J.C. DOSHI, J.

1. Feeling aggrieved and dissatisfied with the judgment and order dated 5.12.2012 passed by the learned Special Judge and 4 th Addl. Sessions Judge, Jamnagar in Special (GEB) Case No.52 of 2010 for the offences under sections 135 of the Indian Electricity Act, 2003, the appellant – State of Gujarat has preferred this appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 (“the Code” for short) inter alia challenging the judgment and order of acquittal in favour of the respondent accused.

2. The prosecution case is that on 21.11.2006, the present accused, in his possession and owned house with mala fide intention, without permission, has illegally taken direct electric connection in electric motor of 10 horsepower Aata Maker by hooking wire with L.T. Line pole and by illegally using the same, caught red handed after committing theft of electricity. Thereafter, the complainant lodged the complaint with regard to the incident before Rajkot GEB Police Station, which was registered as II – C.R. No.1087 of 2006 for the offences under sections 135 of the Indian Electricity Act, 2003.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed in the Court of learned JMFC, Jamjodhpur. As jurisdiction to try the offence is exclusively lying with Special Court, the offence was committed to the Special Electricity Court, Jamnagar as provided under section 209 of the Code.

4. Upon committal of the case to the Special Electricity Court, Jamnagar, learned Sessions Judge framed charge at Exh.4 against the respondent accused u/s 135 of the Electricity Act for the aforesaid offence. The respondent accused pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined as many as 08 witnesses and also produced various documentary evidence before the learned Special Court, more particularly described in para 4 of the impugned judgment and order.

6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. I have heard learned APP appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing.

8. Learned APP would submit that the learned Special Court erred in holding that the prosecution has failed to make out the case. He would further submit that in order to prove the charges levelled against the accused, the prosecution had examined 08 witnesses in total and produced as many as 15 documentary evidence. However, the learned Special Court has acquitted the respondent accused without properly appreciating oral and documentary evidence and thereby, has committed error. He would further submit that the prosecution had examined the complainant as well as the investigating officer and going through their cross-examination, nothing fruitful in favour of the accused was found and yet the learned Special Court has not considered the deposition and thereby, has committed error.

8.1. Learned APP would further submit that the complainant and the investigating officer and the member of the raiding party are the Government officers and they have no personal grudge or enmity with the accused. Therefore, their deposition before the learned Special Court was free from bias and independent, but the learned Special Court overlooked all these depositions and erred in acquitting the accused on hyper technical consideration. He would further submit that going through the documentary evidence, it appears that the accused by hooking the wire into the electricity line was illegally the extracting the electricity and thereby, committed theft u/s 135 of the Electricity Act, 2003 though he was not the consumer of the Electricity Board. This fact is established from the spot panchnama prepared by the authorized officer of the Electricity Board and supported by the supplementary bill as well as calculation sheet, which was not forcefully challenged by the either side. In that facts and circumstances, he would further submit that the learned Special Court has erred in acquitting the accused and as such, he would submit to allow this appeal and set aside the impugned judgment and to convict the accused for the offences, for which charge was levelled against him.

8.2. On the other hand, learned advocate Ms. Riddhi Barad for learned advocate Mr. VH Kanara for the respondent would support the impugned judgment, by which the learned Special Judge has recorded acquittal of the accused. She would further submit that since the offence in question is technical in nature, the learned Special Judge has rightly recorded the technical breach took place in lodging the FIR and also that the person, who has lodged the FIR, was not authorized by the Electricity Board/Company. She would further submit that in the present case, even, the prosecution has failed to prove that the place where the alleged hooking of the wire was found, was belonged to and owned by the respondent accused. In that facts and circumstances, the learned Special Judge has rightly acquitted the accused. She would further submit that the scope of acquittal appeal is narrow and subtle. The second view even if available, it cannot be considered to reverse the acquittal into conviction in acquittal appeal. Hence, she submits to dismiss this petition.

9. Before examining the merits, the arguments canvassed by learned APP in background of the facts of the case, it is apposite to refer settled principles of law on scope of interference in acquittal appeal.

10. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280 [LQ/SC/1994/976] , Supreme Court has held as under:

“The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

11. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 [LQ/SC/2011/439] and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, [LQ/SC/2011/662] while dealing with the judgment of acquittal, unless reasoning by the learned Special Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned Special Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.

12. Keeping in mind the above proposition of law and the scope of interference in the acquittal appeal on appreciating the facts of the case, it transpires that as per the case of the prosecution, after surprise checking took place, the FIR/complaint was not lodged within 24 hours of checking or disconnection, which is otherwise mandatory as per provisions of section 135 of the Electricity Act. Thus, the complaint is registered belatedly and no explanation has been offered by the prosecution during the trial. Moreover, it is not established that the person, who has lodged the FIR/complaint, had been authorized by the Electricity Board/Company to lodge the FIR/complaint on behalf of the Electricity Board. It also appears that no panchnama is prepared to recover the muddamal, no videography or photographs of the surprise checking is done. Even, the prosecution has failed to establish that the spot where the alleged theft of the electricity was found during surprise checking, belonged to and owned by the accused. Close look at the evidence indicates that at the alleged surprise checking to the spot/premises said to have been belonged to the accused was not done in presence of any independent person. The checking report itself indicates no involvement of any independent person. The checking report bears signature of the officer from the Electricity Board/ Company. No explanation is coming out from the deposition of the complainant or the employees part of the checking squad that why independent person has not been made part of the surprise checking or drawing the spot report. Learned Special Court having taken note of this anomaly in the prosecution evidence after referring various authorities under the pronouncement of this Court as we as the Hon’ble Apex Court, reached to the conclusion that the prosecution has failed to make out a case and to establish the charge levelled against the accused. The impugned judgment and order being fairly reasoned does not required to be interfered with. Learned APP has failed to point out any other point or evidence, which favours the case of the prosecution.

13. It can be noticed that cardinal principles of criminal jurisprudence behold that in an acquittal appeal, even if two view is possible, the view taken by the learned trial Court cannot be substituted by reversing the acquittal into the conviction unless finding of the learned trial Court found to be perverse, or could to have been said contrary to the material on record or demonstrably wrong or unsustainable and manifestly erroneous [See: Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225] [LQ/SC/1996/924] .

14. In the instant case, learned APP could not able to point out that how the finding recorded by the learned Special Court is patently illegal, perverse or contrary to the material on record or against the settled principles of law or his palpably wrong or manifestly erroneous. Worth to note that the presumption of innocence in a criminal trial operates in favour of the accused till he found guilty. The presumption would be doubled in a case where accused is acquitted after full-fledge trial from the charges levelled against him.

15. The reasons stated herein above indicate that no case is made out by the appellant State warranting interference with the impugned judgment and order of acquittal.

16. Resultantly, present appeal fails and same deserves to be dismissed and is accordingly dismissed.

17. Bail bond, if any, taken during the pendency of appeal, is cancelled.