Delhi District Court
State vs . Sunil Aggarwal on 7 July, 2011
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IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR NO. 169/2002
P.S. S.P. Badli
U/s 39 I.E. Act
STATE VS. SUNIL AGGARWAL
JUDGMENT :
a. Sl. No. of the case : 1402/07
b. Date of Institution : 21.11.2003
c. Date of Commission of Offence : 19.12.2001
d. Name of the complainant : Sh. Ram Narayan,
A.E. Zone511, Alipur,
Delhi
e. Name of the accused and his : Sunil Aggarwal
parentage and address S/o Sh. Trilok Chand,
R/o D2, J.J. Colony, Rana
Pratap Bagh, Delhi
f. Offence complained of : U/s 39 of I.E. Act.
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 07.07.2011
i. Final Order : Acquitted
j. Date of such order : 07.07.2011
1. The accused was put on trial for the facts that on 19.12.2001, 2 at Sunder Bagh, Khera Road, Khera Kalan,Delhi, accused was found committing theft of electricity directly by tapping the DVB L.V. Mains 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 23.03.2006 to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined only three witnesses namely HC Ramesh as PW1, Ram Narayan as PW2 and SI Krishan Kumar as PW3.
4. PW1 HC Ramesh has testified that on 14.03.2002, on receipt of complaint, he got registered the present case FIR no. 169/2002 which is Ex. PW1/A and his endorsement on the same is Ex. PW1/Bs.
Ld. counsel for accused did not prefer to cross examine PW1.
5. PW2 Ram Narayan has testified that on 19.12.2001, a joint raid was conducted by a joint team comprising himself and Mr. Tripathi alongwith the photographer, police staff and lineman at Khera Kalan where accused Sunil Aggarwal was found indulged in direct theft of electricity from DVB LV Mains. Thereafter illegal wires were removed and cable of 3 4X25 was seized. 13 photographs Mark A1 to A13 were taken. On that day a bill of amount of Rs. 1,88,407/ was raised against the accused Sunil Aggarwal. Failing in payment, he made a complaint to the SHO of PS S.P. Badli for registration of FIR against the accused. The complaint is Ex. PW2/A. JIR is Ex. PW2/B and the bill is Ex. PW2/C. PW2 further testified that he also handed over relevant document to J.E. Sh. S.N. Tripathi for the purpose of delivery to IO vide memo Ex. PW2/D. PW2 correctly identified the case property which is Ex. P1.
In his cross examination, PW2 has testified that accused Sunil Kumra Aggarwal was not present at the spot during the raid. The name of the accused was confirmed from the labourer and from chowkidar. He further testified that they had not made any efforts to confirm the name of labourers or chowkidar. . He further testified that no specific mark of identification was put on the wire at the time of its removal or before handing over in PS.
6. PW3 SI Krishan Kumar has testified that further investigation of the present case was marked to him. During the investigation, accused present in the court was formally arrested vide memo Ex. PW3/A. He recorded the statement of the witnesses and after completion of investigation, challan was filed in the court through SHO.
In his cross examination, PW3 has testified that he had not collected any documents regarding the owner/user of the premises of question nor regarding the electricity meter.
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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 2002 and the charge against the accused was framed on 23.03.2006 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. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 28.04.2011.
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 21.05.2011. 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.
10. To bring home the charge under section 39 of the I.E. Act, 5 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.
11. 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.
12. In another case, Jagannath Singh vs. 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 too record less than the units actually passing through it, the consumer may take the unrecorded energy without paying for it.
13. Another essential requirement for law for prosecution 6 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 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. PW2 who is the only raiding witness in his cross examination in chief has testified that accused Sunil Kumar Aggarwal was not present at the spot during the raid. He further testified that the name of the accused was confirmed from the labourer and from chowkidar. But neither the said labourer nor the chowkidar has been made as a witness by the prosecution nor have they been examined. PW3 who is the IO of this case, in his cross examination in chief has testified that he did not collect any documents regarding the owner/user of the premises of question nor regarding the meter. Therefore, the evidence brought forth by the prosecution does not connect the accused with the offence in any manner. 7
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 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 but it is not mentioned whether it was in sealed condition or not so possibility of tampering with the case property also can not be ruled out.
16. The prosecution case becomes all the more unreliable for nonassociation 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 in the course of raid. All the witnesses who joined the raid are government officials with no independence witness to corroborate them. PW2 in his testimony has testified that the name of the accused was confirmed from the labourer and from chowkidar present at the spot. But neither the said labourer nor the chowkidar has been made as a witness by the prosecution nor have they been examined. PW2 further testified that they had not made any efforts to confirm the name of labourers or chowkidar.
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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. Further the photographs placed on record have not been exhibited as the negatives of those have not been placed on record so the genuineness of photographs is doubtful. Only FIR, arrest and seizure memo are not substantive piece of evidence and solely on the basis of these documents, the charge can not be proved against the accused.
20. 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.
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21. 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 Sunil Aggarwal 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 07.07.2011 Metropolitan Magistrate
South District/New Delhi
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FIR No. 169/02
PS S.P. badli
u/s 39 I.E. Act
07.07.2011
Present: Ld. APP for the State.
Accused Sunil Aggarwal on bail with counsel.
Vide my separate judgment dictated and announced in the open court accused Sunil Aggarwal 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/ 07.07.2011