Delhi District Court
State vs Tileshwar Kaman on 11 April, 2017
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
ADDL. SESSIONS JUDGE (ELECTRICITY), NORTHWEST
DISTRICT ROHINI COURTS, DELHI
Sessions Case No. 52418/16
FIR No. 194/06
Police Station :Mangol Puri
U/S 135 of the Electricity Act, 2003
& Section 379 IPC.
State V/s Tileshwar Kaman
1. Name of the accused and : Tileshwar Kaman s/o
parentage Chatu Kaman, r/o Mangol
Puri, Delhi.
2. Date of reserving judgment : 27.03.2017
3. Date of pronouncement : 11.04.2017
JUDGMENT
The accused is facing charges that on 05.01.2006, a joint inspection team of TPDDL (hereinafter called the 'complainant company') inspected the premises of Mr. Kailash at Talab Wali Gali, Transformer No. 3, LT 4, Pole No. 1, Mangol Pur Khurd, Delhi, the said team found that the accused was indulged in direct theft of electricity by taking the supply directly and illegally from NDPL LV Mains through two number single core aluminium wires black in colour and a connected load 13.58 KW was found connected for industrial purpose (electroplating) and thus caused wrongful gain to FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 himself and wrongful loss to the complainant company.
2. Charges u/s 135 & 138 of the Electricity Act, 2003 were framed by the Ld. Predecessor of this Court to which the accused pleaded not guilty and claimed trial.
3. The facts leading to the framing of charges were that the complainant company received information regarding the commission of theft of electricity at the premises of one Kailash at the aforementioned premises. A technical inspection team was constituted consisting of PW1 Sh. J.K. Sharma and PW2 Sh. V.P. Sharma besides other officials of the complainant company who conducted raid on 05.01.2006 at 00:35 hours at the aforementioned premises. The PW6 Sh. Ashutosh Nawaniphotographer was also arranged to click photographs at the site. The material evidence i.e. illegal wires of two no. single core 4mm approx. 7 meter in length each black in colours having joints used for direct theft were also seized by the raiding party and seizure memo was prepared by it. Joint inspection report was also prepared and a formal complaint Ex.PW2/1 was given to SHO on 03.03.2006 by the complainant in which it was mentioned that one Ajay Kumar was indulging in theft of electricity and was found in charge of and responsible of site in question where the theft of electricity was committed, it was also mentioned in the complaint that accused was found indulged FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 in utilizing the stolen electricity for industrial purpose. It is clear from the complaint Ex.PW2/1 that the complaint was by name and against one Ajay Kumar.
During investigation after registration of FIR, it was found that the owner of the premises was Sh. Kailash (PW4). The investigating officer recovered the rent agreement etc. from the owner of the premises and it was revealed that the premises where the raid was committed was given on rent to accused by Kailash (PW4). Two rent agreements were also recovered from the owner of the premises. The disclosure statement of accused was also recorded in which he admitted that he was the tenant in the given premises vide rent agreement. It has been mentioned in the disclosure statement that the accused can get the rent agreement recovered, but no such recovery pursuant to his disclosure statement was effected by police and rent agreement was recovered pursuant to the notice u/s 160 CrPC given by the police to the owner.
4. Finally, chargesheet was filed and trial commenced for the aforementioned charges.
5. The prosecution produced as many as 10 witnesses.
PW1 Sh. J.K. Sharma was a member of the raiding party who proved the inspection report Ex.PW1/1 and FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 reiterated the contents of the complaint in his testimony on oath before this court. He also proved the seizure memo Ex.PW1/2 and joint inspection report Ex.PW1/3. It was mentioned in his testimony on oath that the raiding party found that the work of electroplating was being done at the site where the theft of electricity was being committed. It has been mentioned that a person was found working there and upon enquiry he told his name to be as 'Anu' and owner of the factory as Ajay.
PW2 Sh. V.P. Sharma was also a member of the raiding team who deposed on the lines as that of PW1 J.K. Sharma. He also proved all these documents like inspection report, seizure memo etc. He also stated that the work of electroplating was being done at the site. He as well as PW1 proved the photographs Mark A1 to A13.
Case property was also duly proved by PW1 & PW2.
PW3 ASI Santosh was the duty officer who had recorded FIR and proved the same as Ex.PW3/A. PW4 Kailash Chandthe owner of the premises stated that police had informed him that inspection was carried out by NDPL and also deposed before this court on oath that he had entered into a rent agreement Ex.PW4/1 with accused Taleshwar Kaman. He proved his signatures as well as the signatures of accused on the said rent agreement. He again stated that on 02.03.2006 another rent agreement FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 was executed between him and the accused for the tenancy of the inspected premises and proved the same as Ex.PW4/2. He also proved his signatures on the same. He further deposed that both these rent agreements were seized by the IO vide memo Ex.PW4/1A.
PW5 Rishi Pal & PW9 Satnarayan were witnesses to the execution of rent agreement between PW4 Kailash Chand as well as the accused.
PW6 Ashutosh Nawani was the photographer who proved the photographs Ex.PW6/A1 to Ex.PW6/A30.
PW7 HC Velayudhan identified the accused and stated that the accused was arrested vide memo Ex.PW7/A, his personal search was conducted vide memo Ex.PW7/B, accused made disclosure statement Ex.PW7/C and the recovery of the copy of the rent agreement dt. 05.10.2005 & 02.03.2006 was effected vide recovery memo Ex.PW7/D from the accused.
PW8 ASI Ramesh Chand also remained part of the investigation and stated that the owner informed that accused Taleshwar was his tenant at the time of inspection and proved rent agreements Ex.PW4/1 & Ex.PW4/2 respectively.
PW10 Insp. Joginder Singh also conducted part investigation and stated that site plan was prepared by him and proved the same as Ex.PW10/B. He also served notices u/s 160 CrPC and u/s 91 CrPC to the owner of the premises in FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 question and proved the same as Ex.PW10/C.
6. After recording the statements of the prosecution witnesses, statement of accused u/s 313 CrPC was also recorded wherein he termed the evidence against him to be as 'incorrect' and to some questions he expressed his inability to answer for want of knowledge. He finally stated in his statement that no inspection was ever conducted in his premises or in his presence. He stated that he had been wrongly implicated in this case and fabricated and manipulated photographs were filed on record and that the person depicting in the photographs was some other person and accused was not having any knowledge about him. To a specific question that the owner of the premises had named him as tenant, the accused replied that he has been wrongly implicated. On another question regarding tenancy, he also repeated the same answer.
7. I have heard Ld. Addl. PP for the State as well as Ld. Counsel for the defence. I have also perused the record.
Ld. Addl. PP for the State vehemently argued that the case is fit for conviction as all the material as well as formal witnesses have corroborated each other on all material aspects. It was highlighted that the accused was indulging in direct theft of electricity which is a cognizable and serious offence. It has also been apprised that the prosecution has FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 been able to prove all the documents including the rent agreements etc. and it was the accused only who had committed the direct theft of electricity. Ld. Addl. PP further argued that it was the police who could be able to trace the real accused during investigation as that the NDPL officials had filed the complaint on the basis of the hearsay evidence.
8. Per contra, it was argued that the owner of the premises in order to save himself has procured two rent agreements and what was the necessity of second rent agreement for the same tenure when there was already existing rent agreement. He further stated that accused is innocent and has drawn the attention of this court towards contradictions in evidence.
9. For the reasons as hereinafter explained, it is clear from the record that neither the complainant company officials nor the police has been able to investigate the matter in its true spirit. It was the bounden duty of the complainant company to first have tried to trace the particulars of the owner of the premises where the raid was conducted and it is only thereafter could have given complaint to the police. It appears from the circumstances that the raid appears to have been conducted by the raiding party just for the sake of raid and even if action has been taken by raiding team pursuant to raid by filing the complaint before the police, the same FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 appears to have been taken just for the sake of action. This is because first of all without any verification being conducted by raiding party, the name of one Ajay has been mentioned in the complaint. This clearly appears to have been done in order to shed their responsibility as it has been mentioned in the complaint that "as stated by one Anu Kumar." The particulars of the said Anu Kumar were neither given to the police by complainant nor the police tried to investigate on these lines.
This court has come across another letter Ex.PW4/3 from the owner of the premises PW4 Kailash Chand purportedly given by him to the police in which it has been mentioned that he became the owner of the premises after partition between the family and electricity meter remained in the name of one Nahar Singh. It is highlighted by the owner PW4 Kailash Chand that he had no relation with the persons namely Ajay or Anu Kumar. It has also been highlighted that the tenants left the rented premises on 03.03.2006 without informing anyone and without paying the rent as contained in Ex.PW4/3 written by PW4 Kailash Chand to the police which has been duly proved by him.
From this letter Ex.PW4/3, it is clear that PW4 Kailash was the owner of the premises and was responsible for all actions with respect to the premises. Though, the owner has denied that there was no tenancy with or Anu Kumar but he has named present accused to be his tenant. The tenancy FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 between the owner and the accused also appears to be in the vicinity of doubtful globe as this court is unable to understand as to why there was need to two rent agreements when there was already an agreement claimed to have been made on 05.10.2005. The rent agreement Ex.PW4/1 written by hand containing revenue stamps categorically goes to suggest that tenancy between PW4 Kailash and the accused was to commence from 05.10.2005 for a period of eleven months. There is clear cut overwriting/tampering of the date, as contained at point C on Ex.PW4/1 and date appears to have been changed after rubbing through some sharp material and thereafter by rewriting it. In the said document Ex.PW4/1, the date at the bottom below the signatures of the owner also appears to have been inserted at a later stage. The raid in this case is claimed to have been conducted on 05.03.2006 and the second rent agreement is stated to have been made on 02.03.2006. In the second agreement, it has been mentioned that the tenancy shall commence from 05.10.2005. No plausible explanation has come forward from any quarter and no investigation has been done by police to find as to why this second agreement was made during the existence of first agreement when there was no change of date of commencement of tenancy. It appears from the overall circumstances that the second agreement has been procured and manipulated only after the raids in order to rub the fear in the mind of the owner for his own implication in this case.
FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12Moreover, as highlighted in the letter Ex.PW4/3 written by PW4 to police, the tenant had fled from the raided premises on 03.03.2006 without informing anyone. When the tenants already fled on 03.03.2006 and raid was conducted on 05.03.2006, how the accused can be made responsible and it is the owner who should have been made responsible for all illegal actions with respect to the direct theft of electricity.
The owner has not been impleaded despite the fact that seizure memo Ex.PW1/2 categorically goes to suggest that TPDDL officer were having knowledge before registration of FIR that it was the premises of one Kailash.
10. In view of the aforesaid discussion, it is clear that the officials of the complainant company, police and the owner of the premises all appears to be hand in glove with each other for the reasons best known to them. The officials of the complainant company without verifying the ownership have acted casually at the time of raid when they found that the theft of electricity was being carried on. Simplicitor on the basis of information given by some unknown person they named one Ajay to be as owner in their complaint before the police. The raiding team members are senior officers who should have applied their wisdom at least to get the ownership particulars collected before they could have sent the matter to the police. If they could not have tried for the same, they could not have given some wrong name to the FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 police on the basis of the information given by some unknown person to them at the site. The particulars of that unknown person also was not got verified by the complainant and doubt of this court that the raid was conducted for the sake of raid and complaint was filed for the sake of filing the complaint appears to become true. No sincere efforts have been made by the raiding party of the complainant company for getting correct culprit brought to trial.
11. Same was the responsibility of the police who also appears to have stamped the manipulated documents in order to save the real culprit i.e. the owner of the premises PW4 Kailash Chand. All the three i.e. PW4, complainant company's raiding party members as well as the police have managed the things in such a manner that they could save the real culprit from being tried by this court which is very unfortunate. Moreover, the police has not tried to recover the electroplating appliances etc. No sincere efforts have been made to join independent public witnesses at the time of raid. If such type of post raid inquiry/investigation are continued by the officials of the complainant company and such type of investigation is done by the police, then, I am afraid that there would remain no deterrence and the theft of electricity will become a fashion in this country.
12. The prosecution has not been able to collect FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12 enough material against the accused and hence has failed to prove the charge framed against him. Accordingly, accused stands acquitted of the charges against him. His regular bail bond stands cancelled, surety discharged.
In terms of Section 437A Cr.PC as well as in terms of judgment titled as DRI Vs. Mike Chimezie, CRL. L.P. 3/2015, the accused has furnished bail bond to the tune of Rs. 10,000/ with one surety in the like amount in compliance of section 437A Cr. P.C. as per which, before conclusion of trial and before disposal of the appeal, the accused is required to execute bail bond with surety to appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and such bail bond shall remain in force for a period of six months. Respective bail bonds in this regard have been accepted.
File be consigned to record room.
Announced in the open court on this 11th day of April, 2017 (SANJAY KUMAR AGGARWAL) ASJ (ELECTRICITY) NW ROHINI : DELHI.
FIR No. 194/06 PS : Mangol Puri State Vs Tileshwar Kaman Page No. 12 / 12