Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power on 3 February, 2010
IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
PATIALA HOUSE COURTS, NEW DELHI
Complaint Case No. 833/06
PS Jamia Nagar, Okhla, New Delhi
U/s 135 of Electricity Act, 2003
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi - 110019
And its corporate, Legal & Enforcement Cell at,
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through its Authorised Officer
Sh. Pankaj Tandon
...Complainant
Versus
Sattar (Bharat Engineering Works),
T9, Khizarbad Colony, Muradi Road,
Jamia Nagar, Okhla, New Delhi
...Accused
JUDGEMENT
1 The complainant company filed the present complaint u/s 135 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused has committed an offence punishable u/sec. 135 of the Act and also to determine the civil liability as provided under the provisions of the Act.
2 Cognizance for offence was taken on a complaint filed by the complainant company BSES Rajdhani Power Ltd. through its authorised officer.
3 The accused was summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 02.01.2007 after recording the presummoning evidence and hearing the arguments on summoning. Accused appeared and was granted bail subject to furnishing PB & SB in the sum of Rs.25,000/ with one surety of the like amount. Direction was also given to the accused to deposit a sum of Rs.50,000/ with the complainant company against the impugned bill amount.
4 Notice u/sec. 251 Cr.P.C was framed against the accused by the Ld. Predecessor Court to which the accused pleaded not guilty and claimed trial.
5 The complainant company, in order to prove its case, produced and examined Sh.Binay Kumar, Legal Officer as PW1, Sh.Abdul Salaam Sr.Manager as PW2, Abhishek Kumar - Assistant Manager as PW3, Sh.Rajender Prasad - Assistant Manager as PW4 and Sh.Sonu - photographer as PW5. The accused was examined u/sec. 313 Cr.P.C. to explain the incriminating evidence against him. The accused was given an opportunity to lead evidence in defence. The accused, in his defence evidence, has examined Sirajuddin S/o Rashidan R/o T9, Khijrbaba Colony, Muradi Road, Okhla, New Delhi as DW1.
6 I have heard the Ld. counsel for accused represented by Sh.Mohd.Asif and prosecution represented by Sh.Anil Bhasin, counsel/ deemed P.P and have perused the entire records.
7 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and circumstances of this complaint case, it has to be seen and considered whether this court, being the special court under the Act, can take cognizance of the offence punishable u/sec. 135 of the Act. Section 151 of the Act reads as under:
''Cognizance of offences - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.'' In the case of Vardhman Properties Ltd. Vs BSES Rajdhani Power Ltd. 157 (2009)DLT 636, it was held by the Hon'ble High Court that:
''The special electricity court can take cognizance of the offence u/sec. 135 of the Act without awaiting committal of the case to it by the Magistrate. Therefore, in the instant case when by the order dt. 07.04.2006, the Ld.ASJ took cognizance of the offence and summoned the petitioner for offence u/sec. 135 of the Act, the Ld.ASJ was excercising the powers u/sec. 151 of the Act.'' The Hon'ble High Court of Delhi in its order dated 06.02.2009 passed in Crl. MC 2059/2008 & Crl. MA 7669/2008 entitled Dalbir Singh Vs BSES Rajdhani Power Limited held that :
''Section 154 (1) mandates that every offence punishable under sections 135 to 140 & section 150 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. Considering the fact that Section 154 (3) the Special Courts are expected to proceed with the trial of the complaints under sections 135 to 140 & Section 150 in a summary way, it is inconceivable that the Parliament intended that the cognizance of the offence should first be taken by the learned MM and thereafter the case committed to the Special Court. Further Section 155 begins with the words ''Save as otherwise provided in this Act'' when it talks of the applicability of the Cr.PC. Therefore, on a collective reading of Section 135, 151, 154 (3) and 155 it is plain that as regards the trial of the complaint case under the Act, the intention of the Parliament is that it is the Special Court will take cognizance of the offences and proceed to try the case, to begin with, in a summary way.''
8 Further, it is to be considered whether the special electricity court is required to give reasons for proceeding with the trial in a summary way. Section 154 (3) reads as under :
''The Special Court may, notwithstanding anything contained in sub section (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 in a summary way in accordance with the procedure prescribed in the said code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this sub section, it appears to the Special court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to rehear the case in the manner provided by the provisions of the said code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.'' In this regard, the Hon'ble High Court of Delhi in the case Dalbir Singh (Supra) further held that :
''A plain reading of the above provision reveals that the intention of the Parliament was that cases concerning theft or illegal abstraction of electricity, attracting the offence under section 135 to 140 and section 150 of the Act, should be tried, to start with, in a summary way. Since the substantive portion of the above provision itself empowers the Special Court in this regard, it is unnecessary for the Special Court to give reaons for trying the case in a summary way. The procedure under section 154 (3) is indeed a departure from the procedure of trial of warrant cases under the Cr.PC Section 154 (3) contains a nonobstante clause which indicates that it is a departure from the normal procedure. Even Section 155 of the Act which otherwise makes the entire Cr.PC applicable, begins with the words ''save as otherwise provided in this Act.''
9 Let us firstly examine whether the present complaint case has been filed by duly authorised representative on behalf of the complainant company. Sh.Pankaj Tandon, Sr. Officer Legal being an authorised representative (hereinafter referred to as 'AR') of the complainant company filed the present complaint case. Sh.Binay Kumar, Officer Legal also authorised as AR on behalf of the complainant company. Sh.Binay Kumar, the AR entered into witness box and examined himself as PW1. PW1 proved the letter of authority in favour of previous AR as Ex.CW1/1 and his own authority letter as Ex.CW1/3 and also complaint signed and filed by previous AR as Ex.CW1/2. Perusal of Ex.CW1/1 dt. 14.07.2006 & Ex.CW1/3 dt. 23.10.2006 reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorised Sh.Pankaj Tandon, Sr. Officer Legal & Sh.Binay Kumar, Legal Officer to institute and/ or defend legal proceedings of whatsoever nature before the Special Courts and to sign & verify plaints, affidavits, written statements, petitions of claims, objections, memorandum of appeal & petition and application of all kinds and to file them in any such courts or office apart from other authorisation as mentioned in the said documents Ex.CW1/1 & Ex.CW1/3. The accused has not led any evidence and failed to prove that the ARs have not been authorised by the complainant company to file & represent the present complaint case. Thus, I hold that Sh.Pankaj Tandon, Sr. Officer Legal and Sh.Binay Kumar, Legal Officer of the complainant company are duly authorised and competent to file and represent the present complaint case on behalf of the complainant company.
10 Let us secondly examine whether members of the inspection team were the authorised officers of the complainant company to carry out inspection in the premises in question. Sh.Abdul Salaam - Senior Manager Enforcement, Abhishek Kumar & Rajender Prasad - both Assistant Managers Enforcement examined themselves himself as PW2 to PW4 respectively and deposed that on 19.04.2006, they inspected the premises in question with other team members. Perusal of the notification no.F11(93)/2003/power/1566 dt. 17.05.2005 reveals that in exercise of the powers conferred by subsection (2) of section 135 of the Electricity Act, 2003 (36 of 2003) read with Govt. of India, Ministry of Home Affairs, Notification No.F.No.U11030/2/2003/UTL dt. 20.02.2004, the Lt. Governor of National Capital Territory of Delhi has authorised the technical officers, not below the rank of Assistant Engineer / Assistant Manager and above, in the departments dealing with distribution (District/ Zones) commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited and North Delhi Power Limited who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of Section (2) of section 135 of the said Act in respective areas of the said companies in the National Capital Territory of Delhi. In view of the above notification and foregoing discussion, I hold that Sh.Abdul Salaam - Senior Manager Enforcement, Abhishek Kumar & Rajender Prasad - both Assistant Managers are the 'Authorised Officers' to carry out the inspection of premises under the provisions of section 135 of the Act.
11 After taking cognizance of the offence on the complaint, the accused was summoned to face the present complaint case. Accused appeared and was granted bail subject to furnishing PB & SB in the sum of Rs.25,000/ with one surety of the like amount. The notice u/sec. 251 Cr.P.C was framed against the accused, however, the accused pleaded not guilty and claimed trial. In this regard, I would refer the case of Sanghi Brothers (Indore) P. Ltd. Vs Sanjay ChaudharyI (2009) SLT 144, it was held by the Hon'ble Supreme Court of India that ''strong suspicion about commission of offence and involvement of accused is sufficient to frame charge.'' In the present complaint case, at the time of framing of notice u/sec. 251 Cr.P.C., the accused had made a defence that there is no meter in his name nor any bill issued in his name nor he was connected to the machinery and the premises in question, therefore, he is not liable to pay any damage and loss to the complainant company. 12 The statement of the accused was recorded u/sec. 313 Cr.P.C. In this context, I would refer the judgment delivered in the case of Chander Dev Rai Vs State (NCT of Delhi) 156 (2009) DLT 229 (DB), it was held by the Hon'ble High Court of Delhi that ''Examination of accused u/sec. 313 Cr.P.C is not a mere formality. Answers given by him have practical utility for criminal courts. Apart from affording an opportunity to the accused to examine incriminating circumstances against him also help the court in appreciating the entire evidence adduced in the court during the trial.'' In the present complaint case, the accused stated that he was not found using the aforesaid premises at the time of inspection carried out by the officers of the complainant company on 19.04.2006 since he has no concern with the premises in question. The connected load mentioned in the load report Ex.CW2/2 was not found. He is an employee of Ajad Motors at M34, Abul Fazal Enclave, Okhla, Jamia Nagar and working for denting and painting of vehicles and he is residing at the back portion of the premises in question as a tenant and he leaves the premises for his work in the morning and come back in the evening. Therefore, he has no concern with the load and tapping of electricity if any, found by the inspection team on the date of inspection. The accused has also stated that since he has no concern with the premises in question i.e. Bharat Engineering Works, therefore, he does not know if any reports, photographs and CD were prepared by the inspection team on 19.04.2006 because he was not present. The accused has further stated that the premises in question is spread in 500 sq. Yards area. There are several shops and residential accommodations therein and he is residing as a tenant in a portion of the said premises. The PWs being the interest persons and officers of the complainant company have deposed falsely and without any basis against him. Thus, a false and fabricated case has been prepared against him probably on the basis of the reports and CD.
13 Admittedly, the accused Sattar now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against him. A criminal charge could be proved on the basis of circumstantial evidence and the requirement is that circumstances incriminating in nature must be proved by cogent evidence and then circumstances so proved must form the complete change so as to be not consistent with the innocence of accused. In this context, a reliance can be had upon the judgment passed by the Hon'ble Supreme Court of India in the case reported as AIR 1970 SC 1286 held that :
'' There is no predetermined way of proving any fact. The fact is said to have been proved where aftr considering the matter before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the specification that it exists.'' In the case of Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay AIR 1961 Supreme Court 1316, it was held that :
''...The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact....'' In the case of M/s Sodhi Transport Co. and another Vs. State of U.P. and another reported as AIR 1986 Supreme Court 1099, it was held by the Hon'ble Supreme Court of India that :
''A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.''
14 Now, let us finally examine whether the accused has committed the offence u/sec. 135 (1) of the Act by directly tapping the LT mains of the complainant company. The case of the complainant is that on 19.04.2006, the team members of the complainant company inspected the premises in question and found that the premises was being used by Sattar in the name of Bharat Engineering Works. The accused was found using the electricity illegally from the LT mains of the complainant with the aid of illegal wires which were further connected to the connected load and total connected load of 2.438 KW was being used through the stolen energy by the accused for commercial purpose i.e. repair shop. The team members seized the illegal wires of red & black colour and one single core MCB. The inspection report, load report, seizure memo, photographs & videography were also prepared and made at site. Whereas, the case of the accused is that the accused has no concern with the premises in question. The accused is an employee of Ajad Motors at M34, Abul Fazal Enclave, Okhla, Jamia Nagar and working for denting & painting of vehicles and residing at the back portion of the premises in question as a tenant. The premises in question is spread in 500 sq. yards area. There are several shops and residential accommodation therein and he is residing as a tenant in a portion of the said area. 15 The complainant has examined five witnesses i.e. PW1 to PW5. PW1 is the legal officer/ AR for the complainant and PW2 to PW4 are the team members and PW5 is the photographer. PW2 to PW4 have proved the inspection report, load report, seizure memo, photographs & CD already exhibited as Ex.CW2/1 to Ex.CW2/3, Ex.CW2/6 & Ex.CW2/7 respectively and deposed that they found the accused using the premises in question and also found that the accused was using the electricity directly from the LV mains. When the materials seized at the spot i.e. the case property produced in sealed parcel and opened in the court, PW2 to PW4 identified the same and proved the illegal wires and MCB as Ex.P1 to Ex.P3. PWs deposed that no electricity meter was installed at site and the connected load which was being used has been specifically mentioned in the load report as Ex.CW2/2 by the team members which have been signed by the team members. PW2 deposed that the team members offered the report to be signed and received by the consumer at the spot but the same were refused to be signed by him. PW3 deposed that after preparing the documents at site at the time of inspection, the team members offered the documents to receive and sign to the workers present at spot but they refused the same. PW3 also deposed that accused Sattar was present at the time of inspection at site but he is not able to identify the accused in the court due to lapse of time. PW4 deposed that after preparing the documents, the team members offered the same to the persons present at the spot to receive and sign but they refused to receive and sign the same. PW4 also deposed that he does not remember whether accused Sattar was present at the time of inspection or not among the persons present there. During cross examination, PW2 deposed that he came to know from the workers present in the shop that the shop belong to the accused Sattar. PW2 asked the name of the workers but they did not disclose their names. The name of the accused was already disclosed by workers present at site, therefore, PW2 along with the team members did not ask from the neighbourers about the ownership of the shop in question. PW2 denied the suggestion that the shop in question did not belong to the accused or that the firm Bharat Engineering Works is not run by the accused. PW2 admitted that the accused is not shown in the photograph Ex.CW2/6 but denied the suggestion that the accused was not present at the spot and that is why his photograph is not depicted in the photographs. PW2 further deposed in his cross examination that the meter shown in the photographs is sub meter and does not belong to BSES. PW3, in his cross examination, deposed that the accused Sattar was present at the spot at the time of inspection. The shop was open at the time of inspection and one of the workers present at site disclosed that the accused Sattar is the owner of the shop. PW3 also admitted the fact in his cross examination that there is no photograph of accused Sattar in the photographs Ex.CW2/6. PW4 also deposed in his cross examination that the persons present at the spot disclosed that the accused Sattar is the owner of the shop in question. PW4 also deposed that he along with the team members did not collect the documents regarding the Bharat Engineering Works from the spot at the time of inspection since the persons present disclosed about the ownership of the shop. PW4 denied the suggestion that the accused Sattar has no concern with Bharat Engineering Works or shop in question.
16 It emerges from the testimony of PW2 to PW4 that they came to know from the persons/ workers present at site that the premises i.e shop in question Bharat Engineering Works belong to the accused Sattar. If accused Sattar was not present at site or not covered in the photographs taken by the photographer at the spot on the date of inspection, this fact does not absolve the accused Sattar of the offence of theft of electricity to allegedly have been committed by him at the premises in question. The workers/ persons present there at site disclosed the name of the accused Sattar that the premises in question i.e. the shop belongs to Sattar. Whereas, the accused Sattar has taken defence that he is an employee of Azad Motor at M34, Abul Fazal Enclave, Okhla, Jamia Nagar and working for denting & penting of vehicles. The accused has also taken a defence that he is residing at the back portion of the premises in question as a tenant and he leaves the premises for his work in the morning and come back in the evening. The accused has also examined Sirajuddin S/o Rashidan R/o T9, Khizrabad Colony, Muradi Road, Okhla, New Delhi as DW1 who deposed that he knows the accused as his tenant and DW1 is the owner of the premises bearing No.T9, Khizrabad Colony which is built up on the land of 100 sq. yards and the accused Sattar is the tenant from the last five years at a monthly rent of Rs.1,000/ and also the accused along with his family members is still residing at the aforesaid premises bearing No.T9, Khizrabad Colony. During cross examination, DW1 deposed that he has no rent agreement with the accused and he has no knowledge regarding any raid conducted by the BSES officials at the premises in question on the date of inspection. If the defence taken by the accused Sattar in the statement u/sec. 313 Cr.P.C. and testimony of DW1 is compared, it reveals that the accused Sattar on the one hand taken the defence that he is residing at the back portion of the premises in question as a tenant but on the other hand, DW1 has deposed that the accused Sattar is the tenant at the premises No. T9 which is in question but no such documents i.e. rent agreement or rent receipts have been proved either by DW1 or by the accused that DW1 is the owner and accused is the tenant of the premises in question. Even otherwise, no such witness has been produced and examined on behalf of Azad Motors to prove that the accused Sattar is the employee of Azad Motors at M34, Abul Fazal Enclave, Okhla, Jamia Nagar and working for denting & penting of vehicles.
17 I have also carefully perused the inspection report Ex.CW2/1, load report Ex.CW2/2, seizure memo Ex.CW2/3, photographs Ex.CW2/6 and also seen CD Ex.CW2/7. Circuit diagram as mentioned in the inspection report Ex.CW2/1 reveals the mode of theft of electricity by the accused. Thus, I hold that the accused has miserably failed to establish his case that he is neither concerned with the premises in question nor the owner of Bharat Engineering Works. Whereas, the complainant has proved by its evidence and PW2 to PW4 that the accused Sattar was using the premises in question in the name of Bharat Engineering Works at the time of inspection. Moreover, PW5 has also deposed and proved that on the direction of raiding team members, he conducted the videography of the raid and connected load of premises in question with the help of digital camera at the time of inspection. CD containing of photographs and videography also proved by PW5 already exhibited as Ex.CW2/7. The testimony of PWs is categorically on the point of detention of theft at the raided premises. The circumstances proved by the complainant have been established by cogent evidence i.e. the inspection report, load report, seizure memo, seized illegal wires & MCB, photographs & CD. Therefore, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the complainant through its witnesses examined as PW2 to PW5 on the point of direct theft of electricity. In BSES Rajdhani Power Ltd. Vs Saurashtra Color Tones Pvt. Ltd. and Anr. 161 (2009) DLT 28 (FB), it was held by the Hon'ble High Court of Delhi that ''Electricity is a public property. Law in its majesty benignly protects public property and behoves everyone to respect public property.'' 18 For the foregoing reasons discussed above in details, to my considered opinion, the circumstances and evidence proved by the complainant company established the involvement of the accused in the offence of direct theft of electricity. The complainant has proved its case against the accused beyond reasonable doubt. The present complaint case is squarely covered within the provisions of section 135 of the Act. Thus, I convict the accused Sattar u/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 03.02.2010 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
PATIALA HOUSE COURTS NEW DELHI
CC No. 833/06
03.02.2010
Present AR of the complainant
Accused in person
Vide separate judgment of the day, the accused is
convicted u/sec. 135 of the Electricity Act, 2003. The copy of the judgment be made available to the complainant and the accused immediately.
Upon request of the counsel for the accused, to come up for arguments on the point of the sentence and determination of civil liability on 10.02.2010.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH/ 03.02.2010