Delhi District Court
S.C No. 85/11 State vs . Babu Ram 1/11 on 25 August, 2012
IN THE COURT OF SHRI SUKHDEV SINGH: ADDITIONAL
SESSIONS JUDGE : SPECIAL ELECTRICITY COURT-2 :
KARKARDOOMA : DELHI.
SC No.85/2011
Unique Case I.D 02402RO298832009
STATE FIR No. 44/2009
P.S Karawal Nagar
Versus U/s 135/138 of the
Electricity Act,2003
Babu Ram
S/o Late Shri Prahlad Singh
Resident of
R/o Kh. No. 94, Karawal Nagar,
Delhi .... Accused
Date of Institution : 09.09.2009
Judgment Reserved for : 25.08.2012
Judgment Passed on : 25.08.2012
JUDGMENT
The case of the prosecution in brief is that on 21.2.2009, a complaint was filed by BSES Yamuna Power Limited, having its registered office at Shakti Kiran Building, Karkardooma, Delhi, ( hereinafter referred to as 'complainant company') with P.S Karawal Nagar, under Section 135 & 138 of the Electricity Act (hereinafter referred to as 'the Act') against the accused, on the basis of which FIR was registered. It is stated in the complaint that on 16.11.2007, at about 1.45 p.m, an inspection was carried out S.C No. 85/11 State Vs. Babu Ram 1/11 in respect of K. No. 125150001169 (new) 25704120441Z (old) & meter No. 17029738 by the joint team comprising of Shri Shivendu Kumar, A.M, Shri Deepak Sharma D.E.T and Shri Vinod Kumar ( Electrician) at premises bearing Khasra No. 94, Karawal Nagar, Delhi-110094 ( hereinafter referred to as 'premises'). 2 During the course of inspection, it was found that meter number was not visible at the spot, however, as per Key Consumer Cell ( KCC) record meter number was 17029738 which was found badly burnt. The connected load of the premises was found to be 55.022 KW which was being used for industrial purposes (IX) against sanctioned load of 38.53 KW. It is further stated that the meter was found to have been deliberately burnt and reduced to ashes by the consumer/accused and same was lying on the ground. The said meter was seized at the spot through seizure memo. The videography of the premises was carried out by M/s Arora Photographic Agency. Inspection report and rough site plan were also prepared at the spot. It is alleged that the accused/consumer refused to sign the inspection report.
The seized meter was sent to Electrical Research & Development Association (ERDA) for testing. The laboratory gave its report with following observations:
i) Meter serial number not visible due to burning.
ii) Manufacture name not visible.
S.C No. 85/11 State Vs. Babu Ram 2/11
iii) Seals burnt
iv) Accuracy could not be tested because of meter burnt.
v) Conclusively meter was found badly burn and data could not be downloaded.
vi) The details of the recorded consumption pattern has been examined which is mentioned in the speaking order.
vii)The photographic image captured in the lab for the burnt meter.
It is further stated that on the basis of inspection dated 16.11.2007, consumer/accused was given a show cause notice for Dishonest Abstraction of Energy (DAE) to attend personal hearing on 1.12.2007, however, the accused/consumer refused to receive the same. The accused appeared in pursuance of another show cause notice of dated 30.11.2007 and denied the contents of inspection report. It is further stated that having passed speaking order on the basis of tampered/burnt meter, the complainant company assessed the demand on account of DAE to the tune of Rs. 10,28,043/- and a bill for the said amount with due date 30.7.2008 was issued to the accused which has not been paid by him. Hence, the case. 3 Notice under Section 251 of Cr.P.C has been framed against the accused , to which he pleaded not guilty and claimed trial. 4 In support of its case, the prosecution has examined four witnesses viz; Shri Deepak Sharma, DET, BSES YPL, PW.1, Shri Vinod S.C No. 85/11 State Vs. Babu Ram 3/11 Kumar, Electrician, BSES YPL, PW.2, HC Jagroshni, PW.3 and Shri P.K. Sharma, DGM, BSES YPL, PW.4.
Shri Deepak Sharma, DET, BSES YPL, PW.1 has stated in his testimony that on 16.11.2007, he was present with inspection team headed by Shri Shivendu Kumar, A.M alongwith Shri Vinod Kumar, Electrician. They reached premises bearing Kh. No. 94, Village Karawal Nagar, Delhi, at about 1.45 p.m at the house of the accused Babu Ram. He has further stated that on inspection they found a meter installed at the aforesaid premises in a burnt condition. The said meter was seized vide seizure memo Ex.PW.1/A. He has got exhibited Inspection report as Ex.PW.1/B prepared by Shri Shivendu Kumar. He has further got exhibited load report as Ex.PW.1/C, meter detail report as Ex.PW.1/D. He has further stated that videography was done at the spot. He has also identified the case property meter as Ex.P-1.
Shri Vinod Kumar, PW.2, Electrician, BSES YPL has stated in his testimony that on 16.11.2007, he was present with inspection team headed by Shri Shivendu Kumar, AM alongwith Deepak Sharma, DET and Videographer. They reached the premises bearing Kh. No. 94, village Karawal Nagar, Delhi, at about 1.45 p.m. On inspection, they found a meter installed at the aforesaid premises in burnt condition. The said meter was seized by Shri Shivendu Kumar, A.M vide seizure memo. Videography was also S.C No. 85/11 State Vs. Babu Ram 4/11 done at the spot. He has identified the case property i.e meter as Ex.P-1.
HC Jagroshni, PW.3 was the Duty Officer who recorded FIR which has been got exhibited as Ex.PW3/A. She has also made endorsement on original Rukka which is Ex.PW3/B. Shri P.K. Sharma, DGM, BSES YPL, PW.4 has stated in his testimony that he was authorised by the company to hand over the case property to police in FIR cases. On 3.3.2009, he handed over the case property of the present case to the I.O which was sealed with the seal of S.Kumar, AM, Enforcement. I.O also prepared seizure memo which has been got exhibited as Ex.PW.4/1. He has also identified the case property.
S.I Satender Pal Singh, PW.5 has stated in his testimony that on 21.02.2009, the complaint Ex.PW.3/B was marked to him on which he made endorsement, on the basis of which the present FIR was registered. On 3.3.2009, Shri P.K. Sharma, Authorised Officer of the company handed over case property to him in the matter and he prepared seizure memo Ex.PW.4/1. He has further stated that the case property was bearing R.V No. 17107/44D duly sealed with seal of S.Kumar, AM. He desealed the case property and after checking the same, resealed it with the seal of S.P.S. He recorded the statement of witnesses in the present case. The accused was formally arrested on 5.6.2009 vide arrest memo Ex.PW.5/1. Having S.C No. 85/11 State Vs. Babu Ram 5/11 completed the investigation, he filed chargesheet in the present case.
5 Statement of accused under Section 313 of Cr.P.C has been recorded separately, in which he has denied the allegations of Dishonest Abstraction of Energy levelled by the complainant company. He has stated that one Mr. Jain was the tenant in the premises on the day of inspection, who vacated the premises after the day of inspection. He has further stated that prior to the date of inspection, on 25.10.2007, he made a complaint regarding burning of meter and paid a sum of Rs.45,00/- towards meter cost and Rs. 225/- towards inspection fee. On 16.11.2007, the officials of the complainant company came to the premises to change the meter, but they made a false case being the landlord of the premises. 6 In defence, the accused has not led any evidence. 7 I have heard Ld. Chief PP for the State assisted by Ld. Counsel for the complainant company, Ld. counsel for the accused and have also perused the material placed on record.
8 It has been argued on behalf of accused that Shri Shivendu Kumar, A.M. who headed the inspection team, has not been examined. He has further argued that Lab Report has not been proved.
On the other hand, Ld. Chief PP for the State assisted by Ld. Counsel for the complainant company has rebutted the arguments S.C No. 85/11 State Vs. Babu Ram 6/11 advanced on behalf of accused arguing that even if, Shri Shivendu Kumar, A.M. who headed the inspection team has not been examined, the case of the prosecution is proved on the basis of the testimony of other witnesses examined by it. They have further argued non proving of lab report does not effect the case of the prosecution.
9 In order to prove the case against the accused, the complainant is required to establish that the theft of electricity was being committed at the premises inspected by the raiding party. They have further required to link the accused to the premises and prove that the accused was responsible for the commission of theft of electricity.
To appreciate the arguments of Ld. Counsel for the parties and to ascertain whether the accused has committed the offence, a look has to be made to the testimony of Shri Deepak Sharma, D.E.T, PW-1; Shri Vinod Kumar, Electrician, PW-2; H.C. Jagroshni, Duty Officer, PW-3; Shri P. K. Sharma, DGM, PW4 and SI Satender Pal Singh, PW-5.
10 Firstly the testimony of H.C. Jagroshni, PW-3 and SI Satender Pal Singh, PW5 is taken up.
H. C. Jagroshni, PW-3 is the Duty Officer who has proved FIR Ex. PW3/A. S.I. Satender Pal Singh is the I.O. of the case who has S.C No. 85/11 State Vs. Babu Ram 7/11 investigated it. He has stated in his testimony that on 21.02.09 he received a complaint Ex. PW3/B which was marked to him by S.H.O. P. S. Karawal Nagar on which FIR was registered by the Duty Officer and investigation of the case was assigned to him. He has further deposed on 03.03.09 case property was handed over to him by Shri P. K. Sharma, authorised officer of the company which was seized vide seizure memo Ex. PW4/1. The case property was sealed with the seal of S. Kumar, A.M. which was desealed by him and after checking the case property he re-sealed the case property with his seal on the same day. He recorded the statement of Shri P. K. Sharma on 31.03.09. He has also recorded the statement of Shri Deepak Sharma and Shri Vinod Kumar who were the member of the inspection team. He formally arrested the accused on 05.06.2009 vide memo Ex. PW5/1.
The testimony of these two witnesses H. C. Jagroshni, PW-3 who is the Duty Officer and S.I. Satender Pal Singh PW-5 who is the I.O. of the case is only to the effect that the case was registered on the complaint which was received by S.I. Satender Pal Singh, PW-5 who investigated the same. They are not the members of the inspection team. Thus the testimony of these two witnesses is only of the formal nature.
11 Coming to the testimony of Shri Deepak Sharma, D.E.T., PW-1; Shri Vinod Kumar, Electrician, PW-2; Shri P. K. Sharma, D.G.M., PW-4, S.C No. 85/11 State Vs. Babu Ram 8/11 Shri Deepak Sharma PW-1 is the member of the inspection team who has deposed that during the inspection of the premises they found a meter installed at the premises in a burnt condition. He has proved seizure memo Ex. PW1/A through which the meter was seized. He has also proved inspection report Ex. PW1/B, lab report Ex. PW1/C and meter detailed report Ex. PW1/D. However, this witness has not been cross-examined by counsel for accused as he has not turned up after his examination-in-chief. Since this witness has not been cross-examined due to his non-appearance, his testimony cannot be read in evidence. Therefore, it goes.
Shri Vinod Kumar, Electrician, PW-2 is also the member of the inspection team who has deposed the fact in respect of the inspection carried out on 16.12.07 at the premises of the accused at Kh. No. 94, Village- Karawal Nagar, Delhi, but no document has been proved by this witness except the case property Ex. P-1. However, when this witness has been cross-examined, he has deposed that on 16.11.07 at the time of inspection, direct theft of electricity was found at site. He has further deposed that BSES officers made supply direct after receiving the complaint regarding burning of meter. Though there is no charge against the accused of direct theft, but when this witness has admitted that BSES officers made supply direct after receiving the complaint regarding burning the meter, his version that there was a direct theft of electricity does not hold S.C No. 85/11 State Vs. Babu Ram 9/11 good. The fact that this witness is the witness of inspection, but he has not got exhibited any document except the case property and his version that it was the BSES officers who made supply direct after receiving the complaint regarding burning the meter, his testimony has also no assistance to the prosecution as far as the inspection of the premises of the accused are concerned.
Shri P. K. Sharma, PW-4, has handed over the case property to the I.O. who has seized the same vide memo Ex. PW4/1. Since he has only handed over the case property to the I.O. which was seized by him through seizure memo Ex. PW4/1, the nature of testimony of this witness is also of a formal nature.
12 The fact that the testimony of Shri Deepak Sharma, D.E.T., PW-1 who has not been cross-examined by counsel for the accused due to his non-appearance, his testimony cannot be read in evidence; Shri Vinod Kumar, Electrician, PW-2 though the witness of inspection has not got exhibited any of the document except the case property; Shri P. K. Sharma, D.G.M., PW4 has only handed over the case property to the I.O.; H. C. Jagroshni, PW-3 has proved the FIR Ex. PW3/A and Rukka Ex. PW3/B and S.I. Satender Pal Singh, PW-5 is the I.O. of the case who has only investigated the case and seized the case property as well as got arrested the accused, their testimonies are of such a nature which do not in any way connect the accused with the alleged offence.
S.C No. 85/11 State Vs. Babu Ram 10/11 Thus, the fact remains that Shri Shivendu Kumar, A.M. who was head of the inspection team having not been examined by the prosecution has effected their case as he was the star witness of inspection. Therefore, the argument advanced on behalf of the accused that Shri Shivendu Kumar, A.M. who was the head of the inspecting team has not been examined holds good. Further admittedly lab report has not been got exhibited which was the foundation of inspection. Thus in the absence of that, the case of the prosecution which rested on the lab report also fails. 13 In view of the above findings, I am of the opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Thus, the benefit of doubt goes to the accused. Accused Babu Ram is acquitted, his bail bond is cancelled and surety stands discharged. File be consigned to Record Room.
Announced in the open Court ( SUKHDEV SINGH )
on 25.08.2012 Addl. Sessions Judge:
Special Electricity Court-2
KKD: Delhi.
S.C No. 85/11 State Vs. Babu Ram 11/11