Delhi District Court
State vs . Satpal on 2 July, 2011
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR NO. 933/2000
P.S. Nangloi
U/s 39 I.E. Act
STATE VS. SATPAL
JUDGMENT :
a. Sl. No. of the case : 120/2
b. Date of Institution : 29.01.2001
c. Date of Commission of Offence : 28.08.2000
d. Name of the complainant : Sh. G.K.Nagrath
A.E. Zone1152, Nangloi,
Delhi
e. Name of the accused and his : Satpal
parentage and address S/o Sh. Beli Ram
R/o A87, Adhyapak Nagar,
New Delhi
f. Offence complained of : U/s 39 of I.E. Act.
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 02.07.2011
i. Final Order : Acquitted
j. Date of such order : 02.07.2011
1. The accused was put on trial for the facts that on 28.08.2000, at Khasra no.5, Kamruddin Nagar, near Transformer no. 4, Delhi, accused was found committing theft of electricity directly tapping from L.V. Mains without installing DVB Meter and thereby committed an offence punishable under section 39 of I.E. Act. Thereafter, 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 of I.E. Act.
2. A prima facie offence having been made out against the accused, charge was framed against him under section 39 of I.E. Act vide order dated 23.07.2005 to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined seven witnesses namely HC Ved Pal as PW1, G.K. Nagrath as PW2, Vijay as PW3, Jagdev as PW4, Dharampal as PW5, B.N. Viz as PW6 and HC Dalbir Singh as PW7.
4. PW1 HC Ved Pal has testified that on 09.10.2000, on receipt of complaint, he registered the present case FIR which is Ex. PW1/A. Ld. counsel for accused did not prefer to cross examine PW1.
5. PW2 G.K. Nagrath has testified that on 28.08.2000, a raid was conducted by the joint team at Khasra no.5, Kamruddin Nagar near Transformer No.5, at the premises of Jagdish and on the basis of that raid and JIR, he made the complaint which is Ex. PW1/A. He had also given the permission u/s 50 of I.E. Act which is Ex. PW1/B. He had also deposited the case property in P.S. which was removed during the raid and was handed over to him. He further testified that he was not the member of the raid. PW2 correctly identified the case property which is Ex. P1.
In his cross examination, PW2 has testified that no documentary proof regarding the premises was taken.
6. PW3 Vijay has testified that he was told by the police officials that a raid was conducted on 28.02.2000. No raid was conducted in his presence. He did know the accused. He further testified that he has no concerned with the accused. PW3 was cross examined by Ld. APP as he resiled from his earlier statement given to police. He has testified that he had never rented any premises on rent to anyone. He has no plot in Galino.4, Kamruddin Nagar.
Ld. Defence counsel did not prefer to cross examine PW3.
7. PW4 Jagdev has testified that he was not present during the raid. He further testified that he did not know the accused nor he can recognise him. PW4 was also cross examined by Ld. APP as he resiled from his earlier statement given to police. He has testified that he know Vijay as he is his neighbour. There is no plot of Vijay in Transformer no.4 wali Gali, Kamruddin Nagar. He further testified that he had never met with Satpal.
Ld. Defence counsel did not prefer to cross examine PW4 also.
8. PW5 Dharam Pal has testified that on 28.08.2000, a raid was conducted by joint team comprising of Enforcement, B.N. Viz, N.K. Naiar, Gulshan Kumar, R.P. Khurana, Rajiv Arora and M.L. Verma at Khasra no.5, Kamruddin Nagar near transformer no.4 where they found that factory of gulla was running directly from DVB LV Mains. Public persons told them that some Jagdish was running the gulla factory. The name of Satpal was nowhere mentioned by public persons. Thereafter photographs of intact wires and machines were taken, same is Mark A1 to A6. Illegal wires were removed and handed over to AE Zone. PW5 also correctly identified the case property which is Ex. P1.
In his cross examination, PW5 has testified that the owner of the site was not called by them.
9. PW6 B.N. Viz has testified that on 28.08.2000, a joint raid was conducted comprising himself, V.K. Naiar, Dharampal, Mr. Khurana, Mr. Gulshan Kumar, Mr. Arora, and Mr.Verma at Kamruddin Nagar where they found that direct theft of electricity from transformer no.4 was being committed. Thereafter they checked the premises and photographs of wires and raided premises were taken same are Mark A1 to A6. Thereafter the wires were removed and taken into custody of joint team and thereafter the case property was handed over to G.K.Nagrath at the spot. JIR is Ex. Mark PW6/A. PW6 also correctly identified the case property which is Ex. P1 In his cross examination, PW6 has testified that he was the incharge of the raiding party. They inspected or raided 1011 places on that day in Kamruddin Nagar. He further testified that on inquiry, they came to know that the premises on which raid was conducted was in the supervision of one Jagdish. The villageres told them the name of Jagdish.
10. HC Dalbir Singh has testified that on 09.10.2000, investigation of the present case was marked to him and during the course of his investigation, he prepared the site plan Ex. PW7/A at the instance of G.K. Nagrath. He further testified that on 02.01.2001, wires and photographs were produced which were taken into possession vie memo Ex. PW1/C. Photographs are Ex. A1 to A6. Accused present in the court today was formally arrested. PW7 also correctly identified the case property which is Ex. P1.
In his cross examination, PW7 has testified that he had not collected any documents regarding the premises in question, which can show that the accused was in the occupation of the premises nor any document regarding the electricity connection in the name of the accused.
11. Thereafter, several opportunities were afforded to the prosecution 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 2000 and the charge against the accused was framed on 23.07.2005 for the offence punishable under section 39 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 seven witnesses. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 25.03.2011.
12. After closing of prosecution evidence, the statement of accused u/s 281 Cr.P.C r/w. 313 Cr.P.C was recorded on 07.05.2011. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. Another essential requirement of law for prosecution under the I.E. 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.
18. 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. None of the prosecution witnesses examined on behalf of the prosecution has stated anything about the premises being in possession of or owned by the accused. PW2 has testified that the raid was conducted at the premises of Jagdish and not of the accused Satpal. PW5 in his statement has also testified that some public persons revealed to the witness that some person by the name of Jagdish was running the factory and the name of Satpal was nowhere mentioned by public persons. He has further stated that the owner of the site was not called by the raiding team and in the report the name of the accused was mentioned only at the instance of the public persons. PW6 in his cross examination has also testified that after inquiry, they came to know that the premises on which the raid was conducted was in the supervision of one Jagdish and the villagers told them the name of Jagdish. But neither the said Jagdish has been made as a witness in the case nor has he been examined by the prosecution. PW2 in his cross examination in chief has testified that no documentary proof regarding the premises was taken. PW7 who is the IO of the case has also testified that he had not collected any documents regarding the premises in question which can show that the accused was in the occupation of the premises nor any document regarding the electricity connection in the name of the accused.
19. 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 connecting the lines with transformer lead of DVB. Thus, the connecting wire is the artificial means for abstraction. However, in the present case, the recovery as well as seizure of such article itself is unreliable. The recovered article which was allegedly used for the commission of offence has been produced before this court in unsealed condition. No identification mark is found to have been affixed to the article.
20. In the present case, two public witnesses i.e. PW3 and PW4 have been examined by the prosecution but both the witnesses are hostile witnesses as they have not supported the prosecution version. PW3 in his statement has testified that the raid was conducted on 28.02.2000 and no raid was conducted in his presence and he did not know the accused and he has no concerned with the accused. Further PW3 denied to have made any statement u/s 161 Cr.P.C before the police. PW4 also deposed the same facts as deposed by PW3. He further testified that he never met with Satpal. He has also denied to have made any statement u/s 161 Cr.P.C before the police.
21. Further the photographs placed on record have not been proved nor the negatives of the same have been placed on record so the genuineness of photographs is doubtful. Therefore only JIR and FIR are not substantive piece of evidence and solely on the basis of these documents, the charge can not be proved against the accused.
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 Satpal is acquitted for the offence punishable U/s 39 of I.E. Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 02.07.2011 Metropolitan Magistrate
South District/New Delhi
FIR No. 933/2000
PS Nangloi
u/s 39 I.E. Act
02.07.2011
Present: Ld. APP for the State.
Accused Satpal on bail with counsel.
Final arguments heard.
Put up for orders at 3.00 p.m.
(Deepak Sherawat)
MM/South Delhi/ 02.07.2011
At 3.00 p.m.
Present: As before.
Vide my separate judgment dictated and announced in the open court accused Satpal 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/ 02.07.2011