JUDGMENT :

ANANYA BANDYOPADHYAY, J.:

1. This appeal is directed against the judgment and order dated 26.10.2005 passed by Learned Additional Sessions Judge, 2nd Court Purulia, in Electric G. R. Case No. 118 of 2004 convicting the appellant under Section 135(1)(a) of the Indian Electricity Act, sentencing the appellant i.e. Sk. Miktar to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default to suffer simple imprisonment for one month.

2. The Assistant Engineer, (O&M), Jhalda sub-division, West Bengal State Electricity Board (W.B.S.E.B) lodged a complaint being empowered by the Electricity Act of 2003 inter alia stating that the appellant committed theft of electricity under Section 135 of the Electricity Act 2003 read with Section 379 of the Indian Penal Code on 19.11.2004. The de-facto complainant along with (i) Sri Niranjan Mahato (ii) Smt. Moupali Mukhopadhya (iii) Sukhendu Bikas Maity entered the premises of the appellant and detected the theft of electricity as enumerated in the provision under Section 135(1)(a) of the Indian Electricity Act 2003 along with Section 379 of the Indian Penal Code.

3. Based on the aforesaid complaint Jhalda Police Station Case No. 90 of 2004, dated 20.11.2004 under Section 135(1)(a) of Electricity Act 2003 by 379 of the Indian Penal Code was instituted. At the end of the investigation, Charge Sheet No. 86/04 was submitted on 30.11.2004. Charges were framed to which the appellant pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove its case cited 9 witnesses and exhibited certain documents.

5. The Learned Advocate for the appellant submitted the appellant to have been falsely implicated and the Learned Trial Judge failed to appreciate the evidence, the contradictions and erroneously convicted the appellants and the appeal shall be allowed.

6. The Learned Advocate for the State opposed the contention of the Learned Advocate for the appellant stressing the fact, that appellant had paid the penalty to justify the offence committed by him and accordingly the appeal shall be dismissed. Assessing the evidence of the prosecution it transpired that :-

7. PW-1 i.e. Sanjay Kumar the Complainant deposed on 19.11.2004 posted as Assistant Engineer Jhalda with other high officials of S.E.B he visited Kantadih under P.S. Jhalda. On arrival they found the accused running a shop by taking electricity, illegally by way of hooking. PW-1 directed the linesmen to disconnect the line and seized other apparatus and prepared seizure list. He stated the accused fled after spotting them. During his cross examination he stated the accused was known to the complainant prior to the raid. No one had identified the shop of the accused. Seized articles were not found in Court. No seal or designation of the complainant was delineated in the complaint. Signatures of independent witness were not collected.

8. PW-2 i.e. Niranjan Mahato a Member of raiding party deposed on 19.11.2004 posted as Senior Manager (P&A), Purulia Distribution Circle with others he went to village Kantadih for “surprise inspection”. On arrival they found that the accused was running a shop by consuming electricity illegally by way of hooking. He stated that he had no role but he was all along with them. He signed on the seizure list prepared by the complainant. During his cross examination he stated that he was not examined by the police in connection with the instant case. They did not check any papers relating to the ownership of the shop.

9. PW-3 i.e. Moupali Mukhopadhyay a Member of raiding party deposed that on 19.11.2004 posted as Assistant Engineer, Computer Section, Purulia with other high officials of S.E.B., she visited Kantadih under P.S. Jhalda for “surprise inspection”. On arrival she found that a shop was consuming electricity illegally directly from the L.T. Line by way of hooking. She signed on seizure list prepared by the complainant. During her cross examination she stated that the accus