Bangalore District Court
The State By vs A1: Srihari on 9 March, 2020
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 9 th day of March 2020
:PRESENT:
SRI. MOHAN PRABHU
M.A., L.L.M.,
LXX Addl. City Civil & Sessions
& Special Judge, Bengaluru.
Spl.C.No. 845/2019
COMPLAINANT: The State by
BESCOM, Vigilance Jayanagar P.S.,
BENGALURU
(By Special Public Prosecutor)
v/s
ACCUSED: A1: Srihari,
S/o. Muniyappa,
Aged about 48 years,
R/at: No.1252, Kote Beedi,
Begur Hobli, Anekal Taluk,
Bengaluru District.
(By Sri. K.S. Manjunatha, Advocate)
1.Date of commission of offence: 22.5.2017
2. Date of report of occurrence : 23.5.2017
3. Date of commencement of : 30.9.2019 recording of evidence
4. Date of closing of evidence : 02.12.2019 2 Spl.C.No. 598/2019
5. Name of the Complainant : Mohd. Asif Ulla Khan
6. Offences Complained of : U/Secs.135 of The Electricity Act, 2003.
7. Opinion of the Judge : Accused is acquitted J UD GM E N T The Police Inspector of BESCOM Vigilance, Jayanagara Police Station, Bengaluru has filed the Charge Sheet against the accused for the offence punishable u/s.135 of The Electricity Act, 2003.
2. The case of the prosecution briefly stated as follows:-
That on 22.5.2017 at about 12.35 PM when CW.1 AEE, BESCOM Vigilance along with officials visited to the property bearing Sy. No. 55 of Mylasandra village, Begur Hobli, Anekal Taluk belongs to the accused Srihari, he found that the accused by bypassing the meter bearing RR No. S10 L 68648 directly connected to the electricity from bus bar to the 15 HP borewell motor pump and committed theft of electricity. CW.1 disconnected the electricity through CW.3 Vinod Lineman and conducted the spot mahazar in the presence of panchas and 3 Spl.C.No. 598/2019 conducted the Inspection Report. On 23.5.2017 at 12 PM on the basis of the first information statement lodged by CW.1 along with mahazar and inspection report, the PSI of BESCOM Vigilance registered the case in Cr. No.17/2017 for the offence u/s 135 of Electricity Act and sent FIR to the court. Thereafter CW.7 Police Inspector conducted the further investigation and after collecting all the materials has filed the charge sheet against the accused No.1 by leaving accused No.2 in the charge sheet.
3. The accused produced before the court on 30.4.2018 and released on bail. After filing the charge sheet, cognizance of the offences u/s 135 of Electricity Act taken and case came to be registered as Spl.C. No. 845/2019 against the accused Srihari. Charge sheet copies furnished to the accused and thereby the provision u/s 207 of Cr.P.C. is duly complied with.
4. On 16.9.2019 charge framed against the accused for the offences punishable u/s. 135 of The Electricity Act, 2003 for which the accused pleaded not guilty and claimed for trial. 4 Spl.C.No. 598/2019
5. During trial on the side of the prosecution 6 witnesses have been examined as PW1 to 6 and documents Ex.P1 to P20 are marked. M.O.1 meter is marked.
6. That on 23.12.2019 statement of the accused u/s 313 of Cr.P.C. is recorded by putting all the incriminating evidence available on the side of the prosecution to him. The accused has denied all the incriminating evidence. The accused examined as DW1 and document Ex.D1 partition deed marked subject to objection.
7. I have heard the arguments of the learned Special Public Prosecutor and learned counsel for the accused.
8. The points that arise for my determination are as follows:
1) Whether the prosecution has proved
beyond all reasonable doubt that on
22.5.2017 at about 12.35 PM when CW.1
along with his staff inspected 15 HP motor pump of borewell in Sy. No.55 of Mylasandra, Begur Hobli, Anekal Taluk, he 5 Spl.C.No. 598/2019 found the direct connection of the electricity from bus bar 15 HP Motor pump by bypassing the meter bearing RR No. s10l 68648 and thereby the accused has committed theft of electricity and committed the offence punishable u/s.135 of The Electricity Act, 2003?
2) What order?
9. My findings on the above points are as follows:
Point No.1:- In the negative Point No.2:- As per final order for the following:
REASONS POINT No.1:-
10. PW1 AEE of N3 Sub-Division has issued Ex.P1 BBC amount and compounding amount. PW.2 Lokesh is the mahazar witness. PW.3 Vinod is the Lineman who disconnected the meter. PW.4 Jayanna, Incharge PSI of BESCOM Vigilance has registered the case based on complaint lodged by PW.6. PW.5 Smt. Umadevi, Police Inspector of BESCOM Vigilance, Jjayanagar has conducted the further 6 Spl.C.No. 598/2019 investigation and has filed the charge sheet against the accused. PW.6 Mohamed Asif Ulla Khan, AEE, BESCOM Vigilance who conducted the ride. In this case, PW.2 mahazar witness has completely turned hostile to the case of the prosecution. As a defence, the accused himself examined as DW1 and document Ex.D1 partition deed marked on the side of the accused.
11. PW1 Dhananjaya, AEE has deposed that he has prepared document Ex.P1 BBC and compounding amount and issued the same on 7.8.2017. The oral evidence of PW.1 is formal in nature. He has not deposed anything whether he has issued Ex.P1 to the accused by demanding to pay BBC amount and compounding the amount. In his cross-examination he has admitted the suggestion that the meter bearing RR No. S10L68648 is standing in the name of Muniyappa. He has not seen the earlier electricity bills.
12. PW2 Lokesh is the mahazar witness has completely turned hostile to the case of the prosecution by stating that he do not know anything about the mahazar. In his presence, the 7 Spl.C.No. 598/2019 BESCOM authorities have not conducted any panchanama in the land of the accused. He has denied the signature of Ex.P2 mahazar. Having turned hostile to the case of the prosecution, the learned Special Public Prosecutor cross-examined PW2 in detail. During the course of his cross examination by the learned Special Public Prosecutor PW2 has denied the entire contents of the document Ex.P2 mahazar. PW2 has denied of giving any such statement before the police as per Ex.P3. Nothing is elicited from the mouth of PW.2 to support the case of the prosecution.
13. PW3 Vinod is the Lineman of S10 Sub-Division has deposed that on 22.5.2017 Junior Engineer Prashanth informed him over pone and called him to Sy. No.55 near pump house. When he visited to that place, the police, Prashanth Kumar, AEE, Mohd. Asiff Ulla khan were there. He found the electricity connection from bus bar to 15 HP Motor pump. As per the instruction of the AEE Mohd. Asiff Ulla Khan he has disconnected the electricity and dismantled M.O.1 meter and handed over to the Vigilance Authorities. He has 8 Spl.C.No. 598/2019 identified the signature on Ex.P2 mahazar. During the course of his cross-examination by the learned counsel for the accused PW.3 has deposed that he visited to the place of incident at 11 AM. He has deposed that except the officials of his department, no other persons were present in the place of incident. He has deposed that Junior Engineer Prashanth was not there at the time when M.O.1 meter was seized. He do not know who were all signed on Ex.P2 mahazar. He has denied all other suggestions made to him.
14. PW4 Jayanna, Incharge of PSI of BESCOM Vigilance Jayanagar Police Station has deposed that on the basis of Ex.P4 complaint lodged by the complainant who lodged the complaint along with Ex.P2 mahazar, Ex.P5 Inspection Report and M.O.1, he registered the case in Crime No.17/2017 and sent Ex.P6 FIR to the court. During the course of his cross examination by the learned counsel for the accused, PW4 has deposed that he was not visited to the place of incident. He was not seen the document of land in Sy. No.55. He has not seized M.O.1 by labelling it and sealing it.
9 Spl.C.No. 598/2019
15. PW5 Smt. Umadevi, Police Inspector, BESCOM Vigilance, Jayanagar has deposed that she took up the case file from PW.4 on 24.5.2017 for further investigation. She has collected the documents Ex.P8 to P20, the documents pertaining to meter bearing RR No. S10L68648. She has deposed that on 29.5.2017 she has recorded the statement of CW.2 Lokesh, CW.3 Vinod, CW.4 Prashanth. On 30.4.2018 She arrested the accused No.1 and sent him to the court along with remand application. On 12.12.2018 she has filed the charge sheet against accused No.1. she has deposed that as there was no material to proceed against the accused No.2. she left out the accused No.2 in the charge sheet. During the course of her cross examination of PW.5 she has deposed that she was not visited to the place of incident. She has not produced any document to show that she was issued notice to the accused. She was not recorded the voluntary statement of the accused. She has deposed that the land in Sy. No.55 is standing in the name of Muniyappa father of accused No.1. The electricity meter is also standing in the name of Muniyappa. She has denied the suggestion that the land in 10 Spl.C.No. 598/2019 Sy. No.55 is situated in the name of accused No.2 Umesh. She has also deposed that the BESCOM authorities have ta en the signature of the accused No.1 in the Inspection Report. She has denied all other suggestions made to her.
16. PW6 Mohammed Ashif Ulla Khan, AEE of BESCOM has deposed that on 28.2.2015 he has received the credible information about the theft of electricity. Hence, at about 12.35 PM he visited to the land in Sy. No.55 and inspected the electricity connection of the 15 HP Motor pump to borewell and found that the direction connection was made to bus bar to motor pump by bypassing the meter. Hence, he made enquiry with CW.2 Lokesh and at that time CW.2 Lokesh informed him that accused Srihari and Umesh were directly connected the electricity from bus bar to motor pump. Thereafter he summons CW.3 Vinod, Lineman and disconnected the electricity connection and seized M.O.1 meter and conducted Ex.P2 mahazar, Ex.P5 Inspection Report and thereafter on the next day he has lodged the complaint as per Ex.P4. During the course of his cross-examination by the learned counsel for 11 Spl.C.No. 598/2019 the accused he has deposed that a land in Sy. No.55 of Mylasandra was situated at a distance of 12 kilometers from his office. He along with Police Constable, Prasanth, Police Inspector Smt. Umadevi visited to the place of incident and conducted ride. He has deposed that he do not know whether the accused No.2 Umesh was there in the place of incident. He has deposed that CW.3 Lineman came to the place of incident at about 2 PM. He has not prepared the sketch of the place of incident. He has deposed that Lokesh and Prashanth were signed on Ex.P12 mahazar and another two persons signed on the same. But he do not know the name of another two persons signed on the same. He has deposed that he was not seized the water tank in the place of incident. He has denied all other suggestions made to him.
17. The accused No.1 who has examined as DW.1 has deposed that the land in Sy. No.55 of Mylasandra measuring 16 guntas is standing in the name of his brother. He has deposed that the land in Sy. No.57 measuring 16 guntas is belongs to him. He has deposed that he and his brother were 12 Spl.C.No. 598/2019 partitioned the land as per Ex.D1 partition deed. During the course of his cross-examination learned Special Public Prosecutor PW.1 has denied the suggestion that he has signed Ex.p2 mahazar and Ex.P5 Inspection Report. He has denied the suggestion that he has committed theft of electricity.
18. Based on the above evidence, it is to be examined if the prosecution has proved the case against the accused beyond all reasonable doubt. In this case except PW.3 and PW.6, no other witnesses of the Ex.P2 mahazar are supported the case of the prosecution. PW.3 and PW.6 are the official witnesses. Hence, their evidence has to be scrutinized very carefully. PW.3 has deposed that he visited to the place of incident at 11 AM. It is pertinent to note that according to the case of the prosecution Ex.P2 mahazar was conducted between 12.35 PM and 1.15 PM. PW.3 has not deposed anything about at what time Ex.P2 mahazar was conducted. PW.3 has not deposed anything about the presence of the accused in the place of incident. PW.3 has deposed that he do not know who 13 Spl.C.No. 598/2019 were all signed on Ex.P2 mahazar. The oral evidence of PW.3 is quite contrary to the oral evidence of PW.6.
19. PW.6 has deposed that he along with the Police Inspector Smt. Umadevi and Police Constable PC Prashanth have conducted ride. PW.5 Smt. Umadevi has deposed that she was not visited to the place of incident. PW.6 AEE of BESCOM has deposed that he along with Police Inspector PW.5 Umadevi have conducted the ride. PW.6 has deposed that PW.3 Lineman came to the place of incident at 2 PM. According to PW.6 it was PW.3 who was dismantled the mater in order to conduct the mahazar. The oral evidence of PW.6 is quite contrary to the document Ex.P2 mahazar wherein the timing is mentioned as 12.35 PM to 1.15 PM. PW.6 has deposed that the Lineman who came to the place of incident at 2 PM. That means thereafter he has conducted the alleged mahazar. PW.6 has deposed that Lokesh (PW.2) and Prashanth were signed on the mahazar and another two persons signed on the mahazar but he do not know who were those two persons. It is important to note that during the course of cross-examination of DW1 (accused) the learned Special Public 14 Spl.C.No. 598/2019 Prosecutor put a suggestion to him that he was signed on Ex.P2 mahazar and Ex.P5 Inspection report. According to the case of the prosecution, accused No.1 (DW1) was present at the time of conducting ride by PW.6. But PW.6 has deposed that he do not remember who were present at the place of incident. If at all PW.6 was conducted the ride in the presence of the accused and has taken signature of the accused on Ex.P2 mahazar and Ex.P5 Inspection Report he would have stated the same before court. But PW.6 has not deposed any thing about signature Srihari found in Ex.P2 PW.6 has not deposed anything about the presence of the accused in the place of incident. On perusal of Ex.P2 mahazar there is some interpolation in the date mentioned in first line of the first page. PW.6 has deposed that he has lodged the complaint against the accused on 23.5.2017. PW.6 has not explained anything about the reason for one day delay in lodging the complaint. There is absolutely no evidence on the side of the prosecution to show the reason for one day delay in lodging the complaint. The delay in lodging the complaint is fatal to the case of the prosecution. In this case, there is no document on 15 Spl.C.No. 598/2019 the side of the prosecution to show that the Investigation Officer of the BESCOM authorities have served the notice to the accused demanding to pay the BBC and compounding amount. The prosecution has not produced any document to show that the land in Sy. No.55 of Mylasandra is standing in the name of accused. DW.1 has deposed that the land in Sy. No.55 measuring 16 guntas is standing in the name of his brother.
20. The document Ex.D1 partition deed is marked subject to objection. This document Ex.D1 is unregistered and insufficiently stamped document. This document is not admissible in evidence. However the prosecution has not produced any document to show that accused Srihari was in possession of the land in Sy. No. 55 and committed theft of electricity.
21. On perusal of the documents Ex.P9 to P19, the documents regarding the meter bearing RR No. S10L 68648 it would go to show that it was standing in the name of Muniyappa. These documents pertaining to 7.5 HP motor. 16 Spl.C.No. 598/2019 There is no document to show that the accused was running 15 HP motor pump. The document Ex.P20 RTC of land in Sy. No.55 is also standing in the name of Muniyappa. The uncorroborated oral evidence of PW.3, PW.5 and PW.6 which is not supported by any independent witnesses creates about about their version. PW.6 has not prepared hand sketch map to show there was bypass of electricity and the electricity connection from bus bar to the motor pump. He has also not seized the bus bar and wire. M.O.1 which is produed before the court is not in sealed condition. The oral evidence of PW.3 to PW.5 and PW.6 which is not supported by any independent witnesses and not corroborating with each other creates doubt aver their version. Hence, on an appreciation of the evidence on record, this court of the opinion that the prosecution has failed to prove the guilt of the accused for the offences punishable u/s.135 of The Electricity Act beyond all reasonable doubt. Hence I answer point no.1 in the negative. Point No.2:-
17 Spl.C.No. 598/2019
22. For the foregoing reasons, I proceed to pass the following:
O R DE R Acting U/Sec.235(1) of Cr.P.C., the accused Srihari is hereby acquitted of the offence punishable u/s.135 of The Electricity Act, 2003.
The bail bonds of the accused and his surety stand cancelled.
However the bond executed in compliance of Sec. 437A of Cr.P.C., shall be in force till statutory period.
M.O.1 meter shall be returned to the BESCOM for disposal in accordance with law.
(Dictated to the Judgment Writer, transcribed by him, transcript corrected, signed and then pronounced by me in open Court on this the 9th day of March 2020.) (MOHAN PRABHU), LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.18 Spl.C.No. 598/2019
A N NE X U R E
1.Witnesses examined for the prosecution side:
P.W.1: Dhananjaya P.W.2: Lokesh P.W.3: Vinod P.W.4: Jayanna P.W.5: Smt. Umadevi P.W.6: Mohammed Asif Ulla Khan
2. Documents marked for the prosecution side:
Ex.P.1 : Document regarding BBC amount Ex.P.1(a) : Signature of P.W. Ex.P.2 : Panchanama Ex.P.2(a) : Signature of P.W.1 Ex.P.2(b) : Signature of P.W.6 Ex.P.3 : Statement g of PW.2 before PI Ex.P.4 : Inspection Report Ex.P.4(a) : Signature of P.W.4 Ex.P.4(b) : Signature of P.W.6 Ex.P.5 : Mahazar Ex.P.5(a) : Signature of P.W.4 Ex.P.5(b) : Signature of P.W.6 Ex.P.6 : FIR Ex.P.6(a) : Signature of P.W.4 Ex.P.7 : PF 19 Spl.C.No. 598/2019 Ex.P.7(a) : Signature of P.W.4 Ex.P.8 : Covering Letter Ex.P.8(a) : Signature of P.W.5 Ex.P.9 : Inspection Report Ex.P.10 : Copy of Electric sanction Ex.P.11 : Copy of Agreement Ex.P.12 : Copy of Sketch Ex.P.13 : Copy of Test Certificate Ex.P14 : Copy of Tax Invoice Ex.P15 : Copy of Receipt Ex.P16 : Copy of Order Ex.P17 to 19 : Copies of 3 documents regarding meter Ex.P20 : Pahani regarding land
3. Witnesses examined for the defence side:
DW.1 : Srihari
4. Documents marked for the defence side:
Ex.D1 : Partition Deed subject to objection
5. List of material objects :
M.O.1 : Meter (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore. 20 Spl.C.No. 598/2019 Judgment pronounced in the open court vide separate detailed O R DE R Acting U/Sec.235(1) of Cr.P.C., the accused Srihari is hereby acquitted of the offence punishable u/s.135 of The Electricity Act, 2003.21 Spl.C.No. 598/2019
The bail bonds of the accused and his surety stand cancelled.
However the bond executed in compliance of Sec. 437A of Cr.P.C., shall be in force till statutory period.
(MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.