Delhi District Court
State vs . Ravinder Nath on 15 December, 2018
IN THE COURT OF MR. SANDEEP GARG,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH),
NEW DELHI
F.I.R. No: 114/02
P.S. Kapashera
U/s 39/44 of Indian Electricity Act
State Vs. Ravinder Nath
Date of Institution of Case : 21.06.2005
Judgment Reserved on : 13.12.2018
Date of Judgment : 15.12.2018
JUDGMENT:
(a) The serial no. of the case : 2033878/16
(b) The date of commission of offence : 04.03.2001
(c) The name of complainant : Sh. S.C. Kapoor
: Assistant Engineer,
: Zone1702, DistcomII,
: South West, Delhi.
(d) The name, parentage, of accused : Ravinder Nath
: S/o Sh. S.N. Sahni,
: R/o H.No. 51, Vasant Vihar,
: Paschim Marg, New Delhi.
Permanent Address : As above
(e) The offence complained of : U/s 39/44 of Indian Electricity
: Act
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 1 of 47
(h) The date of such order : 15.12.2018
Brief statement of reasons:
1. In brief the case of the prosecution is that on 04.03.2001 at an unknown time, at M/s Ashoka Country Resorts, Rajokri Road, New Delhi within the jurisdiction of PS Kapashera, accused Ravinder Nath Sahni was found dishonestly abstracting energy. The seal of the meter installed at the premises was also found to be tampered. He is thus alleged to have committed offences punishable U/s 39/44 of Indian Electricity Act, 1910.
2. Charge sheet was filed in the court and accused Ravinder Nath was summoned to undergo trial. In compliance of Section 207 Cr.P.C, copies of chargesheet and its annexures were supplied to him. Thereafter, vide order dated 15.10.2015, charge for offences punishable U/s 39/44 of Indian Electricity Act was framed upon him to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution has examined 12 witnesses. Thereafter, statement of accused U/s 313 Cr.P.C. was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. Accused preferred not to adduce evidence in support of his defence.
FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 2 of 47 Brief scrutiny of the evidence:
4. PW01 Sh. Subhash Chander Kapoor, Retd. AE deposed that on 04.03.2001, a joint inspection was carried out at M/s Ashoka Country Resorts, Rajokri, New Delhi. The inspecting team comprised of members viz. Late Sh. B.S. Rana (deceased), Sh. J.S. Malik (Zone), Sh. Dharambeer (MTD), himself and other staff. They found that meter seal was tampered with and electric supply was being drawn through generators. The load was found to be 443.8 KW. A joint inspection report was prepared which is Ex. PW 1/A (running into 3 pages). A joint MTD report was also prepared which is Ex. PW 1/B. Thereafter, the meter was sealed with the seal of 'IR' and after getting approval from Chief Engineer, FIR was lodged against accused Ravinder Nath Sahni.
5. During his crossexamination, PW01 stated that he does not know as to who was the owner of property situated at Rajokri where the inspection was carried out. He had no knowledge about any application regarding change of name of owner from M/s Vita Pvt. Ltd to M/s Ashok Country Resorts. He had no knowledge about any application for enhancing load of electricity, submitted by M/s Ashok Country Resorts to Delhi Vidyut Board (DVB) in 1992. He had no knowledge as to whether DVB had raised any issue regarding bills in the the year 1996. He does not know as to whether DVB had raised a bill of Rs. 17 Lacs (approx) in the year 1996 after inspection. He does not know as to whether an amount of Rs. 8,50,000/ was deposited with DVB under protest or not. He FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 3 of 47 had not personally come across any complaint against M/s Ashok Country Resort with regard to illegal usage of electricity at premises in question. He does not know as to whether M/s Ashok Country Resort was regularly making payment to DVB against consumption of electricity. They came to know during inspection that additional generator was installed at premises in question. He admitted that request for inspection of premises in question was made by M/s Ashok Country Resort. He volunteered that he had mentioned the said fact in his Joint Inspection Report (JIR). He admitted that a request was made by M/s Ashok Country Resort for repairing of burnt cables. He had not made any complaint against M/s Ashok Country Resort after conducting inspection and till he remained posted there. He admitted that inspection was carried out by a team and FIR was registered after lapse of a period of one year and four months.
6. During his crossexamination, PW01 further stated that the file pertaining to said inspection, carried out in the year 2001, was not pending with him during the intervening period of one year and four months before lodging FIR. He had never asked the accused for joining any inquiry between March, 2001 to July, 2001. He denied that accused was never asked to participate in any inquiry as, the department had fudged and fabricated the records to frame the accused. He denied that due to the said reason, there was inordinate delay of one year and four months in lodging of FIR. He admitted that at the time of inspection, three generators were found to be installed at M/s Ashok Country Resort. He volunteered that out of three, two generators were functional. The FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 4 of 47 electricity meter was installed with sanctioned load of 17 KW. He admitted that the alleged load of 443.82 KW could not have been used or utilized through the meter having capacity of 17 KW. He admitted that the width of wire was 4x50 mm. They had not mentioned the power capacity of transformer in the inspection report. He cannot admit or deny as to whether the capacity of transformer at that point of time was 100 KVA. He denied that there was no mention of power capacity of transformer in the report as the same would have falsified the allegations against the accused. He admitted that transformer having capacity of 100 KVA cannot take load of 443.82 KW. He denied that they had withheld this vital information in the report prepared by them. He denied that entire record was fabricated by the department to falsely implicate the accused. The cable can take load upto 2.5 time of its power capacity as per manufacturing guidelines. He admitted that no photographs of the site were taken at the time of inspection.
7. During his crossexamination, PW01 further stated that during inspection, they had merely mentioned the electrical equipment and appliances installed at the premises. He admitted that they did not take any photographs of such electrical items. He denied that no photographs were taken as the same would have falsified their claim with regard to electrical items in the inspection report. He was not aware as to whether Permanent Lok Adalat was already adjudicating the issue of exaggerated bills raised by DVB during pendency of the case. The raiding team had taken into consideration all the electrical appliances connected with plug FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 5 of 47 points while calculating the connected load. He denied that in the inspection report, they had mentioned inflated consumption of electricity although, it was not supported by any corroborative or supporting evidence. Electricity was being drawn from generators at the time of their inspection. He had seen site plan, Ex. PW 1/DB and sketch of tampered seal meter, Ex. PW 1/DA, but the same were not prepared at his instance. He had seen Ex. PW 2/A (seizure memo dated 23.08.2002), but the same was not prepared in presence of accused as it does not bear his signatures.
8. During his crossexamination, PW01 denied that meter in question was never seized in presence of accused as the same was tinkered to falsely implicate him in this case. He denied that allegation made in JIR and in FIR are baseless and false. He denied that accused was falsely implicated in this case as he was contesting the issue of exaggerated bills raised by DVB. He denied that entire case is false and fabricated and no meter was ever found to be tampered during inspection. He admitted that accused had himself sought assistance of DVB as there was some problem in supply of electricity. He denied that raiding team had made unreasonable demand from him which was not acceded to and due to the said reason, accused was falsely framed in this case. He cannot admit or deny as to whether more than 10 meters were connected with the transformer in question and supply was being made to adjoining Farm Houses as well. He had not seen the electricity meter in the court which was allegedly tampered with. He denied that he had deposed falsely.
FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 6 of 47
9. PW02 Sh. J.S. Malik, DGM, BRPL deposed that on 23.08.2002, he alongwith team members went to M/s Ashoka Country Resort, Rajokri, New Delhi, where CT meter, MS Box, cable were removed by lineman Sh. Laxman Singh and the same were handed over to police officials which were seized vide seizure memo, Ex. PW 2/A.
10. During his crossexamination, PW02 stated that he had joined investigation of the present case only once when he went to PS for handing over case property on 23.08.2002. He had received instructions from his AE and thereafter, he had joined investigation of this case. He does not remember the exact time when he had gone to the PS, but it was day time. He had not received any written instructions. He volunteered that the instructions were oral. He did not make any departure entry in his office when he left for PS. His duty hours were from 9:30 AM to 5:30 PM. He admitted that there were some other resorts / houses near the premises i.e. M/s Ashok Country Resort from where the case property was removed. He denied that M/s Ashok Country Resort was located in the area where many public persons were available and many commercial & residential buildings were in existence. No public person was available when the meter was removed by the lineman. He volunteered that employees of said resort might be present. However, none of them were made witnesses. He denied that he was deposing falsely being an interested witness.
11. PW03 Sh. Dharambir, Retd. DGM deposed that on FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 7 of 47 04.03.2001, he was posted at MTD, Nizamuddin as JE. On that day, he alongwith Zonal officials visited M/s Ashoka Country Resort, Rajokri, New Delhi to attend breakdown complaint vide letter received vide diary no. 30 dated 27.02.2001. They found that two meters were installed in the said premises out of which, one was tampered with. A joint MTD report was prepared which is Ex. PW 1/B. After that, joint inspection team prepared a joint inspection report (JIR) which is already Ex. PW 1/A.
12. During his crossexamination, PW03 admitted that request for inspection of meter was made by M/s Ashok Country Resort. They had not seized any document to ascertain ownership of the said premises. He again stated that he does not remember about it. He does not remember as to whether any dispute between M/s Ashok Country Resort and DVB, in connection with electricity supply, was pending or not. He cannot admit or deny as to whether M/s Ashok Country Resort was regularly making payments to DVB. He admitted that three generators sets were installed at the premises for supply of electricity. They had only noted the capacity of those generator sets. He had personally not forwarded the file for registration of FIR. He had not seized the electricity meter or cable. He had personally put the paper seal on the meter to maintain the status quo. He does not know as to who had seized the sealed meter and deposited it with DVB. He volunteered that it was not within the ambit of his work to deposit meter and burnt cable.
13. During his crossexamination, PW03 further stated that he FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 8 of 47 does not remember as to whether capacity of transformer installed at that time was 100 KW or not. He admitted that there was no mention of power capacity of transformer in their JIR. He denied that they deliberately did not mention the power capacity of transformer in JIR as it would have falsified their allegations. He does not remember as to whether photographs of the site were taken at the time of inspection of meter and cable or not. No photographs of cable or meter were taken in his presence. He does not know as to whether a case was pending in Lok Adalat between M/s Ashok Country Resort and DVB prior to registration of the present FIR. He had seen Ex. PW 2/A which was prepared in his presence. He admitted that there was no signatures of accused on the seizure memo. He denied that accused was not present at the spot at the time of raid / inspection. He denied that he was giving false reply regarding presence of accused at the time of inspection. He denied that his claim regarding presence of accused was falsified from the fact that there were no signature of accused on the seizure memo. He does not remember as to where, seizure memo Ex. PW 2/A was prepared. He does not remember as to whether the meter and cable were handed over to police in his presence or not.
14. During his crossexamination, PW03 denied that he was deliberately giving evasive reply in order to protect himself from any legal action. He denied that he and other officials of DVB had deliberately tinkered with the meter while it was in their custody so as to falsely implicate the accused. He denied that they had concocted the story of FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 9 of 47 tampering of meter and burnt cable and the meter was all along in their custody right from the date of inspection. He does not remember as to whether the IO had recorded any statement of any DVB official regarding desealing and handing over the meter to police. He denied that he was giving evasive reply in this regard. He denied that there was no proper documentation regarding the proceedings of desealing and handing over the meter maintained by DVB officials. He had not seen the electricity meter or cable wire as mentioned in seizure memo, Ex. PW 2/A at the time of deposing before the court. He denied that inspection report contains false claims regarding electricity specifications. He denied that he had manipulated the inspection report and other documents to settle scores with the accused as he was protesting and contesting the abnormal charges which were sought to be imposed by DVB. He denied that he was deposing falsely.
15. PW04 Retd. SI Jagdish Prasad deposed that on 23.08.2002, he was posted as SI at PS Kapashera. On that day, BSES officials had handed over one CT meter, MS box and cables to him which he seized vide seizure memo already, Ex. PW 2/A. He had deposited the same at malkhana and thereafter, he was transferred from PS Kapashera. During his crossexamination, he stated that there was no register was maintained by the BSES officials showing seizure of meter, which was handed over to him. He had not conducted any investigation regarding meter and cable wire, as mentioned in seizure memo. He had not recorded statement of any of the officials of DVB. The DD entry vide which FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 10 of 47 the electric meter and cable wire were deposited at malkhana is not available on record. He had not seen either the electric meter or cable in court. He denied that seizure memo was manipulated and fabricated by him at PS for falsely implicating the accused.
16. PW 05 Sh. Susheem Pandey deposed that in the year 2005, he was working as business manager in BSES RPL, Vasant Kunj Division, New Delhi. He had perused the file and gave an application U/s 151 of Electricity Act, 2003 pertaining to accused Ravinder Nath having address # M/s Ashoka Country Resort, Rajokri Road, Kapashera, New Delhi which is Ex. PW 5/A. During his crossexamination, he admitted that in the year 2003, he was not working with BSES. He had joined BSES in June, 2004. He does not have any personal knowledge about the facts pertaining to the inspection carried out in 2003. He had seen the file only at the time of his deposition. He admitted that he had not mentioned in Ex. PW 5/A that he had gone through the chargesheet of this case. He had not personally examined any officer of the inspection team. He had not personally examined or seen the electricity meter which was the subject matter of this case. He volunteered that the inspection was carried out much earlier, so, he had not seen or examined the meter. He had not issued any notice to any officer for production of electricity meter before him. During his deposition in court, he had not seen the electricity meter. He had not verified or reinspected the facts mentioned in the inspection report shown to him.
FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 11 of 47
17. During his crossexamination, PW05 admitted that in document Ex. PW 5/A, there was no mention of his visit at the spot personally to inspect the site. He does not recollect as to whether he had prepared any memorandum or any other documents regarding his visit to the spot or not. He admitted that there is no memorandum or document on record regarding his visit to the spot independently. He does remember as to whether he had visited the spot independently or not. The Chief Electrical Inspector was not the part of BRPL. He volunteered that he was a government servant. He had prepared the letter on asking of Legal Head of BSES. He was shown Ex. PW 5/A which was in a cyclostyle form and he had merely filled in the blanks and forwarded the letter to their legal counsel. He did not check the powers exercisable within his organization for issuance of this letter. He volunteered that it was a general procedure. He denied that he had mechanically signed the letter without properly verifying his own powers or examining the records of the case independently. He denied that he was not competent to issue the letter as he was not authorized under the law to grant permission to investigate in the present case.
18. During his crossexamination, PW05 denied that he had deliberately not brought on record the requisite notification or authorization from his organization as it would have falsified the case of the prosecution regarding the grant of permission as recorded in Ex. PW 5/A. He denied that the permission accorded by him in Ex. PW 5/A was defective and void. He admitted that no case property related to the present case was FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 12 of 47 ever shown to him. He was not aware about availability of any other form of electricity supply at the premises through Generators or any other electricity connections from the same transformer. He volunteered that his knowledge about the supply of electricity was confined only to the report shown to him. No photograph of the premises in question was ever shown to him. He denied that he had prepared letter, Ex. PW 5/A at the instance of investigating officer without properly verifying the facts. He denied that he had deliberately followed the instructions of the investigating officer and his own legal head despite knowing fully well that no infringement had occurred regarding the usage of electricity at the premises or tampering with of any meter. He does not know as to who was handling the affairs of M/s Ashok Country Resorts at the time of issuance of Ex. PW 5/A. He had not conducted any inquiry as to who was Incharge of the affairs of Ashok Country Resorts. He denied that letter Ex. PW 5/A was defective and contrary to the provision of Indian Electricity Act. He denied that he was neither authorized nor competent to issue such letter.
19. PW06 HC Rajesh deposed that on 23.07.2002, he was posted as constable at PS Kapashera. On that day, duty officer handed over copy of FIR and original rukka to him with directions to hand over the same to HC Hawa Singh at Ashoka Resorts, Kapashera. He went there and handed over the same to HC Hawa Singh. Sh. Jitender Malik (JE) was present there who told that since no lineman was available, he would send the meter and wires to PS later. They returned to PS and IO recorded his statement. During his crossexamination, he admitted that he FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 13 of 47 had not conducted any inquiry or investigation in the present case. The IO had not recorded statement of any person in his presence. The FIR was registered by some other police official. He was merely a carrier of the FIR and does not know anything further. The case property was never produced at PS in his presence. At the time, when he had visited, he did not come across any person. He does not know as to on what date, the FIR was registered. He does not know as to what was the nature of complaint on the basis of which, the FIR was registered. He was not aware about any other document accompanying the complaint. He denied that the FIR was a manipulated document to suit the case of the prosecution. He denied that his deposition regarding non presence of line man as told to him by JE Sh. Jitender Malik was false and fabricated. He denied that no such thing was told to him by any such person or that he had deposed falsely in this regard.
20. PW07 ASI Hawa Singh deposed that on 15.07.2002, reader of SHO handed over a written complaint to him. On 23.07.2002, he made endorsement on the said complaint which is Ex. PW 7/A. He went to the spot i.e. Ashoka Country Resort, Kapashera alongwith S.C. Kapoor (AE) and Jitender Malik (JE) and prepared a site plan, already Ex. PW 1/DB at the instance of S.C. Kapoor (AE). He handed over the exhibit to DO before leaving the PS. In the meantime, Ct. Rajesh reached at the spot and handed over the original rukka and copy of FIR to him. He told the concerned JE to hand over electric meter, wire and other articles to him who told that "Aaj Lineman Nahin Hai, Aainda Karenge". He made inquiry FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 14 of 47 from manager of Ashoka Country Resort who informed that accused Ravinder Nath was the owner of said resort and knew about the theft of electricity from meter. He recorded statement of manager U/s 161 Cr.P.C. Sh. S.C. Kapoor (AE) handed over Joint Inspection report (already Ex. PW 1/A) and MTD report (already Ex. PW 1/B) to him. He recorded statement of Sh. S.C. Kapoor (AE) and Jitender Malik (JE) U/s 161 Cr.P.C. He alongwith Ct. Rajesh returned to PS and recorded statement of Ct. Rajesh.
21. PW07 ASI Hawa Singh further deposed that on 28.07.2002, he handed over the case file to MHC(R) upon the direction of the concerned SHO. On 07.09.2002, he again joined the investigation of the present case during which accused Ravinder Nath came at PS. IO SI Rajnesh arrested the accused and conducted his personal search vide memos which are Ex. PW 7/B and Ex. PW 7/C. Inspection memo was also prepared by IO which is Ex. PW 7/D. After medical examination, accused Ravinder Nath was produced before court and were released on bail. During his crossexamination, he admitted that he had not seized any article pertaining to the allegations made in this case. He had not conducted any inquiry in connection with joint inspection report dated 04.03.2001. He had not conducted any investigation to verify as to who all were present at the spot i.e. Ashok Country Resort on the day of inspection. He had not conducted any inquiry to ascertain as to who was handling the affair of M/s Ashok Country Resort on 04.03.2001, on the day of inspection. When he visited the spot, the electricity connection was FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 15 of 47 properly functioning and the meter as well as the cable wires were also in proper condition. He had not taken any photographs of the spot or the meter or cable wires. He had not got any scaled site plan of the spot prepared. He admitted that the site plan does not bear the signature of any witness. When he inspected the premises in question and had prepared the site plan, there was no seal on the electricity meter or wire and both were properly functioning.
22. During his crossexamination, PW07 further stated that he had not conducted any investigation to ascertain or to examine about any pending disputes between M/s Ashok Country resort and DESU. He does not know as to whether DESU officials were called by the consumer itself i.e. M/s Ashok Country Resort for purposes of checking the supply of electricity or not. He had not seized any document regarding the ownership of M/s Ashok Country Resort. He had not verified as to whether there was any other source of supply of electricity at M/s Ashok Country Resort. He had not conducted any investigation to ascertain as to how many rooms, plug points were there within the M/s Ashok Country Resort which were used for consumption of electricity. He had neither checked the previous bills regarding the electricity supply to M/s Ashok Country Resort, nor did he make any effort to ascertain as to how much was the actual consumption of electricity. He had not put any seal on any electricity meter or wire nor did he seize any such equipment.
23. During his crossexamination, PW07 further stated that he FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 16 of 47 had not recorded any statement of the team members of the Joint Inspection Team which had conducted the inspection on 04.03.2001. He had not prepared the chargesheet in the case and it was filed by somebody else. He does not know as to whether any case property in the form of electric meter or wire was ever seized in the present case or not. He had not examined any public witness or witnesses from the neighbourhood in the vicinity of M/s Ashok Country Resort to ascertain the veracity of inspection conducted on 04.03.2001. He had not joined any inquiry as regards the permission / sanction to launch prosecution in the present case by the DESU authorities. He does not know anything about the number of generators installed at M/s Ashok Country Resorts. He denied that he had not recorded statement of any manager named Ms. Neelam from M/s Ashok Country Resort. He denied that he had concocted a false story in this regard. He denied that investigation conducted by him was tainted from the beginning. He denied that he had blindly followed the instructions of DESU officials without verifying the facts to ascertain the genuineness of allegations. He denied that he neither deliberately seized any case property, nor took any photographs of the spot or of the meter in question on the date of registration of FIR as it would have falsified the allegations made by DESU officials.
24. During his crossexamination, PW07 denied that he had deliberately not conducted any investigation regarding the actual events of 04.03.2001 just to suit the case of the prosecution. He denied that he did not record statement of any independent witness in relation to the FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 17 of 47 incidents of 04.03.2001 to wrongly frame the accused. He denied that he had wrongly arrested the accused without there being any incriminating evidence. He denied that accused Ravinder Nath Sahni was cooperating with the DESU officials and the police at all times, but despite that he was arrested to exert pressure at the instance of DESU officials. He denied that he registered the FIR in collusion with the DESU officials who were pressurizing the accused to succumb to their unreasonable demands.
25. During his crossexamination, PW07 denied that he had deliberately not produced any document on record to show as to who was handling the affairs of M/s Ashok Country Resorts on the day of inspection. He denied that the site plan prepared by him was wrong, misleading and fabricated to falsely implicate the accused at the instance of DESU officials. He admitted that no case property was shown to him in court during his examination. He denied that he had deposed falsely in his examinationinchief. He denied that statements of DESU officials recorded by him were false, incorrect and contain fabricated facts to frame the accused in the present case as accused had refused to succumb the unreasonable demand of DESU officials. He denied that the accused had informed him about his ongoing disputes with the DESU pertaining to exaggerated bills which accused was contesting. He had not conducted any investigation to ascertain the reasons for delay between the date of inspection and forwarding of complaint for registration of an FIR by DESU.
26. PW08 SI Rajneesh Yadav deposed that on 30.07.2002, FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 18 of 47 investigation of the present case was entrusted to him. During investigation, accused Ravinder Nath came to PS on 07.09.2002 where he was interrogated, arrested and his personal search was conducted vide memos, already Ex. PW 7/B and Ex. PW 7/C. He prepared an inspection memo which is already Ex. PW 7/D. He prepared conviction slip of accused. Thereafter, accused was produced before the concerned court and released on interim bail.
27. PW09 Insp. Surjit Singh deposed that on 13.05.2005, investigation of the present case was entrusted to him during which, he discussed the case with concerned SHO and removed objections raised by prosecution branch. He recorded statements U/s 161 Cr.P.C. of Mr. Kapoor (AE), Mr. Dharambir (JE), Mr. Rana (JE) and Mr. Khullar (GM). He alongwith Mr. Dharambir (JE) went at the spot i.e. Ashok Country Resorts where Mr. Dharambir (JE) pointed out tampered seal of electric meter. He prepared sketch of tampered seal of electric meter which is already Ex. PW 1/DA. During investigation, he moved an application for obtaining permission U/s 50 of Electricity Act, which is Mark PW 9/A.
28. PW09 Insp. Surjit Singh further deposed that he obtained permission U/s 151 Electricity Act from Mr. Pandey and recorded his statement U/s 161 Cr.P.C. He examined Sh. Vimal Seth (Manager of Ashok Country Resorts) who informed that accused Ravinder Nath was the user of electricity supply at Ashok Country Resorts. He recorded statement of accused. Mr. Dharambir (JE) had stated in his statement, FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 19 of 47 recorded U/s 161 Cr.P.C. that sanctioned load of meter was 17 KW, but usage was more than 482 KW. Mr. Dharambir (JE) further stated that screw (nut) was in cut condition, seal of the meter was also broken and the wires from the said meter were diverted when he had inspected the said site in the year 2001. The said facts were also corroborated by Mr. Kapoor (AE) and Mr. Rana (JE). He recorded their statements U/s 161 Cr.P.C. in this regard. The concerned SHO prepared the chargesheet and filed it in the court as per rules. He does not remember as to whether he had seen the case property or not or whether the case property was deposited at malkhana or not. During investigation, he had met the accused.
29. During his crossexamination, PW09 stated that he does not remember as to who was handling the investigation prior to investigation handed over to him. He had conducted investigation regarding the joint inspection report and had examined all the members of the joint inspection team, who had visited Ashok Country Resort on 04.03.2001. He had not seized any photograph pertaining to inspection conducted by joint inspection team. He had not seized any article pertaining to raid conducted by joint inspection team. He had not seized electricity meter or wire which was the subject matter of this case. He does recollect as to whether he had examined the officials staff of M/s Ashok Country Resort, who were present at the time of inspection on 04.03.2001 or not. He volunteered that he had examined one Sh. Vimal Seth during his investigation. He does not recollect as to whether he had seized any FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 20 of 47 document regarding the ownership of M/s Ashok Country Resorts or regarding its ownership by Mr. Ravinder Sahni. He denied that he was deliberately feigning ignorance regarding the said facts. He denied that due to the said reason, he had not placed any document on record to show ownership of Ashok Country Resorts as it would have falsified the case of the prosecution.
30. During his crossexamination, PW09 denied that he had deliberately not placed any photograph on record pertaining to the alleged inspection as no such tampering had ever taken place, as alleged by joint inspection team. He had personally not verified as to on the basis of what material, the sanctioning officer had accorded permission U/s 50 of the Electricity Act. He had conducted inquiries regarding the disputes and pending litigation between M/s Ashok Country Resorts and the Electricity Service Provider. He volunteered that according to his investigation, some order was passed by the High Court against M/s Ashok Country Resort regarding payment of electricity charges. Upon being asked, he went through the file and admitted that no order of the High Court is part of judicial record. He volunteered that during investigation, this fact was inquired by him from Mr. Tripathi, OSD to Legal Cell, BSES. He admitted that Mr. Tripathi was not a witness in the present case. He denied that he had introduced this story of High Court order against M/s Ashok Country Resorts in order to prejudice the defence of accused.
31. During his crossexamination, PW09 denied that he had FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 21 of 47 deliberately introduced the fact of having examined Mr. Tripathi who informed him regarding payment orders against M/s Ashok Country Resort. He volunteered that Mr. Tripathi's report was present on record where the factum of pending litigation between M/s Ashok Country Resort and DESU finds mention regarding the issues and pleas of M/s Ashok Country Resort and the same went in the favour of BSES and appraised by the Hon'ble High Court. This fact was further verified from Mr. Khullar who corroborated the same. He admitted that there was a delay of one year and four months between the date of registration of FIR and conducting the joint inspection. He volunteered that during the intervening period proceedings were going on before BSES Board wherein, accused had also appeared. He was not present during proceedings that had taken place between accused and BSES Board. He further volunteered that during those proceedings, alleged person had placed his contentions before the board, which were further ordered by Hon'ble High Court to be probed by a High Ranking Officer. Mr. Khullar was appointed in pursuance of the directions of Hon'ble High Court and all the facts were inquired at length on the basis of final report submitted by Mr. Khullar and the petition filed by accused was rejected by Hon'ble High Court.
32. During his crossexamination, PW09 further stated that first contention of accused was that he was the complainant and had informed BSES about burning of wires. In this regard Mr. Khullar examined the reasons for occurrence of fire and gave in his report that the reason for fire was 25 times overloading as against the sanctioned load. Second FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 22 of 47 contention was that they were drawing electricity from Generators. Mr. Khullar had inquired, collected material and jotted down in his final report that generators cannot be used for drawing electricity more than the sanctioned load. It was only meant for standby use and that too only after seeking necessary permission from BSES. The third contention regarding drawing electricity was around 25 times more load from 100 KW generator. In this regard Mr. Khullar had given his report that the electricity was being taken from 400 KW generator. He was a post graduate in law. However, he had studied science only till matriculation (10th standard). He denied that he does not have basic understanding of physics and therefore, he was not competent to depose about the same. He admitted that order passed by Hon'ble High Court whereby High Ranking Officer was required to inquire about the contentions raised by the accused was not available on judicial record. However, report dated 11.02.2003 submitted by Mr. Khullar is available on judicial record which refers to that order.
33. During his crossexamination, PW09 admitted that it was not mentioned in the report that the Hon'ble High Court had directed for inquiry into the contentions raised by the accused by a High Ranking Officer. He admitted that the writ petition preferred by the accused was dismissed as withdrawn without passing of any speaking order. He volunteered that the petition was dismissed after final report of Mr. Khullar was submitted. He admitted that he was not present when Mr. Khullar conducted the inquiry. He admitted that the report of Mr. Khullar on which FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 23 of 47 he was relying upon, was based on information that was stated to him and not on the basis of any investigation that he had personally conducted. He volunteered that during investigation, the said facts were inquired by him and found to be correct. He found the above said facts to be correct by examining witnesses, members of the team, visiting the spot and conducting investigation thereof. He denied that he was not competent to state the above said facts as he had no basic knowledge of physics. He had no knowledge as to whether the electricity meter, which was installed at the premises, was of 17 KW capacity. He cannot say as to whether a load of 443 KW could be drawn from an electricity meter with capacity of 17 KW.
34. During his crossexamination, PW09 further stated that he was unable to recollect as to whether the wire installed on the premises was of 4x50 mm. He cannot say as to whether a load of 443 KW could be transmitted through the wire having thickness 4x50 mm. He does not know as to whether the transformer installed was of 100 KVA. He further cannot state as to whether a load of 443 KW could be transmitted through a 100 KVA transformer. He volunteered that the aspect was already inquired by Mr. Khullar in pursuance of directions passed by Hon'ble High Court and mentioned in the report. He admitted that the order of Hon'ble High Court on which he was relying upon, is not on judicial record. He volunteered that starting lines of speaking order submitted by Mr. Khullar before Hon'ble High Court depicted the appearance of accused and submitting their submissions in pursuance of Hon'ble High Court. He was FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 24 of 47 unable to recollect as to whether the disputes pending between DESU and M/s Ashok Country Resorts were being adjudicated by Permanent Lok Adalat or not. He denied that he was deliberately feigning ignorance about the same in order to suit the case of the prosecution.
35. During his crossexamination, PW09 denied that the instant case was registered to falsely implicate the accused as he was contesting the issue of exaggerated bills before the court of competent jurisdiction. He cannot admit or deny as to whether M/s Ashok Country Resort had themselves sought the help of DVB in relation to the supply of electricity. He had not seen case property of this case in court. He had only seen the seizure memo and report of BSES when they seized the case property after registration of FIR. The accused persons did not allow members of the inspection team to seize the same on the day of inspection. He denied that the alleged tampered meter and wire were not seized by the joint inspection team on account of lack of required personnel and not on account of any objection by the accused persons. He denied that the said fact was deliberately introduced to prejudice the defence of accused. He denied that his statement regarding nonfunctioning of two generators was incorrect and it was made to prejudice the defence of accused. He denied that accused was falsely implicated in connivance with the officials of DESU.
36. PW10 Retd. ASI Virender Singh deposed that on 23.07.2002, he was working as Duty officer at PS Kapashera. On that day FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 25 of 47 at around 9:05 PM, 09:05 PM, he received a rukka from HC Hawa Singh / IO on the basis which, he registered the present FIR, copy of the same is Ex. PW 10/A (OS & R). He made an endorsement on the rukka which is Ex. PW 10/B. He handed over the copy of FIR and original rukka to Ct. Rajesh Kumar with the directions to hand over the same to HC Hawa Singh. During his crossexamination, he admitted that he had no personal knowledge of this case. He did not conduct any inquiry in this case. He denied that he had mechanically registered the present FIR, even though, the alleged incident had taken place almost a year before registration of FIR.
37. PW11 Sh. V.K. Khullar deposed that on 11.02.2003, he was working as Chief Engineer, Distribution, South in BSES Rajdhani Power Ltd. On that day, he had passed a speaking order based on inspection report indicating fraudulent means such as breaking of seals, tampering of meter and burning of CT Meter etc. The consumption pattern was also analyzed on the basis of connected load found during inspection held by joint inspection team. It was found that the consumption pattern also corroborated the theft of electricity. As against the assessed consumption worked out on the basis of provisions of tariff schedule, the recorded consumption analyzed for about a year was only 5 per cent which conclusively established fraudulent abstraction of energy. Accordingly, a speaking order was issued by him, running into 3 pages which is Mark PW 11/A. The premises was inspected by a joint team of DVB on 04.03.2001 and a total connected load 443.82 kilowatt was found to be connected by FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 26 of 47 M/s Ashok Country Resorts at Samalkha. Seals of CT and meter box were found broken and cable burnt. Accordingly, an inspection report was prepared by joint team which was duly signed by representative of M/s Ashok Country Resorts.
38. PW11 Sh. V.K. Khullar further deposed that the connection was actually sanctioned in the name of M/s Vita Private Ltd for a load of 17 Kilowatt only, but supply was being misused by M/s Ashok Country Resorts for a huge unauthorized load (to the tune of 25 times of the sanctioned load). The supply was given by DVB for the said sanctioned load through a 4x50 mm square cable connected from a 400 KW distribution transformer. Necessary metering arrangements were made at the point of supply by the licensee i.e. DVB. Apart from the above, huge unauthorized load connected and being used through a tampered meter, unauthorized generating sets of 250 KVA, 225 KVA and 30 KVA were also found installed at the site. At the time of inspection (the supply as stated above was disrupted already due to burning of cable etc), the load was being run on 250 KVA and 30 KVA generating sets. The party M/s Ashoka Country Resort was given personal hearing on 05.02.2003 and accused Ravinder Nath had appeared during hearing. After giving patient hearing to accused, a detailed speaking order was issued on 11.02.2003 conclusively establishing the fraudulent abstraction of energy based on the facts analyzed as per provisions of the tariff schedule and Electricity Act etc. The original order was duly placed in the relevant case file and copy was also endorsed to accused and his Advocate Sh. Tripathi. The FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 27 of 47 assessment bill amounting to Rs. 87.58 Lakhs was raised which was to be paid by 20.04.2002, but accused did not make the payment. He correctly identified the accused in court.
39. During his crossexamination, PW11 stated that as far as he remember, the police had come to him only once during investigation after the inspection on 04.03.2001. The FIR of this case was registered in 2001 immediately after the inspection report etc. was analyzed by the officer In charge. He personally did not make any complaint to the police against accused. Between 2001 to 2002, he neither joined investigation, nor he was asked by the police. Upon being shown copy of the FIR, he stated that he does not have any knowledge when it was registered. He had not personally inspected the premises at any given point of time. He volunteered that only the authorized officers had inspected the premises. He did not pass any order for seizure and detention of electricity meter and cables in question personally. He volunteered that the said powers were already vested with the authorized officers. He did not personally indulge into any verification of any tampered meter etc at the same was the job of duly authorized officers. He denied that his speaking order dated 11.02.2003 was based on incomplete and inadequate information.
40. During his crossexamination, PW11 denied that the said order was defective as he did not hold any inquiry to verify the facts put up before him. He denied that the speaking order was passed in a mechanical manner without following due process of law. He had FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 28 of 47 personally checked the name of the registered consumer, the sanctioned load and the load being misused by a party other than the registered consumer at the time of passing the speaking order. He volunteered that the supply was registered in the name of M/s Vita Pvt. Ltd, Samalkha for a sanctioned load of 17 KW which was being misused by M/s Ashoka Country Resort for a huge connected load of 443.82 KW. Upon being questioned that the speaking order dated 11.02.2003 was merely his subjective assessment as neither, he had personally conducted any verification about the inspection report dated 04.03.2001, nor had he visited the premises in question in order to ascertain the status of the electricity meter installed and its loading capacity to which he stated that the speaking order was issued after giving personal hearing to Sh. Sahni who had appeared before him on 05.02.2003 after analyzing the detailed inspection report of the joint team which conducted the inspection on 04.03.2001 and metering report. Also the consumption pattern viz a viz the assessed consumption based on connected load was analyzed and the order was issued as per the provisions of tariff schedule in Electricity Act and DERC supply code and performance standard etc.
41. During his crossexamination, PW11 admitted that the knowledge derived by him as regards the status of the electricity meter and cable wire as well as alleged connected load was only based upon documents put up before him. He admitted that the electricity meter and the cable wire were never produced before him at the time of passing speaking order. He volunteered that there was no such requirement as FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 29 of 47 those cables metering connected load etc were duly checked by the authorized officer who were qualified and experienced to carry out inspection and record the facts accordingly in their inspection report. The electricity meter and the cable wire in question were not seen by him during his deposition in court. He cannot show any codified rule or notification specifying that there was no requirement for producing before him the electricity meter or the cable wires in question. He denied that he had deliberately introduced this theory that there was no requirement of producing the meter and cable wire before him. He denied that he had taken a biased view without affording a reasonable opportunity to the registered owner of proving its innocence.
42. During his crossexamination, PW11 admitted that he did not verify as to when transfer of registration from M/s Vita Pvt Ltd to M/s Ashok Country Resorts happened. He volunteered that as far as DVB was concerned, Ms. Vita Pvt Ltd was the registered consumer. He had seen the photographs before passing the speaking order, but not their negatives. The said photographs were not part of judicial record, as per his knowledge and those were the part of record of DVB. He personally did not hand over the said photographs to the IO of the present case. He volunteered that those records were to be handed over by the authorized officers to the police while lodging the FIR. He denied that he had deliberately introduced this theory of photographs having been taken at the time of inspection. He denied that no photographs were ever taken by the concerned official of joint inspection team and due to this reason, there FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 30 of 47 was no such photograph on record. He does not know as to whether there was already a dispute before permanent Lok Adalat which was adjudicating the issue of exaggerated bills raised by the DVB. He volunteered that this was mentioned to him by Mr. Sahni during personal hearing, as far as he remember. He cannot admit or deny as to whether the officials of joint inspection team had made unreasonable demand from the registered consumer and upon not fulfillment of the same, they prepared a false and fabricated report.
43. During his crossexamination, PW11 denied that he had blindly followed the inspection report without ascertaining the aspect of the matter. He volunteered that the inspection was carried out by experienced and qualified officers and in case of any such false allegations of asking any illegal gratification during inspection, the party was free to lodge a complaint and / are report the matter to the anti corruption department of the senior officer of DVB. No such report was received nor was this ever mentioned to him during personal hearing of accused. He denied that he had deliberately introduced the volunteered portion knowing fully well that the factum of unreasonable demands by the inspection officials had been brought to his notice during the course of hearing. He denied that he had suppressed this fact and information in his order. He denied that the inspection officials had prepared a false and fabricated report to frame the accused in the present case. He denied that there was no tampering or illegal abstraction of electricity was made out from the record, but despite that he passed the order in question purely on the basis of surmises and FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 31 of 47 conjectures. He was not aware as to whether any document indicating the capacity of the transformer was available on judicial record or not. He does not remember as to how many electric connections were given from the transformer feeding the registered consumer.
44. During his crossexamination, PW11 admitted that other connections might have been given from the said transformer. He admitted that the accused company M/s Ashok Country Resorts had itself called up the DVB officials after their supply was disrupted on burning of cables and metering etc on 27.02.2001. He denied that despite noticing the bona fide act of consumer, he passed a prejudicial order against him without ascertaining the truth. He denied that he had deposed falsely in his examinationinchief.
45. PW12 Sh. Vivek Prasad, DGM (Business) deposed that the complete file pertaining to connection no. K7507997 provided to M/s Vita Pvt. Ltd situated at Khasra No. 1812 & 1912, Village - Samalkha, Gurgaon Road (Ashok Country Resort) alongwith speaking order passed by Sh. V.K. Khullar dated 11.02.2003 was not traceable in their office as it pertains to very old period before the unbundling of Delhi Vidyut Board (DVB). Joint inspection report dated 04.03.2001, already on record is already Ex. PW 1/B. He had filed an affidavit in this regard which is Ex. PW 12/A.
46. The court has heard the arguments advanced by Ld. defence FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 32 of 47 counsel for the accused and learned APP appearing on behalf of the State and has perused the record with their able assistance.
47. It has been emphatically contended by ld. defence counsel for the accused that PW01 Sh. Subhash Chander Kapoor, one of the member of the joint inspection team which constitutes the basis for registration of the present FIR has admitted that request for inspection of the premises was made by M/s Ashok Country Resorts. Further, he has admitted that M/s Ashok Country Resorts had made a request for repair of burnt cable. He admitted that FIR was lodged after a delay of about one year and four months. He admitted that when the premises of accused was inspected, 3 generators were found to be installed. He volunteered that out of those three generators, two were functioning. The electricity connection installed at the premises in question was having sanctioned load of 17 KW and the load alleged to be illegally drawn was 443.82 KW. He admitted that it is not feasible to draw the alleged load of 443.82 KW from a connection having sanctioned load of 17 KW. He admitted that they have not mentioned in their report as to what was the power capacity of the transformer from which the connection installed at the premises in question was given.
48. It has been emphatically contended by ld. defence counsel for the accused that during his crossexamination, PW01 stated that he cannot admit or deny as to whether the power capacity of the transformer from which the electric connection to the premises of the accused was FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 33 of 47 given, was 100 KW or not. He admitted that it is not feasible that a transformer with power capacity of 100 KW can draw the alleged load of 443.82 KW. The cable installed in the premises of the accused could take a maximum power load upto 2.5 times of its capacity. He admitted that no photographs of the premises were taken at the time of conducting inspection. He is not aware if a permanent Lok Adalat was already seized of the issue of exaggerated bills being raised by DVB. He admitted that at the time of their inspection, power supply in the premises was being drawn from generators. He admitted that the site plan, Ex. PW 1/DB and sketch of tampered seal of electric meter, Ex. PW 1/DA were not prepared at his instance. He admitted that the seizure memo, Ex. PW 2/A does not bear the signatures of the accused as the same was not prepared in his presence. He stated that he cannot admit or deny that more than 10 other electric connections to the adjoining Farm Houses were also given from the same transformer from which the electric connection was given to the premises in question. He admitted that he has not seen the seized electric meter in the court while getting his testimony recorded.
49. It has been emphatically contended by ld. defence counsel for the accused that as per the statement of MHC(M), PS Kapashera, recorded on 25.02.2016, no case property of the present case was deposited in the malkhana. PW02 Sh. J.S. Malik, Junior Engineer, who had accompanied the joint inspection team has deposed that the electric meter, a MS box and a cable were removed by lineman Sh. Laxman Singh which were handed over to the police and the police had seized the same FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 34 of 47 vide seizure memo, Ex. PW 2/A. During his crossexamination, he stated that he had gone to the PS for handing over the case property on 23.08.2002. However, he does not remember the time when he had gone to the PS. He admitted that no independent public person was called upon to join investigation and sign the seizure memo.
50. It has been emphatically contended by ld. defence counsel for the accused that PW03 Sh. Dharamveer, the then JE admitted during his crossexamination that M/s Ashok Country Resorts itself had made a request for inspection of the meter installed at its premises. He admitted that 3 generator sets were installed at the premises in question for generating power. They had noted the capacity of those generator sets. He does not remember if the capacity of the transformer from which electric connection was given to the premises in question had the capacity of only 100 KW. He admitted that there is no mention of the power capacity of the transformer in question in their joint inspection report. He admitted that no photographs of the seized cable and meter were taken in his presence. He admitted that the seizure memo, Ex. PW 2/A does not bear signatures of the accused. He does not remember as to where the seizure memo, Ex. PW 2/A was prepared. He denied that he and other officials of DVB had deliberately tinkered with the electric meter while it was in their custody to falsely implicate the accused due to ulterior motives. He does not remember, if IO had recorded statement of any DVB official regarding opening of sealed case property and handing over the same to the police. He admitted that he had not seen the case property in FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 35 of 47 the court at any point of time.
51. It has been emphatically contended by ld. defence counsel for the accused that PW04 SI Jagdish Prasad, who had seized the case property vide seizure memo, Ex. PW 2/A on 23.08.2002 upon the same being brought by BSES officials, has admitted during his cross examination that no register was maintained by BSES officials reflecting seizure of the case property. He had not recorded statement of any DVB official. The DD entry vide which the case property was deposited in the malkhana is not available on record. He has not seen the case property in the court.
52. It has been emphatically contended by ld. defence counsel for the accused that PW05 Sh. Susheem Pandey, who had given sanction to prosecute the accused, has admitted that he had not mentioned in his application U/s 151 of the Electricity Act, 2003 that he has gone through the chargesheet prepared in the present case. He had not examined any officer of the inspection team before according sanction. He had not examined or seen the case property, which is the subject matter of the present case. He had not seen the case property in the court. He had not verified the facts mentioned in the joint inspection report. He admitted that there is no mention about his inspection of the site in his application, Ex. PW 5/A. He admitted that he had not prepared any memorandum regarding his visit to the spot. He had prepared letter Ex. PW 5/A upon the asking of legal head of BSES. He was shown format of FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 36 of 47 application U/s 151 of the Electricity Act, 2003 and he had mere filled in the blanks and submitted the duly filled application to their lawyer. He denied that the permission to prosecute, accorded by him was null and void being defective. No photographs of the premises in question were ever shown to him.
53. It has been emphatically contended by ld. defence counsel for the accused that PW06 HC Rajesh, who had taken the copy of FIR from PS to spot has deposed that Sh. Jitender Malik, JE had told them that no lineman was available and therefore, he will send the electric meter and wire to the police station later on.
54. It has been emphatically contended by ld. defence counsel for the accused that first IO / PW07 ASI Hawa Singh has deposed that the JE had told him that since lineman was not available, he will hand over the electric meter, cable and other articles to him on some other day. He admitted during his crossexamination that he had not seized any article pertaining to the present case. He had not conducted any investigation to verify as to which persons were present at the spot at the time of the alleged inspection. When he had visited the spot, the electric meter and the cables were in proper condition. He had not taken any photographs at the spot. He had not verified, if there was any other source of electric supply at the premises in question. He had neither affixed any seal on the electric meter and cable, nor seized the same. He had not recorded the statements of any of the members of the joint inspection team. He had not FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 37 of 47 joined any independent public person to establish that inspection was indeed conducted at the premises on 04.03.2001. He denied that he had got the present FIR registered in collusion with DVB officials in order to pressurize the accused to succumb to their unreasonable demands. He admitted that he had not seen the case property in the court. He admitted that he had not tried to figure out the reasons for inordinate delay in lodging the FIR by DVB officials.
55. It has been emphatically contended by ld. defence counsel for the accused that PW09 3rd IO Insp. Surjeet Singh deposed that the members of the joint inspection team had told him that the case property was not seized on the day of inspection as the customer had prevented them to do so. He cannot identify the case property as he had not seen it during the course of his investigation. During his crossexamination, he admitted that he had not seized any photographs pertaining to the inspection of the premises in question. He had not seized any case property. He had not verified as to on the basis of which material, permission to launch prosecution was given. He cannot admit or deny as to whether M/s Ashok Country Resorts had itself sought help of DVB in connection with electric supply issues. He admitted that he had not seen the case property in the court. The accused did not allow the members of joint inspection team to seized the case property on the day of inspection. He denied that the case property was not seized by the joint inspection team on the day of inspection due to lack of requisite staff and not on account of any objection by the accused.
FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 38 of 47
56. It has been emphatically contended by ld. defence counsel for the accused that PW11 Sh. V.K. Khullar, Chief Engineer, Distribution (South), BSES RPL admitted that at the time of inspection, power supply was being drawn from generator sets. During his crossexamination, he admitted that he had never inspected the premises in question and he had not examined the allegations of tampering with of the electric meter. He admitted that the knowledge derived by him was confined to the documents placed before him. He admitted that the electric meter and cable were never produced before him before passing the speaking order. He admitted that M/s Ashok Country Resorts itself had called the DVB officials due to issues about electric supply.
57. It has been emphatically contended by ld. defence counsel for the accused that PW12 Sh. Vivek Prasad, DGM (Business), BSES RPL deposed that the complete file pertaining to the present case i.e. connection bearing K7507997 is not traceable in their office and his affidavit in this regard is Ex. PW 12/A. In view of the glaring contradictions and gaps in the prosecution case, the prosecution has miserably failed to establish its case against the accused beyond a reasonable doubt and therefore, the accused deserves to be acquitted of the charges leveled against him. Reliance is place upon judgments delivered by Hon'ble Apex Court in the cases titled as Sarvan Singh Vs. State of Punjab, AIR 1957 SC 637; M. Abbas Vs. State of Kerela (2001) 10 SCC 103; State of Karnataka Vs. Ameerjan (2007) 11 SCC 273; Ram Suresh Singh Vs. Prabhat Singh @ Chotu Singh & Anr (2009) 6 SCC 681 and Ashok @ FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 39 of 47 Dangra Jaiswal Vs. State of M.P, AIR 2011 SCC 1335. Reliance of also placed upon judgments delivered in the cases titled as Lala Ram & Anr. Vs. The State, Crl. Appeal No. 116 & 131/1984 decided on 03.05.1988 by Hon'ble High Court of Delhi; Employees State Insurance Corporation Vs. M/s Kanti Moulding Machine & Anr, ILR (2007) I Delhi 1010 and Jaipal & Ors Vs. State of UP, Crl. Appeal No. 1821 of 1998 decided on 23.01.2018 by Hon'ble High Court of Allahabad (Lucknow Bench).
58. Per contra, it has been contended by ld. APP for the State that the prosecution has been successful in bringing home guilt of the accused by adducing cogent and convincing evidence. The contentions raised by ld. defence counsel are not tenable. It is well settled proposition of law that it is not incumbent to join independent public witnesses during investigation and the testimonies of official witnesses cannot be discarded on this sole ground. The contradictions pointed out by ld. defence counsel are minor in nature which do not go to the root of the matter. Therefore, the accused deserves to be convicted for commission of offences punishable U/s 39/44 of the Indian Electricity Act, 1910.
59. The court is of the considered view that a perusal of the testimony of PW01 Sh. Subhash Chander Kapoor, one of the member of the joint inspection team shows that he has admitted that request for inspection of the premises was made by M/s Ashok Country Resorts. He has also admitted that M/s Ashok Country Resorts had made a request for repair of burnt cable. He admitted that FIR was lodged after a delay of FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 40 of 47 about one year and four months. He admitted that when the premises of accused was inspected, 3 generators were found to be installed, out of which, two were functioning. The electricity connection installed at the premises in question was having sanctioned load of 17 KW and the load alleged to be illegally drawn was 443.82 KW. He admitted that it is not feasible to draw the alleged load of 443.82 KW from a connection having sanctioned load of 17 KW. He admitted that they have not mentioned in their report as to what was the power capacity of the transformer from which the connection installed at the premises in question was given.
60. During his crossexamination, PW01 stated that he cannot admit or deny as to whether the power capacity of the transformer from which the electric connection to the premises of the accused was given, was 100 KW or not. He admitted that it is not feasible that a transformer with power capacity of 100 KW can draw the alleged load of 443.82 KW. The cable installed in the premises of the accused could take a maximum power load upto 2.5 times of its capacity. He admitted that no photographs of the premises were taken at the time of conducting inspection. He admitted that at the time of their inspection, power supply in the premises was being drawn from generators. He admitted that the site plan, Ex. PW 1/DB and sketch of tampered seal of electric meter, Ex. PW 1/DA were not prepared at his instance. He admitted that the seizure memo, Ex. PW 2/A does not bear the signatures of the accused as the same was not prepared in his presence. He stated that he cannot admit or deny that more than 10 other electric connections to the adjoining Farm Houses FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 41 of 47 were also given from the same transformer from which the electric connection was given to the premises in question. He admitted that he has not seen the seized electric meter in the court while getting his testimony recorded.
61. MHC(M), PS Kapashera deposed on 25.02.2016 that no case property of the present case was deposited in the malkhana. PW02 Sh. J.S. Malik, Junior Engineer, who had accompanied the joint inspection team has deposed that the electric meter, a MS box and a cable were removed by lineman Sh. Laxman Singh which were handed over to the police and the police had seized the same vide seizure memo, Ex. PW 2/A which is contrary to the prosecution case, as per which, PW04 SI Jagdish Prasad had seized the case property on 23.08.2002 at PS Kapashera when the same was brought there by a BSES official. He himself has admitted during his crossexamination that he had gone to the PS for handing over the case property on 23.08.2002. He admitted that no independent public person was called upon to join investigation and sign the seizure memo.
62. PW03 Sh. Dharamveer, the then JE admitted during his crossexamination that M/s Ashok Country Resorts itself had made a request for inspection of the meter installed at its premises. He admitted that 3 generator sets were installed at the premises in question for generating power. They had noted the capacity of those generator sets. He does not remember if the capacity of the transformer from which FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 42 of 47 electric connection was given to the premises in question had the capacity of only 100 KW. He admitted that there is no mention of the power capacity of the transformer in question in their joint inspection report. He admitted that no photographs of the seized cable and meter were taken in his presence. He admitted that the seizure memo, Ex. PW 2/A does not bear signatures of the accused. He does not remember as to where the seizure memo, Ex. PW 2/A was prepared. He denied that he and other officials of DVB had deliberately tinkered with the electric meter while it was in their custody to falsely implicate the accused due to ulterior motives. He does not remember, if IO had recorded statement of any DVB official regarding opening of sealed case property and handing over the same to the police. He admitted that he had not seen the case property in the court at any point of time.
63. PW04 SI Jagdish Prasad deposed that he had seized the case property vide seizure memo, Ex. PW 2/A on 23.08.2002 upon the same being brought by BSES officials. He has admitted during his cross examination that no register was maintained by BSES officials reflecting seizure of the case property. He had not recorded statement of any DVB official. The DD entry vide which the case property was deposited in the malkhana is not available on record. He has not seen the case property in the court.
64. PW05 Sh. Susheem Pandey had given permission to prosecute the accused. He has admitted that he had not mentioned in his FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 43 of 47 application U/s 151 of the Electricity Act, 2003 that he has gone through the chargesheet prepared in the present case. He had not examined any officer of the inspection team before according sanction. He had not examined or seen the case property, which is the subject matter of the present case. He had not seen the case property in the court. He had not verified the facts mentioned in the joint inspection report. He admitted that there is no mention about his inspection of the site in his application, Ex. PW 5/A. He admitted that he had not prepared any memorandum regarding his visit to the spot. He had prepared letter Ex. PW 5/A upon the asking of legal head of BSES. He was shown format of application U/s 151 of the Electricity Act, 2003 and he had mere filled in the blanks and submitted the duly filled application to their lawyer. No photographs of the premises in question were ever shown to him.
65. PW06 HC Rajesh, who had taken the copy of FIR from PS to spot has deposed that Sh. Jitender Malik, JE had told them that no lineman was available and therefore, he will send the electric meter and wire to the police station later on which is contrary to the statement of PW 2 Sh. J.S. Malik, who has deposed that the electric meter, MS box and cable were removed from the premises of the accused and handed over to the police which seized it vide seizure memo, Ex. PW 2/A.
66. First IO / PW07 ASI Hawa Singh has deposed that the JE had told him that since lineman was not available, he will hand over the electric meter, cable and other articles to him on some other day which is FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 44 of 47 contrary to the statement of PW2 Sh. J.S. Malik, who has deposed that the electric meter, MS box and cable were removed from the premises of the accused and handed over to the police which seized it vide seizure memo, Ex. PW 2/A. He admitted during his crossexamination that he had not seized any article pertaining to the present case. He admitted that he had not conducted any investigation to verify as to which persons were present at the spot at the time of the alleged inspection. When he had visited the spot, the electric meter and the cables were in proper condition. He had not taken any photographs at the spot. He had not verified, if there was any other source of electric supply at the premises in question. He had neither affixed any seal on the electric meter and cable, nor seized the same. He had not recorded the statements of any of the members of the joint inspection team. He had not joined any independent public person to establish that inspection was indeed conducted at the premises on 04.03.2001. He admitted that he had not tried to figure out the reasons for inordinate delay in lodging the FIR by DVB officials.
67. PW09 3rd IO Insp. Surjeet Singh deposed that the members of the joint inspection team had told him that the case property was not seized on the day of inspection as the customer had prevented them to do so which is contrary to the statement of PW2 Sh. J.S. Malik, who has deposed that the electric meter, MS box and cable were removed from the premises of the accused and handed over to the police which seized it vide seizure memo, Ex. PW 2/A. He cannot identify the case property as he had not seen it during the course of his investigation. During his cross FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 45 of 47 examination, he admitted that he had not seized any photographs pertaining to the inspection of the premises in question. He had not seized any case property. He had not verified as to on the basis of which material, permission to launch prosecution was given. He cannot admit or deny as to whether M/s Ashok Country Resorts had itself sought help of DVB in connection with electric supply issues. He admitted that he had not seen the case property in the court. He denied that the case property was not seized by the joint inspection team on the day of inspection due to lack of requisite staff and not on account of any objection by the accused.
68. PW11 Sh. V.K. Khullar, Chief Engineer, Distribution (South), BSES RPL admitted that at the time of inspection, power supply was being drawn from generator sets. During his crossexamination, he admitted that he had never inspected the premises in question and he had not examined the allegations of tampering with of the electric meter. He admitted that the knowledge derived by him was confined to the documents placed before him. He admitted that the electric meter and cable were never produced before him before passing the speaking order. He admitted that M/s Ashok Country Resorts itself had called the DVB officials due to issues about electric supply. PW12 Sh. Vivek Prasad, DGM (Business), BSES RPL deposed that the complete file pertaining to the present case i.e. connection bearing K7507997 is not traceable in their office and his affidavit in this regard is Ex. PW 12/A.
69. In view of the aforementioned contradictions in the FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 46 of 47 testimonies of material prosecution witnesses; admission of deficiencies in carrying out inspection at the premises in question, particularly bringing on record the number of electric connections given from the transformer from which, the electric connection was given to the premises in question, recording of the capacity of the said transformer; preferably joining independent public persons during investigation since they were admittedly available; failure to seize the case property, particularly the alleged tampered electric meter on the day of inspection in the presence of the customer and failure to produce the case property in the court during trial, the court holds that the prosecution has failed to establish its case against the accused beyond a reasonable doubt. Therefore, accused Ravinder Nath Sahni is acquitted of the charge levelled against him. He is directed to furnish bail bonds in terms of Section 437A Cr.P.C. forthwith. Original documents, if any, be returned to its rightful owner after Digitally signed by SANDEEP GARG cancellation of endorsement, if any.
SANDEE DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE...., 2.5.4.20=c0638bd0f6b2591ae536772 d72e898dfdef5a6e0dfd0e0a8b83c039 File be consigned to Record Room.
P GARG 6a011047f, ou=DELHI DISTT COURTS,CID - 6553892, postalCode=110017, st=Delhi, cn=SANDEEP GARG Date: 2018.12.18 16:54:53 +05'30' Announced in the open (Sandeep Garg) Court on 15.12.2018 ACMM (South), New Delhi.
FIR No. 114/02, PS Kapashera State Vs. Ravinder Nath 47 of 47