Amarshibhai Haribhai Makwana vs State of Gujarat

Z.K. Saiyed, J.—The present Appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 15.12.2008 passed by the learned Special Judge, Fast Track Court No. 1, Surendranagar in Special Electricity Act Case No. 48/2008, whereby, the learned Judge has convicted the Appellant u/s 135 of the Indian Electricity Act, 2003, and sentenced to undergo R/I for 2 years and to pay a fine of Rs. 3,60,000/-, in default, to under go further R/I for one year, which is impugned in this appeal.

The brief facts of the prosecution case is as under:

That as per the case of the prosecution, the complainant Shri DR Chaudhary, Deputy Engineer, Sub-Division, Raj Sitapur along with the officers/employees of the Gujarat Electricity Board, namely, Shri K.R. Snehkunj, Deputy Engineer, Raj Sitapur and Shri C.V. Amdavadi, Senior Technician, Circle Office, I.C. Squad, Surendranagar have checked the agricultural electric connection of the Appellant at village Khodu. At that time, the Appellant was found guilty for the theft of 30 H.P. And the Appellant was given supplementary bill of Rs. 1,20,000/-and at the place of offence, they have prepared the rojkam and checking sheet No. 4650.

Therefore a complaint came to be filed by the complainant before the P.G.V.C.L. Police Station, Bhavnagar and on completion of investigation, charge sheet was filed in the Court of learned 2nd Addl. Senior Civil Judge & JMFC, Surendranagar. There after, as the case was exclusively triable by the Special Court, Surendranagar, the learned Magistrate has Thereafter, the charge was framed at Ex. 6 against the Appellant. The Appellant accused has pleaded not guilty and claimed to be tried.

Thereafter, the charge was framed at Ex. 6 against

In order to bring home the charge level led against the Appellant-accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.

Thereafter, after examining the witnesses, further statement of the Appellant-accused u/s 313 of CrPC was recorded in which the Appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge vide impugned judgment and order dated 15.12.2008 held the appellant accused guilty to the charge levelled against him under sec. 135 of the Indian Electricity Act, 2003 and convicted and sentenced the appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, Surendranagar, the present Appellant has preferred this appeal.

Heard Mr. Kunal S. Shah learned advocate for Mr BA Surati for the Appellant and Mr HL Jani learned APP for the Respondent-State.

Mr. Shah learned advocate appearing for the Appellant has fairly admitted that he is only arguing the matter on the point of quantum of punishment and not arguing the matter on merits. He has also contended that the Appellant is a very poor person and very harsh punishment is imposed upon him by the learned Special Judge and, therefore, the same is required to be reduced. Mr. Shah has further submitted that the Appellant is the only bread winner male member in the family and, therefore also the sentence imposed upon the Appellant by the learned Special Judge may be reduced to the sentence as already undergone by the Appellant-accused.

As against this, Mr. HL Jani learned APP has read the impugned judgment and order of conviction and sentence passed by the learned Special Judge and submitted that the impugned judgment and order of conviction and sentence is required to be confirmed.

I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness complainant and also perused the charge framed against the Appellant. Looking to the allegations levelled against the present Appellant is concerned, they are very serious in nature, but when the sufficient period of sentence is already undergone by the present Appellant-accused, then, I am of the opinion that looking to the poverty of the Appellant, this is a fit case to consider the submissions of the learned advocate Mr. Shah for the Appellant. In that view of the matter, when the learned advocate Mr. Shah appearing for the Appellant is not arguing the matter on merits, but arguing the matter on the point of quantum of punishment, I am of the opinion that this is a fit case to reduce the sentence.

In the result, this appeal is partly allowed. The impugned judgment and order of conviction and sentence dated 15.12.2008 passed in Special Electricity Act Case No. 48/2008 by the learned Special Judge, Fast Track Court No. 1, Surendranagar, convicting the Appellant-accused u/s 135 of the Indian Electricity Act, 2003 is hereby confirmed. However, the order of sentence sentencing the Appellant accused to undergo R/I for 2 years for the aforesaid offence u/s 135 of the Indian Electricity Act, 2003 is hereby modified to the extent that instead the Appellant-accused is here by sentenced to undergo the period of sentence already undergone and the default sentence is also reduced to six months instead of one year. Bail bond stands discharged. Rest of the impugned judgment and order is confirmed. R & P to be sent back to the trial court forthwith.