Madhav S/O Mohanaji Jarande vs The State Of Maharashtra

In this appeal there is challenge to the judgment and order dated 27.09.2016 passed by learned Additional Sessions Judge, Hingoli in Special (Electricity) Case No.07 of 2011 recording conviction under Section 135 of the Electricity Act, 2003.

In short, the story of prosecution in trial Court is that on 15.06.2009 flying squad of MSEB paid surprise visit to village Phutana i.e. to the house of appellant. Officials noticed theft of electricity by extracting energy by use of hook attached to an overhead wire. Panchanama to that extent was carried out and on behalf of MSEB authorities, PW1 filed complaint Exhibit-18, which was investigated and through Jalna Taluka Police Station, accused were charge-sheeted for offence under Section 135 of the Electricity Act, 2003. Trial was conducted before the learned Additional Sessions Judge, Hingoli vide Special (Electricity) Case No.07 of 2011, in which three officials of MSEB were examined. The panchanamas and photographs placed on record were appreciated by the learned Trial Court. After hearing both sides, the learned Trial Court held that the offence punishable under Section 135 of the Electricity Act was proved against the appellant and, accordingly, convicted him and sentenced him to pay a fine of Rs.1,25,000/-, in default, to suffer simple imprisonment for two months. Precisely, the said judgment and order of conviction is now the subject matter of this appeal.

Learned Counsel for the appellant would submit that there is false implication. According to him, there was no convincing or legally acceptable evidence on the point of theft of electricity. He took this Court through the photographs snapped by PW1 and would submit that in support of such evidence, the certificate under Section 65-B of the Indian Evidence Act was not placed on record. He further pointed out that mere communication Exhibit-18 was issued alleging theft of electricity for a period of six months, but the same had no foundation or basis. That, on what basis computation was done about the quantity of theft has not been demonstrated. According to him, no bill for consumption of said electricity was ever served to the appellant, however, learned trial Court has accepted the case of prosecution and recorded conviction which according to him error committed by the learned trial Court. He also pointed out that though spot panchanama is drawn, the witness while under cross-examination has admitted that signature was effected on the panchanama by sitting in the office and not at the spot and thus, according to learned Counsel for the appellant, such quality of evidence renders case of prosecution doubtful. He also pointed out that there are allegations of running flour mill in the house, but ownership of premises is also not established. For such reasons, he criticized judgment and order of conviction and prays to allow the appeal by setting aside the impugned judgment and order.

Learned APP supported and justified the judgment and order of conviction and prays to dismiss the appeal for want of merits.

Heard. Re-appreciated the evidence on record. Precise case of the prosecution is that during visit to village Phutana on 15.06.2009, PW1, PW2 and PW3, who were party to the flying squad of MSEB, noticed electricity extracted by use of hook in unauthorized manner and that, it amounted to theft of electricity.

Complainant PW1 deposed about drawing spot panchanama, snapping photographs. According to him, there was theft of energy of 13500 units worth Rs.71,049/-. He identified panchanama as well as photographs placed on record.

As pointed out, in cross-examination he admitted that he had not collected the document pertaining to the ownership of premises where the alleged flour mill was being run and for running the same, electricity was stolen. As pointed out, though photographs are placed on record, no certificate under Section 65-B of the Indian Evidence Act appears to have been produced through this witness for accepting the photographs.

PW2 seems to be the lineman and he also deposed about visit to the village, noticing flour mill in operation in the house of appellant by committing theft of electricity. He claims to have come across three phase electric motor being run by drawing electricity through an electric cable. Whereas PW3 deposed that they visited house of appellant and drew panchanama Exhibit-15, but while under cross-examination he admitted that he had not read the contents of the spot panchanama Exhibit-15 and had signed the same while sitting in the office.

Therefore, on complete re-appreciation of above evidence, here, as pointed out, no independent witness has been examined and all the witnesses seem to be of electricity department. Apparently, no certificate under Section 65-B of the Indian Evidence Act has been obtained to substantiate the photographs alleged to be of the premises where the flour mill was said to be run. The prosecution witnesses have admitted that no document was collected to establish that the premises were owned by the appellant. More importantly, neither any energy consumption bill has been served on the complainant, nor any copy to that extent has been placed on record. Therefore, in the light of above quality of evidence, case of prosecution rendered weak. Consequently, the judgment and order of conviction cannot be allowed to be sustain. Hence, the following order :-