IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 477 OF 1997 The State of Maharashtra ... Appellants. Versus 1. Pradeep Parasraj Mehta & Anr. ... Respondents. Mr. J.P. Yagnik, APP for Appellants. Mr. Prakash Naik, Advocate for Respondent Nos.1 and 2. CORAM : A.S. OKA, J. DATE : APRIL 4, 2009 ORAL JUDGEMENT: 1. By this appeal against Acquittal, the Appellants State of Maharashtra has challenged judgement and order dated 07/02/1997 passed by the Learned Judicial Magistrate, First Class at Khalapur by which the Respondents-accused were acquitted of the offence alleged under Section 39 of Indian Electricity Act, 1910 and under Section 379 r/w. Section 34 of Indian Penal Code. 2. The First Informer is the Deputy Executive Engineer of Maharashtra State Electricity Board. At the relevant time, the First Informant was attached to the Flying Squad of the said board. A company by the name M/s. A.P.L. Industrial Gas at Village Vadval, Tal. Khalapur, District Raigad was the consumer of the said board from 28/03/1984. The First Informant received an information that the said factory was committing theft of electrical energy. Accordingly, the First Informant alongwith the other members of the Flying Squad of the said board raided the premises of the said factory on 10/05/1991. The Flying Squad found that the sanctioned load of the factory was 497 k.w. The Flying Squad found that there was tampering done to the metering cable by tapping another 3 core cable to the meter cable. Thus, there was unauthorised tapping with the meter cable by the consumer. The Flying Squad ascertained as to how the said tapping affected the meter reading. The Flying Squad found that the meter reading was : 2 : showing the reduced consumption. On the following day even photographs were taken by the Flying Squad to prove the tampering. The F.I.R. was registered on 25/06/1991. The charge was framed against the Respondents alleging that the Respondents (Accused Nos.1 and 3) in furtherance of the common intention with the Accused Nos.2 and 4 (whose trial has been separated) from October 1984 to 1991) dishonestly took the electrical goods out of the possession. The prosecution examined 5 Witnesses. After considering the evidence on record, the learned Magistrate passed the order of acquittal. 3. The learned APP in support of the Appeal contended that the impugned order is perverse. He submitted that the Learned Trial Judge has completely ignored the inspection sheet dated 10/05/1991. He submitted that the Learned Magistrate ought to have taken into consideration Panchnama at Exhibit 29, which shows that the metering cable was covered with M-Seal. He submitted that the photographs produced on record ought to have been admitted in evidence. He submitted that evidence of the prosecution witnesses Mr. Shelar and Mr. Jadhav clearly proves the guilt of the Respondents. The Learned Counsel appearing for the Respondents supported the impugned judgment and order and submitted that no interference is called for. 4. I have carefully considered these submissions. It will be necessary to refer to evidence of PW1 Mr. Ramchandra Prabhune. He was a member of the Flying Squad which visited the company on 10/05/1991. He stated that after digging was carried out the meter cable was found to be tapped by another cable. He stated that the cable which was used for tapping the meter cable was connected to laboratory room in the factory premises. He stated that he tested the meter, which showed that it was showing 34% less consumption. He proved the Panchnama in evidence. He stated that on the next day i.e. 11/05/1991 he again visited the factory. At that time, he found that the cable by which meter cable was tapped was removed and at the point at which it was tapped, M-Seal was applied. He accordingly prepared a Panchnama which : 3 : was proved in evidence. He produced 3 photographs taken out on that day which were marked as Articles 'A' , 'B' and 'C' respectively. 5. In the cross-examination, he admitted that since the year 1984, the officers of the board used to take meter reading by visiting the factory. He admitted in the cross-examination that he did not disclose in the complaint that he examined CTPT unit and recorded the voltage and the current. In the cross-examination by the 2nd Respondent, he was shown Circular dated 03/02/1988 and 15/04/1991. He admitted that the said Circulars were issued by the board. He admitted that he had not seen the sanctioned plan in respect of the installation of electric meter, which is required to be kept with the board. He admitted that the meter is installed by the board. He admitted that the metering cable used to be connected to the Terminal Box and that from the Terminal Box, the cable joins the meter terminal. He admitted that the Terminal Box is sealed by the board. He stated that he opened the seal of the meter box in the presence of the accused but he has not produced the broken seal. He admitted that time was not mentioned in the Inspection sheet at Exhibit 28. He stated that the photographs taken out by him were by using a Camera provided to the Flying Squad. He admitted that he has not handed over the negatives of the photographs. He admitted that Circular dated 03/02/1988 provided that the meter cable should be made visible and meter arrangement of high tension consumers should be inspected. He admitted that Circular provides that if there is a difference in the reading at a sub-station and units consumed by the consumers by a particular fidder line, the concerned staff member is required to report the same to his officers. 6. He admitted that in the Panchnama at Exhibit 27, it is not recorded that he had measured the meter readings. He admitted that in the Inspection Sheet at Exhibit 28, it is not mentioned that he had broken open the seal of the meter box. He stated that when he visited the factory on 11/05/1991 he had not prepared the Inspection sheet. He admitted that his superior : 4 : officers again visited the factory on 22/06/1991. He denied the correctness of the suggestion that he had demanded money from the Manager of the company. 7. PW2 is one Suresh Shelar, who was working as a line-man in the Flying Squad. He deposed before the Court as to what transpired on 10/05/1991 and 11/05/1991. There is nothing particular in his cross-examination. PW3 is one Maruti Sakpal, who is a Panch witness to the Panchnama at Exhibit 39. He was examined to prove the Panchnama. 8. PW4 Mahadev Sopan Jadhav was working as Assistant Vigilance Officer with the Flying Squad. He also deposed regarding the visit of the Flying Squad to the factory on 10/05/1991 and 11/05/1991. He admitted that when they visited the factory, the Accused No.1 Pradeep Mehta was working as an Accountant of the said company. In the cross-examination, he admitted that he being a graduate in Arts, he was not having any knowledge in respect of the electricity. PW5 is one Gajanan Rajaram Huddedar. He is the Assistant Inspector of Police, who carried out investigation. He deposed regarding investigation carried out by him by recording statements of the prosecution witnesses. In the cross- examination, he admitted that he had no technical knowledge about the electricity. He admitted that the officers of the board did not produce any evidence to show that the Accused No.1 was the authorized person of the company. He stated that he visited the company on 08/07/1991. He admitted that except for witness Jadhav he has not recorded statement of any other witness. 9. Perusal of the impugned judgment and order shows that the learned Trial Judge has considered and appreciated the evidence of the prosecution witness. The learned Judge referred to Section 20 of the Indian Electricity Act and observed that notice under Sub- section (1) of Section 20 was not served to the owner of the company and therefore the owner of the company had no opportunity to remain present when the Flying Squad visited the : 5 : factory. The learned Judge observed that the fact that raid was conducted without giving an opportunity to the owner to remain present is certainly relevant. 10. Another reasons given by the Learned Judge for passing the impugned order of acquittal is that though independent witnesses were available in the neighbouring factories, they were not called by the raiding party. The learned Judge recorded a finding that the Panch witnesses to the Panchnama at Exhibit 27 were not examined by the prosecution and therefore the contents of the said Panchnama have not been proved. Another important aspect is that the Inspection sheet at Exhibit 28 is not signed by Panch witnesses. Moreover, the time at which the said sheet was prepared is not mentioned in the said sheet. The said Inspection sheet was not signed by other members of the Flying Squad. The learned Judge observed that there was no explanation forthcoming from the prosecution as to why the Inspection sheet at Exhibit 28 was not signed by any other member of the Flying Squad. A copy of the said Inspection sheet was not supplied by the board to the owner and the same was filed alongwith the F.I.R. 11. There is another aspect of the matter. As pointed earlier the Flying Squad visited the factory premises on 10/05/1991. A Panchnama was drawn at that day. The said Panchnama records that there was an unauthorised tapping of the meter cable by using another cable. The cable by which the meter cable was tapped was not seized by the Flying Squad on 10/05/1991. The case of the prosecution is on the next day when Mr. Prabhune again visited the factory premises, the unauthorised tapping of the cable meter was found missing. The learned Judge found that failure to seize the cable was a major default on the part of Mr. Prabhune. The learned Judge found that on this background, the delay of one and half months in lodging the F.I.R. becomes significant. 12. Reliance has been placed on photographs (Article 'A' to Article ' C') allegedly snapped by witness Prabhune on 11/05/1991. Surprisingly, the negatives of the said photographs have not been : 6 : placed on record. The witness Prabhune in response to question in cross-examination stated that he was not sure whether the photographs were snapped by he himself or any other member of the Flying Squad. 13. There is one more important aspect of the matter. The allegation was of theft of electricity by unauthorisedly tapping the meter cable. It appears that the meter cable was subsequently seized by the Investigating Officer, however, the said meter cable was not produced before the Court. Production of the said meter cable was very essential as the case of the prosecution was that it was tapped at a particular spot. Moreover, the cable allegedly used for tapping the meter cable has not been seized. 14. In the circumstances, a finding has been recorded by the learned Trial Judge that the offence of theft under Sec. 39 of the Electricity Act and offence under Sec. 379 of the Indian Penal Code have not been established. If, the entire oral and documentary evidence is considered, it appears that the findings recorded by the learned Trial Judge are certainly possible findings which could have been recorded on the basis of the evidence on record. Hence, no interference is called for with impugned order of acquittal. Appeal is accordingly dismissed. (A.S. OKA, J.)