Both Sections 135 and 138 of the Electricity Act are compoundable under Section 152, and the prosecution must provide reliable evidence for conviction.

JUDGMENT :

ABHAY S. WAGHWASE, J.

1. In this appeal, there is challenge to the judgment and order passed by 1st Ad-hoc Additional Sessions Judge and Special Judge, Dhule dated 20.06.2005 passed in Special Case No. 137 of 2004 recording guilt of appellant for offence punishable under section 138 of the Electricity Act.

BRIEF FACTS OF THE CASE

2. PW1 Narendra, Assistant Engineer in Maharashtra State Electricity Board (M.S.E.B.) on 14.01.2004 visited house of appellant for detection of theft of electricity. While checking the electric meter affixed at the residence, he noticed meter being tampered, cut out the electric supply was continued, but joint was given to the incoming service wire attached to switch board. Resultantly, supply was not passing through electric meter and as such meter was not recording the reading of consumption of electricity, and therefore, he lodged complaint Exh.10.

On the strength of above complaint, crime was registered for offence punishable under sections 135 and 138 of the Electricity Act and investigation was carried out by PW5 P.H.C. Ramesh, who after gathering evidence, charge-sheeted accused.

Learned 1st Ad-hoc Additional Sessions Judge/Special Judge, Dhule framed charge, explained it to the accused and conducted trial vide Special Case No. 137 of 2004. On appreciating the evidence, case of prosecution has accepted as proving the charge under section 138 of Electricity Act and guilt was accordingly recorded.

Feeling aggrieved by the above judgment and order, instant appeal has been preferred.

SUBMISSIONS

On behalf of Appellant:

3. The learned counsel, who pleaded innocence and alleged false implication and criticizing the judgment for erroneous appreciation, submitted that, at the outset, no offence has been made out either for section 135 or section 138 of Electricity Act. He pointed out that, learned trial Judge acquitted accused from the charge under section 135 of Electricity Act i.e. commission of theft of electricity, but erred in convicting appellant for the charge of section 138 of Electricity Act in absence of cogent and reliable evidence to that extent.

4. He pointed out that, at the threshold meters were standing in the name of appellant. Secondly, there is no cogent and reliable evidence that meter was tampered with sole intention of committing theft of electricity. Learned counsel took this court through the evidence of complainant and also through the cross faced by him. He further pointed out that, independent witnesses like panchas have not supported prosecution. That, there is no corroboration to the evidence of complainant. According to him, for establishing offence of such nature, there has to be expert’s evidence, but the same is missing here. He also took this court through the evidence of PW3 Nana as well as answers given by him in cross and would submit that necessary ingredients for attracting the charges are patently missing.

5. Learned counsel further submitted that, even otherwise respondent has accepted compounding charges on 17.01.2004. That, the statute itself provides for compounding. He took this court through the provisions laid down in section 152 of Electricity Act and further took this court through the judgment of the Hon’ble Apex Court in the case of Suresh Ganpati Halvankar v. State of Maharashtra and Ors. in I.A. No. 117535 of 2017 in Criminal Appeal No. 156 of 2018 arising out of SLP (Cri.) No. 3670/2017 as well as the judgment of this Court (Nagpur Bench) in the case of Akash S/o Deepak Soitkar v. State of Maharashtra through Police Station and Ors. in Criminal Application (APL) No. 1185 of 2021 and points out that, learned trial Court erred in holding that only section 135 of Electricity Act is compoundable and not section 138 of Electricity Act and resultantly, on the strength to the same, prays to allow the appeal.

On behalf of Respondent-State:

6. Learned APP objected by pointing out that, though meter in question stood in the name of father of appellant, said fath