1 IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE, SOUTH DISTRICT SAKET COURTS, NEW DELHI FIR NO. 427/2000 [ENTITY] U/[SECTION] Act STATE VS. ABDUL ZABBAR JUDGMENT :
a. Sl. No. of the case : 1411/07 b. Date of Institution : 09.01.2001 c. Date of Commission of Offence : 30.05.2000 d. Name of the complainant : Sh. [ENTITY] Junior Engineer, DVB Kashmiri Gate, Delhi e. Name of the accused and his : [ENTITY] parentage and address S/o [ENTITY] R/o C24C, 1563, [ENTITY],Bagichi Tejpal, Delhi f. Offence complained of : U/[SECTION] of [ACT] g. Plea of the accused : Pleaded not guilty h. Order reserved : 30.07.2011 i. Final Order : Acquitted j. Date of such order : 30.07.2011
1. The accused was put on trial for the facts that on 30.05.2000, at Yamuna Pusta, Bagichi Tejpal, Delhi, accused was found committing theft of electricity directly by connecting wires with transformer load of DVB and thereby committed an offence punishable under [SECTION] of [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] /44 of [ACT].
2. A prima facie offence having been made out against the accused, charge was framed against him under [SECTION] of [ACT] vide order dated 28.03.2002 to which he pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined five witnesses namely [ENTITY] as PW1, [ENTITY] as PW2, Shri [ENTITY] as PW3, [ENTITY] as PW4 and SI [ENTITY] as PW5.
4. PW1 [ENTITY] has testified that on 13.08.2000, on receipt of rukka from Ct. [ENTITY], he registered the present case FIR which is Ex. PW1/A. Ld. counsel for accused did not prefer to cross examine PW1.
5. PW2 [ENTITY] has testified that on 30.05.2000, a joint raid comprising himself, alongwith vigilance, MTD, Zonal Staff and Delhi police official, was conducted at Yamuna Pushta including the premises of [ENTITY] where they found that the electricity was being used directly by bypassing the meter. The meter in question was removed and the photographs were taken prior removing the meter in question alongwith the cable. The JIR was prepared at zonal office which is Ex. PW2/E. PW2 further testified that the case property was handed over to police alongwith the photographs and had taken into possession by police vide seizure memo Ex. PW2/A. He has further testified that a duplicate was made by him on 11.08.2000 which is Ex. PW2/B. He further testified that he had also got inspected the site through the IO and IO prepared the site plan at his instance Ex. PW2/C. He further testified that he also prepared the site plan which shows the mode of theft and the same is Ex. PW2/D. PW2 correctly identified the case property which is collectively Ex. P1.
In his cross examination, PW2 has testified that the JIR was prepared at the spot. He further testified that he took the photographs because the photographer was not available. He has further testified that he collected wires from the spot and sealed the same at zonal office Kashmiri Gate. He further testified that the bag containing the case property was in torn condition. He has further testified that no site plan was prepared by the IO in his presence.
6. PW3 Shri [ENTITY] has testified that on 30.05.2000, a joint raid comprising himself alongwith enforcement and MTD alongwith CISF officials, was conducted at Yamuna Pusta including the premises of [ENTITY] on Pushta and it was found that the electricity was being stolen by bypassing the existing meter of single delivery connection. The evidence material including meter bypassing leads, cables were removed from site. JIR was prepared which is [ENTITY] The photographs were taken which are Mark P1 to P15. On the basis of JIR, a bill was raised which is [ENTITY] PW3 also correctly identified the case property which is Ex. P1 collectively.
In his cross examination, PW3 has testified that no photographer was with the team however, the photographs were taken by Inspector [ENTITY] with the help of official camera. He further testified that the JIR was prepared at Zonal office Hamilton Road. He further testified that they called the labour from the Hamilton road at the spot and the said labour removed the wire. The wires were placed on the rehri and was taken to the zonal office and at that time the wires were not sealed and there they were put in the cloth and one tag was placed. He further testified that the case property was not handed over to the IO in his presence. PW3 further testified that at the time of conducting the raid, they had inquired from the neighbourers of the accused abut his whereabout as no body was found present.
7. PW4 [ENTITY] has testified that on 30.05.2000, a joint raid was conducted by the joint team comprising himself, alongwith MTD, zonal staff and enforcement team, CISF officials at Yamuna Pushta at Pantoon Pul Intersaction where they found that CT meter was bypassed and direct supply was taken. The meter in question was removed and photographs were taken alongwith cable and handed over to zonal staff. JIR Ex. PW2/A was prepared. He further testified that 15 photographs were taken at the raided premises which are Mark A1 to A15. PW4 also correctly identified the case property which is Ex. P1 collectively.
In his cross examination, PW4 has testified that the JIR was prepared at the spot.
8. PW5 SI [ENTITY] has testified that on 13.08.2000, the investigation of the present case was marked to him and during the investigation, he visited at site and prepared the site plan which is Ex. PW2/C. He also collected 15 photographs which are Mark A1 to A15. [ENTITY] also handed over him a map of site which is Ex. PW2/D. He also seized the case property vide seizure memo Ex. PW2/A. On the instance of [ENTITY] he arrested the accused [ENTITY] vide arrest memo Ex. PW5/A and the inspection memo is Ex. PW5/B. [ENTITY] also produced a theft bill which is Ex. PW3 [ENTITY] He further testified that only the DVB officials were examined and no public witness was examined. PW5 also correctly identified the case property which is Ex. P1.
In his cross examination, PW5 has testified that he prepared the site plan at the instance of [ENTITY].
9. Thereafter, several opportunities were afforded to the prosecution to adduce the evidence requisite to prove the case against the accused. It is pertinent to note that the matter is subjudice since the year 2000 and the charge against the accused was framed on 28.03.2002 for the offence punishable under [SECTION] of [ACT]. Thereafter despite several opportunities having been provided to the prosecution for leading the evidence, the prosecution has been able to produce only five witnesses. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 01.03.2011.
10. After closing of prosecution evidence, the statement of accused u/[SECTION] [ACT] r/w. 313 [ACT] was recorded on 18.04.2011. In his statement he denied to have committed the offence and claimed to be innocent and to have been falsely implicated in the present case. He did not lead any evidence in defence.
11. 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.
12. To bring home the charge under [SECTION] of the [ACT] 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 abstraction. Under [SECTION] of [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.
13. It has been held by the Supreme Court in [PRECEDENT] 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] of the Act.
14. In another case, [PRECEDENT], 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.
15. 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] of the Act. Similar views have been expresses in [PRECEDENT].
16. Another essential requirement of law for prosecution under the [ACT] is that the prosecution must be instituted at the instance of a person named in [SECTION] of the Act and the prosecution in respect of that offence would be incompetent unless requisite condition stipulated under the [SECTION] is fulfilled.
17. 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] 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. There is, moreover, no material on record to prove that the meter in question was registered in the name of the accused.
18. The existence of some artificial means which was used by the accused to commit the theft is another condition which the prosecution carries the 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, the energy was being abstracted by the accused by connecting the lines with transformer lead of DVB. Thus, the connecting wire is the artificial means for abstraction. However, in the present case, the recovery as well as seizure of such article itself is unreliable. No identification mark is found to have been affixed to the article at the time of sealing it.
19. The prosecution case becomes all the more unreliable for non association of any public witness at the time of raid. It is quite inconceivable that no public person was present at the place when the raid was conducted. The record does not show if any endeavour was made to involve any public person in the course of raid. All the witnesses who joined the raid are government officials with no independence witness to corroborate them.
20. On careful perusal and analysis of the entire evidence on record I find that no corroborative, consistent reliable and sufficient evidence to make up the edifice of the prosecution case has been produced by the prosecution. Moreover, the testimonies of the prosecution witnesses do not inspire confidence. The preparation of JIR has not been proved as PW2 in his examination in chief has testified that the JIR was prepared at zonal office but in his cross examination in chief he has testified that the JIR was prepared at the spot .PW4 has also testified that the JIR was prepared at spot whereas PW3 has testified that the JIR was prepared at zonal office Hamilton Road. Further the condition of the case property is also doubtful. PW2 in his testimony has testified that they collected the wires from the spot and sealed the same at zonal office at Kashmiri Gate and the bag containing the case property was in torned condition. Whereas PW3 in his statement has testified that they called the labour from the Hamilton road at the spot and the said labour removed the wire and the same were placed on a rehri and was taken to the zonal office and at that time the wires were not sealed. He further testified that the case property was handed over by Inspector [ENTITY] in the PS after lodging the FIR. He further testified that the case property was not handed over to IO in his presence. Again he said that he could not tell whether the case property was handed over to the IO in zonal office of police station On the other hand PW4 in his statement has testified that the meter in question was removed and photographs were taken alongwith the cable and handed over to zonal staff. PW5 who is the IO in this case has testified in his cross examination in chief that the case property was handed over to him in police station by [ENTITY]. Therefore the testimonies of the prosecution witnesses in respect of case property is totally contradictory with each other.
21. Further the preparation of the site plan is also doubtful. As per the prosecution evidence, it has not been proved how many site plans were prepared and at whose instructions. PW2 in his examination in chief has testified that he had got inspected the site to the IO and IO prepared the site plan Ex. PW2/C at his instance. He further testified that he had also prepared the site plan which shows the mode of theft and the same is Ex. PW2/D. In his cross examination PW2 has testified that no site plan was prepared by the IO in his presence. On the other hand, PW5 the IO of the case has testified that during his investigation, he visited the site and prepared the site plan which is Ex. PW2/C. PW5 in his cross examination in chief has testified that he prepared the site plan in the presence of Inspector [ENTITY] and [ENTITY] but PW2 has not deposed a single word about the presence of [ENTITY] alongwith the IO at the spot. Further [ENTITY] has not been examined in this case by the prosecution.
22. There is also requirement of law under the [ACT] that the prosecution of the accused must initiated by a competent person as contemplated by [SECTION] of the Act. It has been observed in [PRECEDENT] that the object of [SECTION] is to prevent prosecution for offences against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications. That is why it is left only to the authorities concerned with the offence and the persons aggrieved by it to initiate the prosecution.
23. In the instant case, no sanction u/[SECTION] of the Act has been proved by the prosecution and as such the prosecution of the accused in respect of the present offence is incompetent.
24. Further the photographs placed on record have not been exhibited as the negatives of those have not been placed on record so the genuineness of photographs is doubtful. In this case, the name of the photographer has not been told by the prosecution witnesses. PW2 in his statement has testified that he took the photographs of the raided premises whereas PW4 in his cross examination has testified that the photographer was arranged by zonal staff and the photographs were taken in his presence. Therefore only FIR , arrest and seizure memo are not substantive piece of evidence and solely on the basis of these documents, the charge can not be proved against the accused.
25. 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.
26. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused [ENTITY] is acquitted for the offence punishable U/[SECTION] of [ACT] for which he stands charged.
Announced in the Open Court ([ENTITY]) On 30.07.2011 Metropolitan Magistrate South District/New Delhi PS Kotwali u/[SECTION] [ACT] 30.07.2011 Present: Ld. APP for the State. Accused [ENTITY] on bail with counsel. Final arguments heard. Put up for orders for 3.00 p.m ([ENTITY]) MM/South Delhi/ 30.07.2011 At 3.00 p.m. Present: As before.
Vide my separate judgment dictated and announced in the open court accused [ENTITY] is acquitted for the offence punishable U/[SECTION] /44 I.E Act for which he stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/ with one surety in the like amount. Bail bond furnished. As per [SECTION] of the [ACT], as amended vide the [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.
([ENTITY]) MM/South Delhi/ 30.07.2011