Bangalore District Court
V Sneha vs Giriraj on 5 May, 2025
KABC030889032017
Presented on : 08-08-2017
Registered on : 08-08-2017
Decided on : 05-05-2025
Duration : 7 years, 8 months, 28 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 05th Day of May, 2025
C. C. No.20363/2017
(Crime No.233/2017)
State by Yeshwanthpura Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
Sir Giriraj,
Aged about 41 years,
S/o Sri Late Venkataraj,
R/at No.11, 2nd Cross,
Model Colony, Yeshwanthpura,
Bengaluru City-560022 ... Accused
(Represented by Sri T.C.Mallikarajunaswamy
Advocate)
KABC030889032017 CC No.20363/2017
1. Date of commission of 15/16-06-2017
offence
2. Date of FIR 16-06-2017
3. Date of Charge sheet 12-07-2017
4. Name of Complainant Smt.Sneha, Asst.
Executive Engineer,
BWSSB, Bengaluru
Northeast-1 Sub
Division, Malleshwara,
Bengaluru
5. Offences complained of Under Section 75,
76(A), 107, 108(A), 109
of BWSSB Act and
Section 379 IPC
6. Date of framing charge 18-06-2022
7. Date of commencement 10-03-2025
of Evidence
8. Charge Pleaded not guilty
9. Date of Judgment is 05-05-2025
reserved
10. Date of Judgment 05-05-2025
2
KABC030889032017 CC No.20363/2017
11. Final order Accused is acquitted
12. Date of Sentence -
JUDGMENT
The Police Sub-Inspector of Yeshwanthpura Police Station submitted charge sheet against accused for the offence punishable under Section Under Section 75, 76(A), 107, 108(A), 109 of BWSSB Act and Section 379 of Indian Penal Code.
2. Prosecution Case: The accused is the owner of house No.11, 2nd Cross, Model Colony within the limits of Yeshwanthapura Police Station has illegally drawn water supply through four-inch pipe running from east to west and pipe running from south to north without obtaining any permission from the Bangalore Water Supply and Sewerage board and committed the theft of water and had facilities of sewerage system of board illegally.
3. First Information Report: Upon the receipt of first information from CW1 namely Smt.Sneha, AEE, BWSSB, CW4 Sri T.N.Narasimhamurthy, ASI of Yeshwanthapura Police Station registered Crime No.233/2017 against the accused for the offences 3 KABC030889032017 CC No.20363/2017 punishable under Section 75, 76(A), 107, 108(A), 109 of BWSSB Act and Section 379 of Indian Penal Code, prepared FIR and sent the same to the Court.
4. Investigation: Thereafter, he drawn spot mahazar as per Ex.P2 on 15-06-2017 in presence of CW2 and CW3 and recorded the statement of requisite witnesses, collected the documents and after completion of investigation submitted the charge sheet against the accused for the alleged offence.
5. On receipt of charge sheet, this Court took cognizance of the offences alleged against the accused.
6. The accused was enlarged on bail by the order dated 20-09-2017.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused.
8. Charge: After hearing learned Senior APP and counsel for accused, charge for the offences punishable U/Sec.75, 76(A), 107, 108(A), 109 of BWSSB Act and Section 379 of Indian Penal Code.
4KABC030889032017 CC No.20363/2017 has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 4 witnesses and examined 2 witnesses and exhibited 2 documents and closed their side. During the cross examination of PW1, the learned counsel for accused marked Ex.D1 and Ex.D2 documents. Process of witness summons against CW3 and CW4 returned as dead and CW4 was to have died on 06-05-2023 and hence given up from examination by the order dated 04-11- 2022 and 24-04-2025.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused was examined as per section 313 of Cr.P.C, wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
5KABC030889032017 CC No.20363/2017
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that The accused is the owner of house No.11, 2nd Cross, Model Colony within the limits of Yeshwanthapura Police Station has illegally drawn water supply through four-inch pipe running from east to west and pipe running from south to north without obtaining any permission from the Bangalore Water Supply and Sewerage board and committed the theft of water and had facilities of sewerage system of board illegally thereby resulted in commission of the offence punishable under Sec.75, 76(A), 107, 108(A), 109 of BWSSB Act and Section 379 of Indian Penal Code ?
2. What order?
6KABC030889032017 CC No.20363/2017
13. The court's findings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
REASONS
14. Point No.1: In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution examined the witnesses, which are as follows i CW1 namely Smt. Sneha being informant examined as PW1 deposed that, in the year 2017, when she went to inspect the water supply in the house of accused, she found that drinking water from the sewerage was being discharged into the sump without a meter, so she filed a complaint as per Ex.P1 and police drawn mahazar as per Ex.P2 in the presence of CW2 and CW3, at that time photo of accused's house was taken. She identified her signatures as per Ex.P1(a) and 2(a).
ii. CW2 Sri Vishwanath.K. being panch witness examined as PW2 deposed that the when he went to inspect the water supply connection list in his office, 7 KABC030889032017 CC No.20363/2017 he found that water was going to the sump even though there was water supply connection, so he gave a notice to accused and filed a complaint against him at the police station, where he disconnected the water and given a statement to the police in this regard. While investigating the spot, CW1 found that the accused had illegally taken water from the south to the north for his own use, causing damage to the water board. He confirmed that the board's 4 inch water supply pipe was passing in front of the building from the east and that ½ inch water supply pipe had been installed from the south to the north from the same house and had illegally obtained sewerage connection without the board's permission. He took a photo and confirmed the same.
15. The accused was charged for the offences punishable under Section 75, 76(A), 107, 108(A), 109 of BWSSB Act and Section 379 of Indian Penal Code. It is relevant to mention that Section 108A of BWSSB Act and Section 379 of IPC deals with the commission of offence of theft.
108A. Theft of water.- (1) Whoever dishonestly obtains water supply through illegal connection or tampers meter or uses tampered meter in any manner resulting in non-recording or wrong recording 8 KABC030889032017 CC No.20363/2017 of consumption of water or damages or destroys water meter/apparatus so as to prevent accurate metering of water consumed, shall be punishable with imprisonment for a term which may extend up to three years or with fine; or with both.
(2) If it is proved that any artificial means or means not authorized by the Board exist for consumption or use of water by the consumer without being recorded by the meter, it shall be presumed that the consumption or use of water has been dishonestly made by such consumer until contrary is proved.
Section 379 of IPC which reads as under Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both 9 KABC030889032017 CC No.20363/2017 In this regard, it is relevant to mention Section 5 of Indian Penal Code which reads as under
Certain laws not to be affected by this Act.--Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law.] Is whether an offence under Section 379 of the Indian Penal Code would lie for theft of electricity, when for the self-same offence a person is charged under Section 135 of the Electricity Act, 2003, which is a special statute. To my mind the answer is, No. The reason is, since a special statute specifically provides for penalties for a particular offence, in this case -- theft of electricity, the general law, being the Indian Penal Code attracting penalties for the same offence, will not applicable. My view is fortified by a judgment of Punjab and Haryana High Court in the case of Mahalakshmi Spinners Limited and others Vs State of Haryana and another reported in 2007 Cr. LJ 429 AND In the case of Biswanath Patra vs 10 KABC030889032017 CC No.20363/2017 Divisional Engineer (E) S And Lp And reported in AIR 2007 CAL 189 wherein it was held as follows:
When there is a specific/special law covering the question of theft of electricity i.e. Section 135 of the Act, the general law contained in Section 379, IPC will not be applicable. Any attempt by the notice to add offence under Section 379 IPC will be a crude devise by the prosecution to overcome the likely objection from the accused about the filing of the complaint instead of registration of FIR. Law is well-settled that special law will prevail over the general law. Once there is a specific provision is the Act in respect of providing of punishment for theft of electricity, no offence under Section 379, IPC could be alleged by the prosecution or later on added during the investigation so as to preempt the taking of plea by the accused that no prosecution for the offence under Section 135 of the Act could be launched except 11 KABC030889032017 CC No.20363/2017 upon a complaint by the authorized officer.
That apart, the Electricity Act 2003, which is a special statute, is a latter piece of legislation, than the Indian Penal Code, 1860, and therefore, it can be safely assumed that the legislature in its wisdom, after considering the general provision of offence of theft under the Indian Penal Code, decided to bring in the specific provision for offence of theft of electricity under the provision of Section 135 of the Electricity Act, 2003. Therefore, once a person is said to have committed an alleged offence of theft of electricity, no case under Section 379 of the Indian Penal Code, 1860 would lie in view of the specific provision of law contained in the Electricity Act, 2003 in this regard. The same analogy applies to the case on hand. In the instant case, it is relevant to mention Section 111 of THE BANGALORE WATER SUPPLY AND SEWERAGE ACT, 1964 which reads as under
111. Prosecutions.--Save as otherwise provided in this Act, no court shall proceed with the trial of any offence made punishable by or under this Act or any rule or regulation except on the complaint of, or upon information received from, the Water Supply 12 KABC030889032017 CC No.20363/2017 Engineer, the Sanitary Engineer or any officer authorised by the Board by a general or special order in this behalf.
In the instant case, CW1/PW1 is none other than AEE who is neither water supply engineer or sanitary engineer nor an officer authorized by the Board to file the complaint (Ex.P1) and such being the case, the present complaint filed by the AEE/informant without any authorisation letter from Water Board is fatal to the prosecution case.
16. PW1 has lodged the complaint along with the photographs of the house of the accused however the prosecution has neither taken the photographs or videograph of alleged spot nor seized four-inch pipe running from east to west and pipe running from south to north which was connected to the BWSSB property. The Spot Panchaname was drawn by the PW1 as per Ex.P2 but none of the public/neighbours were witnesses to the prosecution and the PW2 who is none other than AE was signatory to the prosecution and CW4 did not ascertain the spot and alleged illegal water connection taken by the accused except recording the statement and submitted the charge sheet against the accused.
13KABC030889032017 CC No.20363/2017
17. PW1 deposed in the cross examination that xxxxx ಆರೋಪಿ ನೀರನ್ನು ವಾಟರ್ ಸ್ಟಾಕ್ ಕನೆಕ್ಷನ್ ಇದ್ದರೂ ಕೂಡ ಒಳಚರಂಡಿಯಿಂದ ಕುಡಿಯುವ ನೀರನ್ನು ಮೀಟರ್ ಇಲ್ಲದೇ ಕಳ್ಳತನ ಮಾಡಿದ್ದಾರೆ ಎಂದು ಕಂಡು ಬಂದಿತ್ತು. ನಮ್ಮ ವಾಟರ್ ಸ್ಟಾಕ್ ಕನೆಕ್ಷನ್ ಮತ್ತು ನೋ ವಾಟರ್ consumption ಲಿಸ್ಟ್ ಮೇರೆಗೆ ನಾನು ಇನ್ಸ್ ಪೆಕ್ಷನ್ ಮಾಡುತ್ತೇನೆ. ಸದರಿ ಲಿಸ್ಟನ್ನು ಸಾಪ್ಟ್ ವೇರ್ ಮೂಲಕ ಪಡೆದಿದ್ದೀವಿ ಅದನ್ನು ತನಿಖಾಧಿಕಾರಿಗೆ ಕೊಟ್ಟಿರುವುದಿಲ್ಲ. ಈ ಕೇಸಿನಲ್ಲಿ ಅನಧಿಕೃತವಾಗಿ ಬಳಸಿರುವ ಪೈಪನ್ನು ತನಿಖಾಧಿಕಾರಿಗಳು ಜಪ್ತಿ ಪಡಿಸಿರುವ ಬಗ್ಗೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. Xxxxxxxxxxx Y-13 ಅಂದರೆ ಯಶವಂತಪುರ ಪೊಲೀಯೋ ನಂ.13. ದೂರು ಕೊಡುವ ಮುಂಚೇನೆ ಮನೆಯನ್ನು ಕಟ್ಟಿದ್ದರು ಎಂದರೆ ಸರಿ. ಆರೋಪಿ ಈಗಲೂ ಕೂಡ ವಾಟರ್ ಬಿಲ್ ಕಟ್ಟುತ್ತಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ 2015ನೇ ಇಸವಿಯಲ್ಲಿ ಮನೆ ಕಟ್ಟುವಾಗ ನೀರು ನಿಲುಗಡೆ ಮಾಡಿರುತ್ತಾರೆ. ಆ ಸಮಯದಲ್ಲಿ ಆರೋಪಿಗೆ ಬರೀ ಸ್ಯಾನಿಟೇಶನ್ ಗೆ ಮಾತ್ರ ಬಿಲ್ ಮಾಡುತ್ತಿದ್ದೆವು. ನಂತರ 2019ನೇ ಇಸವಿಯಲ್ಲಿ ವಾಟರನ್ನು ಸಾಂಕ್ಷನ್ ಮಾಡಿಸಿಕೊಂಡಿರುತ್ತಾರೆ. ಈ ವಿಚಾರವನ್ನು ಪೊಲೀಸರು ನನ್ನ ವಿಚಾರಿಸಿರುವುದಿಲ್ಲವಾದ್ದರಿಂದ ನಾನು ಹೇಳಿರುವುದಿಲ್ಲ. ಸಾಕ್ಷಿಗೆ ಆರೋಪಿಯ 14 KABC030889032017 CC No.20363/2017 ಮನೆಯ ವಾಟರ್ ಬಿಲ್ ಎಂದರೆ ಸರಿ ಎಂದು ಒಪ್ಪಿರುತ್ತಾರೆ. ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ಸದರಿ ಬಿಲ್ಲು ವಾಟರ್ ಸಾಂಕ್ಷನ್ ಆದ ನಂತರ ಕೊಟ್ಟಿರುವ ಬಿಲ್ಲು ಎಂದು ಒಪ್ಪಿರುತ್ತಾರೆ. ಸಾಕ್ಷಿ ಸದರಿ ಬಿಲ್ಲನ್ನು ಒಪ್ಪಿರುವುದರಿಂದ ಅದನ್ನು ನಿಡಿ.1 ಎಂದು ಗುರ್ತಿಸಲಾಯಿತು. ಅದೇ ರೀತಿ ದಿ.10-07-2019 ರಂದು ಪೊರೊಟ ಚಾರ್ಜಸ್ ಅನ್ನು ಕಟ್ಟಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ ಮುಂದುವರಿದು ವಾಟರ್ ಸಾಂಕ್ಷನ್ ಪಡೆದ ನಂತರ ಕಟ್ಟಿದ್ದಾರೆ ಎಂದು ನುಡಿಯುತ್ತಾರೆ.
ಸಾಕ್ಷಿ ಸದರಿ ಪತ್ರವನ್ನು ನೋಡಿ ಗುರ್ತಿಸಿರುತ್ತಾರೆ. ಅದನ್ನು ನಿಡಿ.2 ಎಂದು ಗುರ್ತಿಸಲಾಯಿತು. ನೀರು ಅಗತ್ಯ ವಸ್ತುವಿರುವುದರಿಂದ ಯಾವುದೇ ಪ್ರಕರಣ ಬಾಕಿ ಇದ್ದರೂ ಅದು ತೀರ್ಮಾನವಾಗುವವರೆಗೂ ಸದರಿ ಪ್ರಕರಣಕ್ಕೆ ಸಂಬಂಧಪಟ್ಟ ಬಾಕಿ ಇರುವ ಹಣವನ್ನು ವಸೂಲಿ ಮಾಡುವುದಿಲ್ಲ.
ತೀರ್ಮಾನವಾಗುವವರೆಗೂ ಹಣವನ್ನು ವಸೂಲಿ ಮಾಡುವುದಿಲ್ಲ ಎಂಬ ನಿಯಮ ಇದೆಯಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಅನಧಿಕೃತವಾಗಿ ತೆಗೆದುಕೊಂಡಿರುವುದಕ್ಕೆ ಬಿಲ್ಲಿನಲ್ಲಿ ನಮೂದು ಆಗಿರುವುದಿಲ್ಲ ಎನ್ನುತ್ತಾರೆ.
Thus, it is clear that the accused paid the prorata charges on 12/07/2019 as per Ex.D2 but does not reflect that the prorata chrages was received for obtaining new connection for house or for regularization of existing connection.
15KABC030889032017 CC No.20363/2017
18. As discussed above, without authorization letter for the PW1 to lodge the complaint as per Section 111 of the BWSSB Act 1964' non seizure of the alleged pipe and non-taking of photographs and non-recording of the spot, non-joining of the witnesses around the spot and non production of water stock connection and no water consumption list raises the doubt the prosecution case. Thus, the prosecution failed to establish the ingredients of alleged offences and accordingly, the accused is entitled to be acquitted for the said offences, thereby this court answers the above point No.1 in the negative.
19. Point No.2:- For the foregoing discussion and the findings to the above point No.1, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offence punishable under Sec.75, 76(A), 107, 108(A), 109 of BWSSB Act and Section 379 of Indian Penal Code.16
KABC030889032017 CC No.20363/2017
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me in laptop, then the judgment pronounced by me in the open court, on this the 05th day of May, 2025) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for Prosecution :
PW1 : Smt. Sneha Informant PW2: Sri Vishwanath.K. Pancha witness
Documents marked on behalf of Prosecution:
Ex.P1: Complaint PW1
Ex.P2: Spot Mahazar PW1
17
KABC030889032017 CC No.20363/2017
Material Objects marked on behalf of the prosecution: NIL Witnesses examined for the defence: NIL Documents marked on behalf of the defence: NIL Ex.D1: Water Bill PW1 Ex.D2: Receipt No.AB 18653 dtd: 12-7-2019 VIII Addl. Chief Judicial Magistrate, Bengaluru City.
18KABC030889032017 CC No.20363/2017 05-05-2025 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offence punishable under Sec.75, 76(A), 107, 108(A), 109 of BWSSB Act and Section 379 of Indian Penal Code.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Ordered accordingly.
VIII ACJM, Bengaluru City.
19