2008 Supreme(Guj) 223

2008 (3) GCD 2500 (Guj)
Hon’ble Mr. Justice M.D. Shah
Gopalbhai Chandubhai Rana
Versus
State of Gujarat
Criminal Appeal No. 1191 of 2007—Decided on 15/07/2008

Point in Issue :
Whether prosecution has proved the offence of theft of electricity against accused appellant beyond reasonable doubt?

Headnote:Head Note :

       Electricity Act, 2003 (Central Act 36 of 2003) — Sections 126 and 135(1)(A) & (C) — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 99 to 101 and 374 — Theft of electricity — Illegally connecting directly from pole — Conviction — Appreciation of evidence — Finding of — Sustainability — ‘H’ was Junior Engineer at the relevant time and he visited the premises in question and found that by taking electric connection directly from the pole using private wire the accused-appellant had committed theft of electricity — He is a Government Servant and has no enmity with the accused — He has given consistent statement of the said facts and his statement is fully corroborated by other witnesses examined by prosecution — Merely because procedure under Chapter VII of the Code, Sections 99 to 101 is not followed, it cannot be said that the whole case of prosecution is false — That apart ‘H’ in his capacity as officer on duty was there and not in the capacity of I.O. and so it was not required of him to follow the procedure under the Code — There is also no substance in the argument of defence that present case falls under Section 126 of the Act — As far as Section 126 of the Act is concerned it pertains to unauthorised use of electricity which is a civil liability and has no connection with the criminal liability under the offence of theft — In the case it is proved that theft is committed by the accused by leading cogent and reliable evidence and nothing has come out in the evidence which shows that accused is involved in malpractice of power supply or that there is unauthorised use of electricity excluding theft — The case, therefore, clearly falls under Section 135 of the Act and trial Court has rightly convicted the accused and has properly sentenced him.

       Held :

       The important witness P.W. 4 Hasmukhlal L. Bhalsod who was Junior Engineer at the relevant time and who visited the premises in question and found that by taking electric connection directly from the pole using private wire the Accused No. 1-Gopalbhai had committed theft of electricity. This Court has minutely gone through the evidence of this witness. Before discussing the evidence of this witness, it is pertinent to note that this witness is a Government servant and he has no enmity with the accused persons . As per the evidence of this witness, he visited the premises to serve notice to one Smt. Anandiben A. Gohil whose electric connection was permanently disconnected as per the Samadhan scheme to recover due amount of electricity charges. During his visit he found that though the electric connection was disconnected lines were on and illegally by using private wire the Accused No. 1 had obtained electric connection directly from the pole.

       The evidence of P.W. 4 H.L. Bhalsod is fully corroborated by the evidence of complainant P.W. 1 Jasubhai I. Gadhvi and two other Government servants - P.W. 2 Vinodkumar who was with P.W. 4 Bhalsod and P.W. 3 Muktarsing as well as P.W. 6 M.I. Diwan. It is interesting to note that all these four witnesses have no enmity with the accused persons and there is no reason to give false evidence against the accused persons. Merely because procedure under Chapter VII of the Criminal Procedure Code Sections 99 to 101 is not followed by P.W. 4 Mr. Bhalsod, it cannot be said that the whole case of the prosecution is false and only on this sole ground, the prosecution case should be thrown out. This lapse can be said to be merely an irregularity committed by the officer and when the evidence of P.W. 4 is found to be trustworthy and inspiring confidence which is corroborated by the documentary as well as by the oral evidence, then only on the ground of irregularity committed by this witness of not following the procedure as stated above, the prosecution case cannot be thrown out. P.W. 4 Mr. Bhalsod the premises in question in his capacity as officer on duty and not in the capacity of Investigating Officer and so it is not required to follow the procedure laid down in Chapter VII CrPC, Sections 99 to 101. Even assuming that the said procedure is required to be followed, then also it can be said to be mere irregularity and by that no serious prejudice can be caused to the interest of the accused or the prosecution case. [Para 11]

       In the case on hand, it is proved by the prosecution that theft is committed by the accused by leading cogent and reliable evidence and nothing has come out in the evidence which shows that accused is involved in malpractice of power supply or that there is unauthorised use of electricity excluding theft. Under the circumstances, it can safely be concluded that the present case falls under Section 135 of the Act and that the learned Special Judge has rightly convicted the Accused No. 1 and imposed the fine as per the provisions of Section 135 of the Act. [Para 18]

       Law Laid Down :

       Section 126 of the Act pertains to unauthorised use of electricity which is a civil liability while Section 135 pertains to theft of electricity.

       Case Law Analysis :

       Torrent Power A.E.C. Ltd. vs. Gayatri Intermediates, 2006 (2) GLR 1580 [Para 15];; Plasto Processors & Anr. vs. Gujarat Electricity Board & Ors., 2005 (2) GLR 993 [Para 16];; Jagmohan Mehatabsing Gujaral & Ors. vs. State of Maharashtra, 2007 (1) GLR 643 [Para 20].—Relied on

       Thakore K. Patel vs. Gujarat Electricity Board, 2003 (1) GLR 506 [Para 17].—Distinguished

       Appeal Dismissed