State of Vigilance Police Station vs Wahid Ali and Others

K.N. Phaneendra, J.

The present appeal is preferred against the judgment of acquittal passed in Special Case No. 237/2008 by the I Addl. Sessions Judge, Gulbarga, vide judgment dated 03.06.2009 in acquitting the respondent herein (accused before the trial Court) for the offences punishable under Section 135 of Indian Electricity Act, 2003 r/w 379 of IPC.

The brief factual matrix that emanate from the record are that, the KPTCL vigilance squad, Gulbarga headed by one Mr. Mallanna (PW.1) along with his staff went to the Petrol Bunk No. LGC 2423 situated near STBT, Jagat-Darga Road Gulbarga, in presence of the pancha witnesses he checked the installation and found that the accused persons being the consumer of the electricity through the said installation being dishonestly removed the seal of the control box and stopped the rotation of the meter disc and tampered the meter box seal and also exchanged the cover seal of the meter and gave connection to their Petrol Bunk instruments and thereby committed theft of electricity. On calculating by way of back billing it is stated that the accused persons have committed theft of electricity to the tune of Rs. 4,65,154/-. On these allegations the police have completed the investigation and submitted the charge sheet before the trial Court. After filing of the charge sheet the accused persons appeared before the Court and contested the proceedings. The trial Court has framed charges against the accused for the offence under Section 135 of Indian Electricity Act, 2003 r/w 379 of IPC.

The prosecution in order to prove the guilt of the accused examined 7 witnesses PWs. 1 to 7 and got marked examined P1 to P7 and also material objects MOs. 1 and 2. The accused persons were also examined under Section 313 of Cr.P.C. as accused did not choose to lead any evidence. After hearing the arguments the impugned judgment was rendered by the trial Court.

Sri Maqbool Ahmed, learned High Court Government Pleader, strenuously contended that the trial Court has not properly appreciated the oral and documentary evidence placed by the prosecution. On the other hand there is no reason to disbelieve the version of the official witnesses who have spoken to about the tampering of the meter and tampering of the seal and also making of the meter upside down in order to see that the disc inside the meter does not rotate and thereby the accused persons have committed the theft of electrical energy. The pancha witnesses examined before the Court also supported the case of the prosecution with regard to the electricity department officials visited the spot conducting the mahazar seizing the tampered meter from the spot. Therefore, though sufficient materials are placed before the Court the trial Court has not properly appreciated the materials but on flimsy grounds culling out some contradictions and omissions in the evidence of the prosecution witnesses wrongly acquitted the accused persons. Therefore, this Court has to re-appreciate the evidence on record and convict the accused persons for the offence punishable under Section 135 of the Indian Electricity Act.

Sri R.S. Kadaganchi, learned counsel appearing for the respondents did not turn up to the Court to assist the Court. Therefore, the Court itself has gone through the materials on record with the help of High Court Government Pleader and case is disposed of. As the case is pretty old of the year 2010 more than five years have already been elapsed from the date of filing of this appeal.

After considering the facts and over all reanalysis of the case on hand and the entire materials on record the points that would arise for my consideration is that,

"whether the trial Court has committed any serious error in acquitting the accused and whether the trial Court has not properly appreciated the oral and documentary evidence."

Before adverting to the factual matrix of this case, it is just and necessary to bear in mind that the Appellate Court should normally not to interfere with the judgment of acquittal because the innocence of the accused is fortified by the judgment of the trial Court, unless the Court is of the firm opinion that the trial Court has committed a serious legal error in appreciating the oral and documentary evidence on record or it has committed a serious legal error which amounted to miscarriage of justice. Therefore, bearing in mind the above said principle now let me consider the materials on record.

The prosecution mainly relied upon the evidence of PW.1 who is the leader of raiding party Mr. Mallanna, he has stated in the examination-in-chief that on 29.10.2007 when they visited the installation of the accused persons they found meter box seal was tampered and meter was put upside down and due to which the disc in the meter was not rotating. In presence of the pancha witnesses the said meter was removed and PW.5-Mr. Rajshekar, Assistant Engineer of the department, who was present examined the meter there itself and gave the opinion as per Ex. P1 with regard to the tampering of the seal on the meter. He also stated that as per Ex. P4 they have prepared the back billing and they found that the accused persons have committed theft of electrical energy to the tune of Rs. 4,65,154/-, with regard to the proceedings they drew up the panchanama as per Ex. P3. In the course of cross examination it is admitted by him that he never received any complaint from anybody much less from his departmental people with regard to the tampering of the meter. This aspect perhaps questioned by the defense counsel to show that every month the meter reader has to visit the installation and find out as to whether the meter is running properly or not. Therefore, when actually the meter was tampered has to be ascertained on the basis of such information by the meter reader. It is admitted that there is a seal on the meter-MO.1, but he states that seal was not actually put by the department, the original seal was taken away and the accused persons for their convenience put their own prepared seal on the meter. But admittedly he has not produced any material before the Court to show any of the original seal in order to prove that the seal put on to the meter was a different seal put by the accused, which was duplicate or tampered seal. It is also suggested that when the meter was installed no seal was put to the meter, therefore, in order to avoid any allegations against them they have prepared Ex. P1 on 24.10.2007 itself and they have concocted and created the case against the petitioners. He has further admitted that he has also not stated what is the serial number of the seal which was put at the time of installation of the meter and what was the number they found on the seal when they have inspected. These are all the circumstances in the course of cross-examination of this witness, creates some doubt because, when the allegation is made that the meter has been tampered and seal has been tampered, it is the duty of the complainant to produce the original type of the seal to show that seal found on the meter was different to that of the original. In this regard, it is worth to note here the evidence of PW.5, who exactly gave the report with regard to the tampering of the meter on the spot itself He has stated that on examination of the meter on that particular day he found a seal bearing No. H-45701. But he has stated that when he tested the meter body on 07.08.2006 much prior to the date of the incident a seal was put on to the same bearing its No. E-82798 and that seal was not present on the date of the incident but instead of that there was seal bearing its No. H-45701, accordingly, he issued Ex. P1. Therefore the evidence of PWs. 1 and 5 coupled together, it clearly indicate that they want to prove the case by showing to the Court that the original seal bearing No. 82798 was put on to the meter but it was removed by the accused by putting a fake or duplicate seal bearing No. H-45701. In order to establish this, no documents were produced before the Court that a seal bearing No. E-82798 was put to the meter so as to show to the Court the same was removed an another seal bearing No. H-45701 was put by the accused. In the course of cross-examination, he admitted that on 07.08.2006 when he gave the report he has mentioned that there was no seal put to the box and also that in the said report he has mentioned that a seal No. E-82798 was there on the meter box. Therefore, it is incumbent upon the prosecution to produce all the documents to show that whether on the date of the installation any seal was put on the meter and particularly seal bearing No. E-82798 was put and thereafter the said seal was removed by the accused and separate seal bearing its No. H-45701 was put. When the law recognizes a particular fact to be proved by means of producing certain documents, though such documents are available with the prosecution but they have not produced the same before the Court. Therefore, they have to explain as to why they have not produced the original type of seal and also the necessary documents actually mentioning the type of seal and number in the documents available with the department. Therefore, the evidence of these two witnesses created a serious doubt with regard to the above said aspects that has been properly appreciated by the trial Court.

The pancha witnesses and the panchanama drawn in this particular case also creates a serious doubt. Ex. P3 a peculiar nature of panchanama drawn in this case, this panchanama is a cyclostyled panchanama providing blanks and thereafter they were filled up even to some extent the commission of the offences by the accused persons already been printed and the remaining facts with respect to the visiting of the said place, seizure of the meter tampering of the meter are in handwriting. Therefore, in this background Ex. P1 has to be looked into Ex. P1 is the main document relied upon by the prosecution, which is the document issued by PW.5 on the spot itself.

Learned High Court Government Pleader, strenuously contended that there is some discrepancy in mentioning the date in the said document instead of mentioning 29.10.2007 it is mentioned as 24.10.2007 but later it is properly corrected. All the pancha witnesses and other witnesses have stated that on 29.10.2007 the incident actually happened. Therefore, such mistake is only a typographical error, which will not come tin the way of accepting the said document.

I have carefully perused the said document, it is categorically noted that on two places it was mentioned as 24.10.2007, but later it was over written as 29.10.2007, but in one place at 6th line of the said document the date 24.10.2007 has not been over written but it continued. Be that as it may, another important aspect to be looked into in this document is that PW.5, has certified that the main cover seal bearing No. E-82798 and meter box was having No. H-45701 but he has stated that plastic seal No. 002191 was missing here. Therefore, to show that this seal was not actually put by the electricity department earlier and particularly on 07.08.2006, when this witness has examined the said meter he would have produced the said particular document i.e. report dated 07.08.2006, in order to show to the Court that this meter box was not having the seal bearing No. H-45701 and only E-82798 was put. Therefore, that also creates a serious doubt with regard to the veracity of this document not only with regard to the date but also with regard to the said number of the seal put on to the meter.

The evidence of other witnesses are not so important except the pancha witness. In electricity theft cases the pancha witnesses are actually the eye-witnesses to the incident because of the reason, when the departmental people visit the spot they ascertain the tampering of the meter and also the device used or adopted, which made the rotated disc to stop. In fact after ascertainment of such facts it should be shown to the pancha witnesses before the said meter is removed from the board. But in this particular case no witness have stated that on that particular day they have actually seen the tampering of any seal or the rotated disc being stopped. PW.2-Raju, he has stated that he was present at the time of seizing of the articles under the panchanama as per Ex. P3. Therefore, there is no elucidation of these facts from the mouth of the pancha witnesses even otherwise the other materials as explained above creates some doubt in the veracity of the prosecution case. Hence, I do not find any reasons to differ from the opinion expressed by the trial Court.

So far the theft of electricity to the tune of Rs. 4,65,174/- there is no much evidence available so far this aspect is concerned as to how the said amount has been calculated. However, Ex. P4 shows that an average for 12 months according to the consumption per month has been calculated, I don''t find any wrong committed in calculation, in such a manner, because it is according to the tariff and rules of the Electricity Act. However, mere calculating theft of loss to the department is not sufficient. Of course under Section 135 of Cr.P.C. the Court can draw presumption of theft of electrical energy only in the event of the proof of tampering of the meter or the other ingredients of Section 135 (1) of Cr.P.C. being proved that means to say the prosecution has to establish that the accused persons have tampered the meter or any instrument. The Section 135 reads as follows whoever dishonestly:--

"(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be; or

(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity; or

(d) uses electricity through a tampered meter; or

(e) use electricity for the purpose other than for which the usage of electricity was authorized."

If anyone of these offences under Section 135(1)(a) to (e) is proved to the satisfaction of the Court, then only the Court can presume that there is theft of electrical energy. Unless the prosecution proves beyond reasonable doubt such presumption cannot be drawn. In this particular case the allegation is of tampering of the meter, which has not been proved to the satisfaction of the Court beyond all reasonable doubt. Therefore, I do not find any strong reasons to interfere with the judgment of the trial Court. Hence, the appeal is liable to be dismissed.

Accordingly, the appeal stands dismissed.