In an appeal against acquittal, the appellate court should not interfere unless the trial court's findings are clearly wrong or unsustainable.

JUDGMENT :

M.K. THAKKER, J.

1. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order dated 14.09.2007 passed by learned Designated Judge, Special Court and Presiding Officer, 2nd Fast Track Court, Surat, in Special Electricity Case No. 5 of 2007 dated 14.09.2007 by which learned Trial Court has passed the judgment and order of acquittal for the offence punishable under Section 135(1A) of the Indian Electricity Act.

2. Facts of the case are as under:

2.1 An offence came to be registered with GEB Police Station South Zone, Surat being II - C.R. No. 455 of 2006 for the offence punishable under Section 135(1) of the Indian Electricity Act on 23.03.2006. It is the case of the complainant i.e. Deputy Engineer that on 23.3.2006, when he was on inspection, he found that respondent-accused has connected the cable directly from the Low Tension Electric Wire passing from transformer of Water and Resources Department and committed theft of electricity for the amount of Rs. 2,50,055.37 and for that, ‘Notice’ under Section 135 of the Indian Electricity Act was issued. Pursuant to the ‘Notice’ the theft amount was not deposited with the Electricity Company. Therefore, complaint came to be filed. On receiving the complaint, investigation was carried out and at the end of the investigation, on the basis of the material collected, charge-sheet came to be submitted before the learned Judicial Magistrate First Class, Olpad for the offence punishable under Section 135(1) of the Indian Electricity Act. As the case is triable by the learned Special Court, the same was committed to the Learned Special Designated Court and Presiding Officer, Surat. On committal of the case and after satisfying for receiving the papers by the respondent-accused, charge came to be framed below Exh.2 and plea came to be recorded wherein accused pleaded not guilty and claimed to be tried. To prove the case, prosecution had examined three witnesses, namely, (1) Naginbhai Gomanbhai Patel, PW-1, Exh.4-A, complainant, (2) Bhavesh Kantilal, PW-2, Exh.10 Panch Witness and (3) Jagdish Jayantilal, PW-3, Exh.18. In addition to that, 6 documentary evidences were produced, which is in the nature of complaint, Exh.9, Calculation Sheet Exh.6, Checking Sheet Exh.5, Panchnama of place of offence Exh.12, Recovery of Muddamal Exh.11 and Entry of Station Diary Exh.19. On filing the closing pursis, further statement under Section 313 of the Code of Criminal Procedure came to be recorded and all incriminating material was put before the respondent-accused. Respondent-accused had denied the case of prosecution in entirety and pleaded innocent and false implication. However, in defence, he did not examine any witness or produce any document on record. On conclusion of the trial and on appreciation of the material placed, learned trial Court had passed the judgment and order of acquittal on the ground that prosecution fails to prove the charge against the respondent-accused beyond reasonable doubt. Being aggrieved and dissatisfied with the judgment and order of acquittal, the State has preferred this appeal.

3. Heard Ms. Monali Bhatt, learned APP for the State and though ‘Rule’ was served as well as bailable warrant was executed upon Respondent No. 1, Respondent No. 1 had chosen not to appear before this Court.

4. Learned APP submits that judgment and order of acquittal passed by learned trial Court is without any cogent reasons and without appreciating the evidence, which was placed on record. Learned APP submits that though all three witnesses supported the case of prosecution, in that testimony, learned trial Court had acquitted the respondent-accused only on the ground that prosecution fails to establish the ownership of the premises from where illegal connection of the electricity was found. Learned APP further submits that though the amount of theft was found to have been proved by the prosecution and for that bill along with the theft calcu