Boregowda and Others vs State of Karnataka

A.S. Pachhapure, J.

The order of conviction and sentence for the offence punishable under Sections 135 and 138 of Indian Electricity Act, 2003, is challenged in this appeal.

The facts reveal that on 17.07.2009 at 4.00 p.m., the Assistant Executive Engineer CESC (vigilance), Mandya raided the installation of Sugarcane crushing unit to manufacture the jaggery situated at Kabbahalli village. When inspected, it was found that the appellant had taken power connection to his sugarcane crushing unit from the electric line directly without any meter. He was running 10 HP electric motor for crushing sugar cane and for the purpose of lighting 200 watts bulb and 100 watts bulbs. In the circumstances, the mahazar was held as per Ex. P2 and sketch was drawn as per Ex. P3 and thereafter the crime was registered against the appellant for the aforesaid offences. During the course of investigation, the statements were recorded. The estimated bill (Exs. P5 and P7) and demand bill (Ex. P6) and required documents were collected and chargesheet was laid against the appellant.

In the trial, the prosecution examined P.Ws. 1 to 6, got marked Exs. P1 to P12 and MO1. After recording the statement of appellant under Section 313 Cr.P.C., the Trial Court heard the Counsel and on appreciation of the evidence on record, convicted the appellant for the charge under Sections 135 and 138 of the Act and ordered to pay Rs. 1,66,790/- as penalty for the offence under Section 135 of the Act and a sum of Rs. 5,000/- as fine for the offence under Section 138 of the Act. It also directed the appellant to pay Rs. 1,11,194/- as civil liability under Section 154(1) and (5) of the aforesaid Act. Aggrieved by the conviction and sentence, the present appeal is filed.

Heard the learned Counsel for appellant and also learned High Court Government Pleader.

The point that arises for my consideration is:

"Whether the appellant has made out any grounds to warrant interference in the conviction for the offence punishable under Sections 135 and 138 of Indian Electricity Act and for reduction of civil liability as ordered by the Trial Court?"

Learned Counsel for the appellant submits that there is no material for the offence alleged and except the official witnesses, there are no other witnesses examined to support the interested version. Hence, it is his submission that the conviction for both the offence under Sections 135 and 138 is not warranted. It is also his submission that the sugarcane crushing unit is not an industry. Therefore, the question of considering the bills on the basis of installation being the industrial unit does not arise. It is also his submission that the assessment of civil liability at Rs. 1,11,194/- and the penalty of Rs. 1,66,790/- under Section 135 of the Act is improper. He further submits that no case is made out for the offence under Section 138 of the Act. On these grounds, he has sought for setting aside the judgment and order.

On the other hand, learned High Court Government Pleader supporting the judgment and order of Trial Court submits that the evidence placed on record is sufficient to prove the theft of electric energy and the Trial Court was justified in awarding the penalty and imposing civil liability.

Perusal of the material placed on record reveals that P.W. 1 is the Assistant Executive Engineer who had visited the installation on 17.07.2009 and on inspection found that there was connection of electric wire (MO1) directly to the electric pole and the sugarcane crushing unit. It is in these circumstances that he held the spot mahazar (Ex. P2) in the presence of attesting witnesses and electric wire (MO1) was seized. The evidence of P.W. 1 is supported by the evidence of PW2 the lineman. So far as the spot mahazar is concerned i.e., the seizure of MO1, the prosecution has examined Venkatesh (PW5), the independent witness and he has not supported the case of prosecution. The prosecution has examined PW4 who is the Sub Inspector of Police and he was also present at the time when the installation was inspected and he later registered the crime No. 175/2009. It is he who held the spot mahazar in the presence of attesting witnesses.

It is no doubt true that except the official witnesses, none others have supported the case of prosecution, but that does not mean that the evidence has to be discarded. In fact, as could be seen from the cross examination of aforesaid witnesses, no malafides are attributed against the official witnesses in prosecuting the appellant. In that view of the matter, looking to the contents of spot mahazar (Ex. P2) and seizure of MO1 in the presence of attesting witnesses and the officials aforesaid, I am of the opinion that the Trial Court was justified in holding that there was theft of electric energy to run the crushing unit by-passing the electric meter and taking connection of the electric pole.

So far as the installation is concerned, it is the sugarcane crushing unit. The prosecution has not placed any evidence on record to state that the appellant was running an industry and carrying on the business of manufacturing jaggery by getting sugarcane from other farmers. In the absence of any such evidence, it cannot be said by any stretch of imagination that the sugarcane crushing unit installed by the appellant in his land is an industry. If it is industry, then only the question of utilizing the unit for a long period arises for consideration. But in the absence of any such evidence, if the farmer use the crushing unit for the purpose of manufacturing jaggery from the sugarcane crop that he grows, it cannot be said that he was using the unit for a continuous period of two months.

The life of sugarcane itself is 12 months and after it is grown, it is only at the fag end it is harvested and sugar cane is utilized for the purpose of manufacturing jaggery. In the said circumstances, at the most, a month''s time may be considered as the period of using the sugarcane crushing unit by a farmer to manufacture the jaggery. Therefore, when this maximum period could be fixed on the basis of aforesaid inferences drawn from the evidence placed on record, the calculation of penalty for the period of six months as held by the Trial Court or calculation of civil liability for one year does not arise for consideration. It is in the aforesaid circumstances that the question of penalty and civil liability will have to be assessed.

So far as the penalty is concerned, as contemplated under Section 135 of the Act, the fine shall be imposed which shall not be less than three times of financial gain on account of theft of electric energy and as could be seen from Ex. P5, the assessment made towards theft of electric energy is to an extent of 7,074/- units for 6 months. As the maximum period of theft of electric energy could be considered for one month, the financial gain would be Rs. 9,266/- being the price of 1,179 units i.e., 1/6th of 7,074/- units calculated under Ex. P5, thereby, the three times of financial gain would be Rs. 9,266 x 3 = 27,798/- This would be the amount of fine i.e., payable by the appellant under Section 135 of the Act.

Now, so far as the civil liability is concerned, at the rate of Rs. 9,266/- for theft of electric energy for one month, the amount payable towards civil liability would be two times the tariff rate and it would be Rs. 9,266 x 2 = 18,532/-. It is relevant to mention here that under sub clause (5) of Section 154, though the tariff rate applicable is for 12 months as stated for the theft of electric energy, alternative has been provided under the provisions to consider the theft of electric energy for exact period of theft. If it is to be determined on the basis of available evidence, as the appellant is a farmer and he committed theft of electric energy to manufacture jaggery by utilizing the sugarcane, that he had grown, as the maximum period of one month could be taken as the period during which there was theft of electric energy, the amount payable under the civil liability would be Rs. 18,532/- only. Therefore, the order made by the Trial Court directing the appellant to pay Rs. 1,11,194/- is improper and its needs modification.

So far as the offence under Section 138 of the Act is concerned, it is relevant to mention here that there was no interference with the meter that was installed. As could be seen from the evidence that has been placed on record, there was dis-connection of the meter earlier and the appellant had taken direct connection to the electric pole by by-passing the meter. Therefore, Section 138 of the Act is not applicable. Therefore, the conviction for the said offence has to be set aside. Taking into consideration the material placed on record and its appreciation, I am of the opinion that the conviction of appellant for the offence under Section 135 of the Act, fine and civil liability has to be modified.

Consequently, the appeal is allowed in part confirming the conviction for the charge under Section 135 of the Act. He is ordered to pay fine of Rs. 27,798/- in default to undergo simple imprisonment for three months. He is also further ordered to pay the civil liability at Rs. 18,532/-. His conviction for the offence under Section 138 of the Act is set aside.

The fine, if any, in excess deposited for the said offence shall be refunded to the appellant.