Delhi District Court
Anil Kumar Singh vs State (Govt Of Nct Of Delhi) on 20 May, 2014
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Appeal No. 04/2014
Unique ID No. 02406R0162182012
Anil Kumar Singh,
Son of late Sh. Jitender Singh,
Resident of Z-13, Deepak Vihar,
Vikas Nagar, Uttam Nagar,
New Delhi ......................................Appellant
Versus
State (Govt of NCT of Delhi) ......................................Respondent
Date of institution of Appeal : 05.07.2012
Date on which case was received on
Transfer by this Court : 21.04.2014
Date of conclusion of arguments : 12.05.2014
Date of Judgment : 20.05.2014
Particulars related to impugned order
FIR No. : 69/2004
PS : Vasant Vihar
Penal Section for which convicted : 406 IPC
Date of order of conviction : 29.05.2012
Details of sentence : Simple Imprisonment for
one year and a fine of Rs.
5,000/- in default one month SI.
Date of order on sentence : 05.06.2012
Name of learned Trial Court : Ms. Namrita Aggarwal,
MM-09, South, Saket.
Memo of Appearance
Sh. D.K. Singh, learned counsel for appellant.
Sh. Inder Kumar, learned Addl. P.P. for State/respondent.
Sh. Vinod Kumar Sharma, learned counsel for BSES Rajdhani Ltd.
CA No. 04/14 Anil Kumar Singh Vs. State Page 1 of 13
JUDGMENT
1 In Jhuggi-jhopari clusters (JJ Clusters), the erstwhile Delhi Vidyut Board (DVB) did not use to install separate meters for each & every jhuggi/hutment. Instead, it had devised a scheme of Single Point Delivery Connection under which there used to be an agreement between DVB and the agency desirous of obtaining such connection. Such agency then used to provide sub-electricity connections within that area and after collecting the charges from all such eventual users, payment used to be made to DVB. As per the terms of agreement, such agency also used to get some fixed percentage as its share of profit.
2 DVB had given a Single Point Delivery Connection (having K number as 702/129249 PDL) for a load of 100 KWs for approximately 400 dwelling units for the area of Bhanwar Singh Camp Near D-Block, Vasant Vihar to Sh. Anil Kumar Singh (appellant herein). Agreement was also executed to such effect.
3 BSES Rajdhani Ltd. (hereinafter referred to as 'power supplier') had stepped into the shoes of DVB after the privatization of power supply in Delhi.
4 According to power supplier, about 20 persons had visited their office on 28.02.2004. All such persons were from same Bhanwar Singh Camp where accused had been authorized to provide sub-connections. They all disclosed that they had paid the requisite payment to the contractor i.e. accused Anil Kumar Singh from time to time but same was not deposited by him with power supplier.. A representation signed by the residents of Bhanwar Singh Camp along with 345 copies showing receipts of payment CA No. 04/14 Anil Kumar Singh Vs. State Page 2 of 13 amounting to Rs. 1,23,070/- was also submitted to said power supplier.
5 Taking note of such representation, power supplier sent a complaint dated 29.02.2004 to SHO, PS Vasant Vihar with request to lodge FIR and to take appropriate action against such accused. Representation, along with such receipts, was also sent to police. According to power supplier also, outstanding was whopping i.e. Rs. 18,62,153.33. As a coercive measure, electricity supply had also been disconnected by power supplier.
6 FIR No. 69/04 was registered on 01.03.2004. Accused was arrested on 08.10.2006 and after comprehensive investigation, charge-sheet was laid in the Court against accused for offence u/s 406 IPC on 04.12.2006.
7 Cognizance was taken.
8 Accused was charged u/s 406 IPC vide order dated 15.02.2007.
9 Prosecution examined 12 witnesses in all. Accused, in his statement u/s 313 Cr.P.C., pleaded innocence and claimed false implication. He desired to lead in evidence in defence but eventually did not lead the same.
10 Vide impugned order dated 29.05.2012, he was held guilty u/s 406 IPC and vide order on sentence dated 05.06.2012, he was sentenced as per the details indicated above.
11 Trial Court Record has been summoned. I have carefully gone through the Trial Court Record and given my thoughtful consideration to the rival contentions.
CA No. 04/14 Anil Kumar Singh Vs. State Page 3 of 1312 Judgment has been assailed primarily on the following grounds:
(i) There is no legal evidence warranting
conviction.
(ii) Convict has been held guilty on the basis of
presumption.
(iii) There is nothing to indicate as to what amount was recovered by the convict from various actual consumers and what amount was deposited with power supplier.
(iv) There is nothing to indicate that there was misappropriation of Rs. 18,62,153.33.
(v) Actual users of electricity never made the entire payment to accused and for their lapses and omission, convict could not have been held liable.
(vi) Accused was not provided with opportunity to defend his case effectively.
13 Sh. Inder Kumar, learned Addl. P.P. has, on the other hand, refuted all the aforesaid contentions and justified the findings given by the learned Trial Court.
14 A bare perusal of Trial Court Record would perceptibly indicate that accused had been defending his matter in a nonchalant and injudicious manner. On most of the occasions, his counsel did not choose to appear before the Court. Following chart would indicate the same:-
S. No. Date Crux of proceedings conducted in Presence of the Court counsel 1 15.02.2007 Charge was framed Absent 2 28.02.2007 Bail application was heard Present 3 06.07.2007 PW1 & PW2 were examined Absent CA No. 04/14 Anil Kumar Singh Vs. State Page 4 of 13 4 02.09.2007 PW3 & PW4 were examined Absent 5 09.12.2010 PW5 was examined Absent 6 06.04.2011 PW6 was partly examined Present 7 13.05.2011 PW6 was further examined Absent 8 02.08.2011 PW7 was examined Absent 9 12.09.2011 PW8 & PW9 were examined Absent 10 24.03.2012 PW10, PW11 & PW12 were examined Present 11 09.04.2012 Statement of accused was recorded Present 12 28.04.2012 Defence evidence was closed Present 13 01.05.2012 Final arguments were heard Present 14 15.05.2012 Final arguments were further heard Present 15 29.05.2012 Pronouncement of judgment Present 16 05.06.2012 Sentence Present
15 It is very much apparent that accused had never prayed for any legal assistance from the Court at any point of time. There are two vakalatnamas on Trial Court Record. One vakalatnama is dated 09.10.2006 which is on behalf of M/s Arvind & Associates & Mr. G.S. Rana. Second vakalatnama is dated 15.02.2012 which discloses names of various advocates as his attorney including Sh. G.S. Rana and Sh. Amit Chauhan.
16 It cannot be said that his such counsels were not keeping any tab over the matter. Application seeking file inspection had been moved on 11.08.2009 and then on 12.03.2012 which certainly suggest that concerned counsel (s) for the accused had inspected the file and were absolutely mindful of the development. On one earlier occasion, application had been moved by defence on 01.02.2007 seeking supply of copies.
17 I have extracted aforesaid details primarily due to the fact that testimony of various crucial witnesses is lying unrebutted and uncontroverted and also because counsel for appellant has, though in a very subtle way, claimed that accused was not afforded any opportunity to defend himself.
CA No. 04/14 Anil Kumar Singh Vs. State Page 5 of 1318 Manifestly, accused had engaged his private counsels. Matter cannot be adjourned due to unexplained non-availability of counsels. Moreover, accused never prayed for any adjournment before the trial court citing any reason much less justifiable one. He also never prayed that he be given any counsel at state expense. Surely, it would have been better had trial court apprised him about the fact that he could be provided with legal aid nonetheless fact remains that legal aid is meant for those who are actually needy and who cannot afford any lawyer. Accused cannot be permitted to raise any grudge on this score as he had his own counsel(s). He and his lawyers were utterly careless in trial and they cannot be allowed to reap fruits of their own wrongs. Such contention is, therefore, liable to rejected out- rightly.
19 FIR is based upon the complaint of power supplier. Such complaint has been proved as Ex. PW2/A by Sh. O.P. Dixit, Engineer. His testimony is also unrebutted. However, he merely deposed that he had made complaint in respect of misappropriation of electricity charges collected by accused from consumers in the area of Bhanwar Singh Camp. He deposed that his complaint was true and correct and as per relevant record submitted by his staff, accused had misappropriated Rs. 18,52,153.33 as on 16.02.2004. This is what he has to offer. I am astonished as even otherwise it was never ever the case of misappropriating Rs. 18,52,153.33. Alleged outstanding dues cannot be confused with misappropriation.
20 No other official from power supplier has graced the witness box.
21 As per complaint Ex. PW2/A, 20 people had visited the office of power supplier and 345 copies of receipts of payment along with CA No. 04/14 Anil Kumar Singh Vs. State Page 6 of 13 representation had been submitted and the total misappropriated amount, as per these receipts, was mere Rs. 1,23,070/-. A careful perusal of the list of witnesses would disclose that investigating agency could lay its hand upon four consumers only. All such consumers of electricity have entered into witness box and one of them i.e. PW5 Lal Man has not even supported the case of prosecution.
22 Testimony of Sh. Dixit is very sketchy and somewhat hearsay. It is also totally unsubstantiated. He deposed about the dues on the basis of some calculation made by his staff. Neither any such staff official has been examined nor and document has been proved.
23 Accused Anil Kumar Singh had been given Single Point Delivery Connection for Bhanwar Singh Camp but Mr. Dixit did not find any necessity of at least making any reference to any such document. This is despite the fact that an agreement in original between erstwhile DVB and accused is found to be on record. As per such agreement, which is though unproved, there was some contract between DVB on the first part and one agency on the second part. However, it is impossible to gather from such unproved agreement as to who was that agency which had been deputed to realize revenue towards electricity consumption of such area of Bhanwar Singh Camp. Name of Anil Kumar Singh is nowhere even mentioned as such agency. Application moved by accused, indemnity bond and affidavit furnished by him are also on record and these were required to be proved by the competent official of the power supplier but nothing of that sort ever happened. Rather a cursory reference in this regard was made by IO PW10 SI S.S. Yadav who simply claimed that on 27.10.2006 such original documents were taken into possession vide seizure memo Ex. PW10/A. No representation /memorandum of any such sub-consumer has been proved.
CA No. 04/14 Anil Kumar Singh Vs. State Page 7 of 13No receipt of payment was placed on record with challan. I am really at bay to comprehend as to where those 345 receipts have vanished.
24 Moreover, BSES has not bothered to establish during trial as to how the dues were of Rs. 18,62,153.33. One photocopy of bill is found to be there on Trial Court Record but no witness has even bothered to make any reference to such bill. Prosecution wants me to believe that there were dues of Rs. 18,62,153.33 merely on the basis of one line statement of Sh. O.P. Dixit which is even otherwise not substantiated or supported by any document. Moreover, these alleged dues must be inclusive of penalty etc. Nobody knows the actual principal outstanding.
25 Prosecution also needs to be reminded that the case in hand is not of cheating or duping the electricity department. Power supplier seemed happy and contended by disconnecting the connection as a coercive measure. It did not take any legal action to recover its dues. Power supplier must have been enjoying the luxury of having decent legal assistance. In order to recover its legitimate dues, its battery of lawyers could have advised it suitably. Be that as it may, fact remains that there is no element of misappropriation of any property of power supplier. It is not even the case of power supplier or State. Here, charge-sheet is very specific and accused has been sent up to face trial for offence u/s 406 IPC for duping sub-consumers and not power supplier.
26 Criminal breach of trust has been defined u/s 405 IPC and it says that whosoever, being in any manner entrusted with any property, dishonestly misappropriates the same is said to commit criminal breach of trust. As per power supplier also, accused had obtained various payments from the actual electricity sub-consumers of that area but did not deposit such CA No. 04/14 Anil Kumar Singh Vs. State Page 8 of 13 money with the power supplier and misappropriated such amount of Rs. 1,23,070/-. Even when the complaint was filed with the police, at best, accused, as per the averments, did not account for said sum of Rs. 1,23,070/- collected from sub-consumers. Such fact of misappropriation could have been primarily proved by those consumers and competent dealing official of power supplier.
27 I have already seen the testimony of lone official from power supplier. Let me now see as what consumers have to offer.
28 PW1 Chinta Singh, PW3 Priya Lal, PW4 Babu Lal and PW5 Lalman are four important public witnesses. These sub-consumers, of Bhanwar Singh Camp area, alleged during the investigation that accused had pocketed their money.
29 PW1 Chinta Singh has deposed that he had paid Rs. 24,000/- to accused Anil Kumar Singh but accused had not issued proper receipt to him and did not deposit the amount collected from him with BSES and he learnt about the misappropriation and reported the matter to BSES. He then made reference to his bills as Ex. PW1/A. These bills surfaced for the first time when PW1 Chinta Singh entered into witness box. These do not seem to be part of the documents submitted along with the charge-sheet. These were also never supplied to the accused. Moreover, these are only photocopies and even if these are assumed to be correct, there was payment of Rs. 2,205/- (425+150+180+1450) for the period ranging between 01.03.2003 to 1.02.2004. This witness has nowhere whispered about either the originals or about the signatures of accused Anil Kumar Singh, as acknowledgment of payment, appearing therein. Fact though remains that these are receipts ostensibly issued by accused Anil Kumar Singh (accused herein) on behalf of CA No. 04/14 Anil Kumar Singh Vs. State Page 9 of 13 DVB as its contractor.
30 PW3 Priya Lal has merely deposed that he had deposited security with accused Anil Kumar Singh who used to take money per month with respect to electricity bill against the receipt but thereafter accused became greedy and used to allow electricity only to those persons who used to pay the bill. He deposed that if anyone did not pay the bill then Anil Kumar did not use to allow that person to switch on the lights during night. He further deposed that accused did not pay amount of bill to electricity department which he had taken from jhuggi persons. Thus, he has deposed in a very general and indistinct manner. His deposition, as is evident to the naked eyes, does not take the case of state anywhere. It rather shows that accused was not permitting anyone to use electricity without making corresponding payment. Can it be said greed? No criminality can be inferred because of such conduct on the part of the accused. Moreover, Priya Lal has not placed on record any bill or receipt pertaining to his sub-connection. On the contrary, according to him, everything was fine and he was having receipts but accused stopped permitting the user of electricity to those who were not paying the bill. He has nowhere deposed that any payment made by him to accused was misappropriated or not accounted for anywhere. To the same extent is the testimony of PW4 Babu lal.
31 Thus, the testimony of PW3 Priya Lal and PW4 Babu Lal do not take us anywhere. They both have neither placed on record any bill nor have specifically deposed that they both were duped or that there was any criminal misappropriation with respect to the payment made by them. Their vague statements are perceptibly insufficient.
CA No. 04/14 Anil Kumar Singh Vs. State Page 10 of 1332 PW5 Lal Man has not supported the case of prosecution and did not utter even a single word against accused.
33 I would, however, hasten to add that even the framing of charge was not in consonance with the allegations levelled in the charge-sheet.
34 Accused has been charged u/s 406 IPC and wordings used in the charge indicate that he had collected Rs. 18,62,153.33 from various consumers and did not deposit the same with BSES and misappropriated such money. However, it was never the case of the investigating agency. It was never the case of even BSES that accused had collected a sum of Rs. 18,62,153.33 from the consumers of that camp and did not deposit such amount with them (BSES). It seems to me that while framing charges, learned Trial Court got swayed away due to the heavy outstanding amount as projected by power supplier.
35 Charge u/s 406 IPC has to be virtually cut-and-dried. Prosecution is required to show as to what amount was collected by the accused and from which particular consumer. Prosecution is then required to show that amount so collected was never deposited with power supplier.
36 Unrebutted testimony would have paved way for jail for accused but he should consider himself touch fortunate as the testimony led by prosecution does not seem to be sufficient for meeting all the necessary ingredients to make out a clear cut fool-proof case u/s 406 IPC. Reasons are as under:-
(i) Testimony of PW2 O.P. Dixit is very sketchy.
(ii) Alleged agreement whereby accused was
CA No. 04/14 Anil Kumar Singh Vs. State Page 11 of 13
awarded contract by DVB has not been proved at all.
(iii) No documentary proof showing such huge outstanding amount of Rs. 18,32,153.33 has been proved.
(iv) PW3 Priya Lal & PW4 Babu Lal have made general and wild allegations. They have not produced any receipt. They have not whispered about their making any payment to accused which he might have misappropriated.
(iv) One such consumer PW5 Lal Man has turned
hostile.
(v) PW1 Chinta Singh produced some copies of
the bills. There is no explanation as to why these
were not collected during investigation. These were given exhibit number but there is no explanation from the state as to why secondary evidence was permitted to be led. Moreover, PW1Chinta Singh has not given any breakup as to when and how he had made payment of Rs. 24,000/- to accused. Receipts brought by him are only for total sum of Rs. 2,205/-.
37 In view of my foregoing discussion, I find it to be a fit case where appellant should be given benefit of doubt. Appeal is accordingly allowed. Resultantly, appellant/accused is acquitted of charge u/s 406 IPC. His bail bonds are cancelled. Surety is discharged.
CA No. 04/14 Anil Kumar Singh Vs. State Page 12 of 1338 Appellant/accused would be entitled to refund of fine, if already deposited.
39 A copy of the order be sent to learned Trial Court along with Trial Court Record.
40 File pertaining to appeal be consigned to Record Room.
Announced in the open Court on this 20th day of May, 20104.
(MANOJ JAIN) ASJ/Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CA No. 04/14 Anil Kumar Singh Vs. State Page 13 of 13