K.S. Puttabuddi vs State of Karnataka

A.S. Pachhapure, J.—These appeals are directed against the judgment and order in Spl. CC Nos. 20 to 22/2005 dated 09.02.2010 convicting the appellant for the offence punishable under Sections 39, and 44(A) and (B) of Indian Electricity Act and the sentence thereon.

The facts reveal that the appellant had taken electricity supply to three shop premises through the meter (MO1) in each of these cases. The prosecution alleges that the appellant dishonestly abstracted the electricity energy through the aforesaid meters and unauthorizedly supplied energy to the neighboring shops.

It is on 27.02.2007 at about 7.00 p.m. that the vigilance squad visited the premises and the illegal extraction of electricity supply was found by taking extra connection from the wire used for supply of energy to the three shops in which the meter (MO1) was seized by diverting the electricity energy through a wire and supplying the same to the neighboring shops. At the time of inspection, meter (MO1) was seized.

A complaint came to be registered for the aforesaid offences. The FIR was sent. The seized meter (MO1) was sent for the opinion and required certificate were obtained. The statement of witnesses were recorded. On completion of the investigation, chargesheet was laid against the petitioner and other accused for the aforesaid offences read with Section 34 IPC. The witnesses are common. In one cases they are PWs. 1 to 9 and in other cases, PWs. 1 to 10 and in their evidence, documents were admitted in the evidence and meter (MO1) in each of the cases was also marked.

After recording the statement of appellant under Section 313 Cr.P.C., as no defence evidence was led, the Trial Court heard the Counsel and on appreciation of the evidence on record, convicted the appellant and ordered him to undergo imprisonment for three months for each of the offences and to pay fine of Rs. 2,000/- in default to undergo simple imprisonment for 15 days. Aggrieved by the conviction and sentence, these appeals have been filed.

Heard the learned Counsel for appellant and also the learned High Court Government Pleader.

Learned Counsel for the appellant submits that except the official witnesses, no independent witnesses have supported the case of prosecution. He submits that the evidence of official witnesses alone cannot be accepted to sustain the conviction. It is also his submission that incriminating substances i.e., the extra wire said to have been used for unauthorized abstraction of electricity was not seized and therefore, he would submit that the conviction is both erroneous and illegal. He submits that MO1 was not in working condition. There was supply of electricity through the same meter and in the absence of any evidence of illegal abstraction of electricity, the conviction has to be set aside.

On the other hand, learned High Court Government Pleader supports the judgment and order of the Courts below and submits that the material placed on record is sufficient to prove the guilt of appellant beyond reasonable doubt.

It is not in dispute that meter (MO1) in all the three cases in three different premises were taken by the appellant to supply the electricity energy to the said premises. PW 1 is the lineman and he has not supported the case of prosecution. He has been treated as hostile. But he does not speak to the seizure of wire through which the electricity was abstracted unauthorizedly. He is only attesting witness for the mahazar (Ex. P1), wherein MO1 was seized.

PW 2 is the another lineman who is also an attesting witness to the mahazar (Ex. P1) and he speaks to the seizure of MO1 itself and nothing more than that. PW 4 is the Junior Engineer of KPTCL and he states about the drawing of mahazar (Ex. P1), the supply of electricity through the wire to the neighboring shop premises. PW 5 is the Assistant Executive Engineer who was examined to prove the grant certified copies, wherein they have been marked as (Exs. P4 to P9A). He does not speaks of his presence at the time of seizure of MO1. PW 6 is the Assistant Executive Engineer, MRT Division of KPTCL, Mysore to whom the meter (MO1) was sent for his opinion and report. He has submitted his report (Ex. P12), after examination of electric meter (MO1). PW 7 is the owner of premises in which the meter (MO1) was installed. He has not supported the case of prosecution.

PW 8 is the Executive Officer of MM Hills who issued no objection certificate to the appellant for running temporary stall at MM temple premises. He has issued the certificate in this regard which has been admitted in the evidence. PW 9 is the Head Constable in KPTCL, Vigilance Squad. He speaks of the temporary electricity V'' connection through the meter referred to supra and states that bypassing the meter, the electricity connection was drawn to the shop premises. PW 10 was the owner of shop who has not supported the case of prosecution and he has been treated as hostile.

So, the scrutiny of evidence referred to supra would reveal that it is only PW 3 - the complainant, PW 4 - the Jr. Engineer who speaks of unauthorized abstraction of electricity energy by diverting the supply made to the electricity meter (MO1) and took connection to the adjoining shop premises. Except the evidence of these two witnesses, there is no other material placed on record to prove the unauthorized abstraction of electricity energy. It is unauthorized connection of electric wire which is the incriminating material and none of the officials examined have seized the said unauthorized electric wire said to have been used for abstraction.

Though it is stated by the prosecution that this connection was there to all 20 shop premises, the said wire has not been seized. It is not the meter which is the incriminating article, but it is unauthorized connection of electric wire to abstract electricity which is the incriminating article. It was necessary for the investigating agency to seize the same and produce it before the Court alongwith the chargesheet. As all the witnesses including independent witnesses and some of the official witnesses have not supported the case of prosecution, it appears to be not proper to rely on the oral evidence of complainant and PWs. 2 and 4 to affirm the conviction.

It is relevant to note that the prosecution to sustain the conviction has to prove the crime beyond all reasonable doubt. Unfortunately, the incriminating article has not been seized which is a base for the trial of the appellant in the Courts below in all these three cases. Though it is stated that temporary meter was taken for supply of the premises at the relevant point of time, in the absence of acceptable evidence, conviction of the appellant appears to be improper and illegal. Therefore, the conviction ordered by the Trial Court on the basis of the aforesaid evidence is improper. The Trial Court has relied only upon the oral evidence of the official witnesses aforesaid which has not been substantiated by the seizure of unauthorized electric wire used for abstraction of electricity. In that view of the matter, convict ion and sentence thereon deserves to be set aside.

Consequently, the appeals are allowed. Conviction of the appellant for the charge under Sections 39 and 44(A) to (D) of Electricity Act are set aside. The appellant is acquitted of the said charges. Fine, if any, deposited shall be refunded to him.