Dismissed
State of Karnataka v. Hanamant S/O. Kallappa Mali @ Malagar
Karnataka HCCRL.A/100182/2017
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No. 100182 of 2017 IN THE HIGH COURT OF…
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No. 100182 of 2017 IN THE HIGH COURT OF…
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 04TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100182 OF 2017
BETWEEN:
STATE OF KARNATAKA REPRESENTED BY THE POLICE INSPECTOR, VIGILANCE POLICE STATION, HESCOM, BAGALKOT THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.
(BY SRI MADANMOHAN M.KHANNUR, AGA)
Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA
AND:
HANAMANT S/O. KALLAPPA MALI @ MALAGAR, AGED ABOUT 56 YEARS, OCC:AGRICULTURE, R/O. KALABEELAGI, TQ:JAMKHANDI, DIST:BAGALKOT.
(BY SRI A.M. GUNDAWADE, AMICUS CURIAE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 11.01.2017 PASSED BY THE I ADDL. DISTRICT AND SESSIONS COURT, BAGALKOT, SITTING AT JAMAKHANDI IN SPL.C.NO.43 OF 2015 AND ETC.,
IN THIS CRIMINAL APPEAL ARGUMENTS HAVING BEEN HEARD AND RESERVED ON 07.06.2024 AND COMING ON FOR “PRONOUNCEMENT OF ORDERS”, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CRL.A No. 100182 of 2017
JUDGMENT
The State has preferred this appeal against the judgment of acquittal passed by the learned Special (First Additional Dist. & Sessions) Court, Bagalkot, sitting at Jamkhandi, in Special Case No.43/2015 dated 11.01.2017.
Thus the accused committed offence punishable under Section 135 of the Electricity Act, 2003.
the evidence of Prosecution witnesses, but he has not chosen to lead any defence evidence on his behalf. Having heard the arguments of both sides, the Special Court has acquitted the accused. Being aggrieved by the judgment of acquittal, the State has preferred this appeal.
CRL.A No. 100182 of 2017
accused. Further, he submits that the trial Court came to the wrong conclusion that while conducting raid, only service wire was seized and electricity motor was not seized from the spot but the witnesses have categorically stated that motor was fitted inside the well but at that time could not seize the same but immediately on 14.11.2014, the complainant along with the staff went to the spot to seize the motor, but the same was not found in the well. Hence they gave notice to the accused.
CRL.A No. 100182 of 2017
Regarding Point No.1:
“135. (Theft of Electricity):-
(1) Whoever, dishonestly,
(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
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorised,
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:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use –
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
(1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:
Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:
Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnect:
Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.]
(2) Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may –
or article which has been, or is being, used for unauthorized use of electricity;
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act. ”
CRL.A No. 100182 of 2017
survey No.1/5 of Kalabilagi village measuring one acre, out of which, 0.25 gunta is standing in the name of Hanamantha Kallappa Maali. Column 11 of pahani extract reveals that Dundappa has got half share and Hanamanth and Mayappa have got one-fourth share each in the open well. The pahani extract reveals that the above three persons have got right/share in the open well. Exhibit P6 issued by PW5-village accountant does not indicate as to whether the open well is situated in the land of the accused or not. The Investigating Officer has not explained the other two owners, viz. Dundappa and Mayappa, or who has installed the pumpset to lift water from the well and who has obtained electricity energy from the electricity line. Investigating Officer has also not explained anything as to non-examination of the material witnesses viz. Dundappa or Mayappa who have got half and one-fourth share respectively in the open well. In the absence of this material piece of evidence, it is difficult to come to conclusion that the is accused is the sole owner of the well said to have been situated in the land in Survey No.1/5 of Kalabilagi village and the accused has committed theft by obtaining electricity connection to the pumpset installed in the well.
CRL.A No. 100182 of 2017
is before the Court at the time of filing charge sheet, i.e. on 28.05.2015. If really the accused had committed theft of
CRL.A No. 100182 of 2017
electrical energy as alleged by the prosecution, the Assistant Executive Engineer would have ascertained as to the survey number and extent of land from the accused and would have mentioned in the first information report. Even at the time of conducting panchanama also the Investigating Officer has not ascertained the survey number of this land. These material lapses will create doubt about the alleged incident.
CRL.A No. 100182 of 2017
been explained by the prosecution. The Investigating Officer has not collected any material as to from which date the accused has committed the theft of electrical energy. However, the Exhibit P3 is prepared by HESCOM authorities calculating the units of 4833 and fixing the amount of Rs.4,2723.72 and compounding charges is shown as Rs.6,000/-. The material witness-Lineman Raju Mallappa Kallari, who is examined as PW10, has not whispered anything as to theft of electricity energy for about twelve months. He has deposed that only on the basis of the basis of credible information on 11.11.2014, the Police officials summoned him and two panchas went to the land of Hanamanth Kallappa Maali at Kalabilagi village at about 3.00 pm and on inspection they found as to the unauthorized electricity connection to the pumpset of the accused. It is the duty of the lineman who is deputed to maintain lines, cables and equipment to ensure smooth and quality power supply to the consumers as prescribed by the HESCOM authorities. The Authorities have also prescribed the Powers and Duties of the Officers and Employees, wherein it is clearly stated as to the duty of the Lineman, Assistant Engineer or a Junior Engineer as to the maintenance of lines, cable and equipment to ensure smooth and quality power supply to consumers. Though this lineman, who was appointed by the HESCOM to maintain lines
and to supervise theft of electrical energy, has not taken any steps till the Vigilance Squad visited to the spot of incident. PW10 has not explained anything as to why he has not observed the theft of electrical energy prior to inspection by vigilance squad. However, the HESCOM authorities, assuming that the accused has committed theft of electricity energy since twelve months prior to 11.11.2014, calculated the amount as per their whims and fancies without any evidence and the same is not sustainable under law. The concerned Lineman and also his other immediate higher officials have failed to discharge
their duties in accordance with Rules and Regulations prescribed by HESCOM authorities. Even after the inspection also, the Investigating Officer has not properly investigated the case in accordance with law. As already discussed, the Investigating Officer has failed to collect materials as to survey number of the land where the open well is situated; extent of land, etc, at the earliest point of time. It is only after after collecting the information, the Investigating Officer came to know names of the owners of the said land as shown in Pahani Extract, however, the Investigating Officer has failed to examine them to ascertain as to who has installed 3 HP pumpset to the open well as three persons, including the accused, are the share-holders of the open well.
CRL.A No. 100182 of 2017
CRL.A No. 100182 of 2017
Police Inspector, Vigilance Squad Police Station, HESCOM, Bagalkot reveals that the Police have released this accused on 12.01.2015 at 7.30 hours as per the order dated 29.12.2014 passed by the District and Sessions Judge, Bagalkot in Crl.Misc. No.706/2014. Along with the bail order, the accused has appeared before the police station and then only the Investigating Officer arrested him and released him on bail as per order of the Court. If really the accused has committed the cognizable offence punishable under Section 135 of the Electricity Act, 2003 and when he was present at the time of conducting panchanama and also at the time of inspection, the Investigating Officer would have arrested him or would have issued a notice as required under Section 41A of the Code of Criminal Procedure. But, he has not done so. Only after appearance of the accused before the police along with the bail order after lapse of 48 days from the date of filing First Information Report, the Investigating Officer has arrested and released him on bail. Moreover, the Investigating Officer has also failed to comply with the mandatory provisions of Section 135 of the Electricity Act and also the provisions of Code of Criminal Procedure relating to search and seizure of the property. This conduct of the Investigating Officer reveals that the accused was not present at the time of inspection and for that reason, the Investigating
Officer has not inserted the survey number of the land in the complaint or in the mahazar. A perusal of Exhibit P10-Notice issued by the HESCOM Authorities reveals that the accused has filed statement of objections to the authorities and the same is referred in the notice as Customer Application dated 01st December, 2014. Exhibit P11 which is also Notice issued by the HESCOM authorities to the accused, also reveals as to the reference of the customer’s application dated 01st December 2014 and 21st January, 2015. Therefore, it is evident that the accused has filed application/objections to the HESCOM Authorities. Though the accused has submitted his written objections, the Investigating Officer has not placed the same before this Court. The Investigating Officer has not explained as to non-production of statement of objections/applications filed by the accused. Non-production of these material pieces of evidence will also create doubt as to the alleged incident. The Investigating Officer has failed to put-forth the true facts before this Court and mechanically filed the charge sheet without collecting proper or cogent material before the Court. Accordingly, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt.
CRL.A No. 100182 of 2017
Regarding Point No.2:
proceed to pass the following:
O R D E R
Criminal Appeal is dismissed.
Sd/JUDGE
BVV/LNN
1 issue framed by the court
Whether the trial court's judgment of acquittal under Section 135 of the Electricity Act required interference?
3 provisions across 2 enactments
State of Karnataka, represented by the Police Inspector, Vigilance Police Station, HESCOM, Bagalkot
Hanamant S/o Kallappa Mali @ Malagar
G Basavaraja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court