Delhi District Court
State vs . Raj Kumar on 19 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 Rohini
U/s 39 of I.E. Act
STATE VS. Raj Kumar
JUDGMENT :
a. Sl. No. of the case : 1786/07
b. Date of Institution : 17.01.2000
c. Date of Commission of Offence : 20.01.1999
d. Name of the complainant : Sh. Jaimal Singh,
Asstt. Engineer,
Z II R H N, DVB
e. Name of the accused and his : Raj Kumar
parentage and address S/o Sh. Roshan Lal
R/o B6/157, Sector III
Rohini, Delhi
f. Offence complained of : U/s 39 of I.E. Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 19.05.2011
i. Final Order : Acquitted
j. Date of such order : 19.05.2011
1. The accused was put on trial for the facts that on 20.01.99, at Khasra no. 1207, opposite Libia Gas Agency, Village Rithala, Delhi, accused was found committing theft of electricity dishonestly directly from DVB L.V. 2 Mains through 4X25 mm PVC Cable 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 21.04.2006 to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined three witnesses namely SI Shyam Sunder as PW1, Jaimal Singh as PW2 and M. K Kochar as PW3.
4. PW1 SI Shyam Sunder has testified that on 08.02.99 he recorded present case FIR Ex.PW1/A on the basis of complaint Ex.PW1/B on the direction of SHO concerned and further investigation was handed over to HCt. Jagbir Singh.
Accused did not prefer to cross examine this witness.
5. PW2 Jaimal Singh has testified that on 20.1.99 at Kh. No. 1207 Opp, Libiya Gas Agency Village Rithala, a joint raid was conducted by joint team and accused Raj Kumar was found indulged in direct theft of electricity and thereafter a bill was raised against the accused and failing to pay the same present complaint was made Ex.PW1/B. He handed over the case property to concerned police officials vide seizure memo Ex.PW2/A i.e. cable 3 of 4X25 mm of 22 meters and on production of case property before the court witness identified the same as Ex.P1.
Accused did not prefer to cross examine this witness.
6. PW3 M K Kochar has testified that on 20.1.99 at Khasra no. 1207 opposite Libia Gas Agency Village Rithala Delhi a joint raid was conducted by joint team comprising of himself, Gian Chand, G S Kale, O P Sharma, N K Parashar, S S Arora, CISG and photographer in the direct supervision of XEN Enf/IG Enf. where user Raj Kumar was found indulge in direct theft of electricity from DVB L V Mains and connected load was 53.58 KW for running plastic factory, photographs of the spot is Mark A. Thereafter illegal cable was removed and handed over to zonal staff. JIR is PW3 Mark A. This witness also identified the case property as Ex.P1 and further stated that the workers at the plastic factory disclosed the name of user as Raj Kumar @ Raju.
7. 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 21.04.2005 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 only three witnesses and since 05.08.2006, no witness was examined by the prosecution. After giving sufficient opportunities for 4 leading evidence, the right of the prosecution to lead further evidence was closed on 10.05.2011.
8. After closing of prosecution evidence, the statement of accused u/s 281 Cr.P.C r/w. 313 Cr.P.C was recorded on 14.05.2011. 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.
9. 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.
9. 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.
10. 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 5 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.
11. 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.
12. 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.
14. 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 6 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. Prosecution has examined only two raiding team members and neither of them has deposed a single word about collection of any documentary evidence by them to connect the accused with the raided premises. Neither have they deposed about the presence of accused at the time of raid in the premises in question nor identified him before the court.
15. 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 from the main of the electric company by an unauthorized wire connecting the main with a private terminal. 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 but it is not mentioned whether it was sealed or unsealed so the possibility of tempering with the case property cannot be ruled out, even no witness to the recovery and seizure has been examined to support the prosecution version. However, PW2 has stated that he handed over the case property to concerned police official vide seizure memo Ex.PW2/A but the concerned official/IO of present case has also not been examined who could prove the fact of seal and seizure of case property. Further the genuineness of photographs Mark A is also doubtful in absence of negatives thereof.
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16. 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/workers/neighbors in the course of raid as one of the raiding team member/PW3 stated that workers at the plastic factory have disclosed the name of user as Raj Kumar @ Raju. All the witnesses who joined the raid are government officials with no independent witness to corroborate them.
17. 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.
18. 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.
19. Even the JIR PW3 Mark "A" has not been proved as original of same has not been produced, which form the basis of the charges made 8 against the accused. Only evidence which is come on record and which has been duly proved is FIR which is Ex PW 1/A and complaint Ex.PW1/B and seizure memo Ex.PW2/A but the FIR, complaint and seizure memo are not sufficient evidence and accused cannot be held at guilty only on the ground of same.
17. 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.
18. 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 Raj Kumar 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 19.05.2011 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