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2008 Supreme(MP) 1110
S.L. Kochar, J.
Bapupuri v. Madhya Pradesh Vidyut Vitran Co. Ltd.
Criminal Appeal No.302 of 2008 (Indore) : against the judgment of
Special Judge, Biaora, Distt. Rajgarh, in Special Case No.267 of 2006;
Decided on 6.11.2008.
Himanshu Joshi for appellant;
Prakash Jain for respondent.
Headnote:(1) ElectricityAct, 2003 -- Ss.135(1A), 135(2), 135(4), 151 and 154(5) -- Criminal P.C., 1973 -- S.100 -- Evidence Act, 1872 -- S.114(g) -- theft of electricity -- complainant not proving his authorisation -- cognizance cannot be taken -- wire and motor not seized according to S.100 of the Code -- witnesses named out not examined -- adverse inference may be drawn -- accused entitled to acquittal.
Held : This complaint was filed by filling up the blanks in a printed proforma. In the printed proforma of the complaint in para 1, it is printed that the complainant is authorized by the company, but no authorization letter has been filed along with the complaint and Junior Engineer CW 1 Koshtha in-his statement on oath in Court has no where stated that he was authorized to file the complaint as per provision under section 151 of the Act. Learned Special Judge has failed to see the provision of taking cognizance of offence which was his duty to see whether the complaint was filed by an authorized person as per provision under section 151 of the Act. Therefore, in the opinion of this Court, cognizance of the offence taken by the learned trial Court, itself is illegal and whole trial was without jurisdiction. It is also pertinent to mention here that the contents of the complaint can be used only for contradiction and corroboration of the statement of the complainant given in Court. There is no substantive evidence adduced by the complainant to establish that he was authorized to file the complaint.
CW1 D.L. Koshtha has not called two independent witnesses of the said locality at the time of inspection and search of the field owned by the appellant. He has not seized any article which was used for theft of electricity and no reason has been assigned as to why the seizure of 5 HP motor pump, electric wire was not effected by which direct connection was taken from the LT line. In this view of the matter, proceeding of inspection and search suffer from serious defect.
The prosecution has examined the only witness Shri D.L. Koshtha though on the Panchnama Ex.P-1 at the place of witnesses, signature of Motilal Line Helper is available and in the complaint he was cited as a witness No.2. No explanation has been given for non-examination of said Motilal in Court as a witness.
In the case at hand, an adverse inference can be drawn against the complainantd`respondent as per provision under section 114(g) of the Indian Evidence Act for not securing the independent witnesses, seizure of wire and electric motor and non-examination of Motilal cited as a witness accompanied with complainant. (2006)8 SCC 6291 distinguished. [Paras 10, 12, 15 & 17
(2) Electricity Act, 2003 -- S.35 proviso III -- provision for presumption or reverse burden -- prosecution has to prove foundational fact beyond reasonable doubt. JT 2008(7) SC 409 followed. [Para 18
¼1½ fo|qr vf/kfu;e] 2003 && /kkjk 135¼1d½] 135¼2½ 135¼4½ 151 rFkk 154¼5½ &&naM izfdz;k lafgrk] 1973 && /kkjk 100 && lk{; vf/kfu;e] 1872 && /kkjk 114 ¼N½ && fo|qr dh pksjh && ifjoknh }kjk Lo;a dks izkf/kd`r fd;k tkuk lkfcr ugha fd;k x;k && laKku ugha fd;k tk ldrk && lafgrk dh /kkjk 100 ds vuqlkj rkj vkSj eksVj vfHkx`ghr ugha && lk{kh ukfer ijarq ijhf{kr ugha && izfrdwy fu"d"kZ fudkyk tk ldrk gS && vfHk;qDr nks"keqfDr dk gdnkj gS A
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¼2½ fo|qr vf/kfu;e] 2003 && /kkjk 35 rhljk ijarqd && mi/kkj.kk vFkok myV Hkkj dk mica/k && vfHk;kstui{k dks vk/kkjHkwr rF; ;qfDr;qDr lansg ls ijs lkfcr djuk gksrk gS A ts Vh 2008¼7½ ,l lh 409 vuqlfjrA ¼iSjk 18½
1. The appellant has preferred this appeal under section 156 of the Electricity Act, 2003 (for short "the Act") read with section 374 of the Code of Criminal Procedure (for short "the Code") against the judgment dated 15.12.2007 passed by the learned Additional Sessions Judge (Special Judge, Biaora District Rajgarh) in Special Case No.267/06, thereby holding . the appellant guilty for the offence under section 135 of the Act, convicted and sentenced him to pay Rs.8,445/- fine and in default of payment of fine to suffer additional SI for six months and also fixed civil liability as per provision under section 154(5) of the Act.
2. On inspection by the Junior Engineer Shri D.L. Koshtha (CWl) of M.P. Electricity Supply Company accompanied by helper Motilal on 16.2.2006, found that near the bank of Parvati river in village Kanarkhedi, the accused was irrigating his field by 5 HP Motor Pump by taking electricity directly from Lower Tension Line. Appellant had not taken any regular electric connection. His regular electricity connection was disconnected due to non-payment of electricity bill on 19.1.2006. ShIi Koshtha prepared a Panchnama Ex.P-l. Appellant did not sign on the Panchnama, therefore, he filed a complaint in the Court after assessing loss/theft of electricity.
3. Appellant denied the allegations levelled against him and claimed tri al.
4. Learned trial Court, after examining the witnesses for the department and hearing both the parties, held the appellant guilty, convicted and sentenced him as indicated herein-above.
5. Having heard learned counsel for the parties and after perusing the entire record carefully, this Court is of the view that the impugned judgment passed by the trial Court is not sustainable.
6. Under section 135 sub-section (1-A) of the Act, theft of electricity is defined and penalty is prescribed. Under sub-section (2) powers of officer or licensee or supplier as the case may be provided for the purposes of entering, inspect, break-open and search any plate or premises, search, seizure and removal of all such devices, instructions wires and any other facilitator, articles which are used for unauthorized use of electricity. Sub-section (3) is for presence of occupant of the place at the time of search and authorized officer shall prepare the list of all things seized in course of such search and shall deliver to such occupant or person who shall sign the list. Proviso to sub-section (3) says that between the Sun set and Sun rise, inspection, search and seizure of any domestic place or premises shall not be carried out without presence of any adult male member occupying such premises. Sub-section (4) reads as under.
"The provisions of Code of Criminal Procedure, 1973 relating to search and seizure shall apply as far as may be practical to searches and seizure under this Act." .
7. Now it is to be seen whether the authorized officer has followed the provisions for search and seizure prescribed under section 135(2)(3) and (4) of the Act or not?
8. Under section 154 of the Act, procedure and power of Special Court are prescribed. According to sub-section (3) of this section the Special Court may try the offences referred to in sections 135 to 140 and 150 of the Act in a summary way in accordance with the procedure prescribed in the Code arid the provisions of sections 263 to 265 of the said Code shall, as the case may be, apply to such trial. The Special Court has also been given power in this section to try the case as a warrant trial and recall a witness for rehearing of the case. Under section 155 of the Act, the Special Court is clothed with the power of Court of Session.
9. Under section 151 of the Act, Special Court can take cognizance of an offence under this Act on the basis of the complaint in writing made by the appropriate Government or appropriate Commission or any of their officers authorized by them or a Chief Electrical Inspector or an Electric Inspector or licensee or the Generati
