Delhi District Court
State vs . Anil Jain on 20 May, 2011
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IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR NO. 83/99
P.S Subzi Mandi
U/s. 39/44 of I.E. Act
STATE VS. ANIL JAIN
JUDGMENT :
a. Sl. No. of the case : 51/2
b. Date of Institution : 01.02.2002
c. Date of Commission of Offence : 23.02.2001
d. Name of the complainant : Sh. H.R. Mittal,
Asstt. Engineer,
Zone 401 (D) SKN
e. Name of the accused and his : ANIL JAIN
parentage and address S/o Lt. Sh. Daulat Ram
R/o 2786, Gali Rajputana,
Subzi Mandi, Delhi
f. Offence complained of : U/s 39/44 of I.E. Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 20.05.2011
i. Final Order : Acquitted
j. Date of such order : 20.05.2011
1. The accused was put on trial for the facts that on 23.02.2001, at 2786, Gali Rajputana, Old Subzi Mandi, Delhi7, accused was found indulged in fraudulent abstraction of energy by fixing fictitious seal on the meter and thereby committed an offence punishable under section 39/44 of I.E. Act. Thereafter, 2 investigation was carried out. Site plan was prepared. Accused was arrested, statement of witnesses were recorded and a chargesheet was filed against the accused under section 39/44 of I.E. Act.
2. A prima facie offence having been made out against the accused, charge was framed against him on 07.07.2006 under section 39/44 of I.E. Act to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined three witnesses namely ASI Mahabir Singh as PW1, Ct. Bhanwar Lal as PW2 and CBS Bhaskar as PW3.
4. PW1 ASI Mahabir Singh has testified that on 09.08.2001 he recorded present case FIR no. 275/01 Ex.PW1/A on the basis of complaint given by JE of DVB.
During cross examination PW1 has deposed that he has not received any case property at the time of registration of the case FIR and name of accused was also mentioned in the FIR.
5. PW2 Ct. Bhanwar Lal has testified that on 20.9.01 he along with IO/SI Mahesh Kumar went to H.No. 2786, Gali Raj Putana, S Mandi where accused Anil Jain met IO whom IO arrested in his presence, arrest and personal search memo of accused is Ex.PW2/A and B. During cross examination PW2 has deposed that he does not remember the date of raid and he know the accused prior to his arrest but be does not know on what basis IO arrested the accused.
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6. PW3 CBS Bhaskar has testified that on 23.02.2001 he along with H R Mittal, R N Mainiand Mr. S K Jain went to H.No. 2786, Gali Rajputana, Subzi Mandi, Delhi where they found one polyphase meter with fictitious seal as it was not matching with the authenticate sample seal and JIR was prepared Ex.PW3/A, thereafter a bill of more than Rs.1 lac was raised upon Daulat Ram user Anil Jain and meter inspection report was prepared copy of which is Ex.PW3/B which was prepared prior to JIR and IO recorded his statement at later stage.
During cross examination PW3 has deposed that he does not remember if the spot was photographed and the meter was installed at the ground floor in the name of one Daulat Ram and that no other person was joined except the raiding party and R N Maini, Maintenance Officer, DVB was having the authenticate seal monogram with him who was from meter testing department. He further deposed that meter was left at the spot with the paper seal affixed on it by Mr. Mittal in his presence and H R Mittal also prepared the JIR at the spot at ground floor. He denied the suggestion that no raid was conducted or all the documents were prepared at the DVB Office.
7. PW4 Inspr. Mahesh has testified that on 9.8.2001 investigation of present case was marked to him and he prepared the site plan Ex.PW4/A and meter was taken into possession vide memo Ex.PW4/B. Accused was arrested and his personal search was conducted vide memo Ex.PW2/A and B and also testified that permission u/s. 50 of I.E. Act was also obtained. Case property has not been produced as it was reported by the Naib Court case property i.e. meter of present case was deposited with District, Nazir.
Accused did not prefer to cross examine this witness.
8. Thereafter, several opportunities were afforded to the prosecution 4 to adduce the evidence requisite to prove the case against the accused. It is pertinent to note that the matter is subjudice since the year 2002 and the charge against the accused was framed on 07.07.2006 for the offence punishable under section 39/44 of I.E. Act. Thereafter despite several opportunities having been provided to the prosecution for leading the evidence, the prosecution has been able to produce only three witnesses.. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 15.04.2011.
9. After closing of prosecution evidence, the statement of accused u/s 281 Cr.P.C r/w. 313 Cr.P.C was recorded on 27.04.2011. In his statement he denied to have committed the offence and claimed to be innocent and to have been falsely implicated in the present case. He did not lead any evidence in defence.
10. In a criminal case, it is incumbent upon the prosecution to prove the case against the accused beyond reasonable doubt. In the present case, the prosecution was required to adduce evidence against the accused to show that at the time when the raid was conducted, the accused was the consumer receiving electricity from the complainant company and when the raid was conducted, he was found abstracting the electricity dishonestly.
11. To bring home the charge under section 39 of the I.E. Act, 1910, it is to be established by the prosecution that the accused was dishonestly abstracting, consuming or using the energy. The existence of any artificial means of such abstraction shall be deemed to be a prima facie evidence of such dishonest abstraction. Under section 44 of I.E. Act, it must be proved that the 5 accused was the consumer having the custody or control of the meter and the meter was tampered with so as to prevent it from duly registering the energy being consumed.
12. It has been held by the Supreme Court in Ram Chandra Prasad Sharma v. State of Bihar, (1967 A.I.R. (SC) 349) that such artificial means must be a 'perfected' artificial means shown to be in possession and control of the accused. Perfected artificial means denotes a wire or any other foreign matter which on being introduced in the meter would have the effect of stopping or retarding the progress of meter. Further the accused must be shown to be a consumer within the meaning of Section 2(c) of the Act.
13. In another case, Jagannath Singh v. B.S. Ramaswamy, 1966 A.I.R. (SC) 849, it was observed that energy may be dishonestly abstracted by artificial means or unauthorized devices. For instance, energy before it passes through a consumer's meter may be abstracted from the main of the electric company by an unauthorized wire connecting the main with a private terminal; the connecting wire is the artificial means for abstraction. Again, by tampering with the meter and causing it to record less than the units actually passing through it, the consumer may take the unrecorded energy without paying for it.
14. However, existence of a tampered meter, does not amount to 'such an artificial means for the abstraction of electricity' as would make it an offence under section 39 of the Act. Similar views have been expresses in Jagarnath Singh v. Krishna Murthy and another, A.I.R 1967 S.C. 947.
15. Another essential requirement of law for prosecution under the I.E. 6 Act is that the prosecution must be instituted at the instance of a person named in Section 50 of the Act and the prosecution in respect of that offence would be incompetent unless requisite condition stipulated under the section 50 is fulfilled.
16. In the instant case, no evidence, in the first place, has been adduced by the prosecution to show that it was the accused who was the user of the electricity at the time of raid. The accused must be shown to be a consumer within the meaning of section 2(c) of the Act to prove his guilt. No documentary proof whatever has been placed on record to connect the accused with the raided premises. In the absence of such proof, it can not be said that the premises where the commission of the offence of theft of electricity is stated to have been committed, in any manner, belonged to the accused. There is, moreover, no material on record to prove that the meter in question was registered in the name of the accused. PW1 is DO who proved FIR Ex.PW1/A and PW2 is Ct. who accompanied the IO/PW4 during investigation. Prosecution has examined only one raiding team member who has not deposed a single word about collection of any documentary evidence by him to connect the accused with the raided premises. Neither has he deposed about the presence of accused at the time of raid in the premises in question nor identified him before the court.
17. The existence of some artificial means which was used by the accused to commit the theft is another condition which the prosecution carries the onus to establish. Such artificial mean must be a perfected means shown to be in possession and control of the accused. As per the prosecution story, the energy was being abstracted by the accused by putting fictitious seal on the meter. However, in the present case, the recovery as well as seizure of such article/meter itself is unreliable as the recovered article/meter which was allegedly 7 used for the commission of offence has not been produced before this court. The only raiding team member/PW3 has also not deposed about removing of any wire or meter from the spot. However, IO/PW4 has deposed that meter was taken into possession vide memo Ex.PW4/B.
18. The prosecution case becomes all the more unreliable for non association of any public witness at the time of raid. It is quite inconceivable that no public person was present at the place when the raid was conducted. The record does not show if any endeavor was made to involve any public person in the course of raid. All the witnesses who joined the raid are government officials with no independent witness to corroborate them.
19. There is also requirement of law under the I.E. Act that the prosecution of the accused must initiated by a competent person as contemplated by section 50 of the Act. It has been observed in Avtar Singh v. State of Punjab, (SC)1965 A.I.R. (SC) 666 that the object of Section 50 is to prevent prosecution for offences against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications. That is why it is left only to the authorities concerned with the offence and the persons aggrieved by it to initiate the prosecution.
20. In the instant case, no sanction u/s 50 of the Act has been proved by the prosecution and as such the prosecution of the accused in respect of the present offence is incompetent.
21. The evidence which has come on record and which has been duly proved is FIR which is Ex PW 1/A, JIR Ex.PW3/A, seizure memo Ex.PW4/B and 8 arrest and personal search memo of accused Ex.PW2/A and B but these documents are not sufficient evidence and accused cannot be held at guilty only on the ground of same.
22. Thus, it is needless to say that the prosecution has miserably failed to prove that it was the accused who was the consumer at the time of the raid and was abstracting the electricity by applying some artificial means.
23. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Anil Jain is acquitted for the offence punishable U/s 39/44 of I.E. Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 20.05.2011 Metropolitan Magistrate
South District/New Delhi
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FIR No. 882/2000
PS Nangloi
u/s 39 of I.E. Act
12.05.2011
Present: Ld. APP for the State.
Accused Rajender Singh on bail with counsel.
Final arguments heard.
Put up for orders at 3.00 p.m.
Deepak Sherawat)
MM/South Delhi/ 12.05.2011
At 3.00 p.m.
Present: As before.
Vide my separate judgment dictated and announced in the open court accused Rajender Singh is acquitted for the offence punishable U/s 39 I.E.. Act for which he stands charged.
As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat) MM/South Delhi/ 12.05.2011