IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 5^th DAY OF FEBRUARY 2021

BEFORE

THE HON’BLE MR.JUSTICE K. NATARAJAN

CRIMINAL APPEAL NO.2794/2011

BETWEEN:

K. NAGARAJ, S/O K. YERRAPPA

AGE 33 YRS., OCC: AGRICULTURIST

R/O TALUR VILLAGE, TQ. DIST. BELLARY

.. APPELLANT

(BY SRI. V. SHIVARAJ HIREMATH, ADVOCATE)

AND:

THE STATE OF KARNATAKA,

BY HE POLICE INSPECTOR

VIGILANCE SQUAD POLICE STATION

GESCOM, BELLARY.

.. RESPONDENT

(BY SRI. RAMESH B. CHIGARI, HCGP)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF

CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND THE

ORDER OF SENTENCE DATED 5.8.2011 IN SPECIAL CASE NO.64/2009

PASSED BY THE LEARNED SPECIAL JUDGE, BELLARY, BY ALLOWING THE

ABOVE APPEAL.

THIS APPEAL COMING ON FOR HEARING THROUGH PHYSICAL

HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE

THE FOLLOWING:

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O R D E R

This appeal is filed by the appellant/accused being

aggrieved by the judgment of conviction and sentence dated

05.08.2011 passed by the learned Special Judge, Bellary, in Special

Case No.64/2009 for the offence punishable under Section

135(1)(b) of the Electricity Act, 2003 (hereinafter referred to as the

‘Electricity Act’, for brevity) and sentenced to undergo rigorous

imprisonment for a period of six months and fine of Rs.10,000/- in

default to undergo further simple imprisonment for two months and

to pay Back Billing Charges of Rs.1,06,644/-.

2.

Heard the learned counsel for the appellant and the

learned Government Pleader for the respondent-State.

3.

The rank of the parties before the trial court is retained

for convenience.

4.

The case of the prosecution is that the Police Inspector,

Vigilance squad, GESCOM, Bellary, filed a charge sheet against the

accused for the offence punishable under Section 135(1)(b) of

Electricity Act. It is alleged that on 24.10.2008 at about 11.00 am,

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when the complainant-PW-1 and his officials went to the Talur

village, inspected the flourmill belonging to the accused and it was

noticed that the accused was running the flourmill with the help of

10HP motor without obtaining R.R. Number, by taking connection

directly from the electric pole with the help of service wire.

Thereby, he has committed theft of electricity and caused loss to

the tune of Rs.1,06,644/-. The electricity was disconnected. The

wire as well as the meter was seized under the panchanama and a

report has been prepared regarding back billing charges and loss

report and a complaint was filed before the Sub-Inspector of

GESCOM. On the basis of the complaint, a case was registered in

Crime No.471/2008 and FIR was also issued. After concluding

investigation, charge sheet came to be filed. The accused appeared

before the trial Court. He was enlarged on bail, later charges were

framed against him. He pleaded not guilty and claimed to be tried.

In order to prove its case, the prosecution examined in all 5

witnesses and got marked 5 documents and 2 material objects.

After closure of the evidence, the statement of the accused under

Section 313 of Cr.P.C. was recorded. The accused denied all the

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incriminating materials found in the evidence of the prosecution

witnesses and taken a defence that a false case was registered.

After hearing the arguments, the trial court found the accused

guilty and convicted him as stated supra. Being aggrieved by the

same, the accused has preferred this appeal.

5.

Learned counsel for the appellant contended that the

trial Court committed error in accepting the evidence of the official

witnesses. There are no independent witnesses examined by the

Investigating Officer to prove the case against the accused. No

documents are produced by the prosecution in order to show that

the accused was actually running any flour mill. Except producing

Ex.P-5-Ktha extract of the house, there is no incriminatin