Bangalore District Court
The State Of Karnataka By vs Paramesh Dulappanavar on 1 March, 2017
IN THE COURT OF THE X ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY (CCH-26)
Dated this the 1st day of March 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.192/2010
COMPLAINANT: The State of Karnataka by
BESCOM. KPTCL Vigilance,
Rajajinagar Police Station,
Bangalore.
(By Learned Public Prosecutor)
Vs.
ACCUSED: 1. Paramesh Dulappanavar
S/o.Late Shivalingappa
Dulappanavar
32 years
Manager-Partner,
Peerlet Heat Treaters,
Shed No.182, 5th main,
2nd Stage, Peenya Indl Estate
Andrahalli Main Road,
Bangalore-58.
2. R.Laxman
S/o.Late Rangaswamy
28 years,
Shed No.182, 5th Main, 2nd Stage
Peenya Indl. Estate,
2 Spl.C.C.No.192/2010
Andrahalli Main Road,
Bangalore-58.
3. Gundappa
S/o.late Giriyappa
65 years
R/a.No.377, 8th Main,
Basaveshwaranagar
Bangalore-560 079.
4. Umesh
S/o.Late Muniyappa
39 years
R/o.Hiriyaiahna Palya
Annapoorneshwari Nagar
Sunkadakatte,
Bangalore.
5. Krishna.H.C.
S/o.Chennagowda
38 years,
R/o.No.76/14, 4th Main,
Narasimhaiah layout,
Nandini Layout Post,
Bangalore-96.
1. Date of Commission : 03.02.2009
of Offence
2. Date of Report : 04.02.2009
of Offence
3. Status of the accused : Accused are on bail
4. Name of the complainant : Sri.H.R.Srinivas
5. Date of Commencement of :
05.10.2012
evidence
3 Spl.C.C.No.192/2010
6. Date of Closing of :
16.01.2016
Evidence
7. Offence complained of : Under section 135 and
138 of Electricity Act
8. Opinion of the Judge : Accused not found
guilty
JUDGMENT
The Police Inspector of Vigilance, BESCOM, Rajajinagar Police Station, has filed the charge sheet against the accused for the offence punishable under Section 135 and 138 of Electricity Act, 2003.
2. The case of the prosecution in brief is that the accused No.2 R. Laxman was the owner of Shed bearing No.182, 5th Main, II Stage, Peenya Industrial Estate, Andhrahalli Main road, Bengaluru. The accused No.1 - Paramesh Dulappanavar taken that property from the accused No.2 to run industry by name Pearl Light Heat Treaters. He had taken electricity connection to his factory from BESCOM which has installed the Meter bearing R.R.No.PNP 4008. The accused No.1 was running such factory. It is the case of the prosecution that on 03.02.1999 CW.1 and his team visited to the 4 Spl.C.C.No.192/2010 premises of accused Nos.1 and 2 at about 12.30 P.M. and at that time the CW.1 and his team noticed tampering of the seal of the meter and electricity theft by the accused Nos.1 and 2. Therefore, the CW.1 and his team disconnected the electricity and found that the accused Nos.1 and 2 with the assistance of accused Nos.3 to 5 tampered the meter and committed theft of electricity to the extent of 44.12 K.W. worth of Rs.21,78,432/-. Even under investigation it has been found that the accused Nos.1 and 2 with the assistance of accused Nos.3 to 5 committed electricity theft and accordingly this charge sheet has been filed.
3. After submission of the final report, the presence of the accused was secured. The accused Nos.1 to 5 appeared through their counsel and they were enlarged on bail. The charge sheet copy was furnished to the accused. After hearing, my Learned Predecessor in Office has framed the charge against the accused No.1 for the offence under Section 135 of Electricity Act, 2003 and also framed charge against the remaining accused for the offence under Section 138, 135 read with Section 150 of Electricity Act, 5 Spl.C.C.No.192/2010 2003. The accused Nos.1 to 5 pleaded not guilty and claim to be tried.
4. In order to prove the guilt of the accused Nos.1 to 5, the prosecution examined nine witnesses as P.W.1 to P.W.9, got marked 8 documents at Ex.P.1 to P.8 and Material Object at M.O.1 which is electricity meter. Accused Nos.1 to 5 examined under section 313 of Cr.P.C. Accused not adduced evidence in their defence.
5. The learned Public Prosecutor has argued that the evidence of P.W.1 to 9 is sufficient to establish the guilt of all the accused alleged in the charge sheet and therefore, prayed to convict the accused. The learned defence advocate has referred many admissions given by the prosecution witnesses to the effect that there is no electricity theft and even there was no meter tampering. He has also argued that the prosecution has not produced any records to show that the accused No.2 was the owner of the shed and the lese deed produced at Ex.P.8 has not been executed by accused No.2. Then also the prosecution has falsely implicated the accused No.2 stating that he was the owner of the premises. He 6 Spl.C.C.No.192/2010 has argued that the evidence on record is not sufficient to prove the guilt of the accused for any of the offences leveled against them and accordingly prayed to acquit the accused.
6. 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 03.02.2009 at about 12.30 P.M. the accused No.1 being the registered consumer of electricity meter bearing R.R.No.PNP-4008 found committing with theft of electricity by tampering the meter and seal and thereby he has caused loss of Rs.21,78,438/- to the BESCOM and thereby accused No.1 has committed the offence under section 135 of Electricity Act, 2003?
2. Whether the prosecution proves beyond reasonable doubt that the accused No.2 being the owner of the premises and the accused Nos.3 to 5 have instigated or assisted the accused No.1 in tampering the mater and seal of the above said meter and thereby they have also committed the offence under Section 138 of electricity Act, 2003?
3. What Order?7 Spl.C.C.No.192/2010
7. My findings to the above points are as under:-
POINT Nos.1 & 2 :- In the Negative
POINT No.3 :- As per final order
for the following:-
REASONS
8. POINT NOs.1 & 2 :- The accused No.2 has denied
his ownership or control over the premises where the electric meter was installed and therefore, the prosecution is required to establish the status of the accused No.2 either as a owner of the premises or he had control over the premises at the relevant time. In order to prove this fact, the prosecution has relied upon rent deed produced at Ex.P.8 dated 10.09.2007. In this deed it has been shown that (1) M. Muniraju, (2) Manjunath A., (3) Paramesh Dulappanavar who is accused No.1 executed this rent deed in favour of Smt. Channamma. In the rent deed it has been shown that the rent is relating to the property bearing No.C-182 and C-182/1 situated in 2nd Main, Peenya. This property relates where the meter was installed. Therefore, Ex.P.8 relied upon by the prosecution itself indicate that Smt. Channamma was the owner of the property and she has given 8 Spl.C.C.No.192/2010 such property to the accused No.1, M. Muniraju and others on rent on 10.09.2007. Therefore, now the prosecution cannot deny the ownership of Smt. Channamma over the property where the meter was installed. This Ex.P.8 and the evidence of the Investigating Officer who has collected Ex.P.8 itself sufficient to falsify the case of the prosecution that the accused No.2 was the owner of the premises. There is no other evidence on record to show that accused No.2 was the owner of the premises where the electricity meter was installed. Thus, I hold that the prosecution initially failed to establish that the accused No.2 was the owner of the premises where the electricity meter was installed.
9. The accused No.1 totally denied the theft of electricity including tampering of meter and seal. The accused Nos.2 to 5 have denied their abatement or assistance for tampering of the meter or seal. Therefore, each allegation has to be proved by the prosecution against the accused. The P.W.1, 2 and 5 are the BESCOM officers. The P.W.3 and 4 are the Panch witnesses who were present at the time of inspection made by the BESCOM officers. P.W.7 and 8 are the Police Officers who were also present 9 Spl.C.C.No.192/2010 at the time of inspection of installation by BESCOM officers. The P.W.6 is the Assistant Executive Engineer, KPTCL who has furnished the consumption details and provisional bill at Ex.P.5 and 6 to the Investigating Officer. The P.W.9 is the Investigating Officer.
10. The P.W.6 has stated that the electricity connection was given to M/s. Multi Heat Treaters and meter bearing R.R.No.PNP- 4008 was installed. According to him M/s. Multi Heat Treaters was the registered consumer. In the cross-examination he was not able to state the name of owner of M/s. Multi Heat Treaters. In the cross- examination of prosecution witnesses, the accused No.1 not denied his ownership of M/s. Multi Heat Treaters. On the other hand, in the cross-examination of prosecution witnesses, the accused No.1 has suggested that he has not committed the theft of electricity while running the above said industry by tampering the meter and seal. Therefore, even though there is no direct evidence that accused No.1 was the Proprietor of M/s. Multi Heat Treaters, the oral evidence of BESCOM officers and Police witnesses including the suggestions made to those witnesses by the accused No.1 are sufficient to hold that the accused No.1 was the Proprietor of M/s. 10 Spl.C.C.No.192/2010 Multi Heat Treaters and he had obtained electricity connection to his establishment in industrial area.
11. Whether the accused No.1 was committing the electricity theft by tampering the meter and seal is the important question to be decided with reference to the evidence. The P.W.1, 2, 5, 7 and 8 who are the BESCOM Officers and Police witnesses have stated that on 03.02.2009 the P.W.1 inspected the meter bearing R.R.No.PNP-4008 situated in C-182, 5th Main, Peenya Industrial Area, Andrahalli Main road, where there was heat treatment plant. They have also stated that M.T. lab seal of the meter was fake and there was electricity theft by the consumer. The accused have denied tampering of meter and seal including the electricity theft in the cross-examination of these witnesses. The P.W.1 has drawn the inspection report at Ex.P.2 on the spot and Panchanama at Ex.P.3 and thereafter given his opinion to the Vigilance Police which is produced at Ex.P.1. The meter inspection report is at Ex.P.4. The P.W.3 and 4 who are the contractors have put their signature on Ex.P.3. In the evidence all the witnesses have admitted that the witnesses signed on Ex.P.3 are the official witnesses and no general 11 Spl.C.C.No.192/2010 public was called to sign on the Panchanama at the time of inspection. Some of the witnesses have admitted that there are other industries surrounding the scene of offence and public was present. Then also the P.W.1 has not taken the signature of independent local person for drawing of Panchanama which creates some doubt. In these records it has been shown that meter and seals were tampered and there was electricity theft.
12. The P.W.1 in his cross-examination has admitted that the electricity theft includes providing external devices inside the meter. In Page No.5 the P.W.1 has categorically admitted that there was no tampering of meter chamber of meter bearing R.R.No.PNP- 4008. He has admitted that it is not possible to tamper the meter chamber. He has also admitted that himself and his staff not seen the theft of electricity. He has further admitted that seals fixed to the tamper proof box and CT PT chamber were original. He has admitted that there were no special signs of tampering of meter. He has also admitted that there was no external device inside or nereby or surrounding the meter. In Page No.7 of the cross-examination P.W.1 has admitted that there was no tampering in terminal board of 12 Spl.C.C.No.192/2010 installation. In the same page he has further admitted that he has not tested the correctness of the working condition of the meter. He has categorically admitted that if the meter is not accessible, the consumer cannot meddle with the meter. All these statements made by P.W.1 in the cross-examination clearly show that there was no electricity theft and even there was no tampering of meter or the seal relating to R.R.No.PNP-4008. The P.W.1 in the cross-examination has admitted that fake seals were not produced before the court. In Ex.P.3 it has been shown that there were five seals to the meter and none of the seals were seized by P.W.1 or produced before the court either by P.W.1 or by the Investigating Officer. If really the seals were fake, those seals were recovered under the Panchanama at Ex.P.3, the prosecution would have produced such fake seals. The non-production of fake seals itself creates doubt about the inspection of meter by P.W.1 and his staff and tampering of meter.
13. The P.W.2 was working as Assistant Executive Engineer, MT/LT Rating Sub-division, BESCOM, Malleswaram at the relevant time. In his cross-examination he has admitted that except one seal other three seals were intact. He has stated that such fact 13 Spl.C.C.No.192/2010 has not been shown in Panchanama at Ex.P.3. This witness is one of the signatories to Ex.P.3. As already stated the seals said to be found at the time of inspection have not been produced. This statement of P.W.2 is contrary to the evidence of P.W.1. The P.W.2 has given the report at Ex.P.4 stating that meter body is opened, seal is duplicate and fake. He has also stated in the report that Company seals of the meter were not there and those seals were also fake. In the cross-examination at Page No.4 the P.W.2 has stated that he has not given the report regarding the mode of committing theft of electricity. The P.W.4 is the expert and therefore, it is expected from him to state the mode of committing theft of electricity. He himself does not know such mode and therefore, such evidence creates doubt.
14. The P.W.2 in the cross-examination at Page No.4 surprisingly denied the very identity of M.O.1 seized under Ex.P.3. According to him the meter at M.O.1 is not belong to this case which was seized on 03.02.2009 by P.W.1. This statement of P.W.2 shows either meter at M.O.1 not relating to R.R.No.PNP-4008 or he was not present at the time of inspection on the spot. The P.W.2 in 14 Spl.C.C.No.192/2010 his cross-examination at Page No.5 in Para No.2 has admitted that there was no insertion of any foreign object into the meter for its low consumption. In Page No.6 he has given his opinion that tampering of the meter cannot be ascertained in the digital meter unless it is opened. These statements of P.W.2 show that the meter was not opened and tested on the spot to ascertain whether the meter was tampered. The statements of P.W.2 further show that there was no low consumption in the meter. On perusal of entire evidence of P.W.2 in the light of the discussion made above, there is reasonable doubt about his presence at the time of inspection and there is a cloud on his report at Ex.P.4 regarding tampering of the meter, seal and electricity theft.
15. The P.W.5 who was the Junior Engineer has stated that on the information given by P.W.1 he went to the spot along with linemen CW.9 and disconnected the power supply and signed on Ex.P.3 Panchanama. This witness in the cross-examination has admitted that he has no personal knowledge about tampering of meter. He has also admitted that without tampering or removing the seal of the T.P.Box meter cannot be tampered. The evidence of 15 Spl.C.C.No.192/2010 P.W.5 at the most show that after information from CW.1 he went to the spot along with linemen and disconnected the electricity supply. He was not present along with CW.1 when it was inspected initially. Therefore, his evidence is not sufficient to prove the tampering or electricity theft by the accused No.1.
16. P.W.7 the Police Officer has stated that on 03.02.2009 he also went along with P.W.1 to the installation and found the meddling of the meter. But in the cross-examination P.W.7 has admitted that he has not seen the meddling of meter. He has also admitted that meter was fixed in C.T. Box covered with chamber proof. He has also admitted that without tampering the C.T. Box and tamper proof box, the seal of the meter cannot be tampered. The evidence of P.W.1 extracted above shows that there was no tampering of C.T. Box and proof box and therefore, according to the evidence of P.W.7 there was no possibility of tampering the meter without touching the C.T. Box which shows that there was no tampering of meter and electricity theft.
17. P.W.8 who was working under P.W.7 as Head Constable has stated that he also went along with P.W.1 and 7 to 16 Spl.C.C.No.192/2010 the spot at the time of inspection. He has spoken about verification of meter by P.W.1 and his staff and reiterated their opinion. The P.W.8 has admitted in the cross-examination that he is not an expert to say whether the seals found on the spot were fake or genuine. The evidence of P.W.8 is depending upon the opinion expressed by P.W.1 and his staff who were experts in the field. Therefore, the evidence of P.W.8 at the best shows that he was present in the premises where the meter was fixed when it was inspected by P.W.1 and nothing more.
18. The P.W.3 and 4 are the electrical contractors and in their evidence they have stated that as per the direction given by Assistant Engineer - Shivakumar, they went to 2nd Stage, Peenya Industrial Estate. There was heat treatment plant. They have also stated that Vigilance Assistant Engineer and his staff were present and they obtained their signature on Ex.P.3. the accused have not cross-examined both witnesses. Therefore, the statement made by P.W.3 and 4 about their presence and the presence of P.W.1 and his staff in the premises where meter was installed has not been disputed. The evidence of P.W.3 and 4 show that they were also 17 Spl.C.C.No.192/2010 present when P.W.1 has inspected the meter bearing R.R.No.PNP- 4008. These two witnesses are signatories to Ex.P.3. These two witnesses have not stated about the seizure of meter and seals at the time of Panchanama. The P.W.3 and 4 have admitted that meter and seals were shown to them stating that they were fake. But the prosecution has not produced the seals which were shown to P.W.3 and 4 at the time of drawing Panchanama at Ex.P.3. Therefore, even though these two witnesses were not cross- examined by prosecution, then also the statement of P.W.3 and 4 is not sufficient to hold that accused No.1 or other accused tampered the meter and the seals in order to commit the electricity theft.
19. The P.W.9 who is the Investigating Officer in order to prove that the meter installed in the premises of accused No.1 was tampered with fake seal required to send the meter and seal to the experts. But in the cross-examination the P.W.9 has admitted that he has sent the meter and the seal to the expert, M.T. Division for testing, but he has not collected the report from M.T. Division and such report has not been filed along with the charge sheet. This statement of P.W.9 clearly shows that the meter and the seals 18 Spl.C.C.No.192/2010 seized under Ex.P.3 by the P.W.1 and his staff not subjected to opinion of the expert which is very essential. Without the opinion of the expert it cannot be held that the meter installed in the premises of accused No.1 including the seals were tampered. There is lacuna on the part of P.W.9 in conducting the investigation as he has not obtained the expert's opinion even though he has sent the meter and the seals to the expert. Considering these evidence on record it is very clear that there are reasonable doubts about committing of electricity theft, tampering of meter and seals relating to meter bearing R.R.No.PNP-4008. Hence, I hold that the prosecution has failed to prove the tampering of meter and seal including the electricity theft said to be committed by the accused No.1 beyond reasonable doubt.
20. What is the role of accused Nos.2 to 5 in the alleged crime spoken by the witnesses has to be analyzed to find out whether the accused Nos.2 to 5 have committed any offence. In the charge sheet in Column No.7 there is no allegation against the accused Nos.3 to 5 in any manner. However, the Investigating Officer has invoked Section 138 of Electricity Act against the 19 Spl.C.C.No.192/2010 accused Nos.3 to 5 without specific allegation. The BESCOM Officers including the Police witnesses in their examination-in-chief not spoken about the role of the accused Nos.3 to 5 in the alleged commission of offence. The P.W.1 in the cross-examination in Page No.3 has stated that accused Nos.2, 3 and 4 including their associates were involved in case of fake seals. The P.W.9 Investigating Officer in his cross-examination has admitted that the name of accused No.2 does not find place in Ex.P.8. These are the only statements made by two witnesses relating to accused Nos.2 to
5. There is no evidence on record that accused Nos.2 to 5 instigated the accused No.1 or facilitated the accused No.1 in tampering the meter or seal or committing the electricity theft from the meter bearing R.R.No.PNP-4008. Without any material the Investigating Officer has implicated accused Nos.2 to 5. Absolutely there is no evidence against accused Nos.2 to 5 for the offence punishable under section 138 of Electricity Act. Thus, I hold that the accused Nos.2 to 5 shall not be held guilty for the offences punishable under Sections 135 or 138 of Electricity Act, 2003. Hence, these points are answered in the Negative. 20 Spl.C.C.No.192/2010
21. POINT No.3:- In view of my above discussions, I proceed to pass the following:-
ORDER Acting under Section 235 of Cr.P.C., the accused Nos.1 to 5 are acquitted for the offences punishable under Sections 135 and 138 of Electricity Act, 2003.
The bail bond and surety bond of the accused and their sureties stand cancelled.
Seized property M.O.1 - electricity Meter being worthless is 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 1st day of March 2017).
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE C/c of X ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.
21 Spl.C.C.No.192/2010ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 H.R.Srinivas
P.W.2 Purushotham
P.W.3 Bhuvanesh
P.W.4 Mallesh
P.W.5 H.L.Ramesh
P.W.6 Rajanna
P.W.7 M.R.Gowtham
P.W.8 P.Shivakumar
P.W.9 Siddamallappa
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint
Ex.P.1(a) Signature of P.W.1
Ex.P.2 Inspection Report
Ex.P.2(a to c) Signatures
Ex.P.3 Mahazar
Ex.P.3(a to g) Signatures of P.W.3
Ex.P.4 Motor Inspection Report
Ex.P.4(a and b) Signature of P.W.2 and 7
Ex.P.5 Bill Consumption details
Ex.P.5(a) Signature of P.W.9
Ex.P.6 Provisional bill
Ex.P.7 FIR
Ex.P.7(a) Signature of P.W.7
Ex.P.8 Rental Agreement
LIST OF WITNESSES EXAMINED FOR DEFENCE:
NIL
22 Spl.C.C.No.192/2010
LIST OF DOCUMENTS MARKED FOR DEFENCE:-
NIL
MATERIAL OBJECTS MARKED:-
M.O.1 Electricity Meter
(B. B. JAKATI)
LIX ADDL. C.C. & SESSIONS JUDGE
C/c of X ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
23 Spl.C.C.No.192/2010
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 Nos.1 to 5 are acquitted for the offences punishable under Sections 135 and 138 of Electricity Act, 2003.
The bail bond and surety bond of the accused and their sureties stand cancelled.
Seized property M.O.1 - electricity Meter being worthless is 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.
24 Spl.C.C.No.192/2010