Partly allowed

Shivakumar v. the State by Cesc

Karnataka HC17 Dec 2020CRL.A/397/2011

Case brief

AI extract

What is this about?

In this criminal appeal challenging conviction and sentence for theft of electricity under Sections 135 and 138 of the Electricity Act, 2003, the High Court upheld the conviction. The court found the appellant was an unauthorized consumer operating power appliances through illegally tapped wires. While confirming the conviction, the court opted out of imprisonment, modifying the sentence to a fine

What did the court decide?

The appeal is partly allowed. The conviction is confirmed. The sentence of imprisonment is modified to a fine of Rs. 32,000/- in all (Rs.14,000/- for Section 135 and Rs.17,500/- for Section 138).

Shivakumar Vs the State by Cesc — Property and Title | Karnataka HC (2020)

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Crl.A.No.397/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL APPEAL No.397/2011

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BETWEEN :

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SHIVAKUMAR S/O. KRISHNEGOWDA AGED ABOUT 47 YEARS AGRICULTURIST NATANAHALLI VILLAGE MIRLE HOBLI K.R.NAGAR TALUK-571 603 MYSURU DISTRICT …APPELLANT (BY SRI K.G.SADASHIVAIAH, ADVOCATE FOR M/s.S & S ASSOCIATES)

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AND :

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THE STATE BY C.E.S.C. (VIGILANCE, MYSORE) REP. BY PUBLIC PROSECUTOR MYSORE- 570 001 …RESPONDENT

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(BY SRI H.R.SHOWRI, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 21.03.2011 PASSED BY I ADDITIONAL SESSIONS AND SPECIAL JUDGE AT MYSORE IN SPECIAL CASE NO.14/2007.

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THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

Crl.A.No.397/2011

JUDGMENT

Aggrieved by the order of conviction and sentence in Special Case No.14/2007 passed by the I Additional Sessions & Special Judge, Mysuru for the offences punishable under Sections 135 and 138 of the Electricity Act, 2003 (‘the Act’ for short), the appellant has preferred the above appeal.

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The appellant was prosecuted in Special Case No.14/2007 on the file of I Additional Sessions & Special Judge, Mysuru for the aforesaid offences on the basis of the charge sheet filed by the Vigilance Squad, Chescom, Mysuru in Crime No.180/2006 of their police station. The said case was registered against the appellant on the basis of Ex.P1 complaint filed by PW.1 U.D.Ningaiah.

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The case of the prosecution in brief was as

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follows:

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i) On 23.08.2006 at 4.00 p.m. when PWs.1 to 3, 8 to 10 the Chescom Officials and the police of Chescom Vigilance police station were on routine

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inspection at Natanahalli village, they visited the farm house of the appellant and found that the appellant had illegally tapped the electricity from nearby secondary line of the electric pole using MO.1(a) 20 meters PVC insulated wire and connecting that through wooden box MO.2, he was using the tapped electricity to operate 5 electric bulbs of 60 watts each, one portable TV of 80 watts and one Mixer 185 watts.

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ii) PW.8 on receiving the complaint registered the first information report Ex.P9, conducted spot cum seizure mahazar as per Ex.P4 in the presence of PWs.1 to 4. During mahazar, PW.10 took photogtaphs Exs.P11 to 14. Then PW.8 handed over the further investigation to PW.10. PW.10 conducted further investigation and filed the charge sheet.

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iii) On 24.01.2006, during similar inspection, the appellant was found committing theft of electricity in the same manner. Therefore, criminal proceedings were initiated against him in Crime No.15/2006. In that case, the appellant compounded the offences by paying back

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billing charges of Rs.1,581/- and compounding fee of Rs.2000/- in all amounting to Rs.3,581/-. Therefore, ‘B’ report was filed in the said case. Hence, the present offence was a second offence or a repeated offence.

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On the basis of the charge sheet, the trial

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Court took cognizance, summoned the appellant and tried him for the offences punishable under Sections 135 and 138 of the Act.

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The case of the prosecution was based on

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the evidence of:

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(i) PW.1 the complainant;

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(ii) PWs.2, 3, 8 to 10 the other members of the

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raiding squad;

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(iii) PW.4 independent mahazar witness;

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(iv) PW.5 Village Accountant and Exs.P6 to 8 the

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demand register extracts and residential certificate;

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(v) PWs.6 and 7 witnesses to the proceedings

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in Crime No.15/2006;

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(vi) PW.11 the Investigating Officer; &

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(vii) Ex.P4 seizure mahazar and MOs.1 and 2

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apparatus used in committing theft of the electricity.

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The defence of the appellant was as follows:

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(i) He was not the owner or resident of the

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farm house/scene of offence;

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(ii) Previous case was against his father and not

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against him;

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(iii) Since the Chescom officials could not file

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the charge sheet in the previous case, to wreck their

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vengeance, they falsely implicated him in this case;

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(iv) The seizure of MOs.1 and 2 was false;

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Reiterating the grounds of the appeal memo and the defence taken in the trial Court, Sri K.G.Sadashivaiah, learned counsel for the appellant submits that the evidence adduced before the Trial Court was not sufficient to hold that the appellant was the occupant of the scene of offence and search and seizure of M.Os.1 and 2 were proved. He further submits that admittedly on M.Os.1 and 2, no specific identification marks were made and the independent

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witness - PW.4 did not support. Therefore, the trial Court was in error in holding that the search and seizure and consequently, the charges were proved.

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In support of his arguments, he relies upon

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the judgment of the Supreme Court in State of Andhra Pradesh Vs. Shalini Steels Private Limited¹

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Per contra, Sri H.R.Showri, learned HCGP submits that as admitted by the appellant himself in the same premises, earlier similar offences were committed and compounded. Though the appellant claimed that he was not a party to the earlier proceedings, the official witnesses-PWs.6 and 7 and Ex.P15 speak to the said incident, wherein the appellant was implicated. He submits that itself was sufficient to hold that the appellant was the occupant of the said premises. He further submits that PWs.1 to 3, 8 to 10 being the official witnesses had no personal ill-will or grudge against the appellant to falsely implicate him, therefore,

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the trial Court rightly accepted their evidence. He

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1 (2018) ALL SCR (Crl) 445

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submits that there is no illegality or perversity in the impugned judgment and order warranting interference of this Court. He further submits that the judgment in Shalini Steel Pvt. Ltd.’s case referred to supra is not applicable.

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Having regard to the rival contentions the question that arises for consideration is “ whether the trial court was justified in holding that the charge that the appellant committed theft of electricity for the second time tampering the service line was proved ?’’

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The charge against the appellant was that using M.O.1 - the PVC insulated wire, he tapped the electricity from the electrical lines running from nearby electrical pole and connected that through wooden box - M.O.2, erected to the wall of the house and was using the said electricity for operating the electric bulbs, television and mixer in his house.

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According to the prosecution, PWs.1 to 3, 8 and 10 during their inspection, found such unauthorized

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use of electricity which amounts to theft and they seized M.Os.1 and 2 under Mahazar Ex.P4. PWs.1 to 3, 8 and 10 were the official witnesses. In their evidence, they spoke to the proceedings under Ex.P4. The only suggestion to them was that the farm house belongs to Krishnegowda the father of the appellant and the appellant was not residing in the said house. The other suggestion was that no identification marks were made on M.Os.1 and 2.

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It is true that on M.Os.1 and 2, no identification marks were made. However, the purpose of making identification marks on the property seized in a criminal case is to enable the witnesses to identify them during trial. Amongst PWs.1 to 3, 8 and 10, PWs.1 to 3 belonged to the electricity department and technical persons, PWs.8 and 10 were the Chescom vigilance police officials present during the seizure. Under such circumstances, it would not have been difficult for them to identify the property seized under the mahazar. It was not the case of the appellant that

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M.Os.1 and 2 were not produced before the Court, soon after their seizure and there was intermeddling. Under such circumstances not making specific identification marks on M.Os.1 and 2 does not go to the root of the matter since PWs.1 to 3, 8 and 10 identified them without any infirmity. Therefore, the trial Court rightly rejected the said contention.

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It is true that PW.4 the only independent witness did not support the proceedings under Ex.P4. At the same time, the fact remains that PW.4 also hail from the village to which the appellant belongs to. He admitted his signature on PW.4. Though he said that he does not know what was written in Ex.P4 he himself said that Ex.P4 was a Mahazar.

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Though PW.4 denied that he subscribed his signature on Ex.P4, after knowing the contents of the same, in his cross-examination by the public prosecutor he said that generally before signing any document he reads and understands the contents of the same. That

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itself goes to show that only to help the appellant, he turned hostile.

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The evidence of PWs.1 to 3, 8 and 10 regarding the visit to the farm house, the seizure of M.Os.1 and 2 under Ex.P4 was cogent and consistent and mutually corroborative.

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PW.10 in his evidence stated that he took the photographs during the mahazar Ex.P4. That was not denied in his cross-examination. Ex.P11 shows that a line was drawn between coconut trees by using wire. Ex.P12 shows that the said line connected to the farm house. Ex.P14 shows that in the wall of the farm house, wooden box which is claimed to be MO.1 was embedded and the line shown in Exs.P11 to P13 was connected there and rolled and from there one more pipe was laid to transmit the electricity inside the house.

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Ex.P13 shows the presence of television in the house which was connected with a electricity wire. The above said facts also proved tapping of the

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electricity using MO.1 - the PVC insulated pipe from the nearby electrical service line and operating the bulbs, television and the mixer in the farm house consuming such electricity.

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The charge against the appellant was under Sections 135 and 138 of the Act. For the purpose of this case, Sections 135(1)(a) and 138(1)(a) are relevant, which read as follows:

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“135. Theft of electricity.- (1) Whoever, dishonestly ,-

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(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires , or service facilities of a licensee or supplier, as the case may be; or

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so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:

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Interference with meters or works of licensee ,- (1) Whoever,-

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(a) unauthorisedly connects any meter, indicator or apparatus with any electric line through which

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electricity is supplied by a licensee or disconnects the same from any such electric line; or”

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………………………………………………………………………………… shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such communication as is referred to in clause (c), for causing such alreration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer. ”

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As per Section 138 of the Act, if once the connecting the service line using the apparatus under

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the custody or control of the consumer is proved, the presumption is that connection for improper use was with knowledge and intention of the consumer. The

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consumer has to rebut that presumption by leading contrary evidence.

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On proof of usage of the electricity through MOs.1 and 2, tapping the electricity unauthorisedly from the secondary line, the burden was on the appellant/accused to prove that such use was without his knowledge or intention.

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To prove that the appellant was residing in the farm house, the prosecution relied on the evidence of PW.5 -the village Accountant of Ankanahalli village.

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The farm house situated admittedly within the revenue limits of Natanahalli Village of Mirle Hobli. As admitted by the appellant himself, the said land and the farm house belonged to his father–Krishnegowda. PW.5 - the Village Accountant categorically stated that appellant was the resident of the said farm house. He denies the suggestion that the appellant was resident of Natanahalli Village proper and asserted that appellant resides in the farm house.

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Though appellant claimed that his father – Krishnegowda was owner and occupant of the farm house and he was residing in Natanahalli village, he did not choose to examine his father or to produce any document to show that his father was the occupant of the farm house and he was residing in Natanahalli village.

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As pointed out by the trial Court to try a person for the offence under Sections 135 and 138 of the Act, he need not be the owner of the premises in which the theft or unauthorized use of the electricity takes place. It is enough to show that the accused was the unauthorized consumer of the electricity so tapped.

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Relying on the recital in Ex.P6 the certificate of PW.5 that the appellant was residing in Natanahalli village, an attempt was made to say that the said document should be read and understand that the appellant was residing in Natanahalli village proper.

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Crl.A.No.397/2011

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PW.5 denied the said suggestion. He asserted that the appellant resides in the farm house.

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Having regard to the evidence of PW.5 that the appellant was residing in the farm house and the evidence of PWs.1 to 3, 8 and 10 that during the search, the appellant was found to be the occupant of the farm house and his wife was present, it was for the appellant to rebut the presumption under Section 138 of the Act. At least in his examination under Section 313 of Cr.P.C. the appellant did not claim that he had a house in Natanahalli village proper and he was residing in that village.

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On holistic reading of evidence, the trial Court came to the conclusion that the appellant was the occupant of the premises and he had unauthorisedly tapped the electricity for the purpose of his consumption. This Court does not find any perversity or illegality in such conclusion.

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Crl.A.No.397/2011

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29. The judgment in Shalini Steel Pvt. Ltd.’s

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case referred to supra relied upon by the learned counsel for the appellant is not applicable to the facts of this case.

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The next question was, what was the quantum of the electricity unauthorisedly used by the appellant. In the complaint, the approximate quantum of the electricity stolen was assessed at 565 watts. To prove the quantum of the electricity consumed, the prosecution relied on Ex.P10 the letter addressed by PW.9 the then Assistant Executive Engineer of SESC, Saligrama Sub-division. PW.9 states that on the information furnished by the vigilance section of the SESC he calculated the back billing charges as per Ex.P10. In Ex.P10 also, the electricity consumed was assessed at 565 watts which amounts to 90 units. His evidence that he arrived at the said quantum based on the connected load was not impeached.

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Then the question is whether the trial Court was justified in convicting and sentencing the appellant

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for the repeated offence under Sections 135 and 138 of the Act. To prove that, the appellant was the repeater offender, the prosecution relied upon Ex.P15 and the evidence of PWs.6, 7 and 11. PWs.6, 7 and 11 in their evidence deposed that on 24.01.2006, the CHESCOM Vigilance squad visited the very same farm house and found the unauthorized tapping of the electricity in the same manner and that case was registered in Crime No.15/2006. They also state that in that case the appellant compounded the matter by paying penalty and back billing charges.

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The appellant did not dispute the proceedings in Crime No.15/2006, but he only contended that the said case was registered only against his father and not him. But PW.7 denied such suggestions. Exs.P10 & 15 also refer that the back billing charges were paid by the appellant himself.

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As already pointed out, once the drawing of

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the electricity by unauthorised apparatus is proved, then the burden shifts to the accused to rebut the

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presumption. When he admitted that in respect of the same premises, earlier similar case was lodged in Crime No.15/2006, then the appellant was expected to rebut the said presumption. But he failed to rebut that.

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Therefore, this Court does not find any error

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in the trial Court convicting the petitioner for the offences under Sections 135 and 138 of the Act for the repeated offence.

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Sri K.G.Sadashivaiah, learned counsel for the appellant submits that the appellant is an agriculturist and ignorant and has already paid the back billing charges, considering that lenient view may be taken and sentence of imprisonment may be suitably modified.

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The proceedings in this case started from the year 2007. The alleged tapping of the electricity was for the purpose of domestic use in the farm house and not for any commercial purpose. The appellant has paid

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the back billing charges. Under the circumstances, it is a fit case to modify the sentence of imprisonment.

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For the offence under Section 135 of the Act, the fine payable is three times the financial gain and in case of repeated offence, not less than six times of the financial gain on account of such theft of electricity. For the offence under Section 138 of the Act, the fine payable is upto Rs.10,000/- and in case of continuing offence, Rs.500/- per day during such continued offence.

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In this case, there is no material to show since how long prior to 23.08.2006 i.e. the date of detection of the offence, the appellant had tapped the electricity unauthorizedly. As per Ex.P15, the back billing charges and compounding charges relating to the first offence were paid on 10.03.2006. At that time, there was no second case against the appellant. Since there is no material to decide the continued period of offence prior to 23.08.2006, the said period has to be fixed on the material available on record.

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As per evidence of PW.2, he used to visit that area regularly, still the matter was not reported. Under the circumstances, it would be reasonable to fix the fine for the continued period of 15 days prior to 23.08.2006.

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So far as the offence under Section 135 of the Act, for the first offence, punishment prescribed is imprisonment of three years or with fine or with both and in the case of repeated offence, where the consumption of electricity by unauthorized extraction is less than 10 kilowatts, six times the financial gain on account of such theft. The said amount comes to (2,264 X 6) Rs.13,584/-. Therefore, the interest of justice would be met by modifying the sentence of imprisonment to sentence of fine of Rs.14,000/- for the offence under Section 135 of the Act.

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For the offence under Section 138 of the Act, in addition to the fine of Rs.10,000/- imposed by the trial Court, on calculating the daily fine at Rs.500/for 15 days, the fine amount comes to (500 x 15)

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Rs.7,500/-. Therefore, the interest of justice would be met by sentencing the appellant to fine of Rs.17,500/for that offence. Therefore, the appeal is partly allowed.

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The impugned order of conviction for the offences punishable under Sections 135 and 138 of the Act is hereby confirmed.

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For the offence punishable under Section 135 of the Act, the appellant is sentenced to fine of Rs.18,500/-.

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For the offence punishable under Section 138 of the Act, the appellant is sentenced to fine of Rs.17,500/-. In default to pay the above said fine amount, the appellant shall undergo simple imprisonment for one month.

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Sd/JUDGE

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KSR/SJK

Shivakumar v. the State by Cesc

Case brief

What is this about?

What did the court decide?

Shivakumar v. the State by Cesc

Case brief

What is this about?

What did the court decide?

What the court decided

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