crapln183.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.183 OF 2010. Maharashtra State Electricity Distribution Company Ltd., through its Deputy Executive Engineer, Flying Squad Unit, Jalgaon. .. APELICANT. VERSUS 1. Rukhminibai Vitthalrao Sontakke, age major, occu. Household, r/o Ram Nagar, Jalna, Tq. & Dist. Jalna. 2. Abdul Salim Abdul Ajij, age major, occu. Business. 3. Abdul Nadim Abdul Ajij, age major, occu. Business, R.Nos.2 and 3 r/o Rahemangunj Chowk, Sadar Bazar, Jalna. .. RESPONDENTS. ... Shri A.S. Bajaj, Advocate for Applicant. Shri A.A. Joshi, Advocate for R.No.1. Shri Joydeep Chatterjee, Advocate for R.Nos.2 & 3. ... crapln183.10 2 CORAM : S.S. SHINDE,J. 14th February, 2011. PER COURT: 1. Heard learned Counsel for the applicant. Since the facts are extensively stated by the trial Court in paragraphs 2 to 10 of the impugned judgment, the same need not be repeated here. 2. The learned Counsel for the applicant submitted that on 20th September, 2005 the Vigilance Squad visited the spot at about 10.30 a.m. The accused Nos.2 and 3 were present. It was found that seal of the meter was tampered and removed. Upon testing of the meter, it was found that "R" phase and "Y" phase were not recording any reading. The learned Counsel submitted that prosecution case is supported by P.W.1 Haridas. He further submitted that the evidence of P.W.3 Vishwanath Lahane cannot be discarded merely on the ground that he was not authorized. Such authorization is not contemplated under any Rules. The learned Counsel for applicant further crapln183.10 3 submitted that P.W.5 Laxman has also supported the case. He further placed reliance on the photograph which shows that the accused Nos.2 and 3 were present throughout panchanama. The learned Counsel invited my attention to the provisions of Section 135 of the Electricity Act and submitted that once it was brought on record that there was secondary wires of "R" and "Y" phase were cut, necessary panchanama was drawn and bill was also given to the accused Nos.2 and 3 and when the prosecution has established its case, in that case, burden was on the accused to rebut the presumption u/s 135 of the Electricity Act. The learned Counsel took me through the evidence of the witnesses and also other part of the record and submitted that the application of the applicant deserves to be allowed. He also invited my attention to the provisions of Section 152 of the Electricity Act and contended that compounding bill was given under that section and the accused have accepted the same. Therefore, he would submit that the application deserves to be allowed. crapln183.10 4 3. On the other hand, the learned Counsel for the respondents No.2 and 3 submitted that there is no any document or proof to connect the respondents No.2 and 3 to the entire case. He further submitted that the contents of the alleged document, which is referred in the evidence by P.W.5 Laxman, are not proved and as such, the said document could not have been read in evidence. He further submitted that the trial Court in paragraph 28 of the impugned judgment, has commented upon the evidence of P.W.3 Vishwanath, who was not authorized at the relevant time or no any authorization letter was placed on record. Therefore, the learned Counsel would submit that the trial court has taken a possible view and no interference is warranted by this Court. 4. The learned Counsel for accused / respondent No.1 submitted that except para 1 of the complaint, no other allegation against respondent No.1 has been made, no notice, no bill was given crapln183.10 5 to her and therefore, the trial Court has taken correct view on the basis of the record and, therefore, this Court may not interfere in the impugned judgment. 5. Upon hearing the learned Counsel for the parties, I am of the opinion that the evidence brought on record does not inspire confidence to upset the impugned judgment and order. The witnesses who supported the case of the applicant are working with the establishment. Two panchas, who were independent witnesses, have not supported the panchanama. That apart, the presumption under Section 135 of the Electricity Act would arise only when foundation is laid down by the prosecution. In the present case, no electricity bill was given to the accused. It was not convincingly brought on record that they are authorized users of the electricity and misused it. It is true that some documents are referred in the evidence by P.W.5. However, contents of the said documents should have been proved and exhibited, as rightly contended by the crapln183.10 6 Counsel for the accused / respondents No.2 and 3 and adverse circumstances should have been put to the accused at the time of recording statement under Section 313 of Cr.P.C. It is also admitted position that no authorization letter was placed on record authorizing P.W.3 to test the meter. 6. Therefore, taking overall view of the matter, in my opinion, the view taken by the Special Court, Jalna is not perverse and a possible view has been taken. 7. Therefore, no interference is warranted. Application seeking leave to appeal is rejected. [ S.S. SHINDE ] JUDGE. ... PLK/*