Bangalore District Court
State By Bescom Vigilance Police vs ) G.J.Gopinath on 17 August, 2015
IN THE COURT OF X ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-26).
DATED THIS THE 17th DAY OF AUGUST, 2015
Present
Sri G.K. GOKHALE, M.A., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
Spl.C.C.No.95/2010
COMPLAINANT: State by BESCOM Vigilance Police
Jayanagar Police Station,
Bangalore.
(By Learned Public Prosecutor)
v/s
ACCUSED : 1) G.J.Gopinath
S/o Venkataramanaiah
M/s.Shesha Sai Intereors
No.88, N.R.Road, City Market
Bangalore - 02.
2) Smt.Shylaja Sridhar
No.88, N.R.Road, City Market
Bangalore - 02.
(By Sri B. Shivamallappa, Advocate)
***
JUDGMENT
The above named accused is charge sheeted by Police Inspector, BESCOM Vigilance, Jayanagar Police Station, Bangalore for the offences punishable under Sections 135 & 138 of Electricity Act, 2003.
2. The brief facts of the prosecution case are that:-
2 Spl.C.C.95/2010 The complainant has visited the business running by the first accused in Ply Wood Sheet in the name & style M/s Shesha Sai Interiors on 03.04.2009 at about 4.00 p.m. and along with C.W.1 & C.W.2, he inspected the meter bearing R.R.No.W5P-1620 installed in the name of second accused- Shylaja Sridhar and found tempered with fake seals interfered with gear mechanism so as to adjust in such a way the meter to run slowly at the rate of 15 to 20% to the authorized consumption of authorized electricity and used for commercial purpose to the capacity of 3075 KW+2 HP and committing theft by causing loss of Rs.1,81,769/- to the BESCOM authorities.
Further the accused persons have interfered illegally with the above meter and caused damage of the property of BESCOM with a dishonest intention and thereby, the accused have committed the offences punishable under sections 135 & 138 of Electricity Act, 2003.
3. The A.E.E.- Shivaprakash 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 3 Spl.C.C.95/2010 registered case in Crime No.59/2009. After obtaining lab report and connected documents, the Investigating Officer 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 & 138 of Electricity Act has been recorded. The accused pleaded not guilty and claimed for trial. The prosecution examined P.W.1 to P.W.8 and got marked the documents- Ex.P.1 to Ex.P.6 and material objects M.O.1 to M.O.3. 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 have examined D.W.1 & D.W.2 and got marked documents Ex.D.1 to Ex.D.27.
5. Heard arguments.
6. The points that arise for my consideration are:-
1) Whether the prosecution proves beyond reasonable doubt that the complainant has visited the business running by the first accused in Ply Wood Sheet in the name & style M/s Shesha Sai 4 Spl.C.C.95/2010 Interiors on 03.04.2009 at about 4.00 p.m. and along with C.W.1 & C.W.2, he inspected the meter bearing R.R.No.W5P-1620 installed in the name of second accused-
Shylaja Sridhar and found tempered with fake seals interfered with gear mechanism so as to adjust in such a way the meter to run slowly at the rate of 15 to 20% to the authorized consumption of authorized electricity and used for commercial purpose to the capacity of 3075 KW+2 HP and committing theft of electricity and thereby committed offence punishable u/s 135 of Electricity Act 2003?
2) Whether the prosecution further proves beyond reasonable doubt that the accused persons have interfered illegally with the above meter and caused damage of Rs.1,81,769/- to the property of BESCOM with a dishonest intention and thereby committed offence punishable u/s 138 of Electricity Act 2003?
3) What order?
5 Spl.C.C.95/2010
7. My findings to the above points are as under:-
1) Partly in the affirmative,
2) Partly in the affirmative,
3) As per final order, for the following;
REASONS
8. Point No.1:- The P.W.1- Shivaprakash has stated that on the information given by Narahari- C.W.2, he proceeded to Shop No.88, N.R. Road, city Market, Bangalore and visited the installation bearing R.R.No.W5P 1620 at about 4.00 p.m. on 03.04.2009 along with A.E.E., M.T. Division with vigilance police and panchas. He has further stated that on inspection, the first accused, being occupant of the building, was present on the spot and he observed that the seal provided to the main cover of the meter was bearing led seal No.C01818/MT40 was found fake. The said seal number was not at all tallying with the symbols, letters and impressions of the original seal. He further stated that on opening the meter cover, he noticed that the hardening of gear mechanism magnet was adjusted so that the meter was recording less consumption by 15.2%. At the spot with the help of C.W.2, he got prepared M.T. report 6 Spl.C.C.95/2010 as per Ex.P.1. He has satisfied that the concerned consumer did dishonestly interfered in the mechanism recording the electricity energy consumed and thereby caused loss to the BESCOM and gained himself. In that regard, he has seized the meter by removing from the wall in the presence of panchas with the help of lineman- C.W.5 Basavaraju and C.W.6- Mahadev and drew a mahazar as per Ex.P.2. Seized meter was sealed with a white cloth. The seal is opened in the open Court and the meter is marked as M.O.1. He identified the seized fake seal marked as M.O.2 and dummy seal marked as M.O.3. Accused- Gopinath has also signed the mahazar. In that regard, he has lodged the complaint before Jayanagar Police.
9. In the cross-examination, the P.W.1 has admitted that second accused is the owner of the building and first accused is occupant of the same. The first accused was running Plywood Sheet business in the premises under the name and style M/s Shesha Sai Interiors. Further he has admitted that every meter will be provided with one company seal and another main meter seal. The said installation was given to the 7 Spl.C.C.95/2010 building in the year 1999. Further, he has admitted that dummy seal does not bear the company marks. He has denied that the dummy seal M.O.3 is not a dummy seal. Further he has denied the other suggestions in regarding of fake seal and dummy seal. He has further denied the suggestion that it is the duty of the meter reader to report any of the abnormalities in the meter and has to note in the register kept by the company for the purpose. He does not know whether the meter reading was maintained in its average reading from the date of its installation upto the day of his inspection. Further he has denied that the first accused made no interference of any sort so for the condition of seal of the meter is concerned. Further he has denied the suggestion that he himself provided the fake and dummy seals in order to register a false case against the accused.
10. The P.W.2- K.R. Narahari, A.E.E. has stated that he has received information on 03.04.2009. He along with Mechanic Bettegowda proceeded to the installation bearing R.R.No.W5P-1620 situated at No.88, N.R. Road, City Market, Bangalore at about 12.30 p.m. There he noticed that the meter board was shifted from 8 Spl.C.C.95/2010 its original place to new place and after testing the meter with the help of calibrator, he found that the meter was recording slow by 15.2%. In that regard, he made careful examination of the meter and found that the original seal provided by BHEL was not there in that place, a dummy led seal was found along with MTD seal, which was also a fake one. Then he immediately informed the P.W.1, who came to the spot at about 4.00 p.m. along with his men. Thereafter he opened the main cover seal of the meter for the purpose of inspecting the inner condition of the meter. He found that the recording mechanism rock and opinion gear was hardly meshed with spindle more than required and also magnet was adjusted to rotate the disc in slow manner, thereby causing short recording of the energy consumed. This was a dishonest action of the concerned and therefore he proceeded to seize and seal the meter along with the above said seals and drew a mahazar as per Ex.P.2 by separating the meter from the board with the help of lineman in the presence of panchas. Thereafter he prepared a report as per Ex.P.1 and handed it over to P.W.1. He has identified M.O.1 to M.O.3.
9 Spl.C.C.95/2010
11. In the cross-examination, the P.W.2 has admitted that the Ex.P.1 is in his handwriting and not in the handwriting of P.W.1. He has denied the suggestion that it is only the electrical inspector who alone can give his expert opinion regarding slow reading of the meter under the circumstances. Further he has denied the suggestion that he is not the proper authority to issue Ex.P.1. He has further denied the suggestion that he has issued Ex.P.1 only at the pressure and instance of P.W.1. He has denied the suggestion that the meter reader has to report any of the defects in the meter and to be noted in a register meant for the purpose in the office. He does not admit that the accused has not done any act with the instrument before the Court. He has admitted that the meter was found in the ground floor of the building. The Lab Asst. Ex.Engineer will exclusively use sealing player in order to seal the main cover of the meter. Records will be maintained for sealing the meter at the lab. Further he has denied that it is only the Lab Asst. Ex. Engineer, who alone can opine regarding the correctness or otherwise of the main cover seal. Normally they have conducted periodical inspections and tests to ensure the 10 Spl.C.C.95/2010 correctness of the reading of the meter. Periodical inspection of the meter would be conducted by the concern oftenly but atleast once in two years meter should be inspected. He is unable to say as to when exactly the last inspection was made in respect of M.O.1. He has denied the suggestion that he has submitted Ex.P.1- report at the instance of P.W.1.
12. The P.W.3- B.M. Ashok, A.E.E. has stated in his evidence that M/s Shesha Sai Interiors Wood sheet premises situated at City Market falls under his jurisdiction and there was electricity supply furnished to the said premises bearing installation R.R.No.W5P 1620 from BESCOM on 21.06.1989. He further stated that second accused was the consumer and capacity of sanction loan of the said installation was 7HP+1KW, but connected load was 3075 watts+2HP. He prepared provisional bill marked as Ex.P.5 as per the information supplied by the vigilance and draft back billing charge. He has further stated that bill is prepared for Rs.1,81,769/- as per Rule 42.06 for a period of one year since they do not ascertain as to the exact period of theft of electricity.
11 Spl.C.C.95/2010
13. The P.W.4- B. Boregowda, Police Inspector has deposed that he took up further investigation file from C.W.9- Thimmaiah on 05.04.2009 and on verification of the investigation, he recorded statements of witnesses and handed over the papers to C.W.11 on account of his transfer.
14. The P.W.5- C.K. Thimmaiah, Asst. Sub- Inspector has stated that when he was working as Head Constable, he received complaint as per Ex.P.4 and registered the same in FIR as per Ex.P.6 and received M.O.1 to M.O.3 from the complainant and Ex.P.1 to Ex.P.3 and thereafter he handed over file to Police Inspector- Manjunath for further investigation.
15. The P.W.6- M. Manjunath, Police Inspector has deposed that he took up further investigation of this case and after verification of the investigation, he filed charge sheet against the accused.
16. The P.W.7- Paramesh and P.W.8- Shashidhara, who are employees of M/s Shesha Sai Interiors Wood Sheets have not supported the case of the prosecution. They turned hostile. They were cross-
12 Spl.C.C.95/2010 examined by the prosecution. Nothing was elicited in their mouth to connect the accused persons in this case.
17. On the other hand, the accused persons have been examined. The second accused Shylaja Sridhar is examined as D.W.1. She has deposed that she is residing in house situated at No.11, Basappa Layout, Gavipuram Extension, Bangalore. The property in which the alleged offence has taken place is bearing No.88, N.R. Road, Bangalore. Herself and wife of first accused- Radha Gopinath together purchased the property No.88. Thereafter she has gifted her portion to her husband on 01.03.2002. On the same day, Smt.Radha Gopinath has also gifted her portion to her husband Gopinath. Husband of D.W.1 released his portion to first accused. The first defendant and husband of D.W.1 are brothers. After gift of the property to her husband, D.W.1 has no concern with the said property. The entire property at present is standing in the name of first accused. Even after transfer of the property by way of gift, name of her husband was continued in BESCOM records of installation. After transfer of property, she never used the power connection and said installation also 13 Spl.C.C.95/2010 transferred to her husband along with property. She has not done any business after 2002.
18. The first accused is examined as D.W.2. He has deposed that he is owner of premises bearing No.88, N.R. Road, Bangalore. He has produced copy of sale deed dated 6.2.1984 executed by one Padma in favour of second accused and his wife Radha Gopinath, which is marked as Ex.D.1. The gift deed executed by second accused in favour of her husband is marked as Ex.D.2. The gift deed dated 1.3.2002 exeucted by his wife in his favour is marked as Ex.D.3. The release deed dated 15.3.2002 executed by G.V. Sridhar in his favour is marked as Ex.D.4. The uttara patra is marked as Ex.D.5. The tax paid receipt is marked as Ex.D.6. The khatha certificate is marked as Ex.D.7. The electricity bills pertaining to Shesha Sai Interiors are marked as Ex.D.8 to Ex.D.25. The ledger extract of BESCOM from 20.7.2009 to 15.09.2010 are marked as Ex.D.26. Another ledger extract from 15.08.2010 to 05.12.2013 is marked as Ex.D.27. He has stated that he has not interfered with the meter at any time since from the date 14 Spl.C.C.95/2010 of installation and that BESCOM police have filed false case.
19. In the cross-examination of P.W.3, he has admitted that there are Linemen, Junior Engineer, Asst. Engineer and meter readers are working under him. He supervise the work done by them. The meter reader visits the installation every month and used to report the defects if any. There will be meter reader observation book in the office maintained in the O & M Office. The meter reader did not note any observations in the book maintained. He has verified the observation book but there were no entry regarding this meter. In case of complaint in the meter found rotation check up, meter will be sent to Electrical Inspectorate for testing the accuracy. The A.E.E. will check the rotation defects in the meter. There will separate staff for M.T. division. The meter involved in this case was found defective. If a meter is found defective, it should be referred to Electrical Engineer appointed by the Government. He has not received any report from electrical inspector. He visited the spot. He does not know whether the meter was in originally installed place or it was shifted. He 15 Spl.C.C.95/2010 visited the spot only once. He found the meter was in ground floor building. He denied the suggestion that meter was intact. The Accounts Officer prepared the B.B.C. and he checked and signed it. The B.B.C. is prepared on the basis of connected loan, sanction loan, assessed the new meter reading and adopted provisions of law. He does not know the age of the meter. He does not know whether the old meter cannot give correct reading.
20. The complainant- Shivaprakash, A.E.E. visited the spot on 03.04.2009 and he found that seal provided to main cover of the meter was fake and was not tallying with the symbolic letters and impression of the original seal and found that meter was reading less consumptions by 15.2% and he got tested the meter through C.W.2 and obtained M.T. report as per Ex.P.1 and then he has filed the complaint against the accused persons. It is an admitted fact that entire property is standing in the name of first accused. In this regard, he has produced Ex.D.1- sale deed dated 06.02.1984 executed by one Padma in favour of second accused and his wife Radha Gopinath, Ex.D.2- gift deed executed by 16 Spl.C.C.95/2010 second defendant in favour of her husband, Ex.D.3- gift deed dated 01.03.2002 executed by his wife in his favour, Ex.D.4- release deed dated 15.03.2002 executed by G.V. Sridhar in his favour, Ex.D.5- uttar patra, Ex.D.6- tax paid receipt and Ex.D.7- khatha certificate. The second accused in her cross-examination has denied her ownership over shop No.88. She has admitted that the installation was standing in her name at the time of inspection by the BESCOM authority and she has not given any application to the BESCOM authority to change the name of first accused in her place. The first accused has admitted that he is the owner of the premises bearing No.88, N.R. Road, Bangalore. The first accused has further admitted that he is running only a trading concern in the shop No.8 by paying electric charges and taxes. The electricity bills are marked as Ex.D.8 to Ex.D.25. The D.W.2 has stated that he has not interfered with the meter at any point of time since from the installation. The D.W.2 has admitted that on the date of inspection during April 2009, he was present therein and he puts his signature on Ex.P.3. The installation is in the name of second accused- Shylaja Sridhar. But the 17 Spl.C.C.95/2010 property was transferred to his name prior to the inspection of the BESCOM authority.
21. The counsel for accused has argued that on the date of inspection by the BESCOM authority, the second accused is owner and she has gifted the same in favour of first accused. She is not responsible for the said installation. They have already paid back billing charge to the BESCOM authority. After paying the back billing charge, the same meter number is continued. They have produced electricity bills. Once the property is gifted, the second accused had no right over the property. The first accused has admitted that he was in possession of the property and meter was not changed in his name. Further the accused counsel argued that the first defendant has not committed any offence alleged against him and that he is not the owner of the said installation. As per the contention of the accused counsel, the second accused has gifted the property under the gift deed before inspection of the Vigilance Authority though the installation stands in the name of second accused.
18 Spl.C.C.95/2010
22. The learned P.P. has argued that the installation stands in the name of second accused. The first accused is running the business. In the cross- examination, the D.W.2 has denied that he is not running any factory. On perusal of the document furnished by the prosecution shows that the installation stands in the name of second accused. The second accused has gifted the property in favour of first accused. Though the installation has not changed till today the installation is standing in the name of second accused. As per document furnished by the prosecution shows that the first accused has committed theft of electricity, but the installation stands in the name of second accused. As per the document furnished by the BESCOM authorities shows that the installation, which was standing in the name of second accused, the property was in possession of first accused. Admittedly as on the date of alleged right, there was no electricity connection in the name of first accused, it is standing in the name of second accused. The document furnished by the accused shows that the property has already sold by second accused and gifted in favour of first accused. But 19 Spl.C.C.95/2010 the installation has not transferred in the name of first accused. They have already paid back billing charge.
23. The learned P.P. has cited the following decisions:-
(i) 2007(3) Crimes 500 (Del.) (Hindustan Petroleum Corporation Ltd. v/s BSES Rajdhani Power Ltd & anr);
(ii) 2012(1) Crimes 283 (Del.) (Sushil Sharma v/s BSES Rajdhani Power Ltd. & anr.);
(iii) 2008(1) Crimes 742 (Bom.) (Kiran Dilip Wilfred & anr. v/s Police Inspector, Electricity Distribution Co.
Ltd. & anr.).
I have gone through the above decisions. Section 135 is attracted in this case. Hence, the above citations are applicable to this case. In this case, at the time of inspection by the BESCOM authority, the first accused is the owner of the property and installation was in the name of second accused. After purchasing the property by the first accused, it is the duty of the first accused to change the name of the installation to his name. On perusal of the evidence and documents adduced by both parties, it is clear that the first accused is the owner in 20 Spl.C.C.95/2010 possession of the property and after purchase, the first accused has not changed the name of the installation from second accused to his name. Therefore, the first accused is responsible for the theft of electricity. As the second accused has already sold the property to the first accused, she is not responsible for the incident in question. Hence, I hold that the prosecution has succeeded to prove that the first accused has 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 & 2 partly in affirmative.
24. Point No.3: In view of my findings on point No.1& 2 and for the reasons stated above, I proceed to pass the following:-
ORDER Acting under Section 235(2) of Cr.P.C., the first accused is hereby convicted for the offence punishable u/s 135 of Electricity Act of 2003.
21 Spl.C.C.95/2010 Acting u/s 235(1) of Cr.P.C., the first accused is hereby acquitted for the offence punishable u/s 138 of Electricity Act 2003.
Acting u/s 235(1) of Cr.P.C., the second accused is hereby acquitted for the offences punishable u/s 135 & 138 of Electricity Act 2003.
To hear on sentence.
(Dictated to the Judgment Writer, transcribed by him corrected and then pronounced by me in open Court this the 17th day of August, 2015) (G.K. GOKHALE) X ADDL.CITY CIVIL AND SESSIONSS JUDGE BANGALORE.
17.08.2015 Order on sentence Heard both sides on quantum of sentence. The learned Public Prosecutor 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 22 Spl.C.C.95/2010 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.
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 more than 10 KW. As per Ex.P.5- draft BBC bill, 3075 Watts+2 HP is used for illegal abstraction. Thus, the total units of electricity abstracted has been worked out at 17919 units. Out of this, 3577 units have been deducted for which the electricity charges have already been paid by the accused in regular course of monthly billing. After deducting the already recorded units, the difference units of 14342 has been found to be illegal abstraction.
As per Section 126 of Electricity Act, the value of stolen electricity requires to be assessed for a period of 6 months immediately preceding to the date of inspection at 1 ½ times of the tariff. As per Ex.P.5, the illegal use of electricity of 14342 units has been charges @ Rs.1,80,8709.20 Ps. The normal rate for the recorded 23 Spl.C.C.95/2010 consumption of 131 units is Rs.1,060/-. As such, the total back billing charge is Rs.1,81,768/-. The actual BBC charged under Ex.P.5 shall not be the fine amount to be imposed on the accused. Though the accused has already paid 50% of the back billing charge, lenience has to be given to him. 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.
In view of my above discussion, I proceed to pass the following:-
ORDER The accused No.1 is sentenced to pay fine of Rs.10,000/- and in default of payment of the fine, he shall undergo simple imprisonment for period of 3 months.
(Dictated to the Judgment Writer, transcribed by him corrected by him and then pronounced by
24 Spl.C.C.95/2010 me in open Court this the 17th day of August, 2015) (G.K. GOKHALE) X ADDL.CITY CIVIL AND SESSIONSS JUDGE BANGALORE.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Shivaprakash PW.2 K.R. Narahari Pw.3 B.M. Ashok Pw.4 B. Boregowda Pw.5 C.K. Thimmaiah Pw.6 M. Manjunath Pw.7 Paramesh Pw.8 Shashidhara
Documents marked for the prosecution:
Ex.p.1: M.T. Report Ex.p.2: Mahazar Ex.p.3 Inspection report Ex.p.4: Complaint Ex.p.5: Proposed bill Ex.p.6: FIR
Ex.p.1(a),2(a) : Signatures of P.W.1 Ex.p.1(b) : Signature of P.W.2 Ex.p.1(c) : Signature of P.W.3 Ex.p.1(d) : Signature of P.W.4 Ex.p.3(b) : Shara on the complaint Ex.p.4(a) : Signature of P.W.5 Ex.p.16(a) : Signature of P.W.6 25 Spl.C.C.95/2010 Ex.p.17(a) : Signature of P.W.7 List of witnesses examined for the defence D.W.1 : Shylaja Sridhar D.W.2 : G.V. Gopinath List of documents got marked for the defence Ex.D.1 : Copy of sale deed Ex.D.2,3 : Copy of gift deeds Ex.D.4 : Copy of release deed Ex.D.5 : Uttara patra Ex.D.6 : Copy of tax paid receipt Ex.D.7 : Khatha certificate Ex.D.8 to 25: BESCOM Bills Ex.D.26,27: Ledger extracts List of material objects identified during evidence:
M.O.1 : Electricity meter M.O.2 : Fake seal M.O.3 : Dummy seal (G.K. GOKHALE) X ADDL.CC & SS JUDGE, BANGALORE.