SUPREME COURT OF INDIA
Jagmodhan Mehatabsing Gujaral and Others
Vs
State of Maharashtra
Appeal (Crl.) 1113 of 2006 (Arising Out of Slp (Criminal) No. 1552 of 2006)
(S. B. Sinha and Dalveer Bhandari, JJ)
02.11.2006
DALVEER BHANDARI, J.
Leave granted.
This 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.
The 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.
The 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.
The 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.
The brief facts which are relevant to dispose of this appeal are recapitulated
as under.
Appellant 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.
The 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.
Upon 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.
It was 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.
One iron box was provided for Trivector Meter. The box was closed and duly
sealed under the seal of M.S.E.B. There 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. Similarly, 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.
In the 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.
The 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. Similarly, 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.
After 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 appeal.
In the 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. He 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 industry. Shankar 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.
Ramchandra 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.
The defence 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.
The 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 about Rs.16, 50, 000/-.
The 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.
The 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.
It was submitted by the appellants that the complainant was not authorized to
file FIR. The Trial Court had considered this argument of the appellants. The
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. The 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.
On 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.
The appellants had also alleged that 48 hours notice was not given to the
appellants before conducting the raid.
The 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.
Moreover, 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 Court. Suppression 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. Therefore, we do not find any substance in this submission made by
the appellants.
The 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.
The 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.
In the 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:
"Meter 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.
On 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.
We 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
family members.
Large 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.
On 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.
The 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.
This appeal is accordingly disposed of in terms of the aforesaid observations.