Delhi District Court
State vs . Baljeet Singh on 13 July, 2011
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IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR NO. 327/98
P.S. Sultan Puri
U/s. 39/44 of I.E
STATE VS. BALJEET SINGH
JUDGMENT :
a. Sl. No. of the case : 2219/07
b. Date of Institution : 12.07.1999
c. Date of Commission of Offence : 14.05.1998
d. Name of the complainant : Sh. Sant Ram,
Asstt. Engineer,
Zone 519
e. Name of the accused and his : Baljeet Singh
parentage and address S/o Sh. Rang Singh
R/o H.No.112, Village Pooth Kalan,
Delhi.
f. Offence complained of : U/s 39/44 of I.E. Act
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 13.07.2011
i. Final Order : Acquitted
j. Date of such order : 13.07.2011
1. The accused was put on trial for the facts that on 14.05.98 at Baljeet Ice Factory, Main Sultanpuri Road, Village Pooth Kalan, Delhi accused was found indulged in direct theft of electricity directly tapping DVB L V Mains through S/C leads/cables of different sizes and colours and thereby committed an offence 2 punishable under section 39/44 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 39/44 of I.E. Act.
2. A prima facie offence having been made out against the accused, charge was framed against him on 14.05.98 under section 39/44 of I.E. Act to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined seven witnesses namely Sant Ram as PW1, K P S Yadav as PW2, HCt. Harbhajan as PW3, Kishore Kumar Bhatia as PW4, SI S K Rana as PW5, Mahender Gupta as PW6, and ASI Satbir Singh as PW7.
4. PW1 Sant Ram has testified that on 14.5.98 he along with S S Antil, V S Sharma, N K Dhawan, Mahinder Gupta, police and photographer went to Village Poot Kalan for conducting raid where they conducted raid at the premises of Baljeet Singh Ice Factory Main Sultanpuri Road, Poot Kalan where electricity was being stolen directly from DVB L V mains by bypassing the meter and a meter no. 4H9606490 was installed in the premises and connected load 87 KW approx. was found connected. Cable and meter were removed and handed overto police on 14.5.98 vide memo Ex.PW1/A and thereafter photographes were taken and witness identified one photograph shown to him and he brought he negative of that photograph, photograph is exhibited as Ex.P1 and negative is Ex.P2. Thereafter JIR was prepared Ex.PW1/B on which basis he lodged complaint to SHO Ex.PW1/C and he also issued permission u/s. 50 I E Act Ex.PW1/D. Case property is produced in unsealed condition which consists of 3 meter no. 4H9606490 and single core wire of different color and size of 95 mm sq. and a S/cable about 15 meter 4X95 mm sq. which witness identified as Ex.P1 and meter along with M S Box is P2.
During cross examination PW1 has deposed that on the relevant day 2030 people conducted the raid in 7 premises and gave instructions to remove the electric wire to his colleague and accused was stealing the electricity from L V mains passing through and he admits that raid was conducted in the adjacent premises and case property taken from the adjacent property and of the present case were shown together and that he do not know whether accused Baljeet was present at the time of raid or not and his name was revealed from a person available at the spot and he denied the suggestion that any case property was taken from the said premises or that no raid was conducted.
5. PW2 K P S Yadav has testified that on 14.05.1998 he along with Sant Ram, S S Antil, N K Dhawan, and other DVB officials went to Village PootKalan and conducted raid at the Baljeet Ice Factory main Sultanpuri Road, where electricity was being stolen directly from DVB L V Mains by bypassing the meter by connecting the single core wire for a connected load of 87 KW approximately and after taking one photograph which he identified as Ex.P1, the case property was removed i.e. one meter and cable and wire. JIR Ex.PW1/B was prepared. He identified the case property as Ex.P1 and P2.
During cross examination PW2 has deposed that he does not remember how many officials from DVB and police joined the raid conducted at Nangloi Road, Poot Kalan Village and he also inspected other premises along with other team and upon instruction of Enf. team, the electric wires was removed by labour. The case property was 95 mm sq. and can bear the connected load and wire was of 18 meter in length in three pieces but case property was not sealed. He 4 denied the suggestion that case property removed from the adjacent premises was shown today in the court. He further testified that there was no number in the premises. Enf. team inquire about the premises from the labour regarding ownership/user and he does not remember whether Baljeet who was stated to be user of the raided premises was present or not. He denied the suggestion that no raid was conducted at the premises of accused Baljeet Singh or that there was no factory of accused Baljeet Singh at the raided premises.
6. PW3 HCt. Harbhajan Singh has testified that on 14.5.98 on receipt of complaint through Reader, SHO he registered the present FIR Ex.PW3/A.
7. PW4 Kishore Kumar Bhatia has testified that on 14.5.98 he was working as photographer at D4/280, Sultanpuri and he along with DVB officials went to Village Poot Kalan where they took photographs of the premises of Ice Factory situated at main Sultanpuri Road. Photographs and negatives are shown to the witness and he identified the photograph as Ex.P1.
During cross examination PW4 has deposed that on that day many raids were conducted and he went along with DVB officials but he does not remember how many places they raided. He denied the suggestion that he took the photographs where the raid was not conducted.
8. PW5 SI S K Rana has testified that on 19.05.98 investigation of this was marked to him and on 25.05.98 he recorded the statement of DVB officials in their offices at Rohini Zone,Shalimar Bagh, and Shankar Road and on 1.6.98 he arrested the accused Baljeet and his personal search was carried out vide memo Ex.PW5/A and he also recorded the statement of photographer Parveen on 25.5.98. He collected one photograph along with negatives and he seen the 5 photograph and negative and stated that this is same photograph which was handed over to him by AE Sant Ram.
During cross examination PW5 has deposed that he visited the place concerning to FIR and inquired from the accused regarding the ownership of factory and neighbor told him that the user of the raid premises is Baljeet Singh but they refused to disclose their names. He further deposed that in the photograph Ex.P1 he can identify the premises by seeing its color and by construction. He further deposed that he asked the accused about proof of ownership and possession but he refused to furnish the same and accused admits that raided premises belongs to him. He denied the suggestion that he does not collect the documents of factory or that same has been done in the office of DVB with the collusion of DVB officials.
9. PW6 Mahender Gupta has testified that on 14.5.98 he along with N K Dhawan, Sant RamAE, K PS Yadav, B L Sharma, S S Antil, police and photographer went to Village Poot Kalan main road and they raided at premises of Baljeet and one Ice Factory was being run by direct tapping from DVB L V Mains, necessary photographs were taken by photographer arranged by AE Zone, illegal wires were removed. JIR was prepared which is Ex.PW1/B. He identified the photograph Ex.P1 to be of the same premises where raid was conducted.
During cross examination PW6 has testified that 67 premises were raided on that day and workers told them that raided premises belong to the accused and the workers did not disclose their name but they were working there and at the time of raid accused Baljeet was not present at the spot but his workers disclosed that premises belongs to Baljeet and photographs were taken by AE Zone. He further testified that he cannot identify the photograph Ex.P1. He denied the suggestion that raided premises does not belong to accused but to his elder 6 brother Balbeer or that they have not raided the premises belongs to accused.
10. PW7 ASI Satbir has testified that on 14.5.98 he seized the meter no. 4H9606490, K.No. 177964 and reading 5005 and 95 mm S/Core wire and the service cable around 15 meters was seized vide Ex.PW1/A produced by AE Sant Ram.
Accused did not prefer to cross examine this witness.
11. After closing of prosecution evidence, the statement of accused u/s 281 Cr.P.C r/w. 313 Cr.P.C was recorded on 7.08.2006. In his statement he denied to have committed the offence and stated that he never involved in running of any ice factory and only used to reside in Village Pooth Kalan and shows his ignorance about conducting of any raid on 14.5.98 by DVB officials and claimed to be innocent and to have been falsely implicated in the present case. He did not lead any evidence in defence.
12. 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.
13. To bring home the charge under section 39/44 of the I.E. Act, 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 7 abstraction. Under section 44 of I.E. Act, it must be proved that the accused was the consumer having the custody or control of the meter and the meter was tampered with so as to prevent it from duly registering the energy being consumed.
14. 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.
15. In another case, Jagannath Singh v. 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 to record less than the units actually passing through it, the consumer may take the unrecorded energy without paying for it.
16. However existence of a tampered meter, does not amount to 'such an artificial means for the abstraction of electricity' as would make it an offence under section 39 of the Act. Similar views have been expresses in Jagarnath Singh v. Krishna Murthy and another, A.I.R 1967 S.C. 947.
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17. Another essential requirement of law for prosecution 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.
18. 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. PW3 is the DO who proved FIR Ex.PW3/A and PW4 is photographer and proved photograph Ex.P1. PW5 and PW7 are IOs of this case. PW1, PW2, PW6 are raiding team members. They all have deposed during their cross examination that they does not know or remember whether accused Baljeet was present at the time of raid at the spot and PW5/second IO of this case has deposed that he asked the accused about proof of ownership and possession but he refused to furnish the same. None of the raiding team members deposed a single word regarding collection of any documentary proof which could connect the accused with the raided premises in any manner or to show him user of electricity at the time of raid. Neither have they deposed about the presence of accused at the time of raid in the premises in question nor identified him before the court.
19. The existence of some artificial means which was used by the accused to commit the theft is another condition which the prosecution carries the 9 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, accused was found indulged in theft of electricity by directly tapping DVB L V Mains through S/C leads/cables of different colors and sizes. However, in the present case, the recovery as well as seizure of such article/wires/meter itself is unreliable as the recovered article/wires/meter which was allegedly used for the commission of offence has been produced before the court in unsealed condition. No specific mark of identification was also put upon the case property. However, it is on record that wires and meter were removed from the spot and PW7/first IO has testified that he seized the wire and service cable vide memo Ex.PW1/A but he has not deposed anything regarding sealing of case property. PW2 who is one of the raiding team member also categorically stated during his cross examination that case property was not sealed so possibility of tampering with the case property cannot be ruled out. It is pertinent to mention here that PW1 who is another raiding team member admits during his cross examination that the case property taken from the adjacent property and the case property taken in the present case were shown together.
20. The prosecution case becomes all the more unreliable for non association of any public witness at the time of raid. PW6 has deposed that workers working at the spot told them that raided premises belongs to accused whereas PW5/second IO of this case has deposed that neighbors told him that user of raided factory is Baljeet Singh but they refused to disclose their names. These neighbors/workers were not made a witness in this case by the prosecution. All the witnesses who joined the raid are government officials with no independent witness to corroborate them.
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21. Only evidence which has come on record and which has been duly proved is JIR Ex.PW1/B, complaint Ex.PW1/C, permission u/s. 50 I.E. Act Ex.PW1/D, arrest memo Ex.PW5/A and seizure memo Ex.PW1/A and photographs Ex.P1 but these documents are not sufficient evidence and accused cannot be held at guilty only on the ground of same.
22. 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.
23. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and therefore accused Baljeet Singh is acquitted for the offence punishable U/s 39/44 of I.E. Act for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 13.07.2011 Metropolitan Magistrate
South District/New Delhi
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FIR No. 327/98
PS Sultan Puri
u/s 39/44 of I.E. Act
13.07.2011
Present: Ld. APP for the State.
Accused Baljeet Singh on bail.
Final arguments heard.
Put up for orders at 3.30 pm.
(Deepak Sherawat)
MM/South Delhi/ 13.07.2011
At about 3.30 pm
Present: As above.
Vide my separate judgment dictated and announced in the open court accused Baljeet Singh is acquitted for the offence punishable U/s 39/44 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/ 13.07.2011 12