 Arjun Tukaram Shinde Panch witness to spot panchanama (Exh.25). (2) Kashinath Laxman Jadhav Complainant. 09. Accordingly, complainant adduced oral evidence, as well as produced documentary evidence, such as, spot panchanama (Exh.25), seizure panchanama (Exh.26), assessment sheet (Exh. 27), demand notice for charges for stolen electricity and compounding charges (Exh.28). On the face of the said position, accused neither examined himself on oath, nor examined any defence witness, but put forth his defence through the cross examination of the complainant, and also through his statement recorded under Section 313 of the Code of Criminal Procedure. 6 criapl-345.07 10. At the outset, it is apparent that the complainant examined only two witnesses, namely, panch Arjun Shinde (PW-1) and complainant himself (PW-2). Coming to the deposition of PW-1 Arjun Shinde, who was panch witness to the spot panchanama, it is seen that he turned hostile and did not support the case of the complainant, and hence, learned Advocate for the complainant cross examined the said panch witness, and some suggestions were put to him during the said cross examination, but he denied the same. He also stated in the cross examination that he does not know wherefrom the accused had taken electricity connection for running flour mill and he cannot say, whether at the time of trap, accused was present or not. He further stated that he does not know whether the panchanama was prepared on the spot in his presence. He, however, admitted his signature thereon, but as regards signature of the accused, he stated that he cannot state whether it is the signature of the accused. 11. Accordingly, the testimony of PW-1 panch Arjun Shinde does not support the case of the complainant, and even his cross examination conducted by the learned counsel for the complainant, also could not elicit anything beneficial to the case of the complainant. On the contrary, it has come on record through cross examination of this witness, that he does not know whether, at the time of trap, accused was present or not and 7 criapl-345.07 even he does not know whether the spot panchanama was prepared in his presence. The said statements of PW-1 Arjun are damaging to the case of the complainant. Pertinently, he further stated in the cross examination that he does not know from where the accused had taken electricity connection for running flour mill, and the said statement also speaks volume for itself. 12. Coming to the deposition of PW-2 complainant Kashinath Laxman Jadhav, he has stated that he was the Assistant vigilance Officer, attached to the flying squad of M.S.E.D.C.L., Beed, and was vested with powers to lodge complaint in the matter of theft of electricity and produced the copy of the standing order at Exh. 24. He stated that on 20.10.2005, members of the flying squad went to village Selu at the house of the appellant-accused and found that there was flour mill and theft of electricity was committed. The accused was present. Complainant told the accused that he and other members of flying squad had confidential information about the said theft of electricity and disclosed their identity to the accused and asked him about electricity meter, but he stated that there was no electricity meter installed in his house. During inspection, they found that there was LT line at a distance of about 25 ft. from the house of accused and noticed that service wire with hook was applied to said LT line and taken upto the house of the accused and this 8 criapl-345.07 arrangement was made for theft of electricity for the purpose of use of the same to run the flour mill. 13. Accordingly, panchanama was prepared in presence of the panchas and officials of respondent No.2-company, and the contents thereof were read over to the panchas and their signatures were obtained thereon, as well as officials of respondent No.2-company, also signed thereon, which is produced at Exhibit 25. PW-2 complainant Kashinath Jadhav further stated that seizure panchanama was prepared, which is produced at Exh.26, and he prepared assessment sheet to determine the quantity of stolen electricity, which is produced at Exhibit 27. Complainant further stated that since there was use of electricity by the appellant-accused, without authority, he filed complaint under his signature against the accused, in the court. He also stated that letter of demand was sent to the accused, for payment of charges for stolen electricity and compounding charges, which is produced at Exhibit 28. He stated that the accused deposited dues claimed by the complainant, but did not pay compounding charges. 14. During cross examination, the complainant admitted that he did not enquire with local Sarpanch/Police Patil/Gram Sevak to know whether the property in question belonged to the 9 criapl-345.07 appellant-accused Bhausaheb. He also admitted that he did not collect any documentary evidence or proof to show any concern of the accused with the said property. He, however, stated that he was informed orally about the same. He stated that he has not submitted photographs along with the complaint, as those were damaged. He admitted that he did not try to get number of the house of the accused. The witness has categorically stated in his cross examination that he did not effect any other raid on that day, in the same village, but he effected raids in different villages. He admitted that no documentary evidence is produced by him to show that the accused is consumer of Respondent no.2, but still he mentioned it in the document. He stated that service wires are available in the market. He admitted that he did not give copy of list of seized articles to accused Bhausaheb, nor seized the instruments of the flour mill, nor collected documents to show that the said flour mill and instruments were owned by the accused. Complainant Kashinath further stated that there was no complaint from the local lineman about the theft of electricity. He has also not produced proof on record, to show that the accused paid the due amount. 15. Hence, suggestion was given to him that all the papers were prepared by him in the office at Sirasdevi, but same was denied by him, as well as suggestion was given to him that he 10 criapl-345.07 was deposing falsely that the accused committed theft of electricity, but same was also denied. The witness further denied that false panchanama was prepared. As regards ownership of the house in question, it was suggested that he falsely stated that the same belonged to the accused, but he denied the same. 16. It is material to note that complainant PW-2 Kashinath Jadhav admitted in his cross examination that he did not enquire with local Sarpanch/Police Patil/Gram Sevak, whether the property in question belongs to the accused, nor did he collect any documentary evidence or proof to show that the accused had any concern with the said house, nor did he try to get number of the said house, although he did not effect any other raid in the same village, on the same day. Moreover, although there was reference in the complaint that photographs were taken, those were not produced by the complainant, and the reason given for non production thereof was that the said photographs were damaged. Further, the complainant also admitted that he did not give copy of the list of seized articles to the accused, nor he collected any document to show that the flour mill and its instruments were owned by the accused. He further stated that same service wires were available in the market. Pertinently, there was no complaint of theft of electricity, from the local lineman. 11 criapl-345.07 17. On the background of aforesaid oral and documentary evidence, Shri S.J. Salunke, learned counsel for the appellant- accused, canvassed that there is neither documentary evidence, nor any other record, to prove and establish nexus between the accused and the alleged house and flour mill, and the complainant has failed to prove occupancy thereof, by the accused, at the relevant time. Moreover, it is also submitted that no efforts were made by the complainant to find out gram panchayat number of the house of the accused, and even no enquiry was made about the same with the local Sarpanch/Police Patil/Gram Sevak. It is further submitted that the existence of flour mill is in dispute and there is nothing on record to indicate that the accused was running any flour mill and committed theft of electricity and used the same in his house, as well as for the flour mill. It is also canvassed that the spot panchanama and seizure panchanama were prepared, but the signatures of the accused were not obtained thereon, in receipt of copies thereof by him. It is further submitted that PW-2 complainant stated in his cross examination that similar service wire, as allegedly seized, were available in the market, and even there was no complaint from the local lineman about the alleged theft of electricity, and hence, learned counsel for the appellant-accused submitted that false case was filed against the accused and he was implicated therein, falsely, and accordingly, learned counsel 12 criapl-345.07 for the appellant-accused urged that present appeal be allowed, by setting aside the conviction and sentence inflicted upon the appellant, in view of the aforesaid gross irregularities and non compliances. 18. The learned Counsel Shri M.B.Paithankar for respondents, countered the said arguments and submitted that the letter was sent to the accused in respect of demand of charges for stolen electricity and compounding charges and copy thereof, is produced at Exh.28, and thereafter the accused deposited the dues claimed by respondent no.2, but he failed to satisfy the compounding charges. According to the learned counsel, the said conduct of the appellant-accused itself shows that he had committed theft of electricity. It is further submitted that although there is mention in the complaint that photographs were taken, same could not be produced before the court, since those were damaged. It is also submitted that the spot panchanama and seizure panchanama were prepared after the raid, and service wire and hook were seized in presence of the panchas and their signatures, so also signatures of the accused were obtained thereon, after giving copy thereof to the accused. Hence, it is submitted that there are no irregularities and non compliance of any procedure, as alleged. Accordingly, learned counsel for the respondents urged that the present appeal bears 13 criapl-345.07 no substance, and the learned trial court rightly convicted and sentenced the appellant-accused, and hence, no interference therein, is warranted under appellate jurisdiction, and prayed that the appeal be dismissed. 19. I have perused the record and proceedings, as well as oral and documentary evidence adduced and produced by the complainant, as well as perused the contents of the impugned judgment, and heard the submissions advanced by the learned counsel for the parties, anxiously, and having the comprehensive view of the matter, I am inclined to accept the submissions advanced by the learned counsel for the appellant-accused, since, at the outset, although the complainant examined two witness i.e. himself and panch witness Arjun Shinde, it is apparent that panch witness turned hostile and did not support the complainant, and cross examination of panch witness conducted by learned counsel for the complainant could not elicit any material, beneficial to the case of the complainant. In fact, it has come in the testimony of panch witness that he cannot say whether the accused was present at the time of alleged trap or not, and whether the spot panchanama was prepared in his presence. 14 criapl-345.07 20. Moreover, considering the testimony of PW-2 complainant Kashinath Jadhav, as regards occupancy of the house in question and flour mill, it is significant to note that the complainant admitted that he did not make any enquiry with local Sarpanch/Police Patil/Gram Sevak, to ascertain as to whether the said properties belong to the accused, nor did he collect any documentary evidence to show that the said property belong to the accused, nor did he try to get gram panchayant number of the said house. It is, therefore, amply clear that there is no legal, cogent and convincing evidence to prove and establish the nexus between the alleged occupancy of the house in question and the flour mill, by the accused. Moreover, although there is reference in the complaint, regarding photographs allegedly taken at the time of aforesaid raid, the complainant has not produced the said photographs on record, giving reason that same were damaged, and the said failure on his part speaks volume for itself. 21. Pertinently, PW-2 complainant Kashinath Jadhav admitted that he did not give copy of list of seized articles to the accused and he did not seize instruments of the flour mill, nor he collected any document to show that the said instruments and the flour mill were owned by the appellant-accused. Moreover, on perusal of the spot panchanama (Exh.25) and seizure panchanama (Exh.26), although signatures of the accused 15 criapl-345.07 appear thereon, the said documents do not disclose that copies thereof were handed over to the accused, and there is no endorsement to that effect thereon, and the said non compliance also hampers the case of the complainant. 22. Besides that, PW-2 complainant Kashinath stated in his cross examination that there was no complaint from the local lineman about the theft of electricity and, therefore, the question arises, when there was no complaint from local lineman, how and why raid was conducted on the house of the accused and no explanation is coming forward in that respect, except alleged report, and therefore,the accused is entitled for benefit of doubt. 23. Besides, there are vital admissions in the testimony of material witness, namely, PW-2 complainant Kashinath Jadhav, and testimony of panch witness PW-1 Arjun Shinde is of no aid and assistance, as he turned hostile, as well as there are discrepancies and infirmities in the complainant's case, and therefore, having comprehensive view of the matter, it is amply clear that the complainant has failed to prove and establish charge levelled against accused, beyond reasonable doubt, and therefore, the conviction and sentence inflicted upon the appellant herein - original accused, for offence under Section 135 of the Electricity Act, is erroneous and unsustainable, and 16 criapl-345.07 hence, same deserves to be quashed and set aside, by allowing the present appeal. 24. In the result, present appeal is allowed, and the conviction and sentence inflicted upon the appellant-original accused Bhausaheb s/o Bansi Wagh, by way of judgment and order dated 16.8.2007, rendered by the learned Additional Sessions Judge-II and Special Judge, Beed, in Special Case No.25 of 2006, stands quashed and set aside, and the appellant-accused is acquitted of the offence with which he was charged and convicted. Bail bond of the appellant-accused stands cancelled. Fine amount, if any, be refunded to him. pnd/criapl-345.07 (Shrihari P. Davare, J.)