- (1.) C. A. Rahim, J. This Revision has been preferred against the order dated 9-9-1982 passed by the VII Additional Sessions Judge, Budaun, in Csiminal Appeal No. 65 of 1982 allowing Appeal in part. Maintaining the conviction under Section 370,i. P. C. read with Section 39/40 of the Electricity Act passed by the Judicial Magistrate, Budaun, in Criminal Case No. 689/81 but reducing the sentence from one year R. I. to six months R. I.
(2.) THERE was an allegation of committing theft of electricity by unlaw fully working the tubewell, rice machine and flour chakki by the accused revisionist on 12-1-1978. The allegation is that due to non- payment of the dues his electricity connection was disconnected on 15-12-1977 on inspection it was found that on 12-1-1978 he was running certain machines as aforesaid by consuming electricity and thereby committed offence under Section 379, I. P. C. read with Section 39/40 of the Electricity Act. In the instant case only two witnesses, namely, Naresh Chandra Saxena, Junior Engineer and one Sunder Lal of the Vigilance Cell Hydel Department, were examined. No other witness including the investigating Officer or the Moharrir, was reported the first information report, was examin ed. It was contended on behalf of the revisionist that a civil case was filed before the Additional Munsif Magistrate being case No. 338/1978 and the same was decreed against the Electricity Department, it has been alleged that the certified copy of the civil case was filed before the learned Sessions Judge during the hearing but it was not adhered to. The learned Sessions Judge has held that the statement of P W 1 Naresh Chandra Saxena to the effect that he did not consider if a civil case was going on between the parties doss not make the evidence doubtful because a Government servant, cannot remember all the litigation of Department. It has been contended that the said person appeared as a witness and was doing pairvi from the side of the Electricity Department and even then no presumption was drawn against him. The learned Sessions Judge also held that the statement of the PW 1 was recorded in the year 1982 but the civil case related to the year 1978 so the certified copy of the judgment and the copy of the statement of PW 1 in that civil suit are pot of much help. The learned counsel has thereafter submitted that the sentence is too severe. In fact he has challenged the sentence and not merits of the Judgment passed by the Additional. Sessions Judge in appeal, Referring to the above circumstances the learned counsel has submitted that a lenient view be taken with regard to imposition of sentence which, if reduced to fine, would meet the ends of justice, considering the fact that the decision of the civil case was not considered by any of the courts below or that the conviction was based on evidence of the two departmental witnesses. One of them appeared in the civil case as witness but denied existence of the civil suit. I am constrained to hold that there should not be any substantive sentence in this case beyond the period already undergone and imposition of fine would meet the ends of justice.
(3.) THE Revision is, therefore, allowed in part. THE conviction is main tained but the sentence is reduced to the period 'already undergone and a fine of Rs. 1000 (one thousand) be imposed. In default, he shall suffer R. I. for one month. THE fine is to be paid within two months from this date, other wise the trial court shall issue process for ensuring the attendance of the revisionist and to suffer consequences thereof. Revision allowed. .;