PATEL DAHYABHAI SAVGANBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application has been filed by the applicant-original accused for suspension of sentence under Section 389 of the Criminal Procedure Code, 1973 and for grant of bail on the grounds set out in the application.

(2.) The applicant-original accused has been convicted in Special (Electricity) Case No.97 of 2009 by the learned Additional Sessions Judge and Presiding Officer, 3rd Fast Track Court, Palanpur, vide judgment and order dated 16.07.2010 recording conviction of the accused for the offence under Section 135(1)(A) of the Electricity Act, 2003 imposing sentence of rigorous imprisonment for two years and fine of Rs.1,77,194/- and, in default, rigorous imprisonment for six months.

(3.) Learned advocate Mr.M.R.Vyas with Mr.R.J.Patel submitted that the date of offence is 14.11.2008 and the complaint has been filed on 17.11.2008 and the statements of the witnesses have been recorded subsequently as well as the panchnama has also been made after about one month, for which there is no explanation. He referred to the judgment and other materials and submitted that as per the provisions of the Electricity Act, the sentence has been imposed without appreciating the evidence. He referred to testimony of PW-1 (Ex.8) and submitted that the amount of theft of energy is Rs.88,597/-. He also referred to cross-examination of the witness and submitted that no inquiry or investigation has been made with regard to the fact whether the electric motor was working or not. He submitted that there is no verification made with regard to the exact land, on which the alleged irregularity said to have been committed. He emphasised that the witness has denied that seizure panchnama is required to be prepared in presence of independent witness. He also emphasised that the said witness has not made any inquiry with regard to the well. Similarly he referred to testimony of PW-2 (Ex.15) and submitted that the blank sheet was given to the accused. Therefore, considering these evidences, learned advocate submitted that at least, as required under the provisions of Section 389 of the Criminal Procedure Code, 1973, the sentence is required to be suspended. He submitted that amount of fine is much more and that the applicant cannot make the payment of fine and he has to remain in jail without any fault and, therefore, the present application may be entertained.