Delhi District Court
Complainant vs Ramesh Chand Mudgil on 31 August, 2013
Page 1 of 16
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 170/10/08
ID No. 2405R0631112008
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
1. Ramesh Chand Mudgil
2. Alimuddin
3. Smt Nirmala Devi
W/o Ramesh Chand Sharma
......................... Accused
All at:
Shop No. 29/30, GF, Khasra No. 821,
OM1, Chawla Farm Village,
Nawada, Om Vihar,
Uttam Nagar, New Delhi59
CC No. 170/10/08
Page 2 of 16
Date of institution: ........................ 15.10.2008
Arguments heard on: ........................ 13.08.2013
Judgment passed on : ........................ 26.08.2013
JUDGMENT:
1. The brief facts of the case are like this. On 16.07.2008 at 11.30 am a joint inspection team headed by Sh.A D RaiSr. Manager (Enforcement) of the complainant company inspected shop no. 29/30, Ground Floor, Khasra no.821, OmI, Chawla Firm, Nawada, Om Vihar, Uttam Nagar, New Delhi (hereinafter referred to as inspected premises). The accused no.1 and 2 are users of the inspected premises whereas accused no.3 is the registered consumer of electricity meter bearing no. 126041 installed in the inspected premises. The accused were indulging in the direct theft of electricity by tapping electricity from L V mains of the complainant for the inspected premises. The team, in order to identify the load running through meter and on direct theft of electricity, disconnected the outgoing cable of the meter and found that theft load was used only for the welding shop/fabrication shop as load of the remaining portion of the premises was running through meter. A connected load of 16.622 KW was found for non domestic purposes. The video of the inspected premises was taken and CD was prepared. The black colour single core aluminum PVC CC No. 170/10/08 Page 3 of 16 insulated wires and electronic meter were removed and taken into possession vide separate seizure memo. Inspection report, meter details report, load report and seizure memo were prepared and offered to the accused who refused to receive and sign the same. An assessment bill for theft of electricity was raised against the accused which remained unpaid. Hence, this complaint.
2. Accused were summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused to which they pleaded not guilty and claimed trial.
3. The complainant examined four witnesses. Complainant evidence was closed. Accused were examined U/s 313 Cr.P.C. The accused Ramesh Chand Mudgil has taken the defence that there was no theft of electricity and entire load was running through meter. The accused Nirmala Devi has taken the defence that she does not know who is the user of the inspected premises as she does not go there. The electricity meter was installed in her name. Accused Almuddin has taken the defence that he is not the user of the premises. However, no defence evidence has been led by them.
4. PW1 Baldev Singh is one of the members of the joint CC No. 170/10/08 Page 4 of 16 inspection team. His part examination in chief was recorded on 26.08.2010 but he was not recalled later on for further examination.
5. PW2 A D Rai is the team leader and another member of the joint inspection team. He stated that on 16.07.2008 he along with other officials of the complainant company inspected the inspected premises. The accused no.1 and 2 are users of the inspected premises whereas accused no.3 is the registered consumer of electricity meter installed in the inspected premises. The accused no.2 Almuddin was present at the spot who disclosed that he is user of the inspected premises and further disclosed that Ramesh Chand Mudgil is also the user of the inspected premises. Accused Almuddin is duly identified by him. There was direct theft of electricity by tapping electricity from L V mains of the complainant for running the welding shop/fabrication work in the premises. A connected load of 16 KW was found for nondomestic purposes. The video of the inspected premises was taken by J Pphotographer from M/s Arora Photo Studio. The wires and meter were removed and taken into possession vide separate seizure memo. The wires and meter Ex.P1 are produced in the court and duly identified by him. Inspection report, load report and seizure memo Ex.CW2/A,C and D (seizure memo is inadvertently exhibited as Ex.CW2/B) were prepared and offered to CC No. 170/10/08 Page 5 of 16 the accused Almuddin who refused to receive and sign the same. CD Ex.CW2/E was prepared. The contents of the video in the CD Ex.PW2/E are duly identified by him as the same were recorded at the time of inspection.
6. During cross examination by accused Almuddin, he stated that accused Ramesh Chand Mudgil and Almuddin were present at the spot and both of them met them. He admitted that accused Almuddin is not covered in the video. He cannot say if accused Almuddin has no concern with the inspected premises. He did not record statement of Almuddin.
7. During cross examination by accused Ramesh Chand Mudgil and Nirmala Devi, he stated that Nirmala Devi is made as an accused because she is registered consumer. Accused Almuddin told that Ramesh Chand Mudgil is owner of the premises in question. The suggestion is denied that no inspection was carried out in the premises of Ramesh Chand Mudgil and Nirmala Devi or there was no theft of electricity in the inspected premises or they have inspected some other premises and removed the meter of Nirmala Devi in order to implicate them or case property was not seized from the spot.
8. PW3 Jai Prakash is a videographer. He stated that on 16.07.2008 at 11.30 a.m. he along with officials of the complainant CC No. 170/10/08 Page 6 of 16 company visited the inspected premises. He has taken the video of the premises at the spot. CD Ex.PW2/A was prepared. He has identified the contents of CD as same were recorded at the time of inspection. He has handed over the camera to Mr Arora who has downloaded the data in the office computer.
9. During cross examination by all the accused, he stated that he has not signed any document. The suggestion is denied that he has not prepared the CD or he has not taken the video.
10. PW4 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the complainant.
11. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to show that the accused are the owners or users of the inspected premises and they are responsible for committing theft of electricity in the inspected premises.
12. The complainant has examined four witnesses in order to prove its case. PW1 and 2 are the members of joint inspection team. PW3 is a videographer who has taken the video of the inspected premises at the time of inspection. PW4 is the authorized CC No. 170/10/08 Page 7 of 16 representative of the complainant who has filed the complaint Ex.CW1/A on the basis of authority letter Ex.CW1/B given to him by the then CEO of the complainant company.
13. I have perused the entire evidence on record. The testimony of PW1 and 2 is material in nature to determine in order to corroborate the allegations as set out by the complainant in the complaint Ex.CW1/A. The testimony of PW1 is of no help to the complainant. His part examination in chief was recorded and he was not recalled for further examination. His examination is not complete so his part examination does not become the part of evidence.
14. The testimony of PW2 requires close scrutiny. His testimony shows that on 16.07.08 an inspection was carried out in the inspected premises where one electricity meter was installed in the name of accused Nirmala Devi. It is admitted by accused Ramesh Chand Mudgil and Nirmala Devi that an electricity meter was installed in the name of Nirmala Devi. The evidence shows that an inspection was carried out in the inspected premises otherwise how a person would come to know that an electricity meter is installed in the name of particular person.
15. His testimony further shows that the premises was used for welding shop/fabrication work by accused Ramesh Chand Mudgil and CC No. 170/10/08 Page 8 of 16 Almuddin. The accused Almuddin was present at the time of inspection who is duly identified by PW2. There is no question or suggestion by accused Almuddin to this witness that he along with Ramesh Chand Mudgil was not the user of the inspected premises or he was not present at site at the time of inspection. Accused Almuddin has failed to cross examine the PW2 on the material aspects of the case meaning thereby that the testimony of PW2 on these aspects stand admitted. Accused Almuddin is one of the user of the inspected premises.
16. The testimony of PW2 further shows that accused Almuddin told that accused Ramesh Chand Mudgil is user and owner of the inspected premises. Accused Ramesh Chand Mudgil was present at the time of inspection. PW2 has improved his testimony in his cross examination that accused Ramesh Chand Mudgil was present at the time of inspection otherwise he would have deposed to this effect in his examination in chief. No reliance can be placed on this part of his testimony. Accused Ramesh Chand Mudgil was not present at the time of inspection. The accused Ramesh Chand Mudgil cannot draw any benefit from the fact that he was not present at the spot because he himself has admitted in his statement u/s 313 Cr.PC that he along with accused Almuddin has been using the inspected CC No. 170/10/08 Page 9 of 16 premises. Accused Ramesh Chand Mudgil is husband of Nirmala Devi. It becomes clear from the record that accused Ramesh Chand Mudgil is also the user of the inspected premises.
17. Accused Nirmala Devi is the registered consumer of the electricity meter installed in the inspected premises. The testimony of PW2 shows that she has been made as an accused because she is registered consumer. PW2 has nowhere deposed that accused Nirmala Devi is the user of the welding shop/fabrication shop in the inspected premises. Accused Ramesh Chand Mudgil is husband of accused Nirmala Devi. She cannot be called as a user merely on the premise that she is the registered consumer. There is no evidence on record that she was having any knowledge about the alleged theft of electricity for the welding shop/fabrication shop. There is no evidence of abetement of theft of electricity against her. To my mind, there is no evidence that accused Nirmala Devi is user of the welding shop/fabrication shop in the inspected premises and she cannot be held responsible for any theft of electricity in the welding shop/fabrication shop in the inspected premises merely on the premise that she is registered consumer.
18. Ld counsel for the accused Ramesh Chand Mudgil contended that inspection was carried out in some other premises and CC No. 170/10/08 Page 10 of 16 electricity meter installed in the name of Nirmala Devi was removed from her premises. The argument is without any merits as accused Ramesh Chand Mudgil and Nirmala Devi have failed to disclose as to whose premises was inspected especially when they are residents of the same area. There is no question or suggestion to PW2 that he is having some enmity with the accused or he has some axe to grind. In the absence of any evidence of enmity, the question of removal of the electricity meter installed in the name of Nirmala Devi from the inspected premises without any inspection does not arise at all.
19. The testimony of PW2 further shows that there was theft of electricity from the L V mains of the complainant for running the welding shop/fabrication work in the inspected premises. The domestic load was running through the electricity meter and commercial load was running through direct theft of electricity. There is nothing on record that a separate meter for running the welding shop/fabrication work was got installed by the accused. There is nothing on record that the entire load for domestic as well as for non domestic purposes was running through electricity meter. There is nothing on cross examination of PW2 to show that entire load was running through meter. The accused have not placed any paid electricity bill to show that electricity for the welding shop/fabrication CC No. 170/10/08 Page 11 of 16 shop was used through electricity meter. There was no alternative arrangement for the use of electricity for the welding shop/fabrication shop. The only means to use the electricity for the welding shop/fabrication shop in the inspected premises was to draw the electricity from L V mains of the complainant. There is nothing on record to view the testimony of PW2 with the aid of spectacle. His testimony clearly shows that there was theft of electricity for the welding shop/fabrication shop in the inspected premises.
20. Ld counsel for the accused contended that accused Ramesh Chand Mudgil has been running the shop in the name of Sharma Sanitary and the welding shop/fabrication shop shown in the CD Ex.PW2/A pertains to some other person. Heard and perused the record. The argument does not hold water as no such question or suggestion is put to PW2. No such defence has been taken by him during the course of trial. No such defence has been advanced at the time of recording the statement u/s 313 Cr.PC. The accused could have easily placed on record some documents to show that he has been running a shop under the name and style of Sharma Sanitary. The accused Ramesh Chand Mudgil is resident of the same area. He could have easily disclosed the name of the person who was running the welding shop/fabrication shop. There is no evidence on record to CC No. 170/10/08 Page 12 of 16 this effect. The argument has been advanced just for the sake of argument otherwise it is devoid of any merit.
21. Ld counsel for the accused contended that CD ExPW2/A is placed on record during the course of trial which is not free from doubt. He further submitted that CD Ex.CW2/E was filed along with complaint and contents of the CD were not identified by PW1 and 2. He further submitted that there is no explanation why the contents of the CD Ex.CW2/E were not identified by them. Ld counsel for the complainant contended that CD Ex.CW2/E filed along with complaint does not pertain to the inspected premises so the correct CD Ex.PW2/A is placed on record. Heard and perused the record. It is correct that CD Ex.CW2/E was filed along with complaint. CW2 Baldev Solanki was examined during pre summoning evidence. CD Ex.CW2/E was not played on the computer screen. The contents of CD were never identified by PW1 at the time of recording of pre summoning evidence. Baldev Solanki was again called after the framing of notice of accusation. His part examination in chief shows that he has not identified the contents of CD Ex.CW2/E. PW2 has categorically stated that CD Ex.CW2/E does not pertain to the present case. The contents of CD Ex.CW2/E was never identified by any of the witnesses examined by the CC No. 170/10/08 Page 13 of 16 complainant. The permission to place CD Ex.PW2/A was granted to the complainant as there was no objection from the accused which is apparent from ordersheet dated 26.08.2011. The video of the inspected premises was taken by PW3 who has also identified the contents of CD Ex.PW2/A. There is nothing on record to show that CD Ex.PW2/A is manipulated or is surrounded with clouds of doubt. The correct CD has been placed on record, the contents of which are duly identified by PW2 and 3. The CD shows that the illegal wires are coming from the L V mains of the complainant to the welding shop/fabrication shop in the inspected premises. There is nothing on record to cast aspersion on CD Ex.PW2/A. The argument does not hold water. However, the complainant cannot draw any support out of this CD because the person who has downloaded the data from the cassette into the office computer and thereafter prepared the CD is not examined by the complainant. The original cassette is not placed on record. There is no evidence that computer was working in the perfect condition at that time. The CD is not proved in accordance with section 65 B of Indian Evidence Act.
22. The illegal wires and meter Ex.P1 were removed by the members of joint inspection team. The meter was installed in the inspected premises. The wires used to commit the theft of electricity CC No. 170/10/08 Page 14 of 16 from L V mains of the complainant were removed and taken into possession. There is nothing on record to show that wires are planted upon the accused or PWs have any motive to plant the wires upon the accused.
23. The appliances found at the time of inspection in the welding shop/fabrication shop were recorded in the load report Ex.CW2/C. There was a connected load of 16.622 KW for non domestic purposes. The accused have nowhere questioned PW2 to the effect that some appliances were not found at the time of inspection or any appliance was out of order. There is nothing on record that load was recording on the higher side or in the arbitrary manner. The load report is correctly prepared by the members of joint inspection team.
24. Section 135 of Act puts an onus on the complainant to prove the abstraction of electricity by the means not authorized by the complainant. The complainant has discharged its onus by proving the abstraction of energy by examining the member of joint inspection team as well as by producing the wires through which theft was going on. The onus shifted to the accused. The accused have failed to show that they were not indulging in illegal abstraction of electricity. It is not the case that they were having any electricity meter for the CC No. 170/10/08 Page 15 of 16 welding shop/fabrication shop.
25. The entire evidence on record shows that accused Ramesh Chand Mudgil and Almuddin are the users of the welding shop/fabrication shop in the inspected premises. There was no electricity meter for welding shop/fabrication shop in the inspected premises. Accused were indulging in direct theft of electricity from LV mains of the complainant through illegal wires. The testimony of PW 2 is consistent on the material aspects of the case. The accused have failed to further their defence. There is no evidence of enmity on record so the question of false implication does not arise at all. Mere nonassociation of public persons is of no infirmity. The testimony of PW2 is relied upon.
26. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to prove the case against the accused Nirmala Devi beyond shadow of reasonable doubt and accordingly she is acquitted of the offence charged. However, the complainant company has proved the case against the accused Ramesh Chand Mudgil and Almuddin beyond shadow of reasonable doubt and accordingly accused are held guilty U/s 135 Electricity Act, CC No. 170/10/08 Page 16 of 16 2003 and convicted. Let the file to come up for arguments of quantum of sentence.
Announced in the open Court on dated 26.08.2013 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 170/10/08 Page 1 of 4 IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTRICT COURT DWARKA, NEW DELHI CC No. 170/10/08 ID No. 2405R0631112008 Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd Registered office at:
(a) BSES Bhawan Nehru Place, New Delhi 110019
(b) Corporate, Legal and Enforcement Cell, Near Andrews Ganj Market, New Delhi 110049 ........................ Complainant Versus
1. Ramesh Chand Mudgil
2. Almuddin ........................ Convict ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that convict were indulging in direct theft of electricity and no leniency should be shown to such kind of convict.
2. Ld counsel for the convict Almuddin submitted that wife of convict is a patient of obesity. He further submitted that convict CC No. 170/10/08 Page 2 of 4 has three school going children. He further submitted that convict belongs to labour class. He further submitted that he is the sole bread earner and entire family is dependent upon him so a lenient view be taken in his favour.
3. Ld counsel for convict Ramesh Chand Mudgil submitted that convict is not keeping good health as one lung has been removed.
He further submitted that convict has five children including three daughters. He further submitted that convict is the sole bread earner of his family and entire family is dependent upon him. He further submitted that any substantive sentence will affect his family so request is made to take a lenient view.
4. Heard and perused the record. The convict are the first offenders as there is nothing on the record to suggest that they have been previously convicted for the same offence. The convict are allegedly the bread earners of their families and any substantive sentence will affect their families. The convict Ramesh Chand Mudgil is allegedly not keeping good health. To my mind, interest of justice shall be met if sentence of fine is imposed. The load was 16.622 KW. The bill has been raised for a sum of Rs. 6,19,600/. The load is more than 10 KW and fine imposed should not be less than three times of CC No. 170/10/08 Page 3 of 4 the financial gain on account of theft of electricity. Hence, convict are sentenced to pay fine of Rs.9,29,410/ and in default of payment of fine to undergo SI for 5 months each. (It is clarified that each convict is liable to pay a sum of Rs. 4,64,705/). The convict are also liable to pay civil liability U/s 154 (5) of the Act so amount of civil liability shall be paid to the complainant towards satisfaction of the civil liability, out of fine, if realized.
ORDER ON CIVIL LIABILITY:
5. Section 154 (5) of the Act says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
6. The convict have been held guilty U/s 135 of the Act. The connected load was 16.622 KW for non domestic purposes. The bill was raised for a sum of Rs 6,19,600/. The bill is raised on the basis of consumption for a period of 12 months multiplied by two times by way of penalty. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 6,19,600/ which is payable with simple interest CC No. 170/10/08 Page 4 of 4 at the rate of 6% per annum from the due date of bill till its payment. The civil liability shall be paid jointly or severely by the convict. The amount already paid, if any, by the convict shall be adjusted towards civil liability. Copy of the order be given to the convict free of cost.
File on completion be consigned to record room. Announced in the open Court on dated 31.08.2013 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 170/10/08