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CASE NO.: Appeal (crl.)  1113 of 2006

PETITIONER: Jagmodhan Mehatabsing Gujaral & Others                                                   

RESPONDENT: State of Maharashtra                             

DATE OF JUDGMENT: 02/11/2006

BENCH: S.B. SINHA & DALVEER BHANDARI

JUDGMENT: J U D G M E N T [Arising out of SLP (Criminal) No. 1552 of 2006]

Dalveer Bhandari, J.

       Leave granted.

This appeal is directed against the judgment of the  High Court of Judicature at Bombay dated 23.1.2006 in  Criminal Revision Application No.458/2005 and Criminal  Revision Application No.11 of 2006.

       The appellants in this appeal had been convicted by  the Additional Chief Judicial Magistrate, First Class,  Pune, by the judgment dated 21.12.1996 under Sections  39 and 44 of the Indian Electricity Act, 1910 (hereinafter  referred to as the Act) and were also directed to pay a  fine.  These appellants were directed to suffer three  months rigorous imprisonment.  Appellants number 1 &  3 were also directed to pay a fine of Rs.40,000/- each  and appellant number 2 to pay a fine of Rs.20,000/-  under Section 39 of the Act.   

The appellants, aggrieved by the said judgment of  the Additional Chief Judicial Magistrate, Pune, filed an  appeal before the Ad-hoc Additional Sessions Judge,  Pune being Appeal No. 12 of 1997.  The learned  Additional Sessions Judge again evaluated the entire  evidence and examined the documents on record and  reached the same finding and consequently dismissed  the appeal filed by the appellants.    

The Criminal Revision filed against the said  judgment of the Additional Sessions Judge was dismissed  by the High Court of Judicature at Bombay vide  judgment dated 23.1.2006.  Both the learned Additional  Sessions Judge and the High Court upheld the decision  of the Additional Chief Judicial Magistrate.

The brief facts which are relevant to dispose of this  appeal are recapitulated as under.

Appellant number 1 was the Managing Director of  M/s. Nanda Glass Industries Pvt. Ltd., located at Gat No.  679/680 Valu, Taluka Bhor and appellants number 2  and 3 are the partners of the partnership firm M/s.  Technoframes.  Both the industries were adjacent to each  other.

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The Consumer number of M/s. Nanda Glass  Industries Pvt. Ltd. is 17941-900102-3 with sanctioned  load CD 225 KVA for toughening of glass.  The Consumer  number of M/s. Technoframes is 1-416 with Meter No.  9030013/TPHR 605 dated 10.7.1986.  The sanctioned  load of Consumer number 1-416 is 60 H.P. for  toughening of glass. Upon receiving information that there was theft of  electric energy being committed by the appellants at  these two electric connections for their industry at night,  the complainant V. G. Kokane, the then Dy. Executive  Engineer and in-charge of flying squad of MSEB and  Executive Engineer, Kadam with their other testing staff  etc. and two Panchas went to M/s. Nanda Glass  Industries Pvt. Ltd. and Technoframes in the intervening  night of 3/4.10.1989 for the purpose of inspection and  checking.

It was found that the power of 225 KVA was  sanctioned to accused no. 1 on contract demand with  H.T. metering for the purposes of recording consumption.   One iron box was provided for Trivector Meter.  The box  was closed and duly sealed under the seal of M.S.E.B.   There was CTPC unit provided at D.P. Pole from which  the wires were brought into the Meter Box through a  conduit pipe so that they could not be tampered.   The  appellants dislocated the conduit pipe at the bend and  socket.  They had cut and removed voltage wire of one  phase and current wire of another phase so that actual  consumption could not be recorded by the meter.   Similarly, the appellants by tampering meters ensured  that actual consumption of power used for main furnaces  and blower was not recorded from December, 1987 so  that there could not be any difficulty in putting  explanation, if any, called upon by the M.S.E.B.   The  daily consumption of power was to be recorded by the  consumer in prescribed G-7 form, but it was found that it  was written only once every month.  On 3.5.1988 while it  was inspected by the Testing Division abruptly, abnormal  difference was found between the entries noted by the  consumer in G-7 form and the reading recorded by the  officers of the M.S.E.B.  The copies of these forms were  attached to the complaint.  

In the intervening night of 3/4-10-1989, when the  complainant and his companions went to the premises  they found one watchman on the gate who was called  Bapu Bhagwan Alder.  He was said to be a Shift  Operator-cum-Supervisor and he showed the actual  condition of the connections to them.  Bapu Bhagwan  Alder had put his signatures on the Inspection Reports  drawn on the spot, being Exh. Nos.90 and 91.  He also  voluntarily gave one statement in writing (marked as  Exh. No. 80) stating that the industry was actually  working at the time of the visit.  The factory was normally  working in three shifts.  It was found at the place of L.T.  Connection supplied for Technoframes that though the  said company was bearing a different name, the electric  power was being used for toughening of glass in M/s.  Nanda Glass Industries.  The members of the raid team  along with complainant found drastic changes and  tampering done by the accused in the said connection  wherein three incoming wires and other three outgoing  wires of the meter were joined together at their respective  ends by taking them out from outgoing phase of the

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terminal box of the meter.  Therefore, the meter was  totally by-passed and it was not recording the electricity  which was consumed.  The meter terminal cover and the  seals of the M.S.E.B. were not available and there was  100% theft of energy of 60 H.P.  The complainant V.G.  Kokane had taken photographs to show the tampering of  the electric connection and taking of such photographs  was indicated in the seizure panchanama.

The appellants did not pay any amount more than  the minimum charges to the Board, whereas the actual  consumption of the electricity was much more.  It was  assessed by the complainant as an Expert in the field  that there was consumption of 10,00,000 units and  16075 VA power worth of Rs.12,00,000/- from H.T.  connection whereas 5,00,000 units worth of  Rs.4,50,000/- from L.T. connection and the theft of  energy of Rs.16,50,000/- committed by them.  The  photographs of the actual position seen by the raiding  party were taken on the spot and that they were  produced in the police station during investigation.    Similarly, the original seals of H.T. Meter Box were cut  and seized in a closed packet duly sealed under the  signatures of the Panchas which were also produced by  them in the police station.  As it was likely that there will  be rejoining or change in the position of the L.T.  Connection (I-416) the room in which it was installed was  duly locked and the lock was sealed with paper bearing  signatures of the Panchas was pasted on it.  Both the  keys of the lock were also given by the complainant in the  police station along with the complaint.  The complaint  was registered at the Bhor Police Station at about 7.30  p.m. on 4.10.1989.  The original panchnama drawn by  the M.S.E.B. officials and the Panchas at the time of  actual raid were also produced by the complainant with  true statement of consumption of M/s. Nanda Glass  Industries for the purposes of evidence in support of the  allegations.   

After proper investigation of the entire case, the  charges against the appellants were framed under  Sections 39 and 44 of the Electricity Act, to which the  appellants pleaded not guilty.  It may be pertinent to  mention that the presence of accused Ravindra Birbal  Khadake could not be secured in spite of issuing  warrants and the Chief Judicial Magistrate was pleased  to order for separation of trial against him.   We are not  concerned with the said accused in this appeal.

In the trial of the instant case the prosecution had  examined seven witnesses Ramchandra Paigude, PW1  attested the panchanama of Exh.74.  It was drawn  during the surprise visit by the raiding party in the night.   He also proved Exh.78 a sealed packet (that was opened  in the court), containing three seats which were removed  from the meter in the premises of the glass industry.   Shankar Anpat, P.W.2, Executive Engineer, Lokhote,  PW3, Junior Engineer, Security Officer, complainant  Vijay Kokane PW4, Dy. Executive Engineer and in charge  of flying squad and Pathan PW5, Junior Vigilance Officer  were employees of the MSEB.  These officials of the board  described how they had visited the factory and detected  existence of fraudulent means of abstraction of electricity  without recording consumption in the meter.  PW6 is one  of the panch witnesses who had attested Exh.101.  In his

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presence, another panch had climbed atop the meter  room located in the premises of Technoframes. It was  found that planks in the roof were newly fitted with fresh  nailing.  Vishnu Mane PW7 had investigated the offence  and sent charge sheet to the Court.

Ramchandra Paigude PW1, an independent witness,  fully supported the prosecution version.  He was under  no obligation to favour the Board officials.  He had also  stated that the watchman Wadkar had called Bapu Aldar  and he was introduced as shift supervisor and had taken  the raiding party to the electric installations.

The defence of the appellants is that of denial of  abstraction and dishonest consumption or use of electric  energy by them directly or by any artificial means or the  means not authorized by the licensee.  

The appellants were found guilty of the offences  punishable under Sections 39 and 44 of the Electricity  Act.  According to the Trial Court, the prosecution had  succeeded in establishing the commission of theft of the  electric energy worth about Rs.16,50,000/-.   

The appellants, aggrieved by the judgment of the  Trial Court, preferred an appeal before the learned  Sessions Court, Pune.  The first Appellate Court again  examined in detail the entire evidence and the arguments  advanced by the parties.   The first Appellate Court also  examined the relevant decided cases of this Court and  other Courts.    The appeal filed by the appellants was  dismissed by a detailed and comprehensive judgment  dated 27.12.2005.

The appellants preferred a revision petition before  the High Court of Judicature at Bombay, which was  dismissed vide order dated 23.1.2006.  The appellants,  aggrieved by the said judgment of the High Court, have  preferred this appeal.

It was submitted by the appellants that the  complainant was not authorized to file FIR.  The Trial  Court had considered this argument of the appellants.   The Trial Court has correctly mentioned in its judgment  that by the amendment in the provisions of Section 50,  the word ’Government or a State Electricity Board or an  Electric Inspector or a person aggrieved by same’ has  been amended and the officers of the State Electricity  Board or a person aggrieved by the theft are authorized  by the notification to lodge a complaint.  The complainant  was fully justified in filing the complaint. We do not find  any merit in this argument of the appellants. The appellants submitted that there is manifest  error in the judgment of the Trial Court, which was  affirmed by the first appellate court and the High Court,  by which the appellants were convicted and sentenced to  three months rigorous imprisonment on the ground that  the theft of electricity to the extent of an amount of  Rs.17,35,453.52 was extracted by the appellants,  whereas, the Civil Court had come to the conclusion and  passed the decree in favour of the respondent  Maharashtra State Electricity Board in Civil Suit  No.156/92 for only Rs.3,07,999.74.      

On evaluation of the entire evidence and documents

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on record when the case of theft has been fully proved,  then whether the theft of energy was to the extent of  Rs.17,35,453.52 or Rs.3,07,999.74,  really makes no  difference, as there was theft of energy on a large scale  for a long time.  The appellants cannot take advantage of  the fact that the respondents had not appealed against  the judgment of the Joint Civil Judge, Senior Division,  Pune, who had passed the decree for Rs.3,07,999.74.   

The appellants had also alleged that 48 hours notice  was not given to the appellants before conducting the  raid.

The Trial Court had dealt with the aspect of giving  48 hours notice before conducting the raid.  In a case of  a surprise raid 48 hours’ notice to the appellants is not  envisaged by the Legislature and otherwise also it would  have been counter productive, because there was a  strong possibility of obliterating and/or destroying the  entire evidence to connect the appellants with the crime.   Moreover, even if it is so accepted, it is on record that the  Watchman and Bapu Bhagwan Alder were found present  in the premises on behalf of the appellants and that they  did assist the raiding team to carry on their work.  It is  reported by the police in reply to summons that Bapu  Bhagwan Alder was serving in some Glass Factory in  Pune, but he could not be traced out for the purpose of  tendering the evidence before the Court.  In fact, it was  possible for the appellants to bring him in the box, at  least as defence witness, to state that he had no concern  with the industry of the accused.  Moreover, the  Employment Record or Muster Roll of the Industry of the  accused was not brought for inspection by this Court.   Suppression of this clearly gives rise to considerable  substance in the allegations of the prosecution.  By and  large this negatives the arguments on behalf of the  appellants that the raid is illegal or otherwise defective.   Therefore, we do not find any substance in this  submission made by the appellants.

The appellants further submitted that the courts in  the impugned judgment ought to have appreciated the  circumstance that more than 17 years have elapsed; that  one of the accused/appellants is a lady partner in the  firm and that in fact the public prosecutor had consented  and argued for reducing the sentence.

The appellants further submitted that the courts  below have not properly considered the entire case in the  proper perspective because there was no evidence about  the tampering with the meter.

In the Panchnama, it is categorically mentioned that  Exhibit no. 91 is the Inspection Sheet pertaining to M/s.  Technoframes, Consumer No. I-416 and the observations  made are as under: "Meter Terminal Box Seal and cover  missing.  All the coming and outgoing wires  are connected together in the incoming hole  resulting total buy passing of meter and no  consumption is recorded in the meter."

Therefore, we find no substance in this submission that  there was no evidence of tampering of electricity meters  by the appellants.

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       On consideration of the totality of the entire case,  we do not find any merit in the submissions made on  behalf of the appellants.  In our view, no interference is  called for in the impugned judgment so far as conviction  of the appellants under Sections 39 and 44 of the Act is  concerned and consequently, we uphold the impugned  judgment as far as conviction of the appellants is  concerned.

       We have also heard the learned counsel for the  appellants on the point of sentence.   It was submitted  before the Trial Court and before this Court also that it is  the first offence of the appellants.  They have family  members and minor dependents.  Appellant number 2 is  a lady.  More than 17 years have elapsed and now,  sending the appellants to jail for serving out the  remaining part of their sentence would be extremely  harsh.  The appellants have already served out a part of  their sentence and sending them back to jail to serve out  the remaining sentence would cause tremendous  hardship to the appellants and their family members.

Large scale theft of electricity is a very alarming  problem faced by all the State Electricity Boards in our  country, which is causing loss to the State revenue  running in hundreds of crores every year.  In our  considered view, after proper adjudication of the cases of  all those who are found to be guilty of the offence of  committing theft of electricity, apart from the sentence of  conviction, the Court should invariably impose heavy fine  making theft of electricity a wholly non-profitable  venture.  The most effective step to curb this tendency  perhaps could be to discontinue supply of electricity to  those consumers for temporarily or permanently who  have been caught abstracting electricity in a clandestine  manner on more than one occasion.  The legislature may  consider incorporating this suggestion as a form of  punishment by amending Section 39 of the Indian  Electricity Act of 1910.

       On consideration of the peculiar facts and  circumstances of the case, where the appellants have  already served out a part of the sentence and instead of  compelling them to serve out the remaining sentence  after lapse of 17 years, in the interest of justice, we deem  it appropriate to increase the fine from Rs.40,000/- each  to Rs.3,00,000/- each in case of appellants number 1  and 3 (Jagmodhan Mehatabsing Gujaral and  Harcharanpalsing Nanda respectively) and from  Rs.20,000/- to Rs.2,00,000/- under Section 39 of the Act  in case of appellant number 2 (Mrs. Rupender Kaur  Harcharanpalsing).  The appellants are further sentenced  to pay a fine of Rs.5,000/- each under Section 44 of the  Act.    

The appellants, in case, have already paid fine  imposed by the Trial Court under Section 39 of the Act,  then the appellants are directed to deposit only the  remaining amount of fine within a period of eight weeks’  from the date of this judgment.  In case the amount of  fine, as directed by this Court under Sections 39 and 44  of the Act, is not deposited within the stipulated time,  then the appellants shall be taken into custody to serve  out the remaining part of their sentence, as imposed by

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the Trial Court and upheld in the impugned judgment by  the High Court.          This appeal is accordingly disposed of in terms of  the aforesaid observations.