State vs. R.A. Kadar and Anr. Vs Rizwant Abdul Kadar and Anr.

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 (-1-)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 672 OF 1995

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 The State of Maharashtra ...Appellant.

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 Versus
 1. Rizawat Abdul Kadar.
 Age 26 years, Occ. Service,
 R/o. Riyaz Ice & Cold
 Storage, Sector 18,
 Vashi Manupco,
 Plot No. 31-33, Vashi,
 New Mumbai.
 2. Gulam Gafar Mundhe,
 Age 45 years, Occ. Service,
 R/o. Riyaz Ice & Cold
 Storage, Sector 18,
 Vashi Manupco,
 Plot No. 31-33, Vashi,
 New Mumbai. ...Respondents.

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 .....
 Shri. A.S. Shitole, A.P.P. for the appellant.
 Shri. K.D. Chavan i/b Shri. M.A. Patil for the
 respondents.

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 .....
CORAM: SMT. V.K. TAHILRAMANI, J.
DATED: 7TH DECEMBER, 2004

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ORAL JUDGMENT:-

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 1. Through this appeal, the appellant i.e. the
 State of Maharashtra challenges the judgment and
 order dated 5.12.1994 passed by the learned
 J.M.F.C. Thane. By the said judgment and order

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 (-2-)

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 the learned Magistrate acquitted the respondents
 i.e. original accused Nos.1 and 2 for the offence
 under Sections 39 and 44 of the Indian Electricity
 Act and Section 379 of I.P.C.

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 2. The relevant facts of the case are as follows:-

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 . That the complainant P.W.7 Prakash Amble was a
 Deputy Executive Engineer. He was also a member of
 Flying Squad of Maharashtra State Electricity
 Board. On 28.12.93 he alongwith P.W.3 lineman R.B.
 Patil, P.W.4 lineman U.R. Misal, P.W.5 A.D. Kale
 and officers of the M.S.E.B., visited the Riyaz Ice
 and Cold Storage Company, Vashi for inspection of
 electricity meter. This visit was at the instance
 of the vigilance and Security of M.S.E.B. Bombay.
 On inspection of the meter, they found three holes
 on the side of the meter. The said holes were of

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 one m.m. parameter. One hole was on the left
 side, one hole was on the right side and one hole
 was at the bottom of the meter. The said holes
 were closed by applying M. Seal. As per the
 complainant, the above position of the meter
 revealed that the accused used to stop the meter so
 that the actual consumption of electricity could
 not be recorded. After completion of the
 investigation, charge sheet came to be filed.

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 (-3-)

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 3. Accused appeared before the Court. Charge came
 to be framed against them. Accused pleaded not
 guilty and claimed to be tried. After going
 through the evidence adduced by the prosecution,
 the learned Magistrate acquitted the respondents/
 accused of the offences charged. Hence, this
 appeal.

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 4. I have heard Shri. Shitole, the learned A.P.P.
 for the appellant-State and Shri. Chavan i/b Shri.
 Patil, Adv. for respondents-accused. I have also
 perused the entire material on record. After
 carefully considering the matter, I am of the
 opinion that this appeal deserves to be dismissed.

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 5. The most important witness in the present is
 the complainant i.e. P.W.7 Prakash Amble. He
 alongwith P.W.3 R.B. Patil, P.W.4 U.R. Misal and
 P.W.5 A.D. Kale visited the company on 28.12.93.
 He found that there were three holes on the side of
 the electricity meter. The said holes were of one
 m.m. parameter each. One hole was on the left
 side, one hole was on the right side and one hole
 was at the bottom of the meter. The said holes had
 been filled up by M. Seal. On seeing this
 position the complainant came to the conclusion
 that there was a theft of electricity and thus the
 complaint came to be filed.

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 (-4-)

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 6. In the present case, the evidence of the
 complainant revealed that the company was running
 at the time of visit and that meter was in working
 condition. However, he found three holes on the
 side of the meter and on the basis of these holes
 the complainant thought that the accused might have
 consumed electricity dishonestly prior to the
 incident. However, it is pertinent to note that
 the F.I.R. does not disclose the fact that the
 electricity has been consumed dishonestly.

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 7. It has come in the evidence of the complainant
 that at the time of the inspection the meter box
 seal was in intact condition. The complainant has
 admitted that the reading of the meter was showing
 as per the consumption and that energy was not
 being stolen at the time of visit. It is only on
 the ground that there were three holes on the side
 of meter, that the complainant assumed that there
 was theft of electricity. He has also admitted
 that there is no report of the meter reader that
 the bill was inadequate. In my opinion, merely
 because there were holes near the meter, in the
 absence of any other material on record, it cannot
 be said that electricity was stolen. The
 prosecution has failed in proving that there was
 presence of artificial means by which the

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 (-5-)

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 electricity was being consumed dishonestly. There
 must be artificial means for stoppage of meter or
 artificial means used for making the meter slow.
 In the present case, there is no such evidence on
 record. It is an admitted fact that at the time of
 inspection of the meter, the reading was as per the
 consumption of electricity and there was no means
 of preventing the rotation of the disc of the meter
 nor any other means were used to make the rotation
 of the meter disc slow.

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 8. In the present case it is undisputed that the
 company was in operation and the meter was
 indicating the units consumed and the accused were
 not present at the spot. As far as the accused
 No.2 is concerned, he is an employee and not the
 owner of the company. There is nothing on record
 to show that he is connected with the alleged
 offence. There is no evidence to show that he is
 taking part in any of the operations of the
 company. In this circumstance, he cannot be held
 to be a consumer as envisaged in Section 2(c) of
 the Indian Electricity Act and thus he cannot be
 held to be liable for the alleged offence.

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 9. The learned Magistrate has given plausible
 reasons for acquittal in the impugned judgment. It
 is well settled that if the view of acquittal could

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 have been reasonably arrived at, then the mere
 circumstance that the appellate Court would have
 taken a different view, would be no ground to
 interfere. In this connection, there is no dearth
 of authorities. To eschew prolixity, I am only
 referring to two of them i.e. A.I.R. 1971 S.C.
66 (Khedu Mohton Vs. State of Bihar) and (2003) 1
S.C.C. 1 (C. Anthony Vs. K.G. Raghavan Nair).

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 In the case of C. Anthony, the Supreme Court has
 observed that unless findings of the trial Court
 are perverse or contrary to the material on record,
 the High Court cannot in appeal, substitute its
 findings merely because other contrary opinion was
 possible on the basis of the material on record.
 In my view, the view of acquittal was a reasonable
 and possible view.

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 10. Taking all these facts into consideration, the
 conclusion arrived at by the learned Magistrate
 that the prosecution has not proved its case is a
 possible and reasonable view. Criminal appeal is
 dismissed. The appellants are on bail, their bail
 bonds stand cancelled.

State v. R.A. Kadar and Anr. v Rizwant Abdul Kadar and Anr.

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State v. R.A. Kadar and Anr. v Rizwant Abdul Kadar and Anr.

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