Bangalore District Court
The State Of Karnataka By vs Zia Ulla on 10 January, 2017
IN THE COURT OF THE X ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY
Dated this the 10th day of January 2017
: PRESENT :
Sri B.B. Jakati, B.A., LL.B., (Spl.)
LIX Additional City Civil and Sessions Judge &
C/c of X Additional City Civil and Sessions & Judge,
Bangalore City.
SPL.C.C.No.174/2010
COMPLAINANT: The State of Karnataka by
BESCOM. KPTCL Vigilance,
Malleswaram Police Station,
Bangalore.
(By Learned Public Prosecutor)
Vs.
ACCUSED: Zia Ulla,
S/o.Ameer Jan,
Residing at No.12,
Zia Street, A.B.S.Factory,
D.J.Halli,
Bangalore- 560 045.
1. Date of Commission : 24.11.2008
of Offence
2. Date of Report : 24.11.2008
of Offence
3. Status of the accused : Accused is on bail
2 Spl.C.C.No.174/2010
4. Name of the complainant : Sri.N.Nagaraj
5. Date of Commencement of :
05.01.2012
evidence
6. Date of Closing of :
07.04.2016
Evidence
7. Offence complained of : Under section 135 of
Electricity Act
8. Opinion of the Judge : Accused not found
guilty
JUDGMENT
The Police Inspector of Vigilance, BESCOM, Malleswaram Police Station, has filed the charge sheet against the accused for the offence punishable under Section 135 of Electricity Act, 2003.
2. The case of the prosecution in brief is that the accused Zia Ulla was running Ice factory in the name and style of "A.B.S.FACTORY" in the building situated at No.12, Zia Street, Opposite to Police Station, D.J.Halli, Ward No.93, Bangalore. The BESCOM installed Electricity meter bearing RR.No.C5-P-199 to such building for the Ice factory and supplying the electricity to the accused. It has been alleged that on 24.11.2008, the Vigilance squad of BESCOM consisting of Assistant Executive Engineer and 3 Spl.C.C.No.174/2010 others inspected the installation of the accused. On 24.11.2008 at about 11-30 a.m., they noticed that meter was tampered by destroying its seal put by BESCOM and meter was running in reverse. Therefore, the accused wrongfully utilizing the electricity supply without paying the bill and therefore, the accused has committed theft of electricity. On these grounds, the prosecution has contended that the accused has committed the offence punishable under section 135 of Electricity Act.
3. The accused appeared through his counsel after service of summons and he was enlarged on bail. The charge sheet copy was furnished to the accused as required under section 207 of Cr.P.C. After hearing both parties, my learned Predecessor in office has framed the charge against the accused for the offence punishable under section 135 of Electricity Act. The accused pleaded not guilty and claims to be tried.
4. In order to prove the guilt of the accused, the prosecution examined seven witnesses as P.W.1 to P.W.7, got marked 26 documents at Ex.P.1 to P.26 and two Material Objects at M.O.1 and M.O.2. On behalf of defence, the accused himself 4 Spl.C.C.No.174/2010 examined as DW-1 and got marked 2 documents at Ex.D.1 and Ex.D.2.
5. The learned Public Prosecutor has argued that the building in which the meter was installed was owned by the wife of accused and the accused has taken electricity connection to Ice Factory. The accused has not denied the installation of meter shown in the first information and electricity supply to the Ice Factory. She has argued that the accused has taken the defence that on 24.11.2008, the accused was not running Ice Factory and he has given the Ice factory to one Raju and on the date of the incident, Raju was in charge of Ice Factory and therefore, the accused has not tamper the meter. But in view of the presumption under section 135 of Electricity Act, the accused was under obligation to maintain the meter obtained by him in proper manner and even the accused has not proved that Raju has tampered the meter and therefore, the accused is liable for tampering of meter in the premises. She has argued that the evidence of the prosecution witnesses are sufficient to prove the guilt of the accused and accordingly, prayed to convict 5 Spl.C.C.No.174/2010 the accused for the offence punishable under section 135 of Electricity Act.
6. In support of the argument, the learned public prosecutor placed reliance on the decision reported in 2007(3) Crimes 500 (Del) in the case of Hindustan Petroleum Corporation Limited V/s. BSES Rajdhani Power Limited and another.
7. The learned counsel for the accused filed written arguments and placed his reliance on the decision reported in 2014(2) Crimes 270 (Del) in the case of Manoj Kumar V/s BSES Rajdhani Power Limited and another. He has submitted that on 24.11.2008, the accused was not running Ice Factory, where the electricity meter was installed and the tenant of accused was using the premises. Therefore, the accused is not liable for punishment under section 135 of Electricity Act for tampering of the meter. In the written argument, it has been stated that the Investigating Officer not recorded the statement of neighbours of the premises and therefore, the evidence of official witness is not sufficient to prove the tampering of meter and theft of electricity. On these grounds, the learned counsel for the accused prayed to acquit the accused. 6 Spl.C.C.No.174/2010
8. Having regard to the materials placed on record and the submissions made by both the parties, the following points arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 24.11.2008, the accused tampered electricity meter bearing RR No.C5-
P-199 installed in "A.B.S.FACTORY"
situated in the building at No.12, Zia Street, Opposite to Police Station, D.J.Halli, Ward No.93 and thereby committed theft of electricity and caused loss of Rs.3,59,664/- to BESCOM and thereby committed the offence punishable under section 135 of Electricity Act?
2. What Order?
9. My findings to the above points are as under:-
POINT No.1 :- In the Negative
POINT No.2 :- As per final order
for the following:-
REASONS
10. POINT NO.1 :- The prosecution in order to establish
the installation of meter bearing R.R.No.C5-P-199 in the name of the 7 Spl.C.C.No.174/2010 accused has produced the copy of the licence at Ex.P.10, agreement at Ex.P.12, completion test report at Ex.P.13, Feasibility report at Ex.P.14, sketch at Ex.P.15, order of Assistant Executive Engineer at Ex.P.16, licence of Venkatesh Electricals at Ex.P.17, copy of the licence for Power trades at Ex.P.18, Agreement dated 22.01.2013 at Ex.P.19, Indemnity Bond dated 22.01.2013 at Ex.P.20, report of approximate electricity at Ex.P.21. In all these records, it has been shown that the accused filed application for electricity connection to the property No.12, Zia Street, Opposite to Police Station, D.J.Halli, Ward No.93 and accordingly, the BESCOM has supplied the electricity by fixing electric meter bearing R.R.No.C5-P-199. The prosecution has produced two endorsements of BESCOM at Ex.P.8 and Ex.P.9, which show that the building No.12, Zia Street, D.J.Halli, Bengaluru is not standing in the name of the accused where the electric meter was installed by the BESCOM. During the evidence, the accused has admitted that house No.12, Zia Street, Opposite to Police Station, D.J.Halli, Ward No.93 is standing in the name of his wife and he obtained electric connection to that building and the electric meter bearing R.R.No.C5-P-199. Therefore, the accused not disputed electricity 8 Spl.C.C.No.174/2010 connection obtained by him in his name to the building of his wife. Thus, I hold that the prosecution on the basis of the records referred above and the evidence of official witnesses P.W.1, 3, 5 and 6 including the admissions of accused has established that the electric meter bearing R.R.No.C5-P-199 was installed in the name of the accused in building No.12, Zia Street, D.J.Halli, Bangalore and that installation was existing as on 24.11.2008.
11. The prosecution witnesses more particularly P.W.1, 3, 5 and 6 have stated that in the building where the above said electric meter was installed, there was an Ice factory as on 24.11.2008. Such evidence has not been denied by the accused. Therefore, the evidence of the witnesses of the prosecution is sufficient to prove the fact that there was ice factory where the electric meter bearing R.R.No.C5-P-199 was installed as on 24.11.2008. Accordingly, I hold that the prosecution has established that through above said bearing R.R.No.C5-P-199, there was supply to Ice factory existing in the building No.12, Zia Street, D.J.Halli, Bengaluru.
12. The prosecution has alleged that the meter installed in the building was tampered and the meter was running in reverse. 9 Spl.C.C.No.174/2010 This allegation has been generally denied by the accused. Therefore, whether the meter was tampered or not is to be seen. The P.W.1 is the Assistant Executive Engineer, BESCOM, P.W.3 is also Assistant Executive Engineer, M.T.Division, Low Tension Rating Sub Division, Bangalore. P.W.5 is Head Constable, who was working in BECSOM, Vigilance police station, Malleswaram and P.W.6 is Junior Engineer working in O and M 2nd Unit, C-5 Sub Division, Kavalbyrasandra, Bengaluru. All these witnesses in their examination in chief have stated that they went to installation bearing R.R.No.C5-P-199 on 24.11.2008 and noticed that meter was tampered and it was running reverse. They have also stated that a seal put to the meter was fake. The meter is at M.O.1 and seal is at M.O.2. These statements of witnesses regarding tampering of meter have been denied by the accused. However, these witnesses have stood for their statement that they really saw tampering of meter and the meter was seized and send for examination by the experts. Therefore, the evidence of these witnesses is sufficient to hold that they went to place of installation on 24.11.2008 at about 11-30 a.m. and found that meter was tampered.
10 Spl.C.C.No.174/2010
13. The P.W.7 is Investigating Officer and he has stated that after receiving the report from P.W.1, including M.O.1 and M.O.2, he sent meter at M.O.1 to the expert for examination regarding tampering of the meter. The P.W.2 has stated that she was working as Assistant Executive Engineer, M.T.Division, BESCOM, Bengaluru and M.O.1 meter was received for examination from Malleswaram Vigilance police station on 29.11.2008. She has also stated that herself and her staff K.R.Narayana, K.Chandramouli and V.Venkata Shivareddy examined the meter in the Laboratory and found that meter was tampered and accordingly report at Ex.P.5 was given to the Investigating Officer. This evidence of P.W.2 has been denied by the accused in the cross examination and then also this witness stood for his statement of tampering of meter. The P.W.2 is expert and the report at Ex.P.5 has been given by experts. The report and the evidence of P.W. 2 clearly show that the meter was tampered. Therefore, the evidence on record is sufficient to hold that the M.O.1 meter which was installed in the building No.12, Zia Street, D.J.Halli, Bengaluru was tampered and through tampered meter, there was electricity supply to Ice factory.
11 Spl.C.C.No.174/2010
14. The accused has taken definite defence that even though the premises where the meter was installed in his name belong to him and his wife, he has let the premises on lease to V.Raju, S/o.Veeranna from 01.08.2007 and as on the alleged date i.e. 24.11.2008 V.Raju was in occupation of the premises and having control and power over the electric meter and therefore, the accused has not tampered any meter and not committed theft of electricity. By taking this defence, the accused sought for acquittal. Whether this defence is admissible under law and whether such defence has been established by the accused has to be looked into.
15. The P.W.1 and 4 to 7 have stated that electric meter was in the name of the accused and such meter was tampered. They have stated that because the meter was standing in the name of accused, the accused has tampered the meter and committed theft of electricity. The P.W.1 and 4 to 6 have admitted in their evidence that when the meter was inspected on 24.11.2008 between 11-30 a.m. to 3-00 p.m., the accused was not present in that premises. The P.W.1 has stated that the son of the accused was present but such fact has not been proved through other evidence. Even the 12 Spl.C.C.No.174/2010 name of son of the accused has not been disclosed by any of the witnesses. On the other hand, the witnesses for the prosecution have admitted that the accused was not present in the premises, which is very important. There is no evidence on record that son of the accused has committed theft of electricity by tampering the meter. The P.W.7 has received rent agreement produced at Ex.P.22 from the accused by drawing panchanama at Ex.P.23. This agreement clearly indicate that the accused leased the premises where the meter was installed in favour of Raju and the premises was in possession of Raju as on 24.11.2008. The lease period commenced from 01.08.2008 and expired on 01.07.2009. Similarly the accused in his defence has produced rent agreements at Ex.D.1 and Ex.D.2. The first agreement relating to for the period from 01.08.2007 to 01.07.2008 and the 2nd agreement is for the period from 01.08.2008 to 01.07.2009. Ex.D2 is duplicate of Ex.P.22. The DW-1, who is accused has categorically stated that Raju was in occupation of premises where the meter was installed. Such evidence of DW-1 Ex.P.22 and Ex.D.1 has not been rebutted by the prosecution through contrary evidence.
13 Spl.C.C.No.174/2010
16. The P.W.7 in his cross examination has stated that he has not enquired about the genuineness of rent deed produced at Ex.P.22. It is the duty of the Investigating Officer to collect sufficient material to show that the accused was in occupation of premises where the meter was installed. No effort has been made by P.W.7 to connect such material evidence from the neighbourers or through documents. Therefore, the evidence on record clearly show that the accused was not in occupation of premises where the tampered electric meter was installed by the BESCOM. On the contrary, the defence has established that the tenant V.Raju was in occupation of premises and he was running Ice factory on 24.11.2008. The prosecution not taken action against V.Raju and on the other hand, the charge sheet has been filed against the accused.
17. The Hon'ble Delhi High Court in 2007 (3) Crimes 500 has held that in whose name the electricity connection has been obtained, the responsibility would be on such person to see that electricity was used legally and lawfully. If no proper precaution is taken by such person, then, he shall be held guilty for the theft of electricity. In another judgment reported in 2014(2 Crimes 290 14 Spl.C.C.No.174/2010 (Delhi), the Hon'ble Delhi High Court has categorically held that it is duty of the prosecution to prove that the person who has taken electricity connection was in use of premises at the time of theft of electricity. It has been held that only user of the premises can be booked for power theft. This is recent judgment of the same High Court. This judgment is prevail over the judgment in 2007(3) Crimes 500 Delhi referred above.
18. From these decisions more particularly from the 2nd decision referred above, it is very clear that only the user of the premises at the time of tampering of meter and electricity theft can be booked for theft and no another person. In the present case, it has established by the accused that on 24.11.2008 or prior to such date V. Raju was in occupation of the premises and he was running Ice factory by using the electric supply from the meter installed. Thus, it is very clear that the accused was not in occupation of the premises and even he had no control over the meter on 24.11.2008. Thus, the accused cannot be held guilty for tampering of meter and for the alleged theft of electricity through such meter. For these, reasons, I hold that the accused is not guilty for the offence 15 Spl.C.C.No.174/2010 punishable under section 135 of Electricity Act. Accordingly, I answer point No.1 in the negative.
19. POINT No.2:- In view of the above discussions and my finding to point No.1, I proceed to pass the following:-
ORDER Acting under Section 235 of Cr.P.C., the accused is acquitted for the offence punishable under Section 135 of Electricity Act.
The bail bond and surety bond of the accused and his surety stands cancelled.
Seized properties M.O.1 and M.O.2 are worthless, ordered to be destroyed, after the appeal period is over.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 10th day of January 2017).
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE C/c of X ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.16 Spl.C.C.No.174/2010
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Nagaraju P.W.2 Archana P.W.3 Purushotham P.W.4 Shariff P.W.5 Puttappa P.W.6 N.Govindaiah P.W.7 N.M.Ramalingappa
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Inspection report Ex.P.1(a) Signature of P.W.1 Ex.P.2 Mahazar Ex.P.2(a to d) Signatures Ex.P.3 Complaint Ex.P.3(a & b) Signatures Ex.P.4 Report Ex.P.5 Investigation report Ex.P.5(a) Signature of P.W.2 Ex.P.6 M.T.Report Ex.P.6(a) Signature Ex.P.7 F.I.R. Ex.P.8 Letter received to BBMP Ex.P.9 Katha report Ex.P.10 Copy of Licence Ex.P.11 Covering letter Ex.P.12 Requisition form Ex.P.13 Wiring Completion report Ex.P.14 Feasibility Report Ex.P.15 Wiring diagram Ex.P.16 Power supply letter Ex.P.17 Electricity contractor's licence Ex.P.18 Licence of Power Trades 17 Spl.C.C.No.174/2010 Ex.P.19 Agreement Ex.P.20 Indemnity Bond Ex.P.21 Assessment Form-21 Ex.P.22 Rent Agreement Ex.P.23 Mahazar Ex.P.24 Provisional BBC Ex.P.25 Final BBC Ex.P.26 Monthly Consumption report LIST OF WITNESSES EXAMINED FOR DEFENCE: D.W.1 Zia Ulla LIST OF DOCUMENTS MARKED FOR DEFENCE:- Ex.D.1 Agreement Ex.D.2 Agreement MATERIAL OBJECTS MARKED:- M.O.1 Meter M.O.2 Fake seal (B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE C/c of X ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY. 18 Spl.C.C.No.174/2010 Judgment pronounced in the open court (vide separate judgment) with the following operative portion: ORDER Acting under Section 235 of Cr.P.C., the
accused is acquitted for the offence punishable under Section 135 of Electricity Act.
The bail bond and surety bond of the accused and his surety stands cancelled.
Seized properties M.O.1 and M.O.2 are worthless, ordered to be destroyed, after the appeal period is over.
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE C/c of X ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.19 Spl.C.C.No.174/2010