Exe. Eng. Oandm. C.S.E.B v. Leeladhar Chandra

IN THE HIGH COURT OFJUDICATURE AT BILASPUR fC.G.)

ACOUITTAL APPEAL N0. ^l^j°<"'"iQ'F^WS) ^^~v ^T^ Executive Engineer7(0 & M), APPELLANT Chhattisgarh State Electricity COMPLAINANT Board, Sakti, District JanjgirChampa (C.G.).

VERSUS

Leeladhar Chandra Son of B. P.

RESPONDENT :

ACCUSED PERSON Chandra, aged about years, Resident of Village Beerbhantha Chowk, Malkharoda, Police Station Malkharoda, District JanjgirChampa (C.G.).

APPEAL UNDER SECTION 378 f4) OF THE CODE OF CRIMINAL PROCEt>URE;

READ WITH SECTIONOF THE ..-i» ELECTRICITY ACT. 2003

HIGH COURT OF CHHATTISGARH AT BILASPUR ACOUITTAL APPEAL N0. 80 OF 2010 APPELLANT (Complainant) Executive Engineer (OSEM), C.S.E.B. Sakti

VERSUS

RESPONDENT (Accused) Leeladhar Chandra

Present:

Mr. M.D. Sharma, Adyocate, for the Appellant. Mr. Saiy,^W@^B|!i|^d|Ufltg,t|,fQr the Respondent. aJ&n^lffKnch : Hon'ble Mr.P.aSltn»lioshy.J.) ~^.^;11 ^ JUDGEMENT ^.f~;^^6fj£UJLet] •- .'w^~^|||, (1) The present Acqt|t^.^Jt^^p^l has been preferred" by the Appellant against the fil^^^jiy of acqyittal dated 11.8.2008 ,, ff ywi 55 rl '

passed by-tHe--1Special |J}A^&t (Elecfricity Act), Janjgir, District ^ _ A'«i''/Sl f& .

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Janjgir-Champa, in Spefii8B^Sg©8;p?ityCriminal Case No.04/2008, whereby the Respondgrifrtiassii61gpij| i&cquitted of the charge under Section 135(a) ofthe Elec(g^tj§jS^fci.2003.

(2) Brief facts giving rise to the filing of the instant Acquittal Appeal as per the complaint are that on 20.11.2006 on a sudden inspection of the premises of the Respondent at Beerbatha Chowk, Malkharouda, by the Executive Engineer (Vigilance), C.S.E.B., Janjgir along with its staff, it was found that the Respondent had taken an electricity connection illegally by hooking from the L.T. Line of the Electricity Board and thereby he was doing fabrication work by using 7HP motor and electrical apparatus'of 260watt. •il In this connection, Spot Inspection report and Panchnama was prepared, seizure proceeding was done and calculation-sheet in respect of consumption of electricity was also prepared and sent to the Respondent. It was held that the Respondent had put the Electricity Board to a loss of Rs.1,36,127/-. Thereafter, a complaint

-2case (i.e. 'Special Electricity Criminal Case No.04/2008') was filed before the Special Judge (Electricity Act), Janjgir, against fhe Respondent for having committed the offence under Section 135(a) of the Electricity Act, 2003, and the matter was put to trial.

(3) During the course of trial, three witnesses i.e.

PW-1 Rajeshwar Minj, Executive Engineer fVigilance), PW-2 Satya Prakash Mahilange, Line Attendant Grade-II and PW-3 Vinod Kumar Mahilange, Lineman, were examined by the prosecution in support of its case; alL oLfhein ^were departmehtal witnesses. Statement Qifis-IISASHlsiBfiH^esgiBiBlaff.syas recorded - under Section i&J^ SS T;rPC in which he deriied ItHeBseircumstances apgQga||l,y against him m^jt;t}5 prosecution casejgainl, pleaded iaji^fiice eind false im^6i^B|ii(%,it\ ^^s!- (4) After completion jBf , the Court below, i.e., the Special Court constitu^KSpi^^l? the ELectricity Act, vide its judgemeny«F-acquittalda%|ftBl|Bp008 reached.to the conckision that the prosecution ha^rttStgBe'^jtrj^ble to prove its case beypfid reasondble doubt agaii!is£..||^SR|^ffnden:t and, therefore, giving. the benefit of doubt the •^^^)g^^it was acquitted of the charge leveled against him under Section 135(a) ofthe Electricity Act. (5) It is this judgement of acquittal dated 11.8.2008 against which the instant Acquittal Appeal has been preferred by the Appellant/Electricity Board.

(6) Learned Counsel for the Appellant, Shri M.D. Sharma, has submitted that in fact the Court below has too technically not accepting the case of the prosecution acquitted-the Respondent. Learhed Counsel also submits thafr'the Court below has not properly appreciated the oral and documentary evidence adduced by the prosecution and has discarded the admissible evidence and, in fhe course, the Court below has decided the matter contrary to law. It was also contended by the learned Counsel for

-3the Appellant that the fhird proviso to Section 135 of Electricity Act, 2003 clearly gives a benefit of presumption to be made and fhe Court below has totally ignored the said third proviso to Section 135 of the Electricity Act, 2003 that unless the contrary is proved it has to be presumed that the accused/Respondent was dishonestly using the electricity of the Appellant/Electricity Board. So far as the non-availability of independent witness to prove the case of the prosecution is concerned, learned Counsel for the Appellant submits that only because any independent witness has not been examined to prove its case by itself would not vitiate the prg§esst^p|Bisg|if|ha|;|)tiier prosecution witnesses have beer^gfi]^ ^islp-S^'ifs caseby iyM]^|ag|ro|>^r- evidence before the Qag;.

iS^3i&low and that from their evidencfea|W& Respondent L^^pt" been able to. 'brittgsSiy ^a.ny substance tflVQ^|extent of Ss^ting a doubt in.th^.^|n^|0^^^Court bringing oA^ich facts so as.to disbelieve the Qt®SIt^gS1°fthe prosecution witnesses. For the abave stated re^SAt'^jS'^yned Coynsel for the Appellant submits that'fhe instant|?

' In support ofhis contentions, Counsel for the Appellant has relied upon the judgements reported in 2001 Cr.L.J. 504; 2009 Cr.L.J. 4100; 2008 Cr.L.J. 4034; 2013 Cr.L.J. (NOC) 441; 2006

(2) Cr.L.J. 1121; AIR 2002 SC 1621 and 2006 (10) SCC 617. (7) Per contra, Shri Sanjay Agrawal, learned Gounsel for the Respondent, opposing the submissions put forth by fhe learned Counsel for the Appellant, has vehemently argued~that a plain perusal of the finding arrived at b^,the Coiu-t below itself would reveal that the entire prosecution case is dpne in a half hearted manner and no efforts have been made by the prosecution to prove the case beyond all reasonable doubt. Learned Counsel for the Respondent also submitted that even if we peruse the records to assess the inanner in which the investigation was conducted it

N, -4would reflect that the prosecution has not made any serious efforts for proving the charge levelled against the Respondent in a manner as is required under the provisions of law. According to the Counsel for the Respondent, apparently no witness of the near vicinity was called upon at the time of the surprised check being conducted bythe officers ofthe Appellant/Electricity Board and that since the three witnesses who have been examined on behalf of the prosecution are officer and employees of the same department, it can be safely held that they are interested witne;sses and, therefore, the testimony of these witnesses loses its credibility. Smii|ari^||,|gS ||waretno3g!Seizure of any: electrical equipmenjy^i^gyffe allegedly T3efi!g|i|N& jj% the Respondent in hj^lghScation shop; thisitself gives'las^ll.g,. doubt the Rrj^plpfionStory. It was^^^Bpiitended by fhe l^elg^ Counsel /fviS^Sfiiat)^ ...

'irps,ta fcs|s3lhe Respondent tl^f^i'i^d^.itse the evidences veBIch have come- on record it ^tfi ''ja ..Y3W c6ntradi6@g| ;

-i ^ f'r'[| ^l x'| • that there are a lot of omissions in the evidence o£ , the prosecution witness^sflAri^ltherefbre, fhe. beriefit of doubt should be given to thef)Ke^g%9.ent;s Counsel for the Respondent has fuither submitted i^g||ffiifes@gpe of iaterfering in an Acquittal Appeal is very limited aSi^l^affg^has to be proved on behalf of the 'complainant beyond all reasonable doubts in respect of commission of fhe offence by the accused and that even if there is a slightest of doubt in respect of the case having been proved or not, the benefit would always go in favour of the accused. Leamed Counsel for the Respondent, therefore, prayed that the instant Appeal being devoid of merits is liable to be rejected. (8) Considering the contentions ...

-5as according to the prosecution witnesses on the date 6f inspection i.e.

on 20.11.2006 when they had inspected the premises of the Respondent, it was found by them that the Respondent had taken electricity illegally by hooking wires from the main line of the Electricity Board and therefrom he was using a 7HP motor as well as other electrical apparatus of 260watt illegally. However, when we see the cross-examination of PW-1 Rajeshwar Minj, Executive Engineer (Vigilance), he has clearly admitted in Para-6 that he had no information that whether the Respondent had been given an electricity connection by the Electricity Departmflgeh, jMBa|&dgi||B'i,,jlp.l 1.2006, by installing .a meter, f^eu&^iS^McaI'apparafus | HKy|further, the said witne&^IMsit Rajeshwar Minj in Para-7 of hi^ei^Sae^am.ination ha^pjM.itted the certipsg(e;I|ExJ:)-l) issued by''"g^BPrabhat Sfi^ima, Junior'Engin^-||»gB|!^|^oda. From the peruiA of the said certificate (Ex.D-l)j(*s^^^^^|ifly clear that on 10.11.2006 the Respondent had beeiK''|i^^;||^'electricity connection bearing .:'-f '.

iitiiVu ti. •'

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Service No.%>-bT-OQ0233|^q|^.|g 10HP weldingmaGhine, and from this it is clear tha^^i^)KISB%>6 when the inspecting team !<?- had inspected the falii^safiSvsBop of -ffie Respondent, the Respondent had a legal •etei^ta-ia^cpnnection for using welding machine. Thus, from the oral and documentary evidence adduced by the prosecution it is evidently clear that the Respondent had a legal electricity connection for using welding maehine of 10HP prior to and on the date of inspection i.e. on 20.11.2006 when the • inspecting team had inspected the fabrication shop of the Respondent and that it appears that without obtaining any information in this regard from the Electricity De@artment, Malkharoda they had straightaway inifiated a procee4ing u/s 135(a) of the Electricity Act against the Respondent. In addition, from the cross-examination of PW-1 Rajeshwar -Mmj, it is clear fhere was no effort made on the part of the inspecting team for calling any person from the local vicinity, as is required under Section 100 (4) of CrPC. Similarly, in the entire

-6case of the prosecution, there was no independent witness to support the case of the prosecution, which also is a procedure contrary to the provisions of law.

The said witness PW-1 Rajeshwar Minj has also admitted that he had not seized any electrical appliances which were being used in the fabrication shop ofthe Respondent and that no separate seizure memo has been prepared by him in respect of the seizure of wires used in the alleged hooking. This also creates a great element of doubt in the mspection proceedings.

Similarly, there is also a great element of missing links in respect of entry, search and seizure eonducted by thg, |a.^|&fg%| t^ufei fft^ ^the premises of. the Respondento^Ma'wftuS'MHere is rio ssSsS^^fy ^splanation.. Thus, frora ^^Vast'al and doeumentary evidence'ia'aaffl[U|eed . by the pr^^^ltion, the case ofthg^^bepyition in respecrt>|3g?umitting tB|a|offence of theft: i®fj$%s|B^E:J%iiby.the Respondeitf is not establisbed or'proved.'

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(9) For tbe^ffiregoing re^SNs? Hnd the evidences which have come on reconl, it carfi|Bftp^®ft;conckided that there is no perversity in the judgr4eii£jEy|MsjC^ia:rtbelow as it .cannot be said that the impugned iudRm'8nt^ss ifat based on fhe evidence or the , ------"---^--"-^^ q-^j^. --------- evidence on record has not been properiy appreciated by the Court below which may warrant interference by this Court.

(10) In the instant case, learned Counsel for the Appellant has relied upon the matter of State Govt. ofNCT ofDelhi Vs. Sun.3 and Another [2001 Cr.L.J. 504]. Relying upon Para-19 of the said judgement, learned Counsel for the Appellant submitted that the requirement of calling upon independent and relieQ upon witnesses to lead evidence to prove the case bf fhe prosecution would not be necessary, particularly, w&en the proceedings have been drawn under the provisions ofthe Electricity Act, 2003. But, the same would had been required if it is a case where certain speciGc seizure to be done from the accused person then the presence of the independent witness would had been relevant;

-7y Similarly, learned Counsel for the Appellant also relied upon the decision rendered by Punjab and Haryana High Court reported in 2009 Cr.L.J. 4100 titled as "Surinder Pal & Ors. Vs. State q/-. Punjab , wherein the Counsel for the Appellant stressed upon Para-17, so far as the search and seizure is concemed. However, the said contention of the learned Counsel for the Appellant cannot be accepted for the reason that a plain perusal of the provisions sub-section 5 of Section 100 of CrPC clearly envisages the fact that the provisions of requirement of an independent witness is for.bpth.the instances, i.e., for search as well as for seia-igagISi%ss|u|e|.el |He fMf3Stion, i.e., Section 100 of CrPCaguaB., fli.

e'said sub-section enume;rateS llasrein it would clead^j^ww that the intention pf the legislatWSjl||^fc|uiring an igp^pSLdent witness TOSfQiftj ifit^I&ist whatever actittl'Ii&s been talSh by the team COTli|L^|Ktg|^arch and seizure act in an unbias.ed mann.er and 'eKV^MKv- or have made out a false cdmplaint jyaly _on pape'csl pqj IjBS to implicate a person. The persons of an- indepenc^^'^ffig.S^especta.

made in the course of tliSB|iigaiie!'(. Hence, the said judgements ^•iTO^Iq ^Sp^.

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would Also not come to the aid of the Appellant. ^

(11) Leamed Counsel for the Appellant has further relied upon fhe decision rendered by Gujrat High Court in "Gopalbhai Chandubhai Rana Vs. State of Gujarat" reported in 2008 Cr.L.J. 4034, wherein the Counsel for the Appellant relied upon in Para11 of fhe said judgement and relying upon the said judgement, leamed Counsel for the Appellant tried to emphasize thefact that there was no reason whatsoever to disbelieve the evidence lead by the pfiosecution witnesses, particulatly, the officers of the Electricity Board and, therefore, fhe judgement of acquittal granted by the Court below deserves to be set aside. However, in the instant case the said judgement cannot be made applicable for the reason that the finding of the Court below_ '£*;;-

-8was not that the witnesses on behalf of the prosecutiori were not reliable but the finding of the Court was that the deposition of the prosecution witnesses was disbelieved by the Court on accpunt of various contradictions that was there amongst the evidences of the prosecution witnesses and the benefit of which given to the accused person. As such the said judgement cannot be made applicable to the facts of the instant case.

(12) Similarly, leamed Counsel for the Appellant in addition has relied upon the following judgements with regard to the disbelieving of the prosecution witnesses:- '-f!»~sNingaPPa Parmanna Cr.L.j*.'

CurikafVaS^ftftK 2Pt|,1|S!) IBr.L.J. 1121- Radha Mohan ^injgHys;. State of U.P. SC 1621 - Bhagwan Singh 85 Ors!i||grgtate of M.P.

(10) SCC ey^.J^rsrS^,- V.N. Ratheeshp3(|^tate of ""'Kerala.

^SVM^Xtf^.'

•• •• ":s!°J3£i These judgementsi^|^^|^^l cited by the learned Counsel for the Appellant to sNi)^|tBi|>Bpowers ot: the High. Court tp interfere in ajudgemen^ffi^.ajtialttal in the event if the finding arrived at by the Couiffii;<be;t|w;ASs.BCTverse, corrtrary to eviderice. However, if we peruse'iysiepjfetfi^g;of the Court below.it would clearly. show that the ©Stiftt®§glow iri fact has considered the evidences which have come before the Court below very minutely and has reached to a conclusion on the basis of the assessment made. Thus, it cannot be said that the findings are baseless or are contrary to the evidence on record. A3 such, the judgements cited by the Counsel for the Appellant would not be of any assistance to the Appellant in the facts ofthe present case.

(13) It is settled position of law that^in an appeal against an order ;of acquittal only in exceptional cases where there are coinpelling circumstances and the judgment under appeal is found to be perverse can the Appellate Court interfere with the order of acquittal. Recently, Hon'ble the Supreme Court in fhe case of Phula Singh Vs. State of Himachal Pradesh, AIR 2014 SC 1256, in Para-10, has in very categorical term held that'.'The

^ -9appellate Court should bear in mind the presumption ofinnocence ofthe accused and further that the trial Court's acquittal bolsters the presumption of his mn.ocen.ee. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasonsfor interference."

(14) Once there is an order of acquittal in favour of the alleged accused person, the same should not be interfered with very lightly unless there is a prima facie strong case with cogent, sufficient and substantial proof in favour of the prosecution brought before the Court below and which has not been 'considered or ha^b^ft Bts >SSedj^|t:M^ffiQurt below, only then can the ordtt^ S^ aByiiiiEtal have a scope cffiluprM'fenee. ,.gi3UtfSw in this regardis by now well settie8aB|iWB,series of j-yp^^ent of the Hon'y^'gy^'^^Court'wherein fKrSnpreme' Court has in veiy categciiy^ywt^iE^$]'held that whenever there is an order of acquittal, th8j*l:^^j],BVurts not to..upset the holding 9 •?'* CGa'wla^ijag reasons and comprehensive without th^^e teang very considerations;"

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That while reappii^iati|^^A|]j^;reconsidering the evidence upon which the order .^^^(^y^tal is based, certain pther principles pertaining to other facets are to be borne in mind. ^ , An appellate Court, however, rnust bear in mind that in case pf acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, th&'accused having secured his acquittal, the presumptibn ofhis innocence is furtherreinforced, reaffirmed and strengthened by trial Court. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of the acquittal recorded by the trial Court. The High Court is also required to see that unless there are substantial fc

-10and compelling circumstances, the order of acquittal is not required to be reversed in appeal.

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It is trite here to refer to a few decisions in this regard by the Hon'ble Supreme Court:

• 2007 (4) SCC 415 - Chandrappa v. State of Karnataka. • 2012 (1) SCC 602- State ofRajasthan v. Shera Ram. « 2013 (5) SCC 705 - Shivasharanappa v. State ofKarnataka. • AIR 2009 SC 1542 (Para 12) - State of Punjab v. Sukhchain Singh 85 Anr.

• 2012 (6) SCC 589 (Para-27) - Rohtash v. State of Haryana.

(15) Thus, for the foregoing reasons, this Court is of the considered vies|,^a|iij'^yB|^yjg sg'jKfe^lfat by the Court below is purely :ig["apcai%3!ice with law and iERe|CQ|ltB; ,J:ielow has not comAgB||B any error of law in reaching to the syiiceintlusion of ^c^pting the Respowdg;tffi)of)'|j^g&^'charge leveled<S^Snst him ui5&er Section 135 oft8e®^tffg^''Mct,2003. •'. v

(16) The Appeal thus'i^Ig^^lgs ax;cordingly dismissed being ! ~~^~,'

totally deveid;'6f^nerits. ],?I,lr|J» • ""

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