Bangalore District Court
State By Bescom Vigilance Police vs ) Syed Rafeeq S/O Late Samad Sab on 7 May, 2016
IN THE COURT OF X ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-26).
DATED THIS THE 7th DAY OF MAY, 2016
Present
Sri G.K. GOKHALE, M.A., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
Spl.C.C.No.62/2010
COMPLAINANT: State by BESCOM Vigilance Police
Indiranagar Police Station,
Bangalore.
(By Learned Public Prosecutor)
v/s
ACCUSED : 1) Syed Rafeeq s/o Late Samad Sab
55 years, No.2, 18th Street
Chandini Chowk Road
Shivajinagar, Bangalore.
2) Riyaz s/o Late Samad Sab (Dead)
3) Gundappa s/o Late Giriyappa
65 years, No.377, 8th 'A' Main
Basaveshwaranagar, Bangalore.
(By Sri G.R. Ravichandra Reddy, Adv.
to A.1 & A.3 by Sri V. Seenappa,
Adv.)
***
JUDGMENT
The above named accused persons are charge sheeted by the Police Inspector, BESCOM Vigilance, Indiranagar Police Station, Bangalore for the offences 2 Spl.C.C.62/2010 punishable under Sections 135 & 138 of Indian Electricity Act, 2003.
2. The brief facts of the prosecution case are that:-
The complainant has visited the Ice Factory running by the accused No.1 & 2 on 14.11.2008 at about 2.00 p.m. and along with C.W.2 & C.W.3, he inspected the meter bearing R.R.No.2EP-1578 and found tampered authorized seal to the meter by removing the screws and through the hole of the removed screw inserted one silk card wire, stopped the disc of the meter as not to record electricity consumption and by this manipulation utilized unauthorized consumption to the capacity of 6.5 HP and committed theft of electricity to a tune of Rs.1,82,894/-
and caused loss to the BESCOM with fraudulent intention and thereby, the accused have committed the offences punishable under sections 135 & 138 of Electricity Act, 2003.
3. The A.E.E.- Shivaprakash got removed the said electricity meter with the help of linemen and seized the said meter by conducting panchanama and he prepared inspection report on the spot and thereafter he 3 Spl.C.C.62/2010 lodged the complaint before BESCOM Police. The Police registered case in Crime No.151/2008. After obtaining lab report and connected documents, the Investigating Officer filed the charge sheet by completing investigation.
4. In pursuance of the summons, the accused persons appeared and got released on bail. During pendency of the case, the second accused reported to be dead. Case against him is abated. After hearing, the charge for the offence punishable u/s 135 & 138 of Electricity Act has been recorded. The accused 1 & 3 pleaded not guilty and claimed for trial. The prosecution examined P.W.1 to P.W.5 and got marked the documents- Ex.P.1 to Ex.P.11 and material objects M.O.1 to M.O.5. The statement u/s 313 Cr.P.C. has been recorded. The accused persons have denied the evidence of prosecution as false. The accused persons have examined D.W.1 and they have not produced any documents.
5. Heard arguments.
6. The points that arise for my consideration are:-
1) Whether the prosecution proves beyond reasonable doubt that the complainant 4 Spl.C.C.62/2010 has visited the Ice Factory running by the accused No.1 & 2 on 14.11.2008 at about 2.00 p.m. and along with C.W.2 & C.W.3, he inspected the meter bearing R.R.No.2EP-1578 and found tampered authorized seal to the meter by removing the screws and through the hole of the removed screw, inserted one silk card wire stopped the disc of the meter as not to record electricity consumption and by this manipulation utilized unauthorized consumption to the capacity of 6.5 HP and committed theft of electricity to a tune of Rs.1,82,894/- and caused loss to the BESCOM with fraudulent intention and thereby, the accused have committed the offences punishable under sections 135 & 138 of Electricity Act, 2003?
2) What order?
7. My findings to the above points are as under:-
1) In the negative,
2) As per final order, for the following;
REASONS
8. Point No.1:- In order to prove the guilt of the accused, the prosecution has examined in all 5 witnesses. The P.W.1- M. Sameer Ali is the AEE, 5 Spl.C.C.62/2010 BESCOM. The P.W.2 -Purushotham, H is the Ex.Engineer, Addl. West Division, BESCOM. The P.W.3-N. Archana is AEE, BESCOM. The P.W.4-Mohammed Sanaulla Amir is owner of the property. The P.W.5-B.L. Venugopal is the Police Inspector, CID.
9. The P.W.1- M. Sumeer Ali has deposed that on 14.11.2008, S.P., Vigilance, Bangalore called them to conduct moss raid to detect electricity theft cases at Bangalore. Himself, CW10, Umashankar and Krishnegowda came to Bangalore. They received information regarding theft of electricity at Shivajinagar, Chandini Chowk. On the same day at about 1.50 p.m. they went to Chandini Chowk and visited the ice block- manufacturing factory belonging to first accused and second accused. One Ameen labour boy was present in the factory. The said factory was having electricity connection with RR No.2EP-1578. At that time CW2 came to the spot. The owners of the building CW4 and CW5 came. He inspected the meter and found that it was not in working condition. There was 40 ice blocks. There was 5 HP motor, ½ HP motor, exhaust fan, 4 bulbs of 60 watts were not in working condition. They switch on the 6 Spl.C.C.62/2010 electricity supply and they found all above equipments were in running condition with the help of electricity power supply. But meter was not running even when electricity was switched on. CW2 and himself inspected the meter and found that main meter box cover seal was fake and when they touched it, it fell down. The fake seal number was C22212. The meter make was Landis + GYR. The meter reading was 37328.7 KW. There were two thin silk card wires found on the top of the meter and those wires were inserted into the meter by removing one screw and by inserting the wire through the hole of the screw. When they pulled the wire meter started to rotate and when they pushed the wire inside the meter was stopped running.
10. He has further stated that the Jr. Engineer along with lineman Prakash-CW3 came to the spot along with the photographer and took photographs. They seized the meter, silk card wire, fake seal, cut outs and sealed the same in white cloth. Panchanama was drawn on the spot. He prepared inspection report and there after he has filed complaint before Indiranagar BESCOM police station. The said complaint is marked at Ex.P1 and 7 Spl.C.C.62/2010 it bears his signature at Ex.P1(a). The inspection report is marked at Ex.P2. His signature is at Ex.P2(a). They took signatures of CW4 and CW5 on inspection report. He identified their signatures as per Ex.P2(b) & Ex.P2(c). The panchanama is marked at Ex.P3 and his signature is at Ex.P3(a). CW2 tested the meter and gave report as per Ex.P4. Now he identified the meter MO1. Fake seal is marked at MO2. MO3 & 4 are terminal cover seals. MO5 is silk card wire.
11. He has further stated that the connected load was 6.5 HP as against sanctioned load of 5 HP. The provisional bill was prepared by him and sent to AEE, E-2 Subdivision. The provisional BBC is marked at Ex.P5 and his signature is at Ex.P5(a). The BBC was Rs.1,82,000/- and compounding fees Rs.28,000/-. There was theft of 6.5 HP electricity. Approximately it comes around 5 KW. The first accused was the registered consumer of the said installation. He filed complaint against A1 and A2 and I.O. has impleaded A3 as accused in chargesheet.
12. In the cross-examination, the P.W.1 has stated that he received oral direction from S.P., BESCOM Vigilance one day prior to the inspection. He visited the 8 Spl.C.C.62/2010 S.P. BESCOM vigilance office before visiting the spot. There was no written instruction regarding places of visits. He can not say whether there were any complaints by neighbours regarding theft of electricity. There was no any trade name board to the ice factory. The door was open but shutter was closed. The said factory comprised of two rooms measuring around 13x7 feet and another by 10x5 feet. The labour by name Ameen was present in the factory. He has not noted the name of labour in complaint. The CW4 and CW5 voluntarily came to the spot. The A1 was running the factory. The meter fixed was electro mechanical meter. He dictated the contents of panchanama. He has admitted that the person who is expert having technical knowledge of meter can commit theft of electricity by way of inserting silk card wire to stop the rotation of the disc. He did not issue notice to the registered consumer at the time of disconnection. He does not know the residential address of CW4. But his address is shown in Ex.P3 panchanama and charge sheet. He denied that CW4 is his friend and he filed false complaint against the accused No.1 at the instance of CW4 with intention to evict him from the said premises.
9 Spl.C.C.62/2010 He does not know about eviction petition filed by CW4 against A1. He has denied that accused has not committed any theft of electricity as stated by him and accused No.1 is not liable to pay the back billing charges claimed by BESCOM. He has further denied that panchanama is prepared in the office and they have taken signatures of the panch witnesses only in the office. He did not enquire the neighbours of the factory. He can not say that the actual date of interference with the meter.
13. The P.W.2- Purushotham, H has deposed that on 14.11.2008, they received information regarding theft of electricity at Chandini Chowk, Shivajinagar, Bangalore in the premises of A1. On the same day, they visited the spot, which is ice block manufacturing factory along with CW1 and Krishnappa, C.P.I. They found that meter was not recording. On inspection of the meter, they found that meter-sealing wire was cut and it was pasted with the help of gum. The meter seal was fake. They found silk card wire on the top of the meter and it was inserted inside the meter by removing a screw. The said meter was tapped through push and pull technology by 10 Spl.C.C.62/2010 inserting the wire. There were small pieces of silk card wire inside the meter. He prepared a report regarding theft of electricity and same is already marked at Ex.P4. His signature is at Ex.P4(a). He does not know with whose help the said method of push and pull technology was used by the accused to commit theft of electricity.
14. The P.W.2 in the cross-examination has admitted that before installing the meter the seals were tested and found correct. It was subjected to test by M.T. division. He has admitted that even after installation they used to make routine check up. He does not know whether there was routine check up of the meter during 2008. He has admitted that the meter can be stopped by using pull and push technology only by expert in that field. On the basis of electricity bills, he told the name of A1 - Syed Rafiq. He can not say exactly from how many days the said technique was used by the accused. There was oral information to their higher officer. He has denied that they did not go to the spot on that day and that they were not inspected the installation of A1. The owners of the building were present. He has denied that 11 Spl.C.C.62/2010 they they have booked false case against the accused at the instigation of owners.
15. The P.W.3- N. Archana has deposed that they received property in respect of RR No.2EP 1578 from Indiranagar BESCOM Vigilance police for investigation and for detailed report. He opened the sealed white cloth and found one Electro mechanical meter bg Sl.No.72497091. MO1 is the same meter. He found one screw of the clamp behind the meter was removed. After opening the main meter cover, he found small pieces of silk card wires inside the meter which were inserted through the hole of the screw to stop the rotation of the disc. He found many scratches on the aluminum disc due insertion of the wire. In his opinion the consumer dishonestly obstructed the rotation of disc by inserting foreign object through the hole of the screw. He gave report as per Ex.P6 and his signature is at Ex.P6(a). He inspected the meter along with CW6 and CW8. He also identified the signatures of CW6 and CW8 on Ex.P6. They are marked at Ex.P6(b) and Ex.P6(c). CW9 was their then Ex.Engineer and Ex.P6 report was sent through covering letter of CW9.
12 Spl.C.C.62/2010
16. In the cross-examination, P.W.3 has stated that the meter inspection was done in the presence of CW9 - Venkatashiva Reddy. He has admitted that Ex.P6 does not bear the signature of CW9. He has denied that CW9 was not present at the time of investigation. They have not put their designation seal below the signatures. They did not connect the electricity power to the meter before investigation. He has denied that there was no any act of obstruction of the meter disc rotation by inserting the foreign object. Since the meter was open, they cannot test the meter recording and its running condition with the help of electricity power. He has denied that he has submitted false report on the basis of case booked by BESCOM Rajajinagar vigilance p.s.
17. The P.W.4- Mohammed Sanaulla Amir has stated that he has purchased the said property in 1992 and accused was tenant prior to purchase of building by me. He was running ice factory. About five years back BESCOM vigilance police inspected the installation of said premises. He was called by them and asked to put signature on mahazar. He was told by the BESCOM officials that there is theft of electricity. He has identified 13 Spl.C.C.62/2010 the mahazar Ex.P3 and his signature is marked at Ex.P3
(b). He does not know about details of property seized by BESCOM police. He has purchased this property from one Noor Ahmed. The power connection to the ice factory was in the name of accused No.1.
18. In the cross-examination, the P.W.4 has stated that there was no any fresh rental agreement between him and accused. He does not know the contents of Ex.P3. The Police have not collected the property documents from him. He has denied that he signed Ex.P3 in the office of BESCOM and he did not go to the spot on that day.
19. The P.W.5- B.L. Venugopal has stated that on 14.11.2008 at 7.15 p.m., CW1 appeared before him and filed complaint along with spot mahazar, MRT report, inspection report and seized articles. The Ex.P1 is the complaint and it bears his signature at Ex.P1(b). The Ex.P2 is inspection report, Ex.P3 spot mahazar and Ex.P4 is MRT report. He has identified MO1 to 5. He registered case in Cr.No.151/08 u/s 135 & 138 of Electricity Act and submitted the FIR to the Court. The FIR is marked at Ex.P7 and his signature is at Ex.P7(a). He subjected the 14 Spl.C.C.62/2010 properties to P.F. On 15.11.2008, he has recorded the statements of K.V.Krishnappa- CW10, Prakash.N- CW3, Mohammed Sanaulla Ameer- CW4 and Mustaq Ali Khan - CW5. On 21.11.2008, he sent the seized articles to MT division for investigation and report. On 28.1.2009, he received the documents pertaining to installation RR No.2EP-1578. The said documents are wiring completion report marked as Ex.P8, agreement marked at Ex.P9, notice marked at Ex.P10 and BBC and compounding charges already marked as Ex.P5. He deputed CW11 to trace accused No.3. On 16.2.2009, he received report from MT division already marked at Ex.P6. On 27.2.2009, he received report from CW11 that third accused was absconding and said report is marked at Ex.P11. He identified the signature of CW11 at Ex.P11(a) and his signature is at Ex.P11(b). Since the investigation was completed, he filed charge sheet. On investigation third accused had tampered the meter and dishonestly committing theft of electricity.
20. In the cross-examination, the P.W.5 has stated that he visited the spot during his investigation. He recorded the statements of eye witnesses. The witnesses 15 Spl.C.C.62/2010 have not stated before him about the actual duration of theft of electricity. He received the information regarding raid and inspection by BESCOM authority. MO1 to 5 were in sealed condition. He did not put any separate seals while sending the articles to MT division. He sent the articles under Acknowledgement. He did not collect documents of the ownership of the property. He has denied that the witnesses have not given statements before him and he has filed false charge sheet against the accused and deposing falsely.
21. The P.W.1- Sumeer Ali- complainant has stated that on 14.11.2008 at 1.50 p.m. at Shivajinagar Chandini Chowk, they have inspected the installation of the accused bearing RR No.2EP-1578 and found that accused 1 & 2 have tampered the meter and seal of the meter by removing the screw and through the hole by removing the screw inserted one silk card wire, stop the meter as not to record the electricity consumption and by this manipulation utilized them unauthorisedly to the capacity of 6.5 HP and committed theft of back billing charge Rs.1,82,000/-. In that regard, the C.W.1 lodged complaint before the Police. The Police registered the 16 Spl.C.C.62/2010 case against the accused and filed charge sheet against the accused.
22. The P.W.1 in the cross-examination has admitted that he has visited the S.P., BESCOM Vigilance office before visiting the spot. There was no any trade name board to the ice factory. The door was open but shutter was closed. The said factory comprised of two rooms. One labour Ameen was present in the factory. But they have noted the name of labour in complaint. Further, he has admitted that the person, who is expert having technical knowledge of meter, can commit theft of electricity by way of inserting silk card wire to stop the rotation of the disc.
23. The P.W.2- Purushotham has stated that on 14.11.2008 he has received information regarding theft of electricity at Chandini Chowk in the premises of first accused. On the same day, they visited the ice factory along with C.W.1 and Krishnappa, CPI. They found that meter was not recording. On inspection of the meter, they have found that meter-sealing wire was cut and it was pasted with the help of gum. The meter seal was fake. The said meter was tapped through push and pull 17 Spl.C.C.62/2010 technology by inserting the wire. In the cross- examination, he has admitted that before installing the meter, the seals were tested and found correct. Further he has admitted that after installation they have used to make routine check up. Whether there was routine check up of the meter during 2008.
24. The P.W.3- Archana, Asst. Executive Engineer has stated that she has received the property in respect of RR No.2EP-1578 from Indiranagar BESCOM Vigilance Police for investigation and for detailed report. She opened the sealed white cloth and found one electro mechanical meter bearing Sl.No.72497091. She found one screw of the clamp behind the meter was removed. After opening the main meter cover, she found small pieces of silk card wires inside the meter, which were inserted through the hole of the screw to stop the rotation of the disc. She found many scratches on the aluminium disc due insertion of the wire. She has given opinion that the consumer dishonestly obstructed the rotation of disc by inserting foreign object through the hole of the screw. She has given report as per Ex.P.6. In the cross-examination, she has stated that C.W.9 has 18 Spl.C.C.62/2010 not signed Ex.P.6. When the matter was open they cannot test the meter recording and its running condition with the help of electric power.
25. The P.W.4- Mohammed Sanaulla Amir is one of the panch witnesses to the mahazar. He has stated that the Police have inspected the installation of said premises. He was called by them and asked to put signature on mahazar. He has identified his signature on mahazar Ex.P.3. In the cross-examination, he has stated that there was no any fresh agreement between him and accused. He does not know the contents of Ex.P.3.
26. The P.W.5- Venugopal, PSI has stated that on 14.11.2008 at 7.15 p.m., C.W.1 came to his office and filed complaint along with spot mahazar, MRT report, inspection report and seized articles. He has registered the case in Crime No.151/2008. On 16.02.2009, he has received report from MT division and received the report from C.W.11 and after completing the investigation, he has filed charge sheet against the accused. The witness has not stated before him actual duration of the theft of electricity. He has not collected documents of the ownership of the property.
19 Spl.C.C.62/2010
27. The D.W.1- Syed Rafeeq Ahmed has stated that the said factory was purchased by Sanaulla. At that time, there was a quarrel between his brothers and C.W.4. The factory was old building. At the time of raid by KEB, himself and his brothers were not present. One Sanaulla has given information to raid the said factory. He has filed the appeal for the orders passed by the BESCOM Vigilance. Their factory was working only one shift. That appeal is pending before KEB Tribunal. In the cross- examination, the ice factory meter was standing in his name. He has not filed any complaint before Police against C.W.4- Sanaulla. Eight years back, Sanaulla made galata against him and his brothers in regarding of vacating the ice factory.
28. The learned Public Prosecutor has argued that C.W.4 is owner of the building. On the date of inspection, C.W.4 is not the owner of the said building. The meter is standing in the name of first accused. He has committed theft of electricity. The learned counsel for accused has filed written argument. The P.W.4- owner of the building has stated that he has purchased said property in 1992 and accused was tenant prior to purchase of the building 20 Spl.C.C.62/2010 by him. He was running the ice factory about 5 years back. BESCOM authority inspected the installation of the said premises. He has been called and asked to put his signature. He has put his signature. As per statement of P.W.4, he has stated that when the Vigilance Officer has visited the said ice factory, at that time, nobody was there, electricity was not running. The premises door was open. Then they have inspected. There is no electricity. Then they have switched on and off the electricity. Thereafter electricity connection was open. The accused has put the silk card wire and stop reading. This statement of C.W.4 shows that at the time of inspection, the accused was not present at the spot. There is a civil dispute in regarding of the said property pending. Though he has not admitted regarding the civil dispute. The electric connection is standing in the name of Syed Rafeeq, but they do not know about the incident on which date the theft of electricity occurred. The evidence of C.W.4 before the Court and statement before the Police are different.
29. I have gone through the evidence given by P.W.1 to P.W.5. The complainant has stated that at the 21 Spl.C.C.62/2010 time of visiting the factory, factory was closed, the factory machines are not in running condition, at the time of investigation, the owners of the factory were not present. At the time of inspection, they have taken photographs. In regarding of that photo, they have not stated before the Court. At the time of filing charge sheet, the Investigating Officer has not filed any photo before the Court. The C.W.4 has purchased the said Factory in the year 1992. After giving bill, they have filed the appeal before the higher authority.
30. The complainant- C.W.1- Sameer Ali has inspected the said ice factory in front of C.W.4 & 5. The meter of the said building is not in working condition. It shows that at the time of inspection, the accused were not present there. It is admitted that C.W.4 is the owner of the said building. This Sanaulla had made galata against accused and his brothers regarding vacating the ice factory. Due to enmity regarding vacating the said building, owners have informed the BESCOM authority. The BESCOM authority have filed the case against this accused. This contention is taken by the defence counsel. In his evidence, at the time of inspection, they have 22 Spl.C.C.62/2010 obtained the photographs, but they have not produced any photographs to prove the case against the accused persons, submitted the report and filed charge sheet against the accused persons. The learned counsel for accused has argued that the electric meter is standing in the name of Syed Rafeeq, but they have not stated which date to which date they have committed theft of electricity. It is doubt regarding theft by the accused persons. The important witness is P.W.4. He has purchased the property in the year 1992. He does not know about the contents of the mahazar. It shows that there is doubt in regarding of the seizure of the property before this panch witness. I have gone through the evidence of P.W.1 & P.W.5. The witness versions shows that they have stated when they have visited the factory, at that time, the factory was closed and factory machines are not in running condition. At that time, they have obtained photograph, but they have not produced the photograph before the Court. Further there is case between the accused and owners of the building in O.S.No.869/2011. The owner of the building was present at the time of raid by the BESCOM authority. They have 23 Spl.C.C.62/2010 not called by the BESCOM authority to the spot. There is a civil dispute. Due to vacating the said property, they have informed the BESCOM authority and registered the case. The important document is photograph. The said document is not produced before the Court. Therefore, there is serious doubt regarding theft of electricity by the accused 1 & 2. The second accused is already dead. These are the above reasons, I come to the conclusion that the prosecution has utterly failed to prove the guilt of the accused. The said benefit of doubt shall go to the accused. Accordingly, I answer point No.1 in negative.
31. Point No.3:- In view of my findings on point No.1 and for the reasons stated above, I proceed to pass the following:-
ORDER Acting u/s 235(1) of Cr.P.C., the accused No.1 & 3 are hereby acquitted for the offences punishable u/s 135 & 138 of Indian Electricity Act 2003.
Their bail bonds stand cancelled. The articles M.O.1 to M.O.5 are ordered to be returned to the BESCOM, after appeal period is over.
(Dictated to the Judgment Writer, transcribed by him on Computer, print out taken, corrected and 24 Spl.C.C.62/2010 then pronounced by me in open Court on this the 7th day of May, 2016) (G.K. GOKHALE) X ADDL.CITY CIVIL AND SESSIONSS JUDGE BANGALORE.
ANNEXURE List of witnesses examined for the prosecution:-
PW.1 Sameer Ali PW.2 Purushotham Pw.3 Archana Pw.4 Mohammed Sanaulla Pw.5 B.L. Venugopal
List of documents marked for the prosecution:-
Ex.p.1: Complaint Ex.p.2: Inspection report Ex.p.3: Mahazar Ex.P.4: Meter testing report Ex.p.5: Provisional B.B.C Ex.p.6: Investigation report Ex.p.7: FIR Ex.P.8: Wiring completion report Ex.P.9: Agreement Ex.P.10: Notice Ex.P.11: Report
Ex.p.1(a),2(a),3(a) : Signatures of P.W.1 Ex.p.1(b),7(a),11(b) : Signatures of P.W.5 Ex.p.2(b) : Signature of C.W.4 Ex.p.2(c) : Signature of C.W.5 Ex.p.3(b) : Signature of P.W.4 25 Spl.C.C.62/2010 Ex.p.4(a) : Signature of P.W.2 Ex.p.6(a) : Signature of P.W.3 Ex.p.6(b) : Signature of C.W.8 Ex.P.6(c) : Signature of C.W.6 Ex.P.11 : Signature of P.W.5 List of witnesses examined for the defence:-
D.W.1 : Syed Rafeeq Ahmed List of documents got marked for the defence Nil List of material objects identified during evidence:
M.O.1 : Electricity meter M.O.2 : Fake seal M.O.3,4 : Two terminal cover seal M.O.5 : Silk Card wire (G.K. GOKHALE) X ADDL.CC & SS JUDGE, BANGALORE.