Cg. State Electricity Board v. Vishwanath Sharma And ANR.

-1NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Reserved for orders on :29/11/2019 Order passed on : 04/02/2020 CR.R. No. 687 of 2008 Chhattisgarh State Electricity Board, Through : the Executive Engineer, Chhattisgarh, Raigarh, Tahsil and District Raigarh Chhattisgarh. ---- Applicant

Versus

1.

Shri Vishwanath Sharma, aged about 47 years, S/o. Late Shri Munshi Ram, R/o. Ward No.4 Sakti, Police Station - Sakti, Tahsil - Sakti, District -Janjgir-Champa (C.G.) 2.

State of Chhattisgarh, Through : The Police Station Officer, Police Station - Sakti, District Janjgir-Champa Chhattisgarh. -----Non-applicants For Applicant : Shri M.D. Sharma, Advocate For Respondent No.1 : Shri U.K.S. Chandel, Advocate.

For State/Respondent No.2 : Shri Sudeep Verma, Deputy Govt. 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 10-072008 passed by Special Judge under the Electricity Act, Janjgir, District Janjgir-Champa, C.G. in Criminal (Electricity) Case No.08/2008 by which respondent No.1 was acquitted of charge under Section 135 (A) of the Electricity Act, 2003. 2.

Facts of the case are these that on 05-03-2008 a team of Chhattisgarh State Electricity Board conducted a raid in the

-2premises of respondent No.1 and found him making use of electrical equipments through illegal electric connection and thus committed theft of energy. Panchnama (Ex.P-1) was prepared on the spot and the articles of illegal connection has been seized vide Ex.P/2. Calculation of loss to the Electricity Board was made vide Ex.P/3. Written complaint was given to the Police vide Ex.P-4 on the basis of which FIR, Ex.P-5 was lodged. Case was investigated and charge-sheet was filed. The respondent No.1 was charged with offence under Section 135 (A) of the Electricity Act to which he denied the charges. After completion of the trial, the learned trial Court has acquitted the respondent No.1 by the impugned judgment.

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 the case beyond reasonable doubt. But the witnesses have very clearly stated that the respondent No.1 has committed theft of energy by taking illegal connection.

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.

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Reliance 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. 5.

Learned counsel for Non-applicant No.1 submits acquittal of the respondent No.1 in this case is proper which needs no interference. The departmental witnesses have though made statement against respondent No.1, that was not sufficient for giving a clear finding that respondent No.1 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 noncompliance 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.

6.

Learned counsel for the State/Non-applicant No.2 makes formal objection.

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

8.

Nand Kishore Soni (P.W.-1), was the Junior Engineer of C.S.E.B., who led the team for raiding the house of the respondent No.1 and finding the commission of theft of energy, he conducted procedure and documentation. In cross-examination, he has admitted that the respondent No.1 is a subscriber of CSEB.. He has further admitted that electric connection is in the name of one Kaliram. The statement in examination-in-chief that respondent No.1 was making use of electric connection by direct hooking from service line has not been rebutted in cross-examination. Suritram Yadav (P.W.-2) lineman had supported the wire of electric connection from direct line.

9.

After perusing all the evidence of prosecution, I am of this view that the learned trial Court has not correctly appreciated the evidence of prosecution witnesses, therefore, the impugned judgment suffers from infirmity, which is required to be set-aside and remanded back to the trial Court.

10.

Accordingly, the revision is allowed. The impugned judgment dated 10.07.2008 is hereby set-aside and the case is remanded back to the trial Court with direction to afford proper opportunity to the parties for hearing and pass the judgment in accordance with law. Sd/- (Rajendra Chandra Singh Samant) Judge Balram