Bangalore District Court
State By Bescom vs ) Fazani @ Palani @ Kuppuswamy on 2 March, 2016
IN THE COURT OF X ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-26).
DATED THIS THE 2ND DAY OF MARCH, 2016.
Present
Sri G.K. GOKHALE, M.A., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
Spl.C.C.No.186/2006
COMPLAINANT: State by BESCOM
KPTCL Vigilance Police
Jayanagar Police Station,
Bangalore.
(By Learned Public Prosecutor)
v/s
ACCUSED : 1) Fazani @ Palani @ Kuppuswamy
S/o Late Chinnaiah Gounder
50 years, Jai Balaji Industries
No.1, 1st Cross, Manjunathanagar
Magadi Road, Bangalore.
2) Naveen Kumar s/o Palani
22 years, No.1, 1st Cross
Manjunathanagar, Magadi Road
Bangalore.
(By Sri M.S. Appajappa, Advocate)
***
JUDGMENT
The above named accused persons are charge sheeted by Police Inspector, BESCOM, KPTCL Vigilance, Jayanagar Police Station, Bangalore for the offence punishable under Section 135 of Electricity Act, 2003.
2 Spl.C.C.186/2006
2. The brief facts of the prosecution case are that:-
The complainant- D.V. Lakshminarayan along with C.W.5 & his staff has visited the Jai Balaji Plastic Factory running by the accused situated at No.45, Gubbanna Industrial Extension, 6th Block, Rajajinagar, Bangalore on 08.01.2004 at 12.15 p.m. and inspected the meter bearing R.R.No.N1P-2743, which was installed towards right side of the door and found that the accused connected neutral disturbance equipment to circuit so as to control the meter reading of said RR number by tempering the meter fixed to the said factory and committed theft of electricity and caused loss to the BESCOM to the tune of Rs.20,958/- and thereby, the accused have committed the offence punishable under Section 135 of Electricity Act, 2003.
3. The A.E.E.- D.V. Lakshminarayan got removed the said electricity meter with the help of linemen and seized the said meter by conducting panchanama and he prepared inspection report on the spot and thereafter he lodged the complaint before BESCOM Police. The Police registered case in Crime No.2/2005. After obtaining lab 3 Spl.C.C.186/2006 report and connected documents, the Investigating Officer has filed the charge sheet by completing investigation.
4. In pursuance of the summons, the accused appeared and got released on bail. After hearing, the charge for the offence punishable u/s 135 of Electricity Act has been recorded. The accused pleaded not guilty and claimed for trial. The prosecution examined P.W.1 to P.W.9 and got marked the documents- Ex.P.1 to Ex.P.23 and material objects M.O.1 to M.O.5. The statement u/s 313 Cr.P.C. has been recorded. The accused persons have denied the evidence of prosecution as false. The accused persons did not adduce any oral or documentary evidence.
5. Heard arguments.
6. The points that arise for my consideration are:-
1) Whether the prosecution proves beyond reasonable doubt that the complainant along with C.W.5 & his staff has visited Jai Balaji Plastic Factory running by the accused situated at No.45, Gubbanna Industrial Extension, 6th Block, 4 Spl.C.C.186/2006 Rajajinagar, Bangalore on 08.01.2004 at 12.15 p.m. and inspected the meter bearing R.R.No.N1P-2743, which was installed towards right side of the door and found that the accused connected neutral disturbance equipment to circuit so as to control the meter reading of said RR number by tempering the meter fixed to the said factory and committed theft of electricity and caused loss to the BESCOM to the tune of Rs.20,958/- and thereby, the accused have committed the offence punishable under section 135 of Electricity Act, 2003?
2) What order?
7. My findings to the above points are as under:-
1) In the affirmative,
2) As per final order, for the following;
REASONS
8. Point No.1:- The P.W.1- D.V. Lakshminarayana, Asst. Executive Engineer, BESCOM has deposed that on 08.01.2004, he has received credible information that at Gubbanna Industrial Estate in a Plastic Industry, the 5 Spl.C.C.186/2006 possessor of the factory was committing theft of electricity. Therefore, he secured C.W.5 and his staff along with his staff reached the industry bearing No.45, 6th Block, Gubbanna Industrial Extension, Rajajinagar, Bangalore at about 12 Noon. They have inspected the industry and found electricity meter installed towards right side of the door, which bears RR No.N1P-2743 of Secure make. The electricity meter was concealed through an iron plate. The son of accused No.1 i.e. second accused was present and they informed him about the inspection of electricity meter. It was locked and when they asked him to open the lock, he informed that the lock was not with him. When they insisted for opening of a lock, the second accused himself opened the lock of the box. When they opened the box, they found blinking of meter. When they inspected the industry, there was electric supply and machinery's were running. On inspection of meter, they found that it was not recording the consumption of electricity. In fact, the machinery was under working. Then they enquired the second accused about non-recording of consumption of electricity. They inspected the industry and found in the 6 Spl.C.C.186/2006 office an almirah. Behind it there was a switch board having nine switches and three plugs and one meter copper wire was hanging through three pin plug. The wire was black colour and there was a photo of Lord Vinayaka on the almirah and a red light was burning. When they enquired the second accused and he took out the plug, the red light was switched off and simultaneously the meter was recording consumption of electricity. When three-plug pin switch on, the meter was not recording the consumption of electricity even though there was no power supply and machineries were working. Therefore, the accused were committing theft.
9. The P.W.1 has further stated that afterwards, he has seized the meter board with box, switch board fixed behind the almirah along with electronic instrument and he prepared a panchanama for having inspected and seized the meter board with box, switch board and electronic instrument in the presence of CW3 to CW6 and accused No.2 and he got disconnected the electricity connection of the industry through their lineman. He also took the photographs of the scene of offence through their CW9. Before preparing mahazar, he prepared 7 Spl.C.C.186/2006 inspection report. It is marked at Ex.P1. His signature is marked at Ex.P1(a). He has also obtained signature of accused No.2, CW3 and CW4 on mahazar. The mahazar is marked at Ex.P2. His signature is at Ex.P2(a). The second accused, CW9, CW2 to CW6 also signed on Ex.P2. Thereafter, he has approached Vigilance Police Jayanagar and lodged complaint. The complaint is marked at Ex.P3. His signature is at Ex.P3(a). Meter was removed and meter is marked at MO1. The iron meter box current transformers are marked at MO2. He saw switchboard along with electronic instrument seized under Ex.P2. Switchboard having nine switches and three sockets is marked at MO3. Electronic instrument (dismantled at laboratory) is used for tampering the meter is marked at MO4. The terminal cover of MO1 is marked at MO5. At the time of recording Ex.P2, accused No.2 was present and his signature was obtained. He signed before him on Ex.P2. He identified signature at Ex.P2(c). The second accused- Naveen Kumar also signed on it and his signature is marked at Ex.P1(b).
10. In the cross-examination, the P.W.1 has stated that at about 12 Noon or 11.45 a.m. they left the office.
8 Spl.C.C.186/2006 When they received the information, they were in the field at Rajajinagar. The distance between the scene of offence and there is about one k.m. He has informed orally CW5 to come over to the spot. He has not issued any notice to the owner at the time of inspection. He has not prepared panchanama for having opened the lock put on the meter box. He has not seized the lock. For main cover of the meter there were two seals. One is plastic seal and another is led seal. For terminal cover also two seals, one is plastic seal and another is lead seal. When they examined, the seals were intact. They have not removed the seals.
Q. Can you explain the mechanism of consumption of electricity?
Ans: The Electronic Tri Vector meter, which will read 3 magnitudes. One is kilowatts hour and another is KW/Ah and power factor and M.D.- Maximum Demand.
They have examined electrical circuits of the establishment. He has admitted that after the distribution, they provide separate circuits for lighting and machinery. MO4 was fixed in lighting circuit with a 3 9 Spl.C.C.186/2006 plug pin where the neutral was common to both- Lighting and machinery. Blinking of the meter was visible but parameter (meter reading) was not visible. If the sanction load is more than 40 HP, a J.E. or Asst.Engineer of concerned section is record the meter reading. Without interference of the meter, one can add the additional power circuit. On the basis of the RR No. and make, Sl. No. of the meter, they can say that the seized MOs are belonging to consumer. Electronic instrument is not available with the BESCOM. He has not fixed the chits having seized MOs. When they inspected the establishment of the accused, PW2 was having sealing register. He has not verified the back billing of previous six months. There is no provision to intimate to O & M division before inspecting any establishment, since there is a vigilance squad. The details of the machineries used by the accused have been recorded in the mahazar. Without, referring mahazar, he can say the details of the machinery are used by the accused.
Q. What do you mean by neutral disturbance?
10 Spl.C.C.186/2006 Ans: If any electronic device is fixed in the circuit to inject D.C. voltage to make neutral floating to restrict the recording of meter.
He has denied that neutral disturbance can be occurred due to vibration of machineries and motor. He has denied that if the supply of electricity is low and fluctuation of voltage, meter will record "Tampered". He has denied that he has not visited the establishment and not prepared the panchanama, inspection report and not seized any MOs and to show that they have regularly inspected the establishment and created the documents.
11. The P.W.2- H.S. Ramanna, Asst. Executive Engineer, BESCOM has deposed that on 08.01.2004, PW1 called him to accompany for inspection of Jai Balalji Industry situated at 45/11B, 10th Cross, Gubbanna Industrial Estate, Rajajinagar, Bangalore. His staff and staff of PW1 were also with them. They reached the Industry at around 12 or 12.10 Noon. They entered the premises and found an electric meter housed towards south side. The electricity meter bg.No.N1P 2743 was installed. It was covered 11 Spl.C.C.186/2006 with a wire mesh box. It was locked. The second accused was present and they asked him to open the lock. He opened the lock. The meter was made of Secure bg.Sl.No.05722. The meter was blinking. Blinking was continuous. But it was not recording the consumption of electricity. When they inspected the premises there was a supply of electricity and machines were working. A meter para meters was recorded. The current and voltage was showing as zero. If the meter was correct in recording the consumption of electricity, it should not blink continuously. It has to change its para meters between 3 to 4 seconds. They noticed that some external electronic device was fixed to arrest the meter recording and current and voltage recording and thereby the recording of consumption was stalled and even though consumer was using electricity at that time. Then they inspected the premises in detail. In the office room, behind a almirah, there was a switch board, there was nine switches and three plug pins and one of the plug was 12 Spl.C.C.186/2006 pinned to the socket which was connected to electronic device. If switch of the 3 pin plug of electronic device, the meter comes to stand still even though power was used and if the switch is put off, the meter was recording consumption and it comes to normal. The consumer whenever he put on the switch on 3 pin plug having electronic device, the meter was not recording the consumption of electricity and if the switch is put off, the meter was recording the consumption and thereby, the consumer was committing theft of electricity.
12. They inspected the meter and found that the meter para meters were taken and read through MRI (Meter Reading Instrument). The complainant got disconnected the electricity connection through lineman. Complainant seized MO1 and MO2 and a switchboard fixed behind the almirah in the office room with electronic device and prepared a panchanama to that effect. He has also signed on panchanama. It bears his signature. It is marked at Ex.P2(b). He has seen the tampered data and load survey report. It is marked at 13 Spl.C.C.186/2006 Ex.P4. They have referred MO4 to the Laboratory for testing. There they have dismantled it.
13. They have not measured the factory and they have noted the details of the factory. Meter was having two seals, for meter box there were three seals. The seals were affixed to the meter and they were intact. Every month the meter reader will visit the establishment for recording electricity consumption. The meter reader can identify any tampering of meter. In the instant case, no one can identify the tampering as device was kept in the office under switched off condition. They have not inspected the circuits. Two pin plug was fixed to 'Y' phase circuit (Yellow colour - for lighting). Blinking of meter was visible. The meter reader can detect the meddling of the meter if the meddling instrument is visible. In the instant case, electronic device was attached in the office. Without interfering the meter, MO4 was fixed. On seized articles there were meter serial number, manufacturer's name and their company seals and on the basis of it they can say that these are the same MO's seized by them. When they visited the spot, second accused and factory workers were present. They have not affixed the panchas 14 Spl.C.C.186/2006 chit on MO1. He has denied that they have not visited the establishment and there were no tampering of meter and they have prepared Ex.P1 to Ex.P.4 and introduced MO1 to 4 falsely. He has denied that neutral disturbance will be caused due to vibration of machinery and voltage fluctuation. He has admitted that if the voltage and current is less than prescribed limit, meter will record as "Tampered" such as slowed imbalance, power failed etc. He has denied that in the instant case, there was no meddling with the meter by the consumer and it was not due to physical interference.
14. P.W.3- N. Maruthi, Meter Reader has deposed that he was working as lineman at O&M-I, Rajajinagar during the year 2004. Such being the case, he was summoned by Sri Lokesh Babu, Section officer to Gubbanna Industrial Estate situated at Rajajinagar at about 1.30 to 2.00 p.m., the vigilance officials were also present at that spot. They were inspecting the electricity installment bg.RR No.N1P 2743 belongs to accused No.1. There after he was asked to disconnect the meter from the meter board and accordingly he disconnected the electricity supply from the pole and detached the meter 15 Spl.C.C.186/2006 which was then seized by vigilance officials in his presence by sealing the same. He has identified MOs 1 to 5 before the Court which were being disconnected and detached from the premises of the accused No.1. In the cross-examination, he has stated that there was no written notice to him to disconnect the installation. The meter was sealed in his presence. His signature is obtained on sealed cover.
15. P.W.4- Anbu has stated that he was working in Jai Balaji Plastic factory for two weeks which was belonging to second accused about ten years back. On one day BESCOM police came to the factory and obtained his signature on document. He identified his signature on mahazar at Ex.P2(d). He does not know its contents. They checked the premises but they were sent out of the premises. Therefore, he does not know what they did inside. This witness has been treated as hostile. In the cross-examination by the Public Prosecutor, he has stated that accused No.1 is father of second accused. He has denied that on 8.1.2004, the BESCOM vigilance visited the factory premises of first accused and inspected the electricity installation and found theft of 16 Spl.C.C.186/2006 electricity by tampering the meter and that meter was not recording the consumption and that the vigilance police shown the spot and drawn the mahazar in their presence as per Ex.P2. In the cross-examination of accused, this witness has stated that he does not know reading and writing of Kannada. His mother tongue is Tamil.
16. P.W.5- Smt.Archana, N, Asst. Executive Engineer has deposed that on 12.01.2004, they received the property meter housing box consisting three chambers from BESCOM vigilance for inspection and report along with electronic equipment. Herself, CW10 and CW 11 together examined and tested the said meter. The articles were in sealed condition. On opening the meter box, they found one electronic meter make of SEMS bg Sl.No.05722. The type of the meter was C3T-
105. The seals provided to the meter box were intact. They opened the meter and found small black box with three core black wire connected to the said black box and other end was connected to three pin plug. The said meter housing box consisting of three chambers i.e. one meter housing box, CT housing box and bus bar box.
17 Spl.C.C.186/2006 The data recorded in the electronic meter was down loaded. To analyze the data, they called Venkatesh and Rajesh from SEMS Company. They analysed the data and gave report on 20.09.2004, stating that meter was recorded neutral disturbance event under tamper status. This tamper was occurred from 27.11.2003 to 01.01.2004 with occurrence and restoration durations. They sent the said black box along with the meter to Indian Institute of Science, Bangalore to study the circuit inside the black box. They sent report on 21.12.2004 stating that after testing the meter they found that the electronic meter was recording accurately. They further reported that when the black box was connected to the electronic meter, the energy recording was found stop. They concluded that this equipment black box is prepared specially for stop the recording of consumption in the meter. On the basis of above reports, they found that by way of above method by adding external equipment the accused were committing theft of the power. They prepared a separate report on the basis of above reports. Their report is marked as Ex.P5. Her signature is marked at Ex.P5(a). The signatures of CW10 18 Spl.C.C.186/2006 and CW11 on Ex.P5 are marked as Ex.P5(b) and Ex.P5(c). The covering letter dt.05.01.2005 is marked as Ex.P6. The covering letter is signed by Ex.Engineer Rathna Balraj. The signature is marked as Ex.P6(a). The report of SEMS Company is already marked as Ex.P4. The covering letter is marked as Ex.P7. The report of IIS is marked as Ex.P8. Due to use of above external electronic gadget, i.e. black box, the consumption recording system of the meter supplied by the BESCOM can be stopped and thereby one can steal the power. He has identified the MO4 electrical instruments used for tampering the meter. Out of them he has identified the transformer which was used in the black box circuit.
17. In the cross-examination, the P.W.5 has stated that electrical equipments like MO3 & MO4 are available in market. But MO5 is not available in the market. He is B.E., Electrical & Electronic graduate. He is not conversant with mechanism of Electronic meter. But he knows the display in the meter. They all three were present at the time of opening and testing the meter. There were no other third persons present at the time of testing the meter by them. Since the articles were 19 Spl.C.C.186/2006 received by their office, he identifies the same. Since there was an external gadget found along with the meter, they suspected about accuracy and consumption of the meter. He cannot say the date of use of the external gadget. But it cannot be ascertained from downloaded data. He has admitted that in order to insert the black box inside the meter, seals should be cut. Witness volunteers that the black box can be used from outside. He has further admitted that meter seals were intact. He has denied that when the seals were intact, one cannot steal the power with the help of external gadget. He has denied that neutral disturbance tamper appears in the downloaded data even for low voltage and vibration in the motor and machinery due to loose beddings. He cannot say what was the voltage recorded at the time of inspection. Since they sent the meter along with covering letter, he can say that this is the meter which was sent to IIS. He has not affixed his signature on Ex.P4 & Ex.P8 reports. He has denied that he has not given correct downloaded data. He has not produced individual meter user manual. He has denied that the report prepared by them is behind the back of accused 20 Spl.C.C.186/2006 and independent witnesses is false and not reliable and that said report is prepared to file the false charge sheet against the accused.
18. P.W.6-K. Muthukumar, Retired Scientist, Indian Institute of Science, Bangalore has deposed that on 24.09.2004, the Executive Engineer sent one meter with electronics to him for studying and to give report. Thereafter he opened the electronic circuit and studied and found that electronic circuit will tamper the meter and power monitoring is disturbed. In this regard, he issued a report regarding tampering of meter. The said report is marked as Ex.P8. His signature is at Ex.P8(a).
19. In the cross-examination, he has stated that these type of instruments sent by BESCOM will test it and given report. When the BESCOM has sent the instrument, it has been sealed. There was a marking on the sealed cover but he cannot remember the mark. He has not noted the mark and signature on the sealed cover. At the time of opening the seal, himself and his juniors were present and no independent persons were present. At the time of carrying the test of meters, no independent persons were present. The electronics were fixed outside 21 Spl.C.C.186/2006 the meter. The meter was sealed but he does not know inside the meter. The meter seals and wiring also were intact. He has denied the suggestion that report Ex.P8 given by him is false. Witness volunteers that he has tested the meter from outside and the meter can be tampered and he found that meter will be tampered using the electronic provider. He has further denied that to tamper the meter from outside, it is not necessary to cut the outer seal and wire. He has admitted that he has tested the ETV meter (Electronic Tri Vector). He has denied that in the event of the seals being intact and the outer wiring is also intact, there is no existence of extra electronic circuit. He has denied that he has submitted false report. He has further denied that MO1 to 5 are available in the market.
20. P.W.7- Umashankar, Executive Engineer has deposed that he has received requisition letter on 09.01.2004 from the Vigilance Officer to submit the documents of RR No.N1P-2743. The requisition letter is marked as Ex.P9. The Ex.P10 is wiring completion report. The Ex.P11 is power supply agreement. The Ex.P12 is wiring diagram. The Ex.P13 is feasibility report. The 22 Spl.C.C.186/2006 Ex.P14 is power sanction letter. The Ex.P15 is licence given by BBMP. The Ex.P16 is power supply application. The Ex.P17 is MT Rating report. The Ex.P18 is wire completion report. The Ex.P19 is covering letter dt.27.1.2004. The Ex.P19(a) is his signature. In the cross-examination, he has denied that with an intention to support BESCOM, he has submitted all Xerox copies of the documents.
21. The P.W.8- D. Narasimhamurthy, Head Constable has stated that on 08.01.2004, he was deputed along with Srinivas to trace out the accused in Crime No.26/2004. As such, they have gone to search of the accused. When they are searching the accused, the second accused was standing near his Factory. They have identified the accused. They have confirmed that he is accused of this case. They have brought him before the Investigating Officer. On 20.02.2004 along with Inspector they have gone for searching the first accused. They have brought the first accused and produced him before the Investigating Officer. They have identified both the accused before the Court.
23 Spl.C.C.186/2006
22. The P.W.9- H.R. Reddy, Dy.S.P., CID, Bangalore has stated that on 08.01.2004, Asst. Executive Engineer, Rajajinagar along with the KEB staff has visited the meter installed to the Gubbanna Industrial Area No.45/11B, Jai Balaji Plastic Industry, inspected and found there is theft of electricity and lodged complaint. Along with the meter testing report and spot mahazar and electronic articles, they have lodged the complaint. He has received the complaint and registered the case and filed FIR before the Court and he has issued the articles kept in P.F.No.13/2004. He has identified both articles and his signatures on the mahazar. He has recorded the voluntary statements of accused No.1 & 2. In the voluntary statement, the second accused has stated that he has sustained huge loss in the industry. In that regard they are using the other instrument and meter and stopped the meter and obtained electricity. In that regard they have caused huge loss to the BESCOM. They have also recorded statements of C.W.2 to 17. On 21.01.2001, C.W.17 & 16 have produced first accused before him. Due to stopping the meter there is loss sustained to BESCOM of 24 Spl.C.C.186/2006 Rs.20,000/-. He has seen the report as per Ex.P.5. In that meter, they have given report. They have tampered the meter. As per the same meter and statement of witnesses, he has filed charge sheet against the accused persons.
23. In the cross-examination, P.W.9 has admitted that they have filed the case against Jai Balaji Industry. Further he has stated that they have filed the case in regarding of tampering of the meter. They have produced the documents in regarding ownership. The Factoy owner is first accused. The first accused is not the owner of Jai Balaji Industry is admitted. Further the witness has stated that said industry owner is Pazani @ Palani. The second accused is son of first accused. In regarding of relationship of accused 1 & 2, they have not enquired. Without verifying the records, they have filed charge sheet against the accused is denied.
24. As per the evidence of P.W.1, he has received credible information in regarding of theft of electricity in the plastic industry. They have rushed along with staff to the said factory, inspected the industry. At that time, first accused was present in the said industry. The said 25 Spl.C.C.186/2006 industry was closed at the time of their visiting the spot. Out side the said factory there is door lock and inside the electricity supply was taken and machines were running. The meter was not recording the consumption of electricity. They have enquired the second accused for non-consumption of electricity. They have suspected that there is theft of electricity and prepared mahazar, seized the articles and filed complaint against the accused. In the cross-examination, the P.W.1 has stated that when they have examined the seals were intact, they have not removed the seals.
25. The P.W.2 in the cross-examination has stated that in the instant case, no one can identify the tampering as device was kept in the office under switched off condition. The meter reader can detect the meddling of the meter if the meddling instrument is visible. In the instant case, electronic device was attached in the office. Without interfering the meter, M.O.4 was fixed. On seized articles there were meter serial number, manufacturers name and their company seals. When he has reached the factory, the second accused and factory workers were present. On perusal of 26 Spl.C.C.186/2006 document- Ex.P.1, they have obtained the signature of P.W.2. On this document, it shows that at the time of inspection, the second accused was present in the said factory. He has not given admissions to the accused counsel in regarding of non-visiting to the spot. It is an admitted fact that meter installation bearing No.N1P- 2743 belonged to the first accused. The second accused is son of first accused, who was looking after the entire factory work. Though P.W.4 is an independent witness he has admitted signature on Ex.P.2- mahazar, but he has denied the contents of mahazar. It is not sufficient to disbelieve the versions of the important material witnesses. When the other witnesses- KEB officials have visited the spot, they have found that there is tampering of meter by the accused persons. When they have inspected the meter, they have received property meter housing box consisting of 3 chambers i.e., one meter housing box, CT housing box and bus bar box. The data recorded in the electronic meter was down loaded. They analyzed the data and gave report on 20.09.2004 stating that meter was recorded neutral disturbance event under tamper status. This tampering was occurred from 27 Spl.C.C.186/2006 27.11.2003 to 01.01.2004 with occurrence and restoration durations. Then they have sent said black box along with the meter to Indian Institute of Science, Bangalore to study the circuit inside the black box. They sent report on 21.12.2004 stating that after testing the meter they found that the electronic meter was recording accurately. They further reported that when the black box was connected to the electronic meter, the energy recording was found stop. They have concluded that this equipment black box is prepared specially for stop the recording of consumption in the meter. It shows that the method by adding external equipment the accused were committing theft of the power. As per the document- Ex.P.5 shows that there was a theft of electricity by the accused persons. At the time of inspection, the second accused was also present. On perusal of documents furnished by the prosecution and other documents are clearly shows that there was a theft of electricity, they have stopped the meter reading and the meter was tampered using the electronic provider. The meter was standing in the name of first accused. The second accused is son of first accused. They are running the 28 Spl.C.C.186/2006 plastic factory. They have stopped the meter. They have taken electricity illegally. They have paid back billing charge of Rs.2,80,958/-. It is the bounden duty of the owner of the consumer to look after the installation. The first accused has provided power supply to the factory. The first accused is responsible for the entire incident. The second accused, who is son of first accused, who was present in the factory and who has signed Ex.P.1, is also responsible for the commission of offence. Hence, I come to the conclusion that the prosecution has proved the guilt of the accused persons that they have committed theft of electricity by meddling with the electrical meter of the said R.R. number and by tampering with the meter seals with dishonest intention to commit theft of electricity and thereby caused loss to the BESCOM. Accordingly, I answer point No.1 in affirmative.
26. Point No.2:- In view of my findings on point No.1 and for the reasons stated above, I proceed to pass the following:-
29 Spl.C.C.186/2006 ORDER Acting under Section 235(2) of Cr.P.C., the accused No.1 & 2 are hereby convicted for the offence punishable u/s 135 of Electricity Act of 2003.
To hear regarding sentence.
(Dictated to the Judgment Writer, transcribed by him on Computer, print out taken, corrected and then pronounced by me in open Court on this the 2nd day of March, 2016) (G.K. GOKHALE) X ADDL.CITY CIVIL AND SESSIONSS JUDGE BANGALORE.
10.03.2016 Order on sentence Heard both sides on quantum of sentence. The learned Public Prosecutor has submitted that as per section 135(1) of Electricity Act, the fine imposed on the first conviction shall not be less than 3 times of the financial gain on account of such theft of electricity and accused is also liable to undergo imprisonment upto extent of 3 years along with fine.
The learned counsel for the accused submitted that while calculating the value of the stolen electricity, the accused financial gain has to be assessed by considering 30 Spl.C.C.186/2006 the nature of use of the electricity, financial capacity of the accused and nature of business run by him with the help of electricity power. In support of his argument, he has filed memo stating that the sanctioned load was 56.25 HP and the connected load was 62.08 HP and there is excess load of 6.55 HP. When it is converted to Kilowatt, excess load of 6.55 HP has to be multiplied by 0.746 as 1KW=0.746 HP. Hence, 6.55 HPx0.746=4.8863 KW, which is rounded to 5KW and as per Ex.P.5, the neutral disturbance tamper has occurred from 27.01.2003 to 01.01.2004 for a period of 35 days. The accused has already paid back billing charge of Rs.2,80,958/- on 08.07.2005.
As per Section 135(1) of Electricity Act, in case the load consumed exceeds 10 KW, the fine imposed shall not be less than 3 times of the financial gain on account of such theft of electricity. It is the first offence committed by the accused and the load consumed is less than 10 KW. The accused has admitted that he is ready to pay fine of Rs.60,000/-.
As per Section 126 of Electricity Act, the value of stolen electricity requires to be assessed for a period of 6 31 Spl.C.C.186/2006 months immediately preceding to the date of inspection at 1 ½ times of the tariff. As such, the accused has already paid Rs.2,80,958/-. The actual BBC charged shall not be the fine amount to be imposed on the accused. Though the accused has already paid the back billing charge, lenience has to be given to them. The computation of actual BBC multiplied by 3 times is against the provisions of Section 126 of Electricity Act. The claim of regular electricity bill and 5% tax is not a financial gain to be considered as a part of fine amount. Except financial gain, which accrued on the basis of 6 months charges, nothing to be added while determining financial gain. Therefore, the regular bill and 5% tax shall not be part of financial gain.
As admitted by the accused, 6.55 HP is used for illegal abstraction. As per bill dated 08.07.2005, upto 15 HP, Rs.4,000/- per HP has to be charged. If it works out it comes to Rs.26,200/- (6.55 HP x Rs.4,000/-). As per Section 135(1)(i) of Electricity Act, 3 times of financial gain has to be considered. Here in this case, the financial gain is Rs.26,200/-. If it is multiplied by 3 times, it comes to Rs.78,600/-, which is liable to be paid by the 32 Spl.C.C.186/2006 accused as fine. Since the accused has already paid back billing charge and ready to pay Rs.60,000/-, there is no necessity to impose imprisonment. Accordingly, I proceed to pass the following:-
ORDER The accused persons are sentenced to pay fine of Rs.78,600/- and in default of payment of the fine, they shall undergo simple imprisonment for a period of 3 months.
Articles M.O.1 to M.O.5 are ordered to be returned to the BESCOM, after appeal period is over.
(Dictated to the Judgment Writer, transcribed by him on Computer, corrected and then pronounced by me in open Court on this the 10th day of March, 2016) (G.K. GOKHALE) X ADDL.CITY CIVIL AND SESSIONSS JUDGE BANGALORE.
ANNEXURE List of witnesses examined for the prosecution:
PW.1 D.V. Laxminarayan
PW.2 H.S. Ramanna
Pw.3 N. Maruthi
Pw.4 Anbu
Pw.5 Smt.Archana N
Pw.6 K. Muthukumar
33 Spl.C.C.186/2006
Pw.7 K. Umashankar
Pw.8 D. Narasimhamurthy
Pw.9 H.R. Reddy
List of documents marked for the prosecution:
Ex.P.1: Inspection Report Ex.P.2: Mahazar Ex.P.3: Complaint Ex.P.4: Meter Reading Data Entry Ex.P.5: Report Ex.P.6 & 7: Covering letters Ex.P.8 : Report Ex.P.9 : Requisition letter Ex.P.10: Wiring completion report Ex.P.11: Power supply agreement Ex.P.12: Wiring diagram Ex.P.13: Feasibility report Ex.P.14: Power sanction letter Ex.P.15: Licence given by BBMP Ex.P.16: Power supply application Ex.P.17: MT rating report Ex.P.18: Wire completion report Ex.P.19: Covering letter dt:27.1.2004 Ex.P.20: FIR Ex.P.21: Statement of second accused Ex.P.22: Negative Ex.P.23: Statement of first accused
Ex.p.1(a),2(a),3(a) : Signatures of P.W.1 Ex.p.1(b),2(c) : Signatures of 2nd accused Ex.p.2(d) : Signature of P.W.4 34 Spl.C.C.186/2006 Ex.p.5(a) : Signature of C.W.12 Ex.p.5(b),6(a) : Signatures of C.W.11 Ex.p.5(c) : Signature of C.W.10 Ex.p.8(a) : Signature of P.W.6 Ex.P.19(a): Signature of P.W.7 Ex.P.20(a): Signature of P.W.8 Ex.P.22(a): Photos Ex.P.23(a): Signature List of witnesses examined and documents got marked for the defence:-
Nil List of material objects identified during evidence:
M.O.1 : Meter
M.O.2 : Iron meter box
M.O.3 : Switch board
M.O.4 : Instrument
M.O.5 : Terminal cover
(G.K. GOKHALE)
X ADDL.CC & SS JUDGE,
BANGALORE.