Delhi District Court
"Mohd. Irfan vs . Dvb" Vide Ex. Cw 1/1, Copy Of Amended ... on 23 October, 2010
IN THE COURT OF SH. SONU AGNIHOTRI M.M.03
DISTT. NE, KKD COURTS DELHI
FIR No. 61/99
PS Jama Maszid
JUDGMENT
a. Sl. No. of the case : 101/2/08
b. Date of commission of offence : 13.03.99
c. Name of the complainant : Sh. KL Arora, AE.
d. Name of the accused, his Mohd. Irfan
Parentage and address: s/o Late Sh. Mohd. Arfin
r/o 722, Safina Hotel,
Kabari Bazar, Zama Maszid,
Delhi.
e. Plea of accused : Pleaded not guilty
f. Offence complained of or proved: 44 I.E. Act
g. Final order : Acquitted
h. Date of Institution : 14.09.1999
i. Judgment reserved on : N.A
j. Judgment delivered on : 23.10.10
Brief Facts
FIR No. 61/99 1/18
As per prosecution version one complaint was received on behalf of DVB as per which a raid was conducted as per instructions of Xen DRG at Hotel Safina and it was found that there was theft of electricity through tempering of energy meter. It is stated that one meter bearing No. 4C960996 has a hole on top of meter to stop disc and second meter bearing No. NC297663 has tempered / missing seals. It is stated that FIR u/s 379 IPC and u/s 39/44 I. E. Act, 1910 was registered and investigation was assigned to SI Udaivir Singh.
It is stated that during investigation above mentioned two meters were handed over to IO which were sealed in a plastic katta and seal bearing initials 'UVS' was impigned upon it. It is stated that seal after use was handed over by IO to Inspector DK Jain. It is stated that both the meters were taken into possession vide separate memo. It is stated that during investigation, IO prepared site plan and recorded statements of witnesses u/s 161 Cr. FIR No. 61/99 2/18 PC. It is stated that accused was granted anticipatory bail by Hon'ble High Court of Delhi vide order dt. 07.09.1999 and accused was formally arrested thereafter and released on bail by IO. After completion of investigation chargesheet was filed before court on 14.09.1999.
After appearance of accused before court, provisions of Sec. 207 Cr. PC were complied with.
A case having been made out, charge u/s 44 of I. E. Act, 1910 was framed against accused on 03.09.02 to which accused pleaded not guilty and claimed trial.
Prosecution in order to prove its case examined following witnesses: PW 1 KL Arora PW 2 OP Panwar PW 3 SI Prabhat Kumar PW 4 Udaivir Singh (retd. SI) FIR No. 61/99 3/18 PE was initially closed vide order dt. 05.04.03 and S/A was recorded on 16.12.03 and thereafter matter was fixed for F/A. On 01.05.06, my Ld. Predecessor observed that material circumstances like alleged mode of theft and photographs were not put to accused and in absence of that accused could not offer any explanation with regard to incriminating circumstances appearing against him in evidence and matter was again fixed for S/A. On 04.08.06 my Ld. Predecessor observed that from material on record it is seen that accused has filed civil suit against DVB impugning the theft bill raised against him and therefore file of that civil suit was summoned and Asstt. Ahlmad of court of Sh. Naveen Arora, the then Ld. Civil Judge, Tis Hazari Courts was examined as court witness. Thereafter S/A u/s 281 Cr. PC was recorded on 12.02.07 in which all the incriminating circumstances appearing in evidence against accused were put to accused to which accused admitted of he being Proprietor of Safina Hotel. Accused also admitted usage by him of meters in question. However accused stated FIR No. 61/99 4/18 that he was not present on spot and that single phase meter belongs to one lady Smt. Rihana and he had not control over it. He further stated that he has been falsely implicated by Joint Raiding Team of the then DVB as they wanted to book false cases against innocent people to show in the records that they are taking steps for discovering theft of electricity. He further stated that meter in the name of Smt. Rihana Begum was already faulty and nothing was done about it. Accused in his statement recorded on 12.02.07 stated that he wishes to lead DE but ultimately no defence evidence was led by him and though there is no formal order on court record vide which DE was closed, matter was fixed for F/A thereafter.
I have heard F/A addressed by respective counsels and perused the record.
Decision And Brief Reasons For The Same Before disclosing my opinion regarding the fact as to whether prosecution has been able to prove guilt of accused beyond reasonable doubt or not , I will discuss evidence adduced by FIR No. 61/99 5/18 prosecution and witness examined as court witness.
PW 1 KL Arora, AE was member of alleged raiding party who has exhibited JIR vide Ex. PW 1/A and MTD report vide Ex. PW 1/B. He has exhibited complaint dt. 13.03.99 given to police for registration of FIR vide Ex. PW 1/C ( though on court record Ex. has not been marked on complaint dt. 13.03.99 and it seems that inadvertently it was left unexhibited) and seizure memo of case property vide Ex. PW 1/D. PW2 is also member of alleged raiding party and has supported prosecution version but has not exhibited any document on court record. He has identified case property before court vide Ex. P1.
PW 3 SI Prabhat Kumar is the DO who has exhibited carbon copy of FIR vide Ex. PW 3/A. PW 4 Retd. SI Udaivir Singh is IO who has exhibited site plan vide Ex. PW 4/A and has supported prosecution version.
CW 1 Mr. Naresh Kumar, Asstt. Ahlmad has exhibited copy of plaint of civil suit No. 633/06 ( old No. 508/99) titled as FIR No. 61/99 6/18 "Mohd. Irfan Vs. DVB" vide Ex. CW 1/1, copy of amended plaint in the suit vide Ex. CW 1 /2, copy of application u/s 151 CPC filed by accused herein vide Ex. CW 1/3, supporting affidavit of accused vide Ex. CW 1 /4, application under Order 39 Rule 1 & 2 CPC filed by accused vide Ex. CW 1/5, its supporting affidavit vide Ex. CW 1/6, application u/s 151 CPC dt. 10.05.99 vide Ex. CW 1/7, its supporting affidavit vide Ex. CW 1/8, application under Order 9 Rule 4 CPC filed by accused vide Ex. CW 1/9, application under Order 22 Rule 10 CPC vide Ex. CW 1/10, another application u/s 151 CPC vide Ex. CW 1/11, its supporting affidavit vide Ex. CW 1/12, WS filed by DVB vide Ex. CW 1/13, replication of WS vide Ex. CW 1/14, application under Order 6 Rule 17 CPC vide Ex. CW 1/15, supporting affidavit vide Ex. CW 1/16, evidence by way of affidavit of accused vide Ex. CW 1/17, additional affidavit vide Ex. CW 1/18, examination of accused including his cross examination vide Ex. CW 1/19, amended memo of parties vide Ex. CW 1/20, copy of MTD report and joint report vide mark A and B respectively, copy of bill dt. 19.03.99 vide Ex. CW 1/21 FIR No. 61/99 7/18 and CW 1/22, letter dt. 22.03.99 addressed to Chairman DVB vide Ex. Cw 1/23, deposit receipt of Rs. 78942/ and Rs. 13342/ vide Ex. CW 1/24 and 1/25 respectively.
Charge in the present case against accused has been framed u/s 44 of I.E. Act, 1910.
In the facts and circumstances of the case relevant portion of Sec. 44 of I. E. Act is enumerated as below:
( a) ...........................
(aa) ...........................
(b) ..........................
(c ) maliciously injures any meter referred to in section 26, subsection (1), or any meter, indicator or apparatus referred to in section 26, subsection(7), or wilfully or fraudelently alters the index of any such meter, indicator or apparatus, or prevents any such meter, indicator or apparatus from duly registering; or
(d) ..................................
(shall be punishable with imprisonment for a term which FIR No. 61/99 8/18 may extent to three years, or with fine which may extend to five thousand rupees, or with both), and, in the case of a continuing offence, with a daily fine which may extend to (fifty) rupees; and (if it is proved that any artificial means exist) for makaing such connection as is referred to in clause (a) ( or such reconnection as is referred to in clause (aa),) or such communication as is referred to in clause(b), or for causing such alteration or prevention as is referred to in clause (c ), or for facilitating such improper use as is referred to in clause
(d), (and that) the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, (it shall be presumed, until the contrary is proved) (that such connection, reconnection, communication,) alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer.
After going through evidence adduced on behalf of prosecution, I am of the opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt and case of FIR No. 61/99 9/18 prosecution against accused is otherwise not maintainable technically. The reasons as to why I have arrived at this conclusion are as follows:
Firstly, for institution of prosecution under I. E. Act, 1910, complaint u/s 50 of the Act is mandatory. Sec. 50 of I. E. Act, 1910 provides as under:
"No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order thereunder, except at the instance of Government ( or a State Electricity Board) or an (Electrical Inspector), or of a person aggrieved by the same".
Perusal of court record shows that complaint u/s 50 of I. E. Act is on court record but the same has not been proved by prosecution despite examination of witness who purportedly written the complaint. It seems that sheer negligent additude has been opted by prosecution and no prayer in this regard for exhibiting and proving complaint u/s 50 of I. E. Act has been made by prosecution at any stage of the case. Technically in absence of proving complaint u/s 50 of I. E. Act, 1910, present case is not maintainable against accused. FIR No. 61/99 10/18
Secondly, to bring act of accused within purview of Sec. 44 of I. E. Act, prosecution was required to prove: (1) That meters, indicators or apparatus in question as defined u/s 26 of I. E. Act have been maliciously injured by accused or (2) accused has will fully or fraudulently altered the index of meters in question, any indicators or apparatus or (3) accused has prevented meters in question, indicators or apparatus from duly registering.
PW1 KL Arora in his examination in chief has stated that during the raid, one meter was found installed, however there was created hole at the top of the meter. He has further stated that meter disk was fond running however figure of the same was found upset, same could not be read. PW 1 in his examination in chief has narrated fault found only with regard to one meter ( which appears to be with regard to poly phase meter) and nothing has been stated by him regarding tempering done by accused in second single phase meter. Photographs of meters in question FIR No. 61/99 11/18 have not been proved on record by prosecution for reasons best known to prosecution. However photograph of meter ( appears to be of poly phase meter) brought on record by prosecution is not clear and is bit blurred. From perusal of same it seems that hole is in center of meter and meter disk has been stated by PW 1 to be found running. Poly phase meter is an old one and reading system in the same also appears to be old one i.e. different number appears to have been written upon different disks which move with help of motor as per consumption and digits if seen horizontally , it appears that there are not less than six disks installed adjoiningly which record consumption by consumer and out of a single hole, it does not seem practically possible that all the disks can be tempered with in order to show that a wrong reading benefitting accused and causing wrongful loss to DVB so as to bring case within purview of Sec. 44 of the Act was being managed by accused at the time of raid as at the maximum only central disk FIR No. 61/99 12/18 could have been tempered with by accused ( as per cross examination of PW 2, hole was of a size in which thin wire can be inserted) and tempering only with central disk could not have caused wrongful loss to DVB or could not have prevented meter from recording right consumption as it has not been disputed that earlier accused was not paying bills regularly as in earlier bills also reading might have been taken by meter reader of DVB and in case of any tempering, it would have been obvious and would have been reflected in the bills itself. PW 1 in his examination in chief has stated that consumption pattern was also analyzed and same was found very low during the period preceding the raid. No consumption pattern has been brought on record by any of the PWs or IO which could have substantiated statement made by PW 1 in this regard. Further nothing has been brought on record by prosecution that how hole in fact injured meter in question as meter disk was found to be running as mentioned earlier and FIR No. 61/99 13/18 averments of prosecution in absence of any supporting material do not inspire confidence.
PW 2 OP Panwar has spoken about seal of single phase meter. He has stated that seals of one single phase meter was also found tempered and wire found broken. In Ex. PW 1/B i.e. MTD report, it has been mentioned that one half seal of top site found missing and one half seal of bottom site seal wire found broken and seal found tempered. By stating that merely because one seal was found missing and one seal found broken cannot bring the case within purview of Sec. 44 of I. E. Act, 1910 as no artificial means has been proved to have existed at site in question by prosecution which could have facilitated improper use of meter in question or which could have altered index of meter in question or could have prevented meter in question from duly registering consumption and therefore prosecution is deprived of presumption attached to Sec. 44 of the Act and in these circumstances, FIR No. 61/99 14/18 prosecution was required to bring positive evidence to bring out injury/ alteration / prevention being done to meter in question which is not the case. PW 2 in his cross examination has stated that it was in proper working condition at the time of raid ( it is not clear as to what was in proper working condition at the time of raid but in the circumstances of the case, it cannot be any thing except meters in question). Further no report of Electrical Inspector/ Chief Electrical Inspector with regard to working of meters in question has been placed on record by prosecution which could have shown misuse of electricity by accused. Accused has filed Judgment of Hon'ble High Court of Delhi in case titled as Ramesh Chander Vs. State of Delhi, 1997 IV AD ( Delhi) at page No. 712. Hon'ble High Court of Delhi has dealt in this case albeit with a bit different circumstances but ratio is applicable in facts and circumstances of present case also. Hon'ble High Court of Delhi in Ramesh Chander's case ( supra) in para No. 6 has observed as under: FIR No. 61/99 15/18
"Thus it appears to me that for framing of charge under the above section, the prosecution must, prima facie, establish dishonest abstraction, consumption or use of energy. In the instant case, the charge talks of discovery of tampered seals of electric meters by the Enforcement Staff on inspection of the petitioners factory. The mere existence of the tempered meters is not enough to attract the provisions of Section 39 of the Act. There is no presumption of dishonest abstraction, consumption or use of electric energy on discovery of tempered meters. The presumption under Section 39 will arise if artificial means were employed to abstract, consume or use energy."
Accused has also relied upon Judgment of Hon'ble Supreme Court of India in case titled as Ram Chandra Prasad Sharma & Others Vs. State of Bihar & Another, 1967 Cri. LJ (Vol. 73), CN 109 in which Hon'ble Supreme Court of India in para No. 7 has held as under:
FIR No. 61/99 16/18
" In our opinion, the conviction for the offences under S. 39 is unsustainable. It is no doubt true that the meter had been tempered with. But there is nothing to show that there was any perfected artificial means in existence so as to raise the presumption of dishonest abstraction under S. 39 prior to the stopping of the meter."
Though Sec. 39 and 44 of I. E. Act, 1910 as per statute book provide for penalties for different offences but Sec. 44 ( c) of the Act in spirit and in wording is quite akin to Provisions of Sec. 39 of the Act and as held earlier no malicious injury to meters in question on part of accused has been proved on record by prosecution nor anything has been proved on record by prosecution that as a result of hole / breaking of seal of meters in question by accused, consumption of electricity was not correctly being recorded at the time of raid. Ratio laid down by Hon'ble Supreme Court of India and Hon'ble High Court of Delhi in cases as mentioned above apply to facts of present case as no artificial means have been proved by prosecution to exist at place of raid in order to bring present case under purview of Sec. 44(c) FIR No. 61/99 17/18 of I. E. Act, 1910 on account of which prosecution is deprived of benefit of presumption as provided u/s 44 of the Act. Accordingly it cannot be said that prosecution has been able to prove guilt of accused beyond reasonable doubt and rather in the circumstances of the case, I am of the opinion that it is a fit case in which benefit of doubt must be given to accused which is accordingly given. Accused is therefore acquitted for offence u/s 44 of I. E. Act, 1910. File be consigned to record room.
Announced in the open court (SONU AGNIHOTRI)
Dt. 23.10.10 MM03, District NE,
Karkardooma Courts, Delhi
FIR No. 61/99 18/18