State appealed against acquittal in an electricity theft case under Section 135 of the Electricity Act. On re-appreciation, the High Court found investigation lapses including non-production of RTC records, defective seizure and arrest procedures creating reasonable doubt, upheld the acquittal and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100184 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.
Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA
(BY SRI MADANMOHAN M.KHANNUR, AGA)
AND:
DUNDAPPA S/O. CHENNABASAPPA MALI, AGED ABOUT 51 YEARS, OCC:AGRICULTURE, R/O. KALABEELAGI, TQ:JAMAKHANDI, DIST:BAGALKOT.
(BY SRI HEMANTKUMAR L.HAVARAGI AMICUS CURIAE FOR RESP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL 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.42/2015 AND ETC.,
IN THIS CRIMINAL APPEAL, ARGUMENTS HAVING BEEN HEARD, JUDGMENT RESERVED ON 07.06.2024 AND COMING ON FOR “PRONOUNCEMENT OF ORDERS” THIS DAY, THIS COURT, DELIVERED THE FOLLOWING:
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JUDGMENT
The State has preferred this appeal against the judgment of acquittal dated 11th January, 2017 passed in Special Case No.42 of 2015 by the learned Special (First Additional Dist. & Sessions) Court, Bagalkot, sitting at Jamkhandi (for short hereinafter referred to as "the trial Court").
State are:
The Inspector of Police, Vigilance Squad Police Station, HESCOM, Bagalkot, filed charge sheet against the accused/respondent for commission of offence punishable under Section 135 of The Electricity Act, 2003. It is stated in the charge sheet that on 11th November, 2014 at about 2.00 pm when the Assistant Executive Engineer (Vigilance), HESCOM, inspected the farm of the accused-Dundappa Channabasappa Maali, the complainant observed that the accused obtained electricity by using 4 lane service wire from the LT pole and connected to the panel board situated near the open well in the said farm land. Further, the said electrical energy is being used illegally to run 3 HP pumpset, without any
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permission from the HESCOM, thereby committing theft of electricity to the tune of 4833 units and caused loss of Rs.45,287/- (compounding fine of Rs.6,000/-). Thus the accused committed offence punishable under Section 135 of the Electricity Act, 2003.
Prosecution witnesses but 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.
the accused, he found that the accused had unauthorisedly obtained the electricity. Though it is stated that when the two witnesses visited the spot, it was found that accused obtained connection illegally, but in the cross-examination nothing has been elicited from these witnesses and he submits that under these circumstances, the trial Court ought to have convicted the accused. Further he submits that the trial Court came to the wrong conclusion that while conducting raid, only service wire was seized and motor was not seized from the spot but the witnesses have categorically stated that motor was fitted inside the well and at that time he could not seize the same. But immediately on 14th November, 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. Under these circumstances, the trial Court ought to have considered that service wire which is used to connect the motor was not seized and the complainant, along with other staff, identified the spot where the accused illegally obtained electricity. But, the trial Court, without considering these materials on record, acquitted the accused. He further submits that there was minor discrepancy in the evidence of staff of HESCOM, but the trial Court came to the conclusion that they are the interested witnesses. It is to be noticed that there was
no personal grudge between the accused and the official witnesses, but the trial Court has committed error in coming to the conclusion that they are interested witnesses.
perusal of appeal papers and original records, the following points would arise for my consideration:
Regarding Point No.1:
Court. Before appreciation of evidence on record, it is appropriate to extract the provision of Section 135 of Part XIV of The Electricity Act, 2003. The same reads thus:
“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,
(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:
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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 –
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. ”
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illegally to his 3 HP pumpset installed to the open well in his farm land bearing survey No.19/1 measuring 2 acre 30 guntas. To substantiate this, the prosecution has produced Exhibit P9 the information furnished by Village Accountant PW5-Prakash Naryan Pawar. PW5 has deposed that the land bearing survey No.1/3 situated in Kalabilagi village is standing in the name of Dundappa Channbasappa Maali, in which there is a open well. The prosecution has produced Exhibit P13-Pahani pertaining to survey No.19/1 of Kalabilagi village, but has not produced the RTC extract pertaining to land in survey No.1/3 of Kalabilagi village. During the course of cross-examination of PW5, it is suggested that land in survey No.1/3 does not belong to the accused and there is no existence of open well in the said land. But the same was denied by PW5. PW10-Investigating Officer has not explained anything as to non-production of material piece of evidence, i.e. RTC pertaining to Survey No.1/3 of Kalabilagi village. Additionally, neither the complaint nor the spot mahazar or any other prosecution papers reveal as to the survey No.1/3 of Kalbilagi village. In the absence of these material pieces of evidence, it is not possible to hold that that the accused, being the owner of land in survey No.1/3 has committed theft of electrical energy as alleged by the prosecution.
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at the time of inspection. Though the accused was present at the time of inspection, the Investigating Officer has not issued any endorsement as to seizure of MO1 as required under Section 135(4) of the Electricity Act, 2003 and also Section 100(7) of the Code of Criminal Procedure. The Investigating Officer has not explained anything as to non-compliance of these provisions. PW3-Junior Engineer of HESCOM Authority has clearly deposed that as on the date of inspection, the accused was present. If really the accused was present at the time of inspection, the Investigating Officer ought to have arrested the accused or complied with the provisions under Section 41A of the Code of Criminal Procedure, but have not done so. Instead, the Investigating Officer has arrested the accused only on 12th January, 2015 and released him as per the order passed by the District and Sessions Judge, Bagalkot in Criminal Miscellaneous No.709 of 2014 dated 29th December, 2014, which is evident from Prisoners Search Register Extract. This document will falsify the evidence of prosecution that the accused was present at the time of inspection.
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November, 2014; time of inspection is not shown; name and address of the consumer is shown as Dundappa Channabasappa Maali of Kalabilagi village, Jamakhandi taluk and the connected load is shown as 3 HP 2.238 kilowatts; sanctioned load claimed is left blank; type of installation is shown as LT-4 pumpset (open well); nature of theft is shown as D/C; period of calculation: BBC 12 months; and Consumption pattern of installation is shown as 12 months; the energy pilfered is shown as 4834.08 units and the total amount is shown as 42,723.72 and 6% tax of EC+FC is shown as Rs.2,563.42 total and the total amount is shown as Rs.45,287.14 and the total units pilfered is shown as 48.33 units. Compounding charges is shown as Rs.6,000/-. On what basis the HESCOM has prepared this provisional bill has not 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 PW9, has not whispered anything as to theft of electricity energy for about twelve months. He has deposed that only on
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the basis of the basis of credible information on 11th November, 2014, the Police officials summoned him and two panchas went to the land of Dundappa Channabasappa Maali at Kalavilagi village 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 Duty 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 11th November, 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 is situated; extent of land, etc, at the earliest point of time. Even after collecting the information also, the Investigating Officer came to know the owners of the 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. When the prosecution has failed to prove that the accused who was the owner of the land bearing survey No.1/3 has committed theft of electrical energy by obtaining illegal electricity connection to the 3 HP pumpset installed in the open well situated in the said land, the question of committing theft of electrical energy, as alleged by the prosecution does not arise. Accordingly, the prosecution has miserably failed to prove the guilt of the accused.
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was installed in the open well and electricity got electricity connection unauthorisedly and seized four lane service wire to the tune of 40 feet length but they have not seized the pumpset or the starter box. They have not issued any endorsement as to the seizure of service wire under mahazar though the accused was present at the time of mahazar. During the course of cross-examination of PW1, he has clearly admitted that at the time of inspection there was a service wire, a pumpset and a starter box were found on the spot, but they have seized only the service wire of 40 feet length. The Investigating Officer has not explained anything as to nonseizure of pumpset and the starter box. Even the Investigating Officer has not taken the photos of the said motor pumpset and starter box to show the existence of 3 HP pumpset and the starter box installed in the open well. These material lapses will create reasonable doubt as to the theft of electrical energy as alleged by the prosecution. It is an admitted fact that the accused was present at the time of inspection and mahazar. Though the accused was present at the time of inspection, the Investigating Officer has not enquired or interrogated to ascertain the survey number where the incident had taken place. The Prisoners Search Register Extract produced by the
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Police Inspector, Vigilance Squad Police Station, HESCOM, Bagalkot reveals that the Police have released this accused on 12th January, 2015 at 7.30 hours as per the order dated 29th December, 2014 passed by the District and Sessions in Cri.Misc. No.709 of 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 P5-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 P6 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 the Court. The Investigating Officer has not explained as to nonproduction 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.
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evidence on record in accordance with law and facts and on reappreciation, reconsideration and re-examination of the entire evidence placed before this Court, I do not find any errer/ illegality/legal infirmity in the impugned judgment of acquittal. Accordingly, I answer point No.1 in the negative.
Regarding Point No.2:
proceed to pass the following:
O R D E R
Criminal Appeal is dismissed.
Sd/JUDGE
LNN
2 issues framed by the court
Whether the acquittal for theft of electricity under Section 135 of the Electricity Act requires interference?
What order should be passed on the State's appeal?
6 provisions across 2 enactments
State of Karnataka, represented by the Police Inspector, Vigilance Police Station, HESCOM, Bagalkot
Dundappa s/o Chennabasappa Mali
G Basavaraja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
