Mehatabsing Gujaral & Others Vs. State of Maharashtra  Insc 740 (2 November 2006)
Sinha & Dalveer Bhandari
out of SLP (Criminal) No. 1552 of 2006] Dalveer Bhandari, J.
appeal is directed against the judgment of the High Court of Judicature at
Bombay dated 23.1.2006 in Criminal Revision Application No.458/2005 and
Criminal Revision Application No.11 of 2006.
appellants in this appeal had been convicted by the Additional Chief Judicial
Magistrate, First Class, Pune, by the judgment dated 21.12.1996 under Sections
39 and 44 of the Indian Electricity Act, 1910 (hereinafter referred to as the
Act) and were also directed to pay a fine. These appellants were directed to
suffer three months rigorous imprisonment. Appellants number 1 & 3 were
also directed to pay a fine of Rs.40,000/- each and appellant number 2 to pay a
fine of Rs.20,000/- under Section 39 of the Act.
appellants, aggrieved by the said judgment of the Additional Chief Judicial
Magistrate, Pune, filed an appeal before the Ad-hoc Additional Sessions Judge, Pune
being Appeal No. 12 of 1997. The learned Additional Sessions Judge again
evaluated the entire evidence and examined the documents on record and reached
the same finding and consequently dismissed the appeal filed by the appellants.
Criminal Revision filed against the said judgment of the Additional Sessions
Judge was dismissed by the High Court of Judicature at Bombay vide judgment dated 23.1.2006. Both
the learned Additional Sessions Judge and the High Court upheld the decision of
the Additional Chief Judicial Magistrate.
brief facts which are relevant to dispose of this appeal are recapitulated as
number 1 was the Managing Director of M/s. Nanda Glass Industries Pvt. Ltd.,
located at Gat No. 679/680 Valu, Taluka Bhor and appellants number 2 and 3 are
the partners of the partnership firm M/s. Technoframes. Both the industries
were adjacent to each other.
Consumer number of M/s. Nanda Glass Industries Pvt. Ltd. is 17941-900102-3 with
sanctioned load CD 225 KVA for toughening of glass. The Consumer number of M/s.
Technoframes is 1-416 with Meter No. 9030013/TPHR 605 dated 10.7.1986. The
sanctioned load of Consumer number 1-416 is 60 H.P. for toughening of glass.
receiving information that there was theft of electric energy being committed
by the appellants at these two electric connections for their industry at
night, the complainant V. G. Kokane, the then Dy. Executive Engineer and
in-charge of flying squad of MSEB and Executive Engineer, Kadam with their
other testing staff etc. and two Panchas went to M/s. Nanda Glass Industries
Pvt. Ltd. and Technoframes in the intervening night of 3/4.10.1989 for the
purpose of inspection and checking.
found that the power of 225 KVA was sanctioned to accused no. 1 on contract
demand with H.T. metering for the purposes of recording consumption.
iron box was provided for Trivector Meter. The box was closed and duly sealed
under the seal of M.S.E.B.
was CTPC unit provided at D.P. Pole from which the wires were brought into the
Meter Box through a conduit pipe so that they could not be tampered. The
appellants dislocated the conduit pipe at the bend and socket. They had cut and
removed voltage wire of one phase and current wire of another phase so that
actual consumption could not be recorded by the meter.
the appellants by tampering meters ensured that actual consumption of power
used for main furnaces and blower was not recorded from December, 1987 so that
there could not be any difficulty in putting explanation, if any, called upon
by the M.S.E.B. The daily consumption of power was to be recorded by the
consumer in prescribed G-7 form, but it was found that it was written only once
every month. On 3.5.1988 while it was inspected by the Testing Division
abruptly, abnormal difference was found between the entries noted by the
consumer in G-7 form and the reading recorded by the officers of the M.S.E.B.
The copies of these forms were attached to the complaint.
intervening night of 3/4-10-1989, when the complainant and his companions went
to the premises they found one watchman on the gate who was called Bapu Bhagwan
Alder. He was said to be a Shift Operator-cum-Supervisor and he showed the
actual condition of the connections to them. Bapu Bhagwan Alder had put his
signatures on the Inspection Reports drawn on the spot, being Exh. Nos.90 and
91. He also voluntarily gave one statement in writing (marked as Exh. No. 80)
stating that the industry was actually working at the time of the visit. The
factory was normally working in three shifts. It was found at the place of L.T.
Connection supplied for Technoframes that though the said company was bearing a
different name, the electric power was being used for toughening of glass in
M/s. Nanda Glass Industries. The members of the raid team along with
complainant found drastic changes and tampering done by the accused in the said
connection wherein three incoming wires and other three outgoing wires of the
meter were joined together at their respective ends by taking them out from
outgoing phase of the terminal box of the meter. Therefore, the meter was
totally by-passed and it was not recording the electricity which was consumed.
The meter terminal cover and the seals of the M.S.E.B. were not available and
there was 100% theft of energy of 60 H.P. The complainant V.G. Kokane had taken
photographs to show the tampering of the electric connection and taking of such
photographs was indicated in the seizure panchanama.
appellants did not pay any amount more than the minimum charges to the Board,
whereas the actual consumption of the electricity was much more. It was
assessed by the complainant as an Expert in the field that there was
consumption of 10,00,000 units and 16075 VA power worth of Rs.12,00,000/- from
H.T. connection whereas 5,00,000 units worth of Rs.4,50,000/- from L.T.
connection and the theft of energy of Rs.16,50,000/- committed by them. The
photographs of the actual position seen by the raiding party were taken on the
spot and that they were produced in the police station during investigation.
the original seals of H.T. Meter Box were cut and seized in a closed packet
duly sealed under the signatures of the Panchas which were also produced by
them in the police station. As it was likely that there will be rejoining or
change in the position of the L.T. Connection (I-416) the room in which it was
installed was duly locked and the lock was sealed with paper bearing signatures
of the Panchas was pasted on it. Both the keys of the lock were also given by
the complainant in the police station along with the complaint. The complaint
was registered at the Bhor Police Station at about 7.30 p.m. on 4.10.1989. The original panchnama drawn by the M.S.E.B.
officials and the Panchas at the time of actual raid were also produced by the
complainant with true statement of consumption of M/s. Nanda Glass Industries
for the purposes of evidence in support of the allegations.
proper investigation of the entire case, the charges against the appellants
were framed under Sections 39 and 44 of the Electricity Act, to which the
appellants pleaded not guilty. It may be pertinent to mention that the presence
of accused Ravindra Birbal Khadake could not be secured in spite of issuing
warrants and the Chief Judicial Magistrate was pleased to order for separation
of trial against him. We are not concerned with the said accused in this
trial of the instant case the prosecution had examined seven witnesses Ramchandra
Paigude, PW1 attested the panchanama of Exh.74. It was drawn during the
surprise visit by the raiding party in the night.
also proved Exh.78 a sealed packet (that was opened in the court), containing
three seats which were removed from the meter in the premises of the glass
Anpat, P.W.2, Executive Engineer, Lokhote, PW3, Junior Engineer, Security
Officer, complainant Vijay Kokane PW4, Dy. Executive Engineer and in charge of
flying squad and Pathan PW5, Junior Vigilance Officer were employees of the
MSEB. These officials of the board described how they had visited the factory
and detected existence of fraudulent means of abstraction of electricity
without recording consumption in the meter. PW6 is one of the panch witnesses
who had attested Exh.101. In his presence, another panch had climbed atop the
meter room located in the premises of Technoframes. It was found that planks in
the roof were newly fitted with fresh nailing. Vishnu Mane PW7 had investigated
the offence and sent charge sheet to the Court.
Paigude PW1, an independent witness, fully supported the prosecution version.
He was under no obligation to favour the Board officials. He had also stated
that the watchman Wadkar had called Bapu Aldar and he was introduced as shift
supervisor and had taken the raiding party to the electric installations.
of the appellants is that of denial of abstraction and dishonest consumption or
use of electric energy by them directly or by any artificial means or the means
not authorized by the licensee.
appellants were found guilty of the offences punishable under Sections 39 and
44 of the Electricity Act. According to the Trial Court, the prosecution had
succeeded in establishing the commission of theft of the electric energy worth
appellants, aggrieved by the judgment of the Trial Court, preferred an appeal
before the learned Sessions Court, Pune. The first Appellate Court again
examined in detail the entire evidence and the arguments advanced by the
parties. The first Appellate Court also examined the relevant decided cases of
this Court and other Courts. The appeal filed by the appellants was dismissed
by a detailed and comprehensive judgment dated 27.12.2005.
appellants preferred a revision petition before the High Court of Judicature at
Bombay, which was dismissed vide order
dated 23.1.2006. The appellants, aggrieved by the said judgment of the High
Court, have preferred this appeal.
submitted by the appellants that the complainant was not authorized to file
FIR. The Trial Court had considered this argument of the appellants.
Trial Court has correctly mentioned in its judgment that by the amendment in
the provisions of Section 50, the word 'Government or a State Electricity Board
or an Electric Inspector or a person aggrieved by same' has been amended and
the officers of the State Electricity Board or a person aggrieved by the theft
are authorized by the notification to lodge a complaint. The complainant was
fully justified in filing the complaint. We do not find any merit in this
argument of the appellants.
appellants submitted that there is manifest error in the judgment of the Trial
Court, which was affirmed by the first appellate court and the High Court, by
which the appellants were convicted and sentenced to three months rigorous
imprisonment on the ground that the theft of electricity to the extent of an
amount of Rs.17,35,453.52 was extracted by the appellants, whereas, the Civil Court
had come to the conclusion and passed the decree in favour of the respondent Maharashtra
State Electricity Board in Civil Suit No.156/92 for only Rs.3,07,999.74.
evaluation of the entire evidence and documents on record when the case of
theft has been fully proved, then whether the theft of energy was to the extent
of Rs.17,35,453.52 or Rs.3,07,999.74, really makes no difference, as there was
theft of energy on a large scale for a long time. The appellants cannot take
advantage of the fact that the respondents had not appealed against the
judgment of the Joint Civil Judge, Senior Division, Pune, who had passed the
decree for Rs.3,07,999.74.
appellants had also alleged that 48 hours notice was not given to the
appellants before conducting the raid.
Trial Court had dealt with the aspect of giving 48 hours notice before
conducting the raid. In a case of a surprise raid 48 hours' notice to the
appellants is not envisaged by the Legislature and otherwise also it would have
been counter productive, because there was a strong possibility of obliterating
and/or destroying the entire evidence to connect the appellants with the crime.
even if it is so accepted, it is on record that the Watchman and Bapu Bhagwan
Alder were found present in the premises on behalf of the appellants and that
they did assist the raiding team to carry on their work. It is reported by the
police in reply to summons that Bapu Bhagwan Alder was serving in some Glass
Factory in Pune, but he could not be traced out for the purpose of tendering
the evidence before the Court. In fact, it was possible for the appellants to
bring him in the box, at least as defence witness, to state that he had no
concern with the industry of the accused. Moreover, the Employment Record or Muster
Roll of the Industry of the accused was not brought for inspection by this
of this clearly gives rise to considerable substance in the allegations of the
prosecution. By and large this negatives the arguments on behalf of the appellants
that the raid is illegal or otherwise defective.
we do not find any substance in this submission made by the appellants.
appellants further submitted that the courts in the impugned judgment ought to
have appreciated the circumstance that more than 17 years have elapsed; that
one of the accused/appellants is a lady partner in the firm and that in fact
the public prosecutor had consented and argued for reducing the sentence.
appellants further submitted that the courts below have not properly considered
the entire case in the proper perspective because there was no evidence about
the tampering with the meter.
Panchnama, it is categorically mentioned that Exhibit no. 91 is the Inspection
Sheet pertaining to M/s. Technoframes, Consumer No. I-416 and the observations
made are as under:
Terminal Box Seal and cover missing. All the coming and outgoing wires are
connected together in the incoming hole resulting total buy passing of meter
and no consumption is recorded in the meter." Therefore, we find no
substance in this submission that there was no evidence of tampering of
electricity meters by the appellants.
consideration of the totality of the entire case, we do not find any merit in
the submissions made on behalf of the appellants. In our view, no interference
is called for in the impugned judgment so far as conviction of the appellants
under Sections 39 and 44 of the Act is concerned and consequently, we uphold
the impugned judgment as far as conviction of the appellants is concerned.
have also heard the learned counsel for the appellants on the point of
sentence. It was submitted before the Trial Court and before this Court also
that it is the first offence of the appellants. They have family members and
minor dependents. Appellant number 2 is a lady. More than 17 years have elapsed
and now, sending the appellants to jail for serving out the remaining part of
their sentence would be extremely harsh. The appellants have already served out
a part of their sentence and sending them back to jail to serve out the
remaining sentence would cause tremendous hardship to the appellants and their
scale theft of electricity is a very alarming problem faced by all the State
Electricity Boards in our country, which is causing loss to the State revenue
running in hundreds of crores every year. In our considered view, after proper
adjudication of the cases of all those who are found to be guilty of the
offence of committing theft of electricity, apart from the sentence of
conviction, the Court should invariably impose heavy fine making theft of
electricity a wholly non-profitable venture. The most effective step to curb
this tendency perhaps could be to discontinue supply of electricity to those
consumers for temporarily or permanently who have been caught abstracting
electricity in a clandestine manner on more than one occasion. The legislature
may consider incorporating this suggestion as a form of punishment by amending
Section 39 of the Indian Electricity Act of 1910.
consideration of the peculiar facts and circumstances of the case, where the
appellants have already served out a part of the sentence and instead of
compelling them to serve out the remaining sentence after lapse of 17 years, in
the interest of justice, we deem it appropriate to increase the fine from
Rs.40,000/- each to Rs.3,00,000/- each in case of appellants number 1 and 3 (Jagmodhan
Mehatabsing Gujaral and Harcharanpalsing Nanda respectively) and from
Rs.20,000/- to Rs.2,00,000/- under Section 39 of the Act in case of appellant
number 2 (Mrs. Rupender Kaur Harcharanpalsing). The appellants are further
sentenced to pay a fine of Rs.5,000/- each under Section 44 of the Act.
appellants, in case, have already paid fine imposed by the Trial Court under
Section 39 of the Act, then the appellants are directed to deposit only the
remaining amount of fine within a period of eight weeks' from the date of this
judgment. In case the amount of fine, as directed by this Court under Sections 39
and 44 of the Act, is not deposited within the stipulated time, then the
appellants shall be taken into custody to serve out the remaining part of their
sentence, as imposed by the Trial Court and upheld in the impugned judgment by
the High Court.
is accordingly disposed of in terms of the aforesaid observations.