Chhattisgarh State Electricity Board v. State Of Chhattisgarh And Another

-1NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Reserved for orders on :29/11/2019 Order passed on : 04/02/2020 CRR No. 152 of 2008 • Chhattisgarh State Electricity Board, Through The Executive Engineer (O&M), Division C.S.E.B. Raigarh, District - Raigarh, Chhattisgarh, Chhattisgarh ---- Applicant

Versus

1. State of Chhattisgarh Through The Station House Officer, Police Station Sarangarh, Tahsil Sarangarh, District Raigarh Chhattisgarh, Chhattisgarh

2. Teekaram Patel Son of Visheshwar Patel, aged about 39 years, Caste Aghariya, Occupation Agriculturist, Resident of Village Achanakpali, Police Station and Tahsil Sarangarh, District Raigarh (C.G.) ... (Accused Person) -----Non-applicants For Applicant : Shri M.D.Sharma, Advocate For State/Non-applicant No.1 : Shri Sudeep Verma, Deputy Govt.

Advocate.

For Non-applicant No.2 : Shri Roop Naik, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order 04/02/2020 1.

This revision petition has been brought challenging the legality, propriety and correctness of the impugned judgment dated 28-092007 passed by Special Judge under the Electricity Act, Raigarh, C.G. in Special Case No.27/2007 by which Non-applicant No.2/respondent No.2 was acquitted of charge under Section 135 of the Electricity Act, 2003.

2.

The case of prosecution is this, that on 05-09-2005 Junior Engineer

-2of Electricity Board, R.K. Minj (PW-4) along with his team raided the house of Non-applicant No.2 under construction and found illegal electricity connection which was used for theft of electricity. One seizure memo of articles was prepared vide Ex.-P/1 and Panchnama Ex.-P/2 was prepared. One complaint was given to Police Station Sarangarh vide Ex.-P/5, on the basis of which FIR (Ex.-P/6) was lodged. The case was investigated and charge sheet was filed against Non-applicant No.2. Non-applicant No.2 was charged under Section 135 of the Electricity Act, to which he denied and prayed for trial. After completion of the trial, the Non-applicant No.2 has been acquitted of charge as has been mentioned hereinabove.

3.

It is submitted by learned counsel for the applicant that the impugned judgment suffers from serious infirmity. It was held in the impugned judgment that the applicant had been unable to prove that the house belongs to Non-applicant No.2/respondent No.2 and was in possession of the Non-applicant No.2, but the witnesses have very clearly stated that the Non-applicant No.2 was the person involved in theft of energy was being committed. Placing reliance on the judgment of Hon'ble the Supreme Court in the matter of Jagmohan Mehtabsingh Gujaral & Ors. Vs. State of Maharashtra, 2006 AIR SCW 5905, it is submitted that large scale theft of electricity is very alarming problem faced by all the State Electricity Boards causing loss to the State revenue. Therefore, commission of this offence should be viewed seriously.

-3Reliance has also been placed on judgment of Hon'ble the Supreme Court in the matter of Pooran Mal Vs. Director of Inspection (Investigation) of Income-tax New Delhi and others, AIR 1974 SC 348.

Reliance has also been placed on the judgments of Hon'ble the Supreme Court in the matter of Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani Sarojana, AIR 206 SC 2250 and State of Rajasthan Vs. Rajendra Prasad Jain, 2008 CRI. L. J. 1935. Further reliance has been placed on the judgments of Hon'ble the Supreme Court in the matter of Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004 CRI. L. J. 3115 and Johar & Ors. Vs. Mangal Prasad & Anr., 2008 CRI. L. J. 1627. On behalf of the applicant reliance has also been placed on the judgments of Hon'ble the Supreme Court in the matter of State Govt. of NCT of Delhi Vs. Sunil and another, 2001 CRI. L. J. 504 and Bhagwan Singh and others Vs. State of M.P., AIR 2002 SC 1621.

It is submitted that the relevant material witnesses present before the Court cannot be ignored only for the reason that no independent witness has testified in favour of the prosecution. The evidence present could not have been discarded which has been erroneously discarded by the Court below.

Further reliance has been placed on the judgment of M.P. High Court in the matter of State of M.P. Vs. Ramcharan, 2008 CRI. L. J. 201.

-4Reliance has also been placed on the judgment of Gujrat High Court in the matter of Gopalbhai Chandubhai Rana Vs. State of Gujarat, 2008 CRI. L. J. 4034 and further on the judgment of Punjab and Haryana High Court in the matter of Surinder Pal & Ors. Vs. State of Punjab, 2009 CRI. L. J. 4100 and on the judgment of Bombay High Court in the matter of Bhagwant Nivrutti Jadhav Vs. State of Maharashtra, 2011 CRI. L. J. 3304. Further, reliance has been placed on behalf of the applicant on the judgment of Karnataka High Court in the matter of Ningappa Parmanna Curikar Vs. State, 2013 CRI.L. J. (NOC) 441 (KAR.) and it is submitted that in the case of theft of electricity the Junior Engineer of Electricity Board is not a police officer, therefore, his statement can be relied upon and usually independent witnesses do not come forward in such cases, therefore, absence of such witness cannot be made a ground to discard the evidence of departmental witness.

It is submitted that in Radha Mohan Singh alias Lal Saheb & Ors. Vs. State of U.P., 2006 CRI. L. J. 1121, it is submitted that evidence of a hostile witness cannot be rejected completely if some part of his evidence is found to be dependable and in support of the prosecution found reliable after careful scrutiny, can be relied upon. It is also submitted that in V. N. Ratheesh Vs. State of Kerala, 2006 CRI. L. J. 3634, Hon'ble the Supreme Court has held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. Therefore, any admissible evidence cannot be ignored. It is further submitted that in case of Jagarnath Singh

-5Vs. B.S. Ramaswami, in Criminal Appeals Nos.76 and 130 of 1963 decided on 22-09-1965 Hon'ble the Supreme Court has held that direct evidence of theft is rarely forthcoming. Therefore, evidence of existence of artificial means for such abstraction is prima facie evidence of such dishonest abstraction. Hence, the learned trial Court has not appreciated the evidence of prosecution in view of settled principles for appreciation of evidence, hence, the order of acquittal is illegal and incorrect. Therefore, it is prayed that the impugned judgment be set aside and appropriate order be passed. 4.

Learned counsel for the State/Non-applicant No.1 makes formal objection.

5.

Learned counsel for Non-applicant No.2 submits acquittal of the Non-applicant No.2 in this case is proper which needs no interference. The departmental witnesses have though made statement against Non-applicant No.2, that was not sufficient for giving a clear finding that Non-applicant No.2 was the person in possession of use of the energy which was procured by theft. Referring to the judgment of coordinate Bench of this Court in Assistant Engineer CSEB Sarangarh Vs. Shri Satyanand, 2014

(3) C.G.L.J. 101, it is submitted that making inspection of any premises or place by the officials of the Electricity Department was mandatorily required to follow the rules of CG State Electricity Rules, 2006 and on non-compliance of the said mandatory rules no error can be found in the acquittal of the accused from the charge under the Electricity Act, 2003. Therefore, it is submitted that the revision petition be dismissed.

-66.

Heard learned counsel for the parties and perused the record of the Court below.

7.

R.K. Minj (PW-4) is Executive Engineer (Vigilance) has stated that on inspection of the house under construction the illegal electricity connection was found and accordingly seizure was made and Panchnama was prepared in presence of the witnesses. He was told by Sarkari Ram Kosle that the house was being constructed by Non-applicant No.2. In cross-examination he has admitted that he was told that the house under construction was Government school and that was being constructed by Non-applicant No.2. He did not found Non-applicant No.2 present on the spot and neither he summoned him on the spot.

8.

Satyawadi Ijardar (PW-1) was Lineman who was present in the team and Lakhanlal Karsh (PW-2) is also a Lineman who was present at the time of raiding procedure. Mohanlal (PW-3) is independent witness and he has not supported the prosecution case.

9.

As admitted by R.K. Minj (PW-4) the house under construction was a Government school building. Therefore, he has made assumption against Non-applicant No.2 only on the basis of statement given by one Sarkari Ram Kosle who has not been examined as witness by the prosecution. Therefore, how Non-applicant No.2 is connected with the said construction, has not at all been established. Nonapplicant No.2 was entrusted with the construction or he was incharge of the construction or he was contractor having been assigned to raise construction, these facts were needed to be

-7established before bringing any other evidence regarding the theft of electricity. Therefore, there is no connection at all established of Non-applicant No.2 with the alleged theft of electricity. Hence, the prosecution has failed to bring any evidence against Non-applicant No.2. Therefore, it is found that the learned Court below has not committed any error in acquitting the Non-applicant No.2. Accordingly, this criminal revision is found to be without any merit, which is dismissed.

Sd/- Sd/- Sd/- (Rajendra Chandra Singh Samant) Judge Aadil