Sh. Kapil Mahajan vs The State
2010 Latest Caselaw 4749 Del

    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Crl. M.C. No 1499/2009

%                        Judgment reserved on : 14.09.2010
                         Judgment delivered on: 08.10.2010

Sh. Kapil Mahajan                          .........Petitioner.
                             Through: Mr.S.K. Pruthi, Adv.

                            Versus

The State                                    ..... Respondent.
                             Through: Mr. Sunil Fernandes,
                             Adv. for BSES.

                         And

                 Crl. M.C. No. 1500/2009

Sudhir Mahajan                          ...Petitioner
                           Through: Mr. S.K. Pruthi, Adv.

                         Versus

The State
                           Through: Mr. Sunil Fernandes,
                                    Adv. for BSES.

                         And

                       Crl. M.C. No. 1501/2009

Smt. Pushpa Mahajan                   ......Petitioner

                         Through: Mr. S.K. Pruthi, Advocate




Crl.M.C. No. 1499/09                                Page 1 of 22
                            Versus

The State                                 ......Respondent

                       Through:   Mr. Sunil Fernandes,
                                  Adv. for BSEs.



CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                             YES

2.     To be referred to Reporter or not?                          YES

3.     Whether the judgment should be reported
       in the Digest?                                              YES

KAILASH GAMBHIR, J.

*

1. This common order shall dispose of three

separate petitions bearing number Crl. M.C. No. 1499/2009,

1500/2009 and 1501/2009.

2. By these petitions filed under Article 226/227 of

the Constitution of India read with Section 482 Cr.P.C.,

these three petitions assail a common order dated 3rd

March, 2008 passed by the Court of Metropolitan

Magistrate, Delhi and the order dated 9.2.2008 passed in

revision by the Court of the learned Additional Sessions

Judge.

3. The bone of controversy in all these three

petitions is a joint inspection report dated 22.10.1997. The

premises of the petitioners were inspected by the joint

inspecting team and all the three petitioners were found

indulging in Fraudulent Abstraction of Energy (FAE) and

theft bills against all the petitioners were raised by the

respondent. Since the petitioners failed to deposit the theft

bills, a separate FIR against all the petitioners was

registered, based on the complaint filed by the respondent,

and after investigation the police filed a report under

Section 173 Cr.P.C. Vide order dated 3rd March, 2008 the

learned Magistrate directed framing of charges against the

petitioners under first part of Section 39 of the Indian

Electricity Act, 1910. So far charge under Section 44 and

Section 39 Part II of the Indian Electricity Act are concerned,

the learned Magistrate found that no charge is made out

against the petitioners. Feeling aggrieved with the said

orders of the learned Magistrate, the petitioners preferred

revision petitions u/s 397 Cr.P.C. and vide common order

dated 9.2.2009 the same were dismissed. Feeling

aggrieved with the same, the petitioners have filed the

present petitions.

4. Mr. S.K. Purthi, counsel for the petitioners

vehemently contended that in the joint inspection report,

nowhere the joint inspection team has pointed out that

there was any dishonest abstraction of the electricity

energy through the deployment of any artificial means by

these petitioners and in the absence of the same no charge

under Section 39 Part I of the Indian Electricity Act, 1910

could be framed against the petitioners. Counsel further

submitted that merely because the connected load was

found to be more than the sanctioned load or that shunt

capacitor was not installed, it would not lead to an inference

that the petitioners were abstracting the electricity energy

in a fraudulent manner. The contention of the counsel for

the petitioners was that if the connected load is found more

than the sanctioned load then the respondent can always

charge the misuse charges, but the same cannot be held to

be a theft of energy.

5. Drawing attention of this Court to the joint inspection

report, counsel pointed out that so far K No. 131015/IP of

registered consumer M/s Elite Sheltter Inds. is concerned,

the inspection team gave the following findings:-

"The load report was prepared vide performa No. 16964 dated 22.10.97 and load found connected 72.634 KW on I.P. and 2.670 KW on IL meters. The M.T.D.

report prepared vide performa No. 256/38306 dtd. 22.10.97. DESU's yellow paper seal No. 0021232 pasted on M.S. box was found tempered. The existing meters LS/Line against above K.Nos. were removed by zone as per the directions of SDM and XEN(D)NGL."

Mr. Pruthi stated that hence so far as the first

connection is concerned, the only discrepancy found by the

joint inspection team was that DESU's yellow paper seal No.

0021232 pasted on M.S. box was found tampered. Mr.

Pruthi further stated that the same was only a paper seal

and its tampering could not lead to commission of an

offence envisaged under Section 39 of the Indian Electricity

Act.

6. So far the connection bearing K.No. O/O

7841851/IP with respect to registered consumer Shri Hari

Ram is concerned, the team found as follows:-

"The load report was prepared vide Performa No. 16965 dt. 22.10.97 and load found connected 86.250 KW on I.P. and 9.140 KW on I.L. meters. The detailed M.T.D. report prepared vide Performa No. 256/38.307 dt. 22.10.97. The consumer has indulged in F.A.E. as the half seals of the meter 4D-30950, found fictitious. There is a cavity on L.H.S. in the above meter between load half seal service. Accordingly the existing meter and service line removed by the Zonal staff as per the directions of SDM/XEN(D)NGL."

The counsel submitted that the case of F.A.E. was

made out against the petitioner in the above inspection

report only on the ground that half seals of the meter 4D-

30950 were found fictitious and also because a cavity was

found on L.H.S. (left half seal) in the meter between load

half seal service. The contention of counsel for the

petitioner was that even if half seal of the meter was found

fictitious then the same by itself would not result in

ascertaining illegal extraction of the energy from the said

meter.

7. And as regards K. No. O/O - 1201133/IP

registered consumer No. Shri Joginder Singh, the team

made the following observations:-

"The consumer has indulged in F.A.E. as the consumer tempered the DESU's yellow paper seal No. 0033255 found pasted on M.S. Box. The half seal of the I.L. meter L.H.S. found missing scratches also found on reading digits/dial plate."

As regards the third connection, counsel stated

that again the joint inspection team found the tampering in

the yellow paper seal besides some scratches that were

found on reading digits. The contention of counsel for the

petitioner was that if the said report of the joint inspection

team is taken as correct and as a gospel truth even then no

case is made out against the petitioner under Section 39 of

the Indian Electricity Act.

8. Based on the said report counsel submitted that

in none of the three cases, the joint inspection team pointed

out any fraudulent abstraction of energy on the part of the

petitioners by adopting any artificial means and, therefore,

the case of the petitioners is squarely covered by the

judgment of the Supreme Court in Jagarnath Singh vs. H.

Krishna Murthy AIR 1967 SCC 947. The petitioner also

placed reliance on the judgment of this Court in Swaran

Dhawan Vs. State (NCT of Delhi) 99 (2002) DLT 416.

9. Mr. Sunil Fernandes, counsel for the respondent

very fairly admitted to the contention of counsel for the

petitioner that mere tampering of the seals would not make

out the case of FAE to invoke Section 39 of the Indian

Electricity Act. Counsel, however, submitted that as per the

joint inspection report, it is not merely the tampering of the

seals but there is more tangible evidence found by the team

which shows that the petitioner was indulging in FAE. Mr.

Fernandes further submitted that so far the first meter is

concerned, no doubt the allegation against the petitioner is

that a yellow paper seal was found tampered but so far the

second and third meters are concerned, certainly there is

enough evidence to show that the petitioner was found

indulging in FAE as cavity on the left hand seal was found

fictitious in the meter and through the said cavity the

petitioner was in a position to stop the running of the disc.

As regards the third meter, the counsel submitted that half

seal (LHS) of the industrial load meter was found missing

and scratches were also found on the dial plate and reading

digits, which again establishes that the petitioner was

indulging in FAE. Counsel further submitted that even the

rivets were found tampered and it can be inferred from it

that the petitioner was indulging in FAE. Counsel further

submitted that the raiding team on inspection found that

the seals of poly phase metres were found to be fictitious

and did not tally with the authenticated sample monogram.

It was also found by the Joint Raiding Team that MT Cone

was found missing, shunt capacitor was found missing,

cavity was observed at the left side of the meter and the

meter disc stopped running on a load of 100W as well as on

consumer load coupled with the fact that the connecting

load was found to be on a much higher side than the

sanctioned load. Counsel further submitted that all the

three meters were inter connected and any tampering in

one meter would effect all of the three meters. Counsel

further submitted that these are the findings of the facts

which can only be gone into during the course of the trial.

10. Supporting the order passed by both the courts

below the counsel for the respondent further submitted that

after careful consideration of the material placed on record

by the prosecution, the learned trial court framed charges

against the petitioners under Section 39 Part I of the Indian

Electricity Act, 1910. Counsel further submitted that a bare

perusal of the Joint Inspection Report, Inspection Report,

Load Report, etc. and the statements given by the

prosecution under Section 161 Cr.P.C. would show that the

petitioners have committed an offence under the first Part

of Section 39 of the Indian Electricity Act. Mr. Fernandes

invited attention of this Court to para 7 of the impugned

order passed by the learned Additional Session Judge

wherein the learned Judge has referred to the order dated

3rd March, 2008 passed by the learned Magistrate

highlighting various tangible acts committed by the

petitioner, which includes that the meter cover was found

missing, rivets were found tampered, one cavity was found

on LHS between load seal and rivets, disc of the meter was

found stopped on a load of 100 watt as well as consumption

load. Counsel further submitted that the Revisional Court

also upheld the order of the Ld. Magistrate framing charges

against the petitioner under Part I of Section 39 of the

Indian Electricity Act and therefore the concurrent view of

both the courts below does not call for interference by this

court while exercising jurisdiction under Article 227 of the

Constitution of India.

11. I have heard learned counsel for the parties at

considerable length and gone through the records.

12. It is a settled legal position that the truth,

veracity and effect of the evidence which the prosecutor

proposes to adduce are not to be examined meticulously at

the stage of framing of charge. The sifting of evidence at

the stage of framing of charges is permissible only for a

limited purpose, to find out as to whether a prima facie view

of the case is made out against the accused persons or not.

It is also equally true that the court is not expected to frame

the charges mechanically but has to exercise its judicial

mind after giving careful consideration to the case set up by

the prosecution.

13. Before adverting to the facts of the case at hand,

it would be important to reproduce Section 39 of the Indian

Electricity Act,1910 :

"39. Theft of energy. - Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term, which may extend to three years, or with fine, which shall not be less than one thousand rupees. or with both: and if it is proved that any artificial means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer."

(emphasis supplied)

14. The main plank of argument taken by the

counsel for the petitioners was that the inspection team

failed to point out that there was any dishonest abstraction

of the electricity energy through the deployment of any

artificial means and in the absence of the same no charge

u/s 39 Part I of the Indian Electricity Act, 1910 can be

framed against the petitioners. It was also submitted that

merely because the connected load was found to be more

than the sanctioned load, that by itself would not lead to an

inference that the petitioners were abstracting the

electricity in a fraudulent manner and so for the load higher

than the sanctioned load is concerned, the respondent can

always charge the misuse charges.

15. Counsel for the respondent on the other hand,

placed reliance on the observations of the joint inspection

team which in their inspection found that the meter cover

was found missing, half seals of the meter were found

fictitious, disc meter was found stopped, MT Cone cover was

found missing, rivets were found tampered, the

genuineness of the seals could not be tallied due to the non-

availability of sample monogram and no shunt capacitor

was found installed on the IP connections. Based on the said

joint inspection report, the counsel submitted that Part I of

Section 39 of the Electricity Act is clearly attracted against

the petitioners and the contentions raised by the counsel for

the petitioners can only be examined by the trial court

during the course of the trial.

16. The FIR in the present case against the

petitioners was registered under Section 39/44 I.E. Act/379

IPC but the Ld. Magistrate, after careful consideration of the

material on record did not find circumstances justifying

framing of charge against the petitioner u/s 44 of the Indian

Electricity Act. The court also found that the case of the

prosecution is well covered within the first part of Section

39 of I.E. Act. So far proving the dishonest intention on the

part of the accused persons was concerned, the trial court

felt that the same needs to be examined after evidence is

led by both the parties. The Revisional Court also

examined the contentions raised by the petitioners in detail

and taking into consideration the totality of the facts came

to the conclusion that there is a prima facie case to proceed

against the petitioners based on the joint inspection report

submitted by the raiding party. So far the contention of the

counsel for the petitioner that the joint inspection team did

not find deployment of any artificial means for the illegal

abstraction of electricity energy so as to attract Section 39

of the Indian Electricity Act is concerned, the legal position

is well settled that in the case of deployment of artificial

means, the burden of proof shifts on the consumer to prove

that through such deployment of artificial means there was

no dishonest abstraction of electricity energy. The Ld.

Magistrate was conscious of this fact as he clearly observed

that the case is made out against the petitioner under Part I

of Section 39 of the Indian Electricity Act and as regards to

the question that whether there was a dishonest abstraction

or not, the same can only be determined during the course

of the trial.

17. A number of judgments were cited by the

counsel for the petitioners to accentuate the argument that

no case under section 39 of the Electricity Act against the

petitioners can be made out. The judgment in Swaran

Dhawan Vs. State (supra) has been rightly distinguished

by the learned trial court, (the case cited by the counsel for

the petitioner even before this court), wherein the court

found that the disc of the meter was moving in right

direction and no other artificial means were found but in the

facts of the present case as per the inspection report ,the

disc was found stopped on a load of 100 W as well as on the

consumer load besides the fact that all the three

connections were found interconnected and they were

drawing connected load more than the sanctioned load.

Counsel for the petitioner also placed reliance on the

judgment of this court in the case of Ramesh Chandra &

Ors. vs. State Of Delhi 68(1997) DLT 257 which also

would not be of any help to the petitioner as the facts of the

case at hand are different from this case as in Ramesh

Chandra's case only half seals of the meters were found

tampered whereas in the present case the meter disc was

also found stopped alongwith the connected load being

more than the sanctioned load. Also, the charge framed in

that case was u/s 39/44 of the Electricity Act, 1910 which

requires the discovery of deployment of artificial means

whereas in the present case the learned trial court being

mindful of this fact has framed the charge only under part I

of section 39 of the I.E Act. The judgment of this court in

Devi Charan Gupta vs. State 80(1999) DLT 801 cited

by the petitioner, relied upon the case of Ramesh

Chandra(supra) and hence would also not aid the

petitioner in any way. Yet another judgment cited by the

counsel is of the Apex Court in Jagarnath Singh vs.

H.Krishna Murthy(supra) which case was an appeal

against conviction and hence the Hon'ble Supreme Court

delved deep into the merits of the case , which is not the

situation in the present case where we are at the stage of

framing of charge. The counsel for the petitioner

vehemently relied on the judgment of this court in the case

of Col. R.K Nayar (retd) vs. BSES MANU/DE/7685/2007

where the petitioner had challenged the speaking order

which made a case of DAE against the petitioner. The

judgment would not be applicable to the present case as

there the petitioner himself had written a letter to the DVB

complaining about the tampering of the meter, a fact which

the DVB did not deny and hence the petitioner could not

have been nailed down for the tampering. Also, the fact that

the inspection report was not properly made, the court was

of the view that it was a sham as there were no signatures

of the officials or of the petitioner on the report. Hence, the

view of the court in that case cannot be squarely pasted in

the present case. The judgment of this court cited by the

petitioner in J.K Steelomelt (P) Ltd. Vs. BSES

MANU/DE/7684/2007 is on the same lines and is hence not

applicable to the facts of the present case as well.

18. At this juncture, this court would like to sound a

word of caution with regard to the practice that has

evolved, that of citing judgments even when there is only a

paraphrase that supports a case. This court acknowledges

the theory of precedents but is mindful of the admonition of

Lord Denning which has become locus classicus :

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

The Apex Court has also time and again

reminded that a little difference in facts or additional facts

may make a lot of difference in the precedential value of a

decision. It would be pertinent to refer here to the judgment

of the Apex Court in Sarva Shramik Sanghatana (KV)

vs. State of Maharashtra (2008) 1 SCC 494 where it

cited the following passage from Quinn v. Leathem with

approval:

"... Now, before discussing Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of

the expressions which may be found there are not intended to be expositions of the whole law, but [are] governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."

19. Hence, in the final analysis, the facts of this case

are unique to its own and hence cannot be equated with

that of another case.

20. The Apex court in the case of State of Haryana

vs. Bhajan Lal 1992 Supp (1) SCC 335 settled the law as

to when criminal proceedings can be quashed by the High

Court under Section 482 CrPC. At the stage of framing of

the charges roving and fishing inquiry is impermissible and

a mini trial cannot be conducted at such a stage. At that

point, the trial court has to confine itself to the material

produced on record by the investigating agency and it is

only in a case where after taking into consideration the

entire material placed on record by the prosecution, the

trial court comes to the conclusion that no offence can be

made out against the accused. The truthfulness and the

sufficiency of the material thus produced on record can be

tested by the trial court only during the course of trial and

not at the stage of framing of the charges. This court,

therefore, does not find merit in the submission of the

counsel for the petitioner that even after prima facie taking

into consideration the report of the joint inspection team, no

offence under part 1 of Section 39 of the Indian Electricity

Act can be made out against the petitioner.

21. In view of the aforesaid, I do not find any merit in

the present petitions and this court is hesitant to give any

view on the merits of the case as such a view would

prejudice the case of either of the parties. However, taking

into consideration the concurrent view of both the courts

below and the prima facie material placed on record by the

prosecution, I am of the considered view that there is no

illegality or infirmity in the orders passed by both the courts

below. The present petitions do not merit any intervention

by this court while exercising jurisdiction under Article 227

of the Constitution of India.

22. Keeping in view the totality of these facts, this

court does not find the present cases to be fit cases for

quashing the charges at this stage.

23. Hence, in the light of the above discussion, the

present petitions are dismissed.

October 08, 2010                      KAILASH GAMBHIR, J