Chhattisgarh State Power Distribution Company Limited Vs Chhotelal Bhale

This acquittal appeal under Section has been preferred by the appellant/complainant under Section 374 (4) of the Code of Criminal Procedure challenging the judgment dated 20.06.2019 passed by Special Judge (Electricity Act), Durg (C.G.) {henceforth, Special Judge} in Special Case No. 82/2016, whereby respondent /accused has been acquitted of the charge under Section 135 of the Electricity Act, 2003 (hereinafter referred to as, ‘Act, 2003’).

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Case of the complainant, in nutshell, is that on 06.8.2015 residential premises of respondent/accused situated at Azad Chowk, Patan,

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Distrct Durg where electric connection (Service Connection No. 100400253) and single phase Meter No. 0308316321 was installed, was inspected by vigilance team headed by Subhash Singh (PW-2), Executive Engineer (Vigilance), Durg, then it was found that the said meter was installed in Poly Carbonate Box, seal of which was found broken. On being opened the box, body seal of meter was also found broken and upper part of the meter was found open and, as such, the meter was found to be damaged and thereby respondent was stealing electricity. Hence, necessary documents were prepared and complaint under Section 135 of the Act, 2003 was filed against respondent/accused before Special Judge, Durg.

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Special Judge (Electricity Act), Durg framed charge under Section 135 of the Act, 2003 against the respondent, who abjured the guilt and claimed trial.

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In order to establish the charge against the respondent /accused, the prosecution examined as many as 4 witnesses and exhibited 9 documents. Statement of the respondent/accused under Section 313 of the Cr.P.C. were also recorded, in which he denied all the incriminating circumstances appearing against him in deposition adduced by the complainant claiming himself to be innocent and false implication. He has not examined any witness in support of his defence.

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Learned Special Court, after considering oral & documentary evidence adduced by the complainant, acquitted respondent/accused by recording a finding that no independent witnesses have been examined by the complainant; meter was not received in testing

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laboratory in sealed cover manner and the meter has been tested after three months from the date of incident, thereby, complainant has failed to prove its case, hence, it has acquitted the respondent / accused of the alleged charge.

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Being aggrieved & dissatisfied with the same, complainant / Electricity Board has filed instant appeal questioning the same.

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Learned counsel appearing for the appellant/complainant submits that Subhash Singh (PW-2) who was leading the vigilance team has proved all the proceedings and documents including the broken seals, damaged meter, which is also supported by Ashish Kumar (PW-3), Assistant Engineer, who was member of Vigilance Team. She further submits that seized meter was sent for testing in Testing Laboratory, Durg where it was not only found to be tempered, rather extra resistance was also found to be fixed by the consumer/ respondent, thus, the complainant has proved its case, despite that learned Special Court has acquitted respondent/accused of the alleged charge, which is perverse & contrary to the evidence & material available on record, hence, he prayed that the appeal may be allowed and respondent may be convicted for said offence. It is next contended by learned counsel for the appellant that respondent/accused was using electric power more than a sanctioned to him by tempering the meter, therefore, as per proviso appended to Section 135 (1) of the Act, 2003, it was incumbent upon respondent/accused to prove him innocent that he was not stealing the electricity, but learned Special court has saddled liability upon appellant / complainant to prove the case overlooking the aforesaid proviso clause of Section 135 (1) of the Act, 2003.

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On the other hand, learned counsel for the respondent / accused would submit that alleged inspection was carried out in broad-day-light, despite that no independent witnesses have been examined. He further submits that necessary provisions contained in Rule 5 of Chhattisgarh State Electricity Rules, 2006 has not been complied with, as neither the seizure memo of the alleged meter was prepared nor the seizure of the alleged broken seals has been proved. He further submits that case of complainant/CSPDCL is totally depended upon report of alleged Meter prepared by Testing Laboratory, but neither meter examiner – Arvind Kumar Sharma, Assistant Engineer nor Assistant Engineer of Laboratory – Avinash Chauhan have been examined to substantiate to allegation levelled against the respondent/accused. Therefore, he submits that the appeal is liable to be dismissed.

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I have heard learned counsel for the parties and perused the material available on record.

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Subhash Singh (PW-2), Retired Executive Engineer (Vigilance), who was heading the vigilance team, has stated in his deposition that on 6.8.2015 he constituted a team headed by him consisting A.K. Banerjee, Assistant Engineer (vigilance), Heera Singh Patel, Lineman, Teerath Ram Sahu, Assistant Lineman and Vinod Choukse, Security Personnel and prepared Form-2 of Rule 5 (Rule 6 is mentioned is Ex.P-4).

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At this stage, it would be appropriate to notice the procedure of entry, search and seizure, as has been provided in part III, Rule 5 of Chhattisgarh State Electricity Rules, 2006 (for brevity, ‘Rules, 2006’), which reads thus:-

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Part III – Entry, search and Seizure

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Rule 5 :

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“(i) For the purpose of detection of theft as defined in Section 135 of the Act the officer of Board/distribution licensee are authorised to carry out functions of the entry, search and seizure as per Section 135 of the Act. Assistant Electrical Inspector or Chief Electrical Inspector of Government of Chhattisgarh shall also be authorised for making entry, search and seizure for the purpose of detection of theft.

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(ii) The officers, entering, inspecting, breaking open, searching any place shall record the reasons for doing so in Form-2.

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(iii) In case the inspection, search and seizure of any domestic place or domestic premises is to be carried out as per sub section (2) of Section 135 of the Act, the reasons for doing so shall have to be recorded in Form 3 by the officer not below the rank of Assistant Engineer of Distribution Licensee or Assistant Electrical Inspector of the Chief Electrical Inspectorate. A Panchnama shall also be made in Form 4.

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Clause (I) & (ii) of Rules 5 of Rules, 2006 specifically provides that if any detection of theft as defined in Section 135 of the Act, 2003 is to be carried out by authorized person and he intended to enter, inspect or search any place, he shall record the reasons for doing so in Form 2. In instant case, Ex.P-4 is said to be Form -2, but it has not been mentioned that whether any complaint was received against respondent/accused with regard to alleged theft of electricity or what was the reason to believe aforesaid fact. It has been mentioned in Ex.P-4, that on general inspection, it was found that respondent/accused is using unauthorized electricity, but what

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document or material was examined, has not been mentioned in Form-2 (Ex.P-4). Whereas, as per contents of Form -2 appended with the Rules, ground of reason to believe with regard to with regard to theft of electric energy against the said person ought to have been recorded.

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Clause (iii) of Rule 5 of Rules, 2006 further provides that if inspection, search & seizure of any domestic place or domestic premises is to be carried out as per sub section (2) of Section 135 of the Act, 2003, then, Form -3 ought to have been filled by the concerned officer and Panchnama in form 4 ought to have been prepared. In the instant case, panchnama (Ex.P-6) has been prepared by respondent No. 2 – Subhash Singh (PW-2), who was heading the Vigilance Team, but Form 3, as has been contemplated in Rule 5 (iii) has not been prepared.

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Though, complaint was filed against the respondent/accused for the offence under Section 135 (1) of the Electricity Act, 2003, but Section 135 (2) (b) of the Act, 2003 provides procedure to be conducted by the authority to make a case under Section 135 (1) of the Act, 2003, therefore, contention of learned counsel for the appellant/complainant is not sustainable that since complaint was filed against respondent/accused under Section 135 (1) of the Act, 2003, therefore, reason for doing so was not required to be recorded in Form -III.

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In the instant case, no independent witnesses have been examined by the complainant whereas alleged inspection was carried out at about 14.45 PM on 6.8.2015. As per the complainant, seal affixed in poly carbonate box of meter was found to be broken as well as body seal of

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the meter was also found to be broken. The meter was also broken from its top. It has also been stated by Subhash Singh (PW-2) that he had seized the alleged meter on 6.8.2015, but it was sent for testing in Testing Laboratory on 23.11.2015. Till then, where that meter was kept and in what condition it was kept, has not been proved as well as it has also not been proved that whether it was opened in Testing Laboratory in sealed condition.

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Though, Subhash Singh (PW-2) has stated in his deposition that meter was tested in Testing Laboratory in presence of his own, son of respondent/accused as well as in presence of Avinash Chauhan, Lab Assistant Engineer, Testing Laboratory and Tester / examiner – Arvind Kumar Sharma, but neither Avinash Chauhan, Assistant Engineer of Testing Laboratory nor Tester / examiner of Meter – Arvind Kumar Sharma has been examined by the complainant.

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Though, Ashish Kumar Banerjee, Assistant Engineer (PW-3) has supported the deposition of Subhash Singh (PW-2), Retired Executive Engineer (Vigilance), who was heading the vigilance team, but in view of above irregularities found in the case of complainant, his deposition has no worth.

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S.K. Mishra (PW-4), Assistant Engineer has deposed that while testing the meter, he was also present in testing laboratory. He has also proved his signature in Ex.P-7, but since Assistant Engineer of Testing Laboratory- Avinash Chauhan and the person, who tested the meter i.e. Arvind Kumar Sharma, has not been examined by the complainant, therefore, only on the basis of deposition of Subhash Singh (PW-2) and S.K. Mishra (PW-4), Testing Report (Ex.P-7) cannot be held to be

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proved particularly having considered the fact that neither alleged broken seal was seized and proved nor alleged extra resistance nor alleged apparatus pertaining to extra resistance allegedly fixed in the meter has been seized & proved by the complainant. Necessary provisions contained in Rule 5 of Chhatisgarh State Electricity Rules, 2006, as has been discussed in preceding paragraphs has also not been complied with while conducting inspection, therefore, it is found that learned Special Court has not committed any error in acquitting the respondent/accused of the alleged charge.

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In view of the foregoing discussion, acquittal appeal, being devoid of substance, is liable to be and is hereby dismissed. No cost(s)

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Sd/-

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AMIT KUMAR DUBEY Digitally signedby AMIT KUMARDUBEYDate: 2025.11.0611:12:44 +0530

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(Naresh Kumar Chandravanshi) Judge

Chhattisgarh State Power Distribution Company Limited v. Chhotelal Bhale

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Chhattisgarh State Power Distribution Company Limited v. Chhotelal Bhale

Case brief

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