1 crap3565.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3565 OF 2010 The State of Maharashtra ...Applicant VERSUS Shriram Karbhari Abhale ...Respondent ..... Shri S.G.Nandedkar, A.P.P.for applicant/State Shri V.Y.Bhide, advocate for sole respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 8 th April, 2011 PER COURT : 1 Heard Shri S.G.Nandedkar, A.P.P. for applicant/State and Shri V.Y.Bhide, advocate for sole respondent. 2 This is an application, preferred by the applicant/State, seeking leave to file appeal, challenging the judgment and order of acquittal, dated 5.2.2010, rendered by the Judge, Special Court, Sangamner, in Special Case No. 7 of 2006, thereby acquitting the respondent (original accused) for the offence punishable under Section 135 of the Electricity Act. 2 crap3565.10 3 I have perused the judgment and order, dated 5.2.2010 and the record and proceedings with the assistance of both the learned A.P.P. for the applicant/State and the learned counsel for the respondent. 4 Briefly stated, facts of the case are as follows :- On 29.6.2005 between 4.30 p.m. to 5.00 p.m., the Junior Engineer Mr. Barde and lineman Pathan from Maharashtra State Electricity Board inspected electric meter of the flour mill of the accused and found that there was an additional unauthorised electricity supply directly connected from main service line bypassing meter to the flour mill and house of the accused. Hence, they seized the wire which was used for unauthorised connection and on the basis of his report the bill for theft of electricity worth Rs.18,065/- was issued to the accused, which was paid by the accused, but he failed to deposit compounding charges of Rs. 2,00,000/-. Hence, PW1 Mr. Harak, Junior Engineer, M.S.E.B. lodged the first information report against the applicant and thereupon the police registered the offence under C.R.No. II 42 of 2005 on 5.11.2005. The investigating officer recorded the statement of witnesses and arrested the accused and after completion of investigation, filed charge sheet against the accused before the learned 2 nd Judicial Magistrate, First Class, Sangamner, who committed the case for trial to the Court of Sessions, Sangamner on 24.4.2006. 3 crap3565.10 5 To substantiate the charge levelled against the respondent (original accused), the prosecution examined in as much as six witnesses as follows :- PW1 Vitthal Parsharam Harak – Complainant PW2 Nandkumar Barde, Junior Engineer, M.S.E.B. PW3 Bansi Bhika Gaikwad, Panch witness – turned hostile PW4 Ramesh Bhadange, panch witness – turned hostile PW5 Hasan Hussen Pathan, lineman PW6 Gangadhar Vikhe, PHC, investigating officer. 6 At the out set, it appears that the complainant Mr. Harak, who lodged the first information report against the applicant, is not the competent officer to lodge complaint in accordance with Section 162 of the Electricity Act, and therefore, cognizance of the offence taken under Section 151 of the Electricity Act comes into doldrums. Moreover, both panchas have turned hostile and even the seizure panchanama does not appear to have been prepared. 7 According to PW2 Barde, he had seized one wire allegedly used for unauthorised electricity connection, but it is not produced by him before the police nor police personnel have seized it from him. As mentioned herein above, no seizure memo was prepared regarding 4 crap3565.10 seizure of the said wire and copy of the same was not given to the accused. Moreover, the wire produced before the court, after the evidence of PW2 Barde by him is in two pieces as per his evidence and the description of the wire was not mentioned anywhere by him. Accordingly, the seizure of the said wire has not been proved beyond reasonable doubt. 8 It is also significant to note that although it is necessary to give the list of the seized articles to the accused as per the provisions of the Electricity Act, same was not done in the present case, and as mentioned herein above, both the panchas have turned hostile and did not support the case of the prosecution. 9 Besides, there are omissions and contradictions in the testimonies of the prosecution witnesses and the evidence of PW1 Harak and PW5 Pathan is contradictory to each other and the testimony of PW2 Barde also suffers from material omissions. 10 Hence, the trial Court rightly arrived at the conclusion that the prosecution failed to prove and establish the charge levelled against the respondent beyond reasonable doubt, and consequently, acquitted the accused/respondent. 11 In the circumstances, after scrutinizing and assessing the evidence on record, the view taken by the trial Court, while acquitting the 5 crap3565.10 accused/respondent, is a possible view and same does not appear to be perverse and the reasoning adopted therefor cannot be faulted with, and therefore, no interference is called for in the appellate jurisdiction, and hence, present application deserves to be rejected. 12 In the result, present application is dismissed. Leave to file appeal is refused. R. and P. be sent back to the concerned Court. Present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap3565.10