Point of Law : Merely saying that it is the duty of the prosecution to prove the case beyond reasonable doubt, is not sufficient for trial court to commit an omission.

JUDGMENT :

(Umesh Chandra Sharma, J.)

1. Heard Sri Sanjay Kumar Dubey, learned counsel for the applicants, Sri Pankaj Kumar Tripathi, learned Additional Government Advocate, learned counsel for opposite party no.2 and perused the record.

2. This application under Section 482 CrPC has been filed for quashing the order dated 26.04.2022 passed by the Additional Sessions Judge/Special Judge (Electricity Act), Court No.2, Hathras passed in ST No.109 of 2006 (H.S. Agrawal Vs. M/S Parsadi Lal and others), under Section 135 Electricity Act, 2003, Police Station Chandpa, District Hathras by which Application No.218(D) under Section 311 CrPC moved by the accused persons was rejected.

3. In brief, facts of the case in brief are that opposite party no.2 filed a complaint under Section 135 of the Electricity Act registered as Complaint Case No.109 of 2006 (Shri H.S. Agrawal Vs. M/S Parsadi Lal and others) against the complainant firm and its director regarding electricity theft by tampering the electric meter in which after completion of formalities, trial began, after completion of prosecution evidence, statement of the accused persons were recorded on 07.03.2013 under Section 311 CrPC, evidence of DW-1, DW-2 and DW-3 were recorded in defence and trial court provided opportunity to the prosecution for their cross-examinations.

4. The case of the complainant was that the alleged meter taken from the premises of applicant no.1, was sent to M/s Duke Ornex, Hyderabad and the examiner has not been examined as witness, during the statement of PW-4, Ramesh Chandra, the witness admitted that the report of Duke Ornex, Hyderabad has not been received, but the learned counsel for the complainant stated in his argument that the report of M/S Duke Ornext, Hyderabad was produced in the Court and the examiner of the meter is the necessary witness and he must be examined in the court to ascertain the truth.

5. On the above grounds, the aforesaid application under Section 311 CrPC was moved for calling M/S Duke Ornex, Hyderabad for recording its evidence in respect of report, but the trial court rejected the application recording perverse findings stating therein that it is the duty of the prosecution to set up their case beyond reasonable doubts and in the present case, the dispute with regard to the report of seal received or not, is the case of prosecution. There is dispute with regard to theft of electricity by tampering electric meter and in such circumstances, the evidence of M/s Duke Ornex, Hyderabad becomes essential for the just decision of the case. The order is absolutely illegal, arbitrary and against the provisions of law and has been passed without applying the judicial mind, hence the impugned order be quashed.

6. The relevant documents relating to the case have been filed as Annexures to the counter affidavit filed on behalf of opposite party nos.2 and 3 stating therein that M/S Parsadi Lal Tulsiram Cold Storage had taken electricity connection of 11 K.V. from the U.P. Power Corporation Ltd. On a sudden check by the team of power corporation on 18.11.2004, it was found that the cold storage was functioning and on suspicion all the seals of cubical meter were sent to the M/S Duke Ornex, Hyderabad for its examination on 20.11.2004. After receiving the report of said meter, it was found that the reading of meter was made lesser by the opposite party through remote and as such bill for payment has been sent on 27.09.2005 for Rs.56,79,572/-. The applicants were summoned, trial started, statement of the accused persons under Section 311 CrPC were recorded and the applicants examined three witnesses in defence. After a long gap of six years from the recording of statements under Section 313 CrPC, and at the verge of conclusion of trial, the applicants moved an application under Section 311 CrPC on 27.04.2019. This application was moved after closing of the defence evidence on 13.03.2013 only to delay the trial. The application was rejected by the