M.P. Madhya Kshetra Vidyut Vitran Co.Ltd. vs Kanhaiyalal, Tarachand

This appeal under Section 156 of the Electricity Act, 2003 read with Section 378(1) of the Cr.P.. has been filed by the complainant/appellant assailing the judgment and order of acquittal dated 22.05.2012 passed in Special Case No.88/2010 by the Special Judge (Electricity Act), Special Court No.2, Bhopal (M.P.) whereby the respondent (hereinafter referred to as 'the accused') has been acquitted of the offence under Section 135 (1)(b)(c) (d)(e) of the Electricity Act, 2003.

It has been alleged against the accused under Section 135 (1) (b) (c) (d)

of the Electricity Act that on 11-7-2010 at 1.15 pm, the accused, by sealing and tampering the body of connection service no. 87944 meter no. 2820697 installed by MP Vidyut Vitran Company Ltd. at premises no. 08 Angrezi Sharab Ahata, near Sehore Naka, Bairagarh Bhopal, by closing one phase, damaging and corrupting the meter, by using electrical appliances as a user, committed theft of total 9855 watts of electrical load energy amounting to Rs. 2,30,077/- without the consent of the electricity company with the intention of dishonestly obtaining wrongful gain.

3 . A complaint has been presented on behalf of the complainant to the effect that the complainant is a limited company, which does the work of electricity distribution in the central region of M.P. and on behalf of the company, Mr. S.C. Khare, Assistant Engineer has the authority to submit the complaint and take court proceedings. On 11-7-2010 at 1.15 pm, during the inspection by Assistant Engineer Kartik Srivastava of the complainant company at the premises No. 08 English Liquor Ahata, near Sehore Naka, Bairagarh Bhopal, under the possession of the accused under Tehsil Huzur District Bhopal, it was found that the accused was committing illegal electricity theft in the premises under his possession. On investigation of the incident spot, it was found that the connection in the premises under the possession of the accused was legal but by tampering the seals of the body of the electric meter installed by the complainant department and by closing one phase and contaminating the meter, the accused was dishonestly consuming electricity illegally without the consent of the complainant department with the intention of causing wrongful financial loss. The accused was found stealing 4 fans of 60 watts each, 16 tube lights of 40 watts each, 25 CFLs of 18 watts each, 6 bulbs of 10 watts each, one TV of 150 watts, 6 coolers of 500 watts each, one freezer of 1500 watts, 9 fridges of 500 watts each, thus a load of 9855 watts. During the said investigation, Assistant Engineer Kartik Srivastava of the complainant inspection team prepared a panchnama on the spot in the presence of Rajiv Saxena and seized meter no. 2820697 Make Elemer reading 69251 and the panchnama was prepared on the spot in the presence of the accused's representative Man Singh and a copy of the panchnama was given to him and his signature was taken on the panchnama and Rajiv Saxena present on the spot was also taken. While preparing the panchnama by the inspection team, one phase of the meter was found to be switched off and the accused was sanctioned a meter load of 3250 watts, in contrast to this he was found to be using 9855 watts unauthorisedly, on the basis of which it was decided to get the meter tested in the LTMT lab and a notice was sent to the accused to remain present in the LTMT lab on 10-8-2010 for meter testing. The above information letter was received by the accused's representative Rajesh Rai, on the basis of which Yogendra Singh, his representative, appeared on behalf of the accused on 12-8-2010. In his presence, when the meter was tested at 7.5 kilowatts, the seals of the meter body were found to be tempered and the meter was not showing EMP and consumption on the left phase. A hole was found on the back side of the meter and the meter was found to be 17.40 percent slow. The signature of Yogendra Singh, the representative of the accused, was obtained on the LTMT lab report. After this, a panchnama was prepared for internal inspection of the meter and the meter was opened. Upon physical examination of the meter's CPTP circuit and counter mechanism, a hole was found behind the dial counter on the meter body, a hole was also found on the dial counter's back cover, and scuff marks were found on the dial counter's digits. Therefore, the meter's internal circuitry was found to be tampered with. The LTMT lab report for meter No. 2820697 confirms that the accused committed illegal electricity theft by tampering with electrical works and preventing the meter's proper registration and calibration. This act of the accused is punishable under Section 135 (1) (b) (c) (d) (e) of the Electricity Act 2003. Upon receiving a notice from the accused regarding the estimated electrical damage and payment of ₹2,30,077, the accused deposited ₹1,32,550 but has not yet deposited the remaining amount. Thus, criminal liability arises because the accused is owed a fine. Therefore, this complaint was filed against the accused, requesting that he be convicted and sentenced under the said section.

4 . The accused has denied having committed the crime and has claimed that he is innocent and has been falsely implicated and in his defence, the statement of Purushottam Thakur has been recorded and documents from Ex.D-1 to Ex.D-3 have been produced.

The statements of S.C. Khare (PW-1) , Kartik Srivastava (PW-2), Rajiv Saxena (PW-3) and Priya Vasnik (PW-4) have been recorded on behalf of the complainant.

After the case was taken into cognizance, the learned Special Judge has framed the charge against the accused under Section 135 (1) (b) (c) (d) (e) of the Electricity Act 2003. The accused denied the charges and sought a trial.

The learned Trial Court having analyzed and marshalled the testimonies of witnesses and examined the documentary evidence available on record found that the prosecution has failed to prove its case beyond all reasonable doubts and eventually acquitted the accused respondent of the charge under Sections 135 (1) (b) (c) (d) (e) of the Electricity Act 2003. Hence, this appeal.

8 . It is submitted by learned counsel for the appellant that ample evidence has been adduced against the respondent–accused in the form of the testimonies of S.C. Khare (PW-1), Kartik Shrivastava (PW-2), Rajeev Saxena (PW-3), and Priya Vasnik (PW-4). However, despite the existence of such cogent evidence on record, the learned Trial Court has erroneously acquitted the respondent–accused. It is further submitted that the aforesaid witnesses prepared the panchnama and the spot map, which have been exhibited as Ex.P/2. A notice was also issued to the accused for testing of the meter in the laboratory, and provisional assessment letters were issued and exhibited as Ex.P/4 to Ex.P/6. The inspection/report documents have been exhibited as Ex.P/7 and Ex.P/8. Despite the availability of the aforementioned evidence, the learned Trial Court, without properly appreciating the material on record, has acquitted the respondent– accused. Therefore, it is most respectfully prayed that the judgment of acquittal passed by the learned Trial Court be set aside, and the respondent– accused be convicted for the offence and sentenced in accordance with law.

9 . Per contra, learned counsel for the accused/respondent has submitted that, in paragraphs 12 and 14 of the impugned judgment, the learned Trial Court has categorically held that the seizure of the meter has not been proved, as no separate seizure memorandum was prepared in that regard, nor has any evidence been adduced by the prosecution to establish whether the seized meter was kept in safe custody. The incident is stated to have taken place on 11.07.2010, whereas the meter was sent for testing only on 10.08.2010, i.e., after a lapse of nearly one month. There is no evidence on record as to where the meter was kept during this intervening period or whether it was maintained in a sealed condition. Therefore, the learned Trial Court has rightly concluded that there is no reliable evidence against the accused. It is further submitted that, in the facts and circumstances of the present case, the judgment of acquittal passed by the learned Trial Court cannot be said to be perverse or illegal. Accordingly, it is prayed that the appeal filed by the complainant/appellant company deserves to be dismissed.

Heard the learned counsel for the parties and perused the record.

11 . Kartik Shrivastava (PW-2) supported the prosecution’s case and deposed before the trial Court that on 11.07.2010, he, along with other officials, visited the shop of Kanhaiyalal to inspect the electricity connection. During the inspection, it was found that one phase was switched off and the total connected load was more than 9855 watts as against the sanctioned load of 3250 watts. He prepared a Panchnama (Ex. P/2). He further stated that he could not seize the meter at the time of preparing the Panchnama (Ex. P/2) due to the lack of necessary materials for seizure. Consequently, on the following day, Shri R.K. Dubey, Junior Engineer, seized the meter and sent it for testing. For this purpose, a notice was issued to the accused (Ex. P/3). An assessment order (Ex. P/4) and a provisional assessment order (Ex. P/5) were prepared. A bill (Ex. P/6) was also prepared by him, and another provisional assessment order was issued as Ex. P/7. The testimony of this witness was corroborated by Rajeev Saxena (PW-3).

It is not in dispute that the allegedly tampered meter was not seized on the date of the search, i.e., 11.07.2010. Although Kartik Shrivastava (PW-2) has stated that the said meter was seized on the following day by R.K. Dubey, Junior Engineer, the said R.K. Dubey has not been examined on behalf of the complainant to substantiate this assertion. Furthermore, there is no memorandum or seizure document on record to establish that the tampered meter was, in fact, seized on the subsequent day. There is also no documentary evidence on record regarding the seizure of the tampered meter, nor is there any material to show that the meter was kept in safe custody and in a properly sealed condition. In the absence of any seizure memorandum prepared at the time of the alleged seizure, it cannot be concluded that the meter was duly sealed at that time. On the contrary, the Panchnama (Ex. P/7) prepared by the Testing Officer merely indicates, in a printed format, that the meter was sealed in a carton box; however, this fact is not specifically recorded in the body of the report. Additionally, the Testing Officer, Priya Vasnik (PW-4), in paragraph 6 of her cross-examination, stated only that the meter was placed in a carton box and did not depose that it was sealed. Therefore, the prosecution has failed to prove, through reliable and cogent evidence, that the alleged tampered meter was properly sealed at the spot and remained in a sealed condition until it was tested.

1 3 . That apart, when the premises of the accused were searched on 11.07.2010, the alleged tampered meter was not seized on that day. In such circumstances, it is unclear how another officer, R.K. Dubey—who was not a member of the raiding party on 11.07.2010—subsequently seized the purported tampered meter. No member of the original raiding party accompanied him to identify the premises or to indicate the specific location where the meter, allegedly found tampered on 11.07.2010, was installed. Furthermore, the defence was deprived of the opportunity to exercise its right to cross-examine R.K. Dubey in this regard.

Kartik Shrivastava (PW-2), in his cross-examination, has admitted that the entire contents of Ex. P/2 are not in his handwriting and that portions thereof are in the handwriting of Rajeev Saxena. However, Rajeev Saxena (PW-3) has not deposed before the Court as to which portions of Ex. P/2 were written by him and which were not. A similar statement has been made by Kartik Shrivastava (PW-2). Further, Kartik Shrivastava (PW-2), in paragraphs 31 and 32 of his cross-examination, admitted that his statement (Ex. D/1) does not mention that the meter was sealed at the spot and thereafter sent to the laboratory for testing. The statement also does not disclose when the meter was seized or by whom it was removed for the purpose of seizure. No seizure panchnama has been produced in the present case. He was also unable to state how many days elapsed between the seizure of the meter and its dispatch for testing.

It is settled principle of law that if there two views are possible from the evidence, the view favourable to the accused will prevail. Therefore, the learned trial Court has rightly adopted such view and acquitted the respondent/accused from the levelled charge. No ground emerges to this Court warranting interference in the judgment of acquittal by the learned trial Court.

In the case of State of Gujarat v. Jayrajbhai Punjabhai Varu, (2016) 14 SCC 151 the Hon'ble Apex Court has held that prosecution has to prove the guilt of the accused beyond all reasonable doubt. It is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. In case of Nikhil Chandra Mondal v. State of W.B., (2023) 6 SCC 605 Hon'ble Apex Court has observed that it is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. Unless finding of the trial Court is found to be perverse or illegal/impossible, it is not permissible for the appellate Court to interfere with the same.

Recently in case of Mallappa & others v. State of Karnataka, (2024) 3 SCC 544 the Hon'ble Apex Court has again summarized the principles while deciding the appeal against acquittal which are as follows :-

Ex consequenti, in the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the accused/respondent. There is no ground for interference with the findings of the trial Court.

Therefore, while affirming the findings of acquittal of respondent by trial Court, the appeal being bereft of merit is hereby dismissed.