(1) Cri. Appeal No. 649 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. CRIMINAL APPEAL NO. 649 OF 2011 Maharashtra State Electricity Distribution Company Ltd., Flying Squad Unit, Latur, Through its Deputy Executive Engineer, Shri Bapurao Ganpatrao Pawar, Age : 52 years, Occupation : Service, .. Appellant Presently working as Dy. Exe. Engineer, (Original South Sub-Division, Latur. complainant) versus 1. Sow. Vijaymala w/o. Suresh Sangvikar, Age : Major, Occupation : Business, R/o. Ahmedpur, District : Latur. 2. Shri Suresh s/o. Laxman Sangvikar, Age : Major, .. Respondents Occupation : Business, (Original accused R/o. Ahmedpur, District : Latur. nos.1 and 2) ....................... (2) Cri. Appeal No. 649 of 2011 Mr. P.B. Paithankar, Advocate, for the appellant. Mr. V.D. Gunale, Advocate, for respondent nos.1 and 2. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 8TH DECEMBER 2011 ORAL JUDGMENT : 1. With the consent of learned Counsel for the parties, taken up for final hearing and heard finally. 2. This is an appeal preferred by the appellant (original complainant), challenging the order dated 8th July 2011, passed by the learned Additional Sessions Judge, Ahmedpur (District : Latur), in Special (Electricity) Case No. 1/2011, thereby dismissing the complaint filed by the complainant and acquitting the respondents i.e. original accused for the offence punishable under Section 135 of the Indian Electricity Act, 2003. 3. I have perused the impugned order dated 8th July 2011, and the record and proceedings with the assistance of the learned Counsel for the parties. (3) Cri. Appeal No. 649 of 2011 4. Parties are hereinafter referred to as per their original status i.e. complainant and accused. 5. The appellant is a Government undertaking engaged in distribution of electricity to its consumers in the State of Maharashtra. Its head office is situated at Mumbai and it has various regional offices / area offices spread all over in the Maharashtra State. 6. It is alleged that on 22-5-2006, during routine check up, the complainant went to the Ice Factory of accused nos.1 and 2, and it was found that the accused nos.1 and 2 have not taken any legal / authorized Electric Meter and were using the electricity by an unauthorized connection. It is also alleged that it was found that the accused nos.1 and 2 had taken electricity connection directly from service wire by putting a hook to the service wire which is unauthorized and illegal as per provision under Section 135 of the Indian Electricity Act, 2003. Accordingly, panchanama was drawn in the presence of accused and witnesses and accused no.2 had put his signature on the said panchanama. Moreover, the complainant also took photographs of the spot. So also, the complainant tried to seize the service wire which was being used by the accused for the said illegal connection, but accused no.2 opposed the complainant and did (4) Cri. Appeal No. 649 of 2011 not permit him to seize the said wire. 7. According to the calculations of the complainant, the complainant / MSEDCL has sustained huge loss of Rs. 45,859/-, which is due and recoverable from the accused, on account of the aforesaid theft of electricity. It is also alleged that the accused are liable to pay compounding charges of Rs. 4,00,000/- as per Section 152 of the Indian Electricity Act. Hence, the complainant filed criminal complaint i.e. R.C.C. No. 94/2006 on 19-6-2006 before learned Judicial Magistrate (F.C.), Ahmedpur, against accused nos.1 and 2, under Section 135 of the Indian Electricity Act. Thereafter, the said case was transferred to the court of Additional Sessions Judge, Ahmedpur, and re-numbered as Special (Electricity) Case No. 1/2011. The plea of the accused came to be recorded on 20th August 2007, and the said case was adjourned for trial. It also appears that the said case was adjourned from time to time and lastly it came on the board on 8th July 2011. However, since the complainant and his Advocate were absent on the said date, the case was dismissed by the learned Additional Sessions Judge, Ahmedpur, for non- prosecution and accused nos.1 and 2 were acquitted for the offence punishable under Section 135 of the Indian Electricity Act. Being aggrieved and dissatisfied by the said order dated 8th July 2011, the complainant i.e. appellant herein has preferred the (5) Cri. Appeal No. 649 of 2011 present appeal challenging the same and prayed for quashment thereof. 8. Mr. P.B. Paithankar, learned Counsel for the appellant, submitted that the case of the complainant came to be dismissed by order dated 8th July 2011, due to absence of the complainant and its Advocate, which is a dismissal on technical ground and not on merits. He has further submitted that the complainant has good case on merits and, therefore, matter be remanded back to the trial court for decision afresh, by quashing and setting aside the impugned order. 9. Mr. V.D. Gunale, learned Counsel for the respondents (original accused), has opposed the present appeal vehemently, and submitted that the complainant was not diligent in prosecuting the case, and he remained absent on various dates which is explicit from the Roznama, and submitted that the present Appeal bears no substance, and the same is devoid of merits, and therefore, urged that the same be dismissed. 10. On perusal of the impugned order dated 8th July 2011, and after considering the rival submissions advanced by learned respective Counsel for the parties, it is apparent that due to the absence of the complainant and its Advocate on 8-7-2011, the (6) Cri. Appeal No. 649 of 2011 said case came to be dismissed for want of prosecution and accused were acquitted for the offence punishable under Section 135 of the Indian Electricity Act, and their bail bonds were cancelled. Hence, it is implicitly clear that it is a technical dismissal of the case and consequently acquittal of the accused under Section 256 of the Code of Criminal Procedure, and it is not dismissal of the case on its own merits. Moreover, on perusal of the Roznama, it appears that the accused also remained absent on some dates and even non-bailable warrants were issued against them once. Hence, it is apparent that although the complainant was not diligent in prosecuting the case, the accused also remained absent some times. Hence, present matter deserves to be remitted back to the concerned trial court, with directions to the parties to remain present before it on specified date, and with a request to the learned trial court to conduct the matter on its own merits, after quashing and setting aside the impugned order dated 8-7-2011, in the interest of justice, but subject to payment of reasonable costs by the appellant to the respondents, which is quantified at Rs. 3,000/-, to compensate them aptly. 11. In the result, present Criminal Appeal is allowed, and the impugned order dated 8th July 2011, passed by the learned Additional Sessions Judge, Ahmedpur (District : Latur), (7) Cri. Appeal No. 649 of 2011 dismissing Special (Electricity) Case No. 1/2011, and acquitting respondent nos.1 and 2 herein i.e. original accused, for the offence punishable under Section 135 of the Indian Electricity Act, 2003, stands quashed and set aside, and the matter is remanded back to the concerned trial court, with directions to both the parties to remain present before learned trial court on 9th January 2012, at 11.00 A.M., and with a request to the learned trial court to conduct the said case on its own merits, and parties are directed not to seek adjournment without unforeseen circumstances, subject to payment of costs of Rs. 3,000/- [Rupees three thousand only] by the appellant (original complainant) to the respondent nos.1 and 2 herein i.e. original accused, to be deposited in trial court, within a period of two weeks from today, and the present Criminal Appeal is disposed of finally. 12. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/kapp649