Delhi District Court
State vs . Ravinder Gupta & Anr. Fir No. 159/18 ... on 17 October, 2019
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IN THE COURT OF SH. SANJEEV KUMAR SINGH, ADDL. SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
CIS No. : 609/18
SC NO. :219/18
FIR No. :159/18
PS. :Kotla Mubarak Pur, New Delhi
Under Section : 135 of the Electricity Act, 2003
STATE
Versus
1.RAVINDER GUPTA
S/O LATE SH. SUNEHRI LAL GUPTA
2. SMT. ANITA GUPTA
W/O RAVINDER GUPTA
BOTH R/O:
HOUSE NO.1706, GROUND FLOOR,
RISHI NAGAR, KOTLA MUBARAK PUR,
NEW DELHI110003
...ACCUSED
Case instituted on : 03.11.2018
Judgment reserved on : 10.10.2019
Judgment pronounced on : 17.10.2019
STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 1 of 15
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JUDGMENT
1. A complaint was received on behalf of the complainant company i.e. BSES Rajdhani Power Limited at the Police Station Kotla Mubarak Pur on the basis of which present FIR bearing no. 159/18 was registered under Section 135 of the Electricity Act, 2003 against the accused persons.
2. The version of the complainant company is that on 11.05.2018 at around 7.50 a.m., a joint inspection team comprising of Sh.R.P.SinghAssistant Manager, Sh.Krishan KumarDiploma Engineer and Sh.Gaurav Lineman inspected the premises i.e. House No. 1706, Ground Floor, Rishi Nagar, Kotla Mubarak Pur, New Delhi110003 (hereinafter referred to as premises in question).
3. At the time of the inspection, the inspection team found one electricity meter bearing no. 24412199 C/R 13991 KWH and MDI1.66 KW installed at the site but the user was indulged in the direct theft of electricity by directly tapping from illegal cable which was connected from the BSES distribution box at BSES pole and further feeding to the user power board and then connected load at the ground floor. The connected load was found to be 5.690 KW for domestic purpose. Illegal material was seized by the inspection team. Inspection report, load report and seizure memo were prepared at the STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 2 of 15 3 site and were tendered to the accused persons, however, they refused to acknowledge or sign the same. Necessary videography was conducted by Sh.SumerVideographer.
4. It is further averred in the complaint that the complainant company assessed a civil liability of Rs.1,10,087/ in accordance with the provisions of the DERC Regulations. Accordingly, a supplementary bill dated 14.05.2018 for theft of electricity was duly sent to the accused persons.
5. On the basis of the aforesaid complaint, present FIR was registered and after investigation challan was filed.
6. Cognizance of the offence punishable under Section 135 of the Electricity Act, 2003 was taken by the ld. Predecessor on 09.01.2019 and the accused persons were summoned accordingly. They appeared on 07.05.2019 and were enlarged on bail.
7. Notice of accusation under Section 251 Cr.P.C. was put to the accused persons on 07.05.2019 to which they pleaded not guilty and claimed trial. STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 3 of 15 4
8. In order to prove the case against the accused persons, the prosecution produced six witnesses which have been discussed below.
9. Statement of the accused persons under Section 313 Cr.P.C. was recorded on 10.10.2019. Both the accused pleaded their innocence and denied the evidence on the ground that they were not committing direct theft of electricity at the premises in question on the date of inspection and false and fabricated reports were prepared by the raiding team. They further submitted that they have cleared the civil liability and obtained NOC from the complainant company.
10. I have heard the arguments on behalf of both the parties and also gone through the record. CD of the videography was also displayed on the computer screen of the Court.
11. PW1 Sh.R.P.SinghAssistant Manager who deposed that on 11.05.2018 at about 7.50 a.m., he alongwith Sh. Krishan KumarDimploma Engineer, Sh.Gaurav SharmaLineman and Sh.SumerVideographer alongwith Delhi police visited and inspected the premises bearing house no.1706, Ground Floor, Rishi Nagar, Kotla Mubarak Pur, New Delhi. He further deposed that STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 4 of 15 5 on reaching the spot they found there was one electricity meter bearing no. 24412199 installed for ground floor, however, the said meter was in off condition and the supply of electricity was being run through directly tapping from BSES Pole with the help of two illegal black colour wires which were connected to power switch board and the said illegal wires were further connected to the connected load of the premises i.e. ground floor. He further deposed that the premises was being used by the accused Anita Gupta and abovesaid meter was sanctioned in the name of the accused Ravinder Gupta as a registered consumer. He further deposed that there were two other meters installed for other floors of the premises. He further deposed that they assessed the connected load of the premises in question in the presence of accused Anita Gupta and the same was 6.5 KW approximately for domestic purpose. He further deposed that they removed the electricity meter of the ground floor and illegal wires i.e. two number black colour multistrand copper wire of size 2.5 mm sq. and in length approximately 1 meter each alongwith one power board and correctly identified as Ex.P2 (white colour power switch board), Ex.P3 (one electricity meter bearing no. 24412199) and Ex.P4 (colly) i.e. two wires of black colour multistrand copper wire. He proved the inspection report, load report and seizure memo i.e. Ex.PW 1/B, Ex.PW1/C and Ex.PW1/D respectively. He identified the videography STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 5 of 15 6 contained in the CD Ex.PW1/A and also pointed out towards accused Anita Gupta in the videography who was also present in the Court on the date of deposition and identified her. He has proved the complaint filed by him to the PS. Kotla Mubarakpur as Ex.PW1/E.
12. In crossexamination, PW1 replied that when they reached at the spot, he met the accused Anita Gupta and her son and he did not know the name of her son. He further replied that no other person was present at the spot and the residence of the accused is in front of the pole and the wires connected to the pole were seized by the LinemanGaurav Sharma. He further replied that the videography is available with regard to removal of the seized wires from the pole and the wire was removed while standing on the first floor of the same building. He further replied that no witness came forward to give statement regarding their present task and he did not enquire from any person residing at the first floor to assist. He denied the suggestion that he had wrongly taken the meter and there was no direct theft of electricity in the premises in question. He further denied the suggestion that the wires and meter were planted one in order to falsely implicate the accused. STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 6 of 15 7
13. PW2, Duty officer/ASI Shiv Charan who has proved the FIR as Ex.PW2/A (OSR) and certificate under Section 65B of the Indian Evidence Act as Ex.PW2/B. He further deposed that he made endorsement on the complaint at point X. He was not crossexamined despite opportunity given.
14. PW3 IO/ASI Vijay Kumar, who deposed that on 18.05.2018, complaint alongwith documents was handed over to him for investigation and he made endorsement on the complaint already Ex.PW1/E at point X1 to X2 which bears his signatures at point B. He further deposed that he called the complainant witnesses at the P.S. to join the investigation and recorded their statements under Section 161 Cr.P.C. vide Ex.PW3/A. He further deposed that he served the notices under Section 41A Cr.P.C. to the accused to join the investigation vide Ex.PW3/B (colly) which bears the signatures of accused Ravinder Gupta and Anita Gupta at point 'A' and 'B'.
15. In crossexamination, PW3 replied that he did not verify the CD.
He admitted that he was not the part of raiding team during inspection on 11.05.2018 and the wires and meter were not seized in his presence and the documents were not prepared in his presence. He denied the suggestion that he had tampered the CD.
STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 7 of 15 8
16. PW4, Sh.G.B.BarapatreDGM (Finance), who proved the theft bill vide Ex.PW4/A.
17. In crossexamination, he replied that he did not inspect the site physically and his report is based on the inspection report and load report given by the team leader and Ex.PW4/A does not bear his signature. He denied the suggestion that the bill is highly inflated.
18. PW5, Sh.Krishan KumarDiploma Engineer, who deposed that on the instruction of the team leader, he assessed the connected load of the premises in question in the presence of the accused Anita Gupta and the same was found to be 5.690 KW for domestic purpose. He also proved the documents prepared at the site i.e. inspection report, load report and seizure memo already Ex.PW1/B, Ex.PW1/C and Ex.PW1/D and identified his signatures at point B. He correctly identified the seized material i.e. Ex.P2, Ex.P3 and Ex.P4. He also identified the videography already Ex.PW1/A and pointed out towards accused Anita Gupta in the videography who was also present in the Court on the date of deposition and identified her.
19. In crossexamination, PW5 replied that the residence of the accused is in STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 8 of 15 9 front of the pole and no public person was made as witness during the inspection. He further replied that he had not enquired from any person residing at the first floor to assist and volunteered that the accused herself stated that the tenants are residing on the first floor. He further replied that he could not produce any document to connect the Anita Gupta as a user at that time and volunteered that the accused Anita Gupta herself was present and was user of the premises in question during inspection. He denied the suggestion that excess and exaggerated load has been assessed by the raiding team. He further denied the suggestion that the wires and meter were planted in order to falsely implicated the accused.
20. PW6, Sh.Gaurav KumarLineman, who deposed on the same lines as deposed by PW1 & PW5. He further deposed that on the instruction of the team leader, he removed the electricity meter of the ground floor and illegal wires. He also proved inspection report, load report and seizure memo already Ex.PW1/B, Ex.PW1/C and Ex.PW1/D and identified his signatures at point C. He correctly identified the seized material i.e. Ex.P2, Ex.P3 and Ex.P4.
21. In crossexamination, PW6 replied that the residence of the accused is in STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 9 of 15 10 front of the pole and no public person was made as witness during the inspection. He further replied that he had not enquired from any person residing at the first floor to assist. He further replied that he could not produce any document to connect the accused Anita Gupta as a user at that time and volunteered that the accused Anita Gupta was herself present and was user of the premises in question. He denied the suggestion that excess and exaggerated load has been assessed by the raiding team. He further denied the suggestion that the wires and meter were planted one in order to falsely implicate the accused.
22. It was submitted by the Ld. Addl. PP for the State and the ld. Counsel for the complainant company that it has been held in catena of judgments passed by Hon'ble Apex Court as well as Hon'ble High Court of Delhi that in order to bring home the guilt of accused under the cases of direct theft of electricity, following ingredients need to be proved:
(i) the identity of accused;
(ii) the identity of premises in question;
(iii) the connection of the accused with the premises in question;
(iv) that the accused was indulged in direct theft of electricity by illegal STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 10 of 15 11 means and was using the electricity by not paying due charges.
23. It was submitted by Ld. Addl. PP for State and Ld. Counsel for complainant company that in order to bring home the guilt of the accused persons, prosecution has examined six witnesses and from their deposition, it is revealed out that the inspection was carried out at the premises in question on 11.05.2018 at about 7.50 a.m by the officials of complainant company at the premises in question and one electricity meter was found installed for the ground floor but the same was in off condition and the accused persons were committing direct theft of electricity through directly tapping from BSES Pole with the help of illegal wires and the same were duly proved and correctly identified by PW1, PW5 and PW6 vide Ex.P2, Ex.P3 and Ex.P4 and PW1, PW5 and PW6 also correctly identified the videography contained in the CD Ex.PW1/A and also identified the accused Anita Gupta depicted in the videography. Lastly, it was submitted that the prosecution has proved all the aforesaid ingredients.
24. In view of the said circumstances, now the onus has been shifted upon the accused to prove their innocence or the defence as the presumption has arisen against them by virtue of the third proviso to the Section 135 of the Electricity STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 11 of 15 12 Act, 2003. The accused is not supposed to prove his defence 'beyond reasonable doubt' under the law and if any economic law shifts the burden on the accused to rebut any presumption, the extent of onus to be discharged by him has been laid down by the Hon'ble Supreme Court in case titled Hiten P. Dalal Vs Bratindranath Banerjee cited as 2001 (6) SCC 16 in para 20 as follows: ".....Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
25. In view of the said law laid down by the Hon'ble Supreme Court, let me consider if the accused persons have taken any defence. Accused have submitted in notice under Section 251 Cr.P.C. put against them that they were not committing any theft of electricity. False and fabricated case has been made against them by the complainant company. In statement recorded under Section 313 Cr.P.C., both accused have denied the evidence and submitted that they had not committed any offence as alleged by the prosecution and that they have already cleared the civil liability in the present case and also STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 12 of 15 13 obtained NOC from the company which is on record.
26. The said defences taken on behalf of the accused persons are merely bald submission as the accused have failed to lead any defence evidence or to produce any document to the effect that they were using the electricity legally and lawfully by paying due charges to the complainant company.
27. The prosecution witnesses specifically PW1, PW5 and PW6 having no axe to grind against the accused and they had no motive to falsely implicate the accused. Their respective depositions are further corroborated by the documents placed on record and the videography which further corroborated the inspection carried out at the site.
28. Generally, in the cases pertaining to direct theft of electricity, the best remedy available to the accused is to produce the electricity bills for the relevant period, however, no electricity bill pertaining to the premises inspected has ever been produced by the accused persons in the present case despite opportunity given. In this regard, reliance can be placed upon judgment passed by Hon'ble High Court of Delhi in Mukesh Rastogi Vs. North Delhi Power Limited, in Criminal Appeal No. 531/2007, the relevant extract of said STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 13 of 15 14 judgment is reproduced as under: ".........6. The contention of the appellant is that electricity supply was through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through meter. Under Section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
29. From the above discussion, it is clear that accused persons have miserably failed to show any probable defence in their favour coupled with the fact that they have already cleared the civil liability towards the theft bill and also obtained NOC from the complainant company. Hence, I am of the considered opinion that the prosecution has been successful in proving the case against STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 14 of 15 15 accused beyond reasonable doubt and accordingly both accused persons namely Smt. Anita Gupta and Ravinder Gupta are held guilty for the offence under Section 135 of the Electricity Act, 2003 and are convicted. Let the file to come up for quantum of sentence and determination of civil liability for today itself.
Announced in the open (SANJEEV KUMAR SINGH)
court on this 17th October 2019 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
STATE VS. RAVINDER GUPTA & ANR. FIR No. 159/18 Page no. 15 of 15