2015 (3) TMI 1416 - HC - Indian Laws

Theft of electricity - institution of prosecution - whether the owner of the factory was the petitioner where the electricity theft was detected? - allegation is that petitioner was possessor and occupier of the premises in question - HELD THAT - This Court has gone through the provision of Section 391 Cr.P.C. which provides that while dealing with appeal, if the Appellate Court thinks additional evidence is necessary, it shall record its reasons and may either take such evidence itself or direct it to be taken by a Magistrate. The primary object of Section 391 Cr.P.C. is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 Cr.P.C. is desirable. Section 391 Cr.P.C. has been enacted for the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391 Cr.P.C. In the present case, it is apparent from the record that FIR was registered on 30.03.2000; charge sheet was filed on 12.07.2000; judgment of conviction was passed on 12.08.2004; order on sentence was passed on 26.08.2004; criminal appeal filed by the petitioner was dismissed on 16.12.2006 and now we are in the year 2015. The learned Additional Sessions Judge released the petitioner on probation for a period of three years, which period is already complete. The compensation amount of Rs.4,00,000/- is reduced to Rs.2,00,000/-, subject to adjustment of amount already deposited. In case of non-payment of remaining compensation amount by the petitioner, same would be recovered as fine - revision petition is disposed off.

Summary

Issues Involved:

1. Conviction and sentence under Section 39 of the Indian Electricity Act.
2. Competency of the complainant under Section 50 of the Indian Electricity Act.
3. Legitimacy of invoking Section 391 Cr.P.C. for additional evidence.
4. Appropriateness of the compensation amount imposed.

Issue-wise Detailed Analysis:

1. Conviction and Sentence under Section 39 of the Indian Electricity Act:

The petitioner was convicted by the Metropolitan Magistrate and sentenced to two years of rigorous imprisonment and a fine of Rs. 5000/-. On appeal, the Additional Sessions Judge upheld the conviction but modified the sentence, releasing the petitioner on probation for three years and imposing a compensation of Rs. 4,00,000/-. The petitioner filed a revision petition seeking acquittal, arguing that he was not involved in the theft, was not named in the complaint or FIR, and had no documented occupancy of the premises. However, testimonies from prosecution witnesses and a joint inspection report confirmed the theft of electricity at the premises associated with the petitioner. The court found sufficient evidence against the petitioner, dismissing his reliance on previous judgments that were not applicable to his case.

2. Competency of the Complainant under Section 50 of the Indian Electricity Act:

The petitioner contended that the Assistant Engineer who lodged the complaint was not competent under Section 50 of the Indian Electricity Act, which requires prosecution to be initiated by an authorized person. The court reviewed the provision and noted that the Executive Engineer (PW3) had given permission under Section 50 to the Assistant Engineer (PW4) to lodge the FIR. Document Ex.PW3/A confirmed this authorization, making the complaint valid. The court dismissed the petitioner's reliance on the Avtar Singh judgment, as the authorization did not need to be in the petitioner's name.

3. Legitimacy of Invoking Section 391 Cr.P.C. for Additional Evidence:

The petitioner argued that the appellate court exceeded its jurisdiction by invoking Section 391 Cr.P.C. to gather additional evidence regarding the filing of a writ petition by the petitioner. The court clarified that Section 391 allows appellate courts to call for additional evidence if necessary for justice. The court cited the Supreme Court's ruling in Zahira Habibulla H. Sheikh, emphasizing that the provision aims to ensure justice by allowing additional evidence to be considered. The court found that the appellate court's discretion to take additional evidence was justified and did not exceed its jurisdiction.

4. Appropriateness of the Compensation Amount Imposed:

The petitioner argued that the compensation amount of Rs. 4,00,000/- was excessive, noting that he had already deposited Rs. 1,00,000/-. The court acknowledged the prolonged nature of the proceedings, which began in 2000 and continued until 2015. Considering this, the court reduced the compensation amount to Rs. 2,00,000/-, subject to the adjustment of the amount already deposited. The court ordered that any remaining compensation amount be recovered as a fine if not paid.

Conclusion:

The court upheld the judgments of the lower courts, confirming the conviction and modifying the compensation amount. The revision petition was disposed of accordingly, and the trial court's file was ordered to be sent back.