Delhi District Court
Bses vs . M.P. Singh, Cc No. 152/09 Page 1 Of Page ... on 17 April, 2013
1
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No.: 152/09
Police Station : Ambedkar Nagar, New Delhi
U/s 135 of Electricity Act, 2003
Unique ID No. R0203472010
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
Shri M.P. Singh
R/o 670/20, Village Deovli,
Nai Basti, Near Sq. No. 349,
Khanpur, New Delhi
...Accused
Appearances : AR with Sh. Sandeep Kumar, counsel for complainant
Accused on bail with Sh. D.K. Sharma, Advocate.
Complaint instituted on : 24.03.2009
Judgment reserved on : 05.04.2013
Judgment pronounced on : 17.04.2013
JUDGMENT
1 The case of the complainant in brief is that on 16.01.2009, the officers of the complainant company namely, Shri Rajesh Kumar - Assistant Manager and Shri Sanjeev Kumar - Graduate Engineer BSES Vs. M.P. Singh, CC No. 152/09 Page 1 of page 36 2 Trainee along with other team members, inspected the premises of the accused at 670/20, Village Deovli, Nai Basti, Near Sq. No. 349, Khanpur, New Delhi and it was found that the premises was being used by the accused M.P. Singh and supply of electricity of accused was running directly through illegal DT wires, which were connected before meter in black colour 2 core service cable, and load of 1st and 2nd floor running through illegal DT wires and accused had made provision for running the load of the premises either on direct theft or on meter with the help of change over switch connected at first floor of the premises. It is further mentioned that due to the resistance by the accused along with others, the illegal wires and cables could not be removed from the site. The total connected load of the electricity was connected through illegal wires/ tappings to the service line of complainant and that a connected load of 19.078 KWs energy was found being connected / used through the stolen energy for commercial purpose and the connected load was mentioned in the load report prepared at the spot and that the videography of the said theft was got conducted and inspection report was also prepared at the spot including the sketch of the manner of theft and thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting dishonestly.
BSES Vs. M.P. Singh, CC No. 152/09 Page 2 of page 36 3 2 It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill, as per the DERC regulations and tariff order was raised by the complainant for Rs. 7,05,873/ with a due date as 18.02.2009 and was served upon the accused but he failed to pay the said theft bill.
3 The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my ld. predecessor vide his order dated 07.07.2009 and the accused appeared and was supplied with the CD of videography and documents and my ld. predecessor vide his order dated 20.09.2010 framed a notice U/sec. 135/151/154(5) of the Electricity Act, 2003 against the said accused, but as the provisions of concerned law were inadvertently wrongly mentioned in the said notice, accordingly, vide my order dated 05.04.2013, while hearing the final arguments, the notice was amended which was framed u/s. 135 r/w section 150 of the Electricity Act, 2003 and accused pleaded not guilty and claimed trial on the ground that the case against him was false and he admitted that he was owner of the premises in question which consisted of four floors including the basement and that he was residing on the ground floor and rest of the premises was BSES Vs. M.P. Singh, CC No. 152/09 Page 3 of page 36 4 rented out and that he was using the electricity through the meter installed at the premises and he himself and his tenants were using the electricity through the separate meters and that he was regularly paying the bills against the electricity consumed through the meters installed at the premises and that neither the tenants nor he ever committed any theft of electricity and that he was not liable to pay any damages and loss to the complainant company.
4 In order to prove the case of the complainant, three witnesses were produced, which have been discussed below. 5 The statement of the accused was recorded U/sec. 313 Cr.P.C., wherein he pleaded his innocence and denied the evidence as false and he answered that inspection of 1st and 2nd floor of his premises, which had been rented out, had taken place in his presence and that separate commercial and domestic meters were installed at ground floor and that no inspection of ground floor had been conducted by complainant company and that no document as alleged by complainant was prepared at the spot in his presence, though, videography was conducted of the 1st and 2nd floor of the premises in question and he further answered that he was not committing any theft of electricity BSES Vs. M.P. Singh, CC No. 152/09 Page 4 of page 36 5 and he was paying the electricity bills regularly of the ground floor of the premises in question and that the load report is exorbitant and excessive. Accused opted to lead defence evidence and produced four defence witnesses, which have been discussed below. 6 I have heard the counsel for the complainant and counsel for the accused Shri D.K. Sharma, advocate, and perused the record including the CD of videography displayed on the computer screen of the court. 7 PW1 Shri Rajesh Kumar, Manager (Enforcement) of the complainant company deposed that on 16.01.2009 at about 8.15 p.m., the premises of the accused bearing no. 670/20, Village Deoli, Nai Basti, near sequence no. 349, Khanpur, New Delhi was inspected by him, Shri Sanjeev Kumar - Graduate Engineer Trainee, and the photographer namely Sonu from M/s. Arora Photo Studio and the consumer was running electricity directly through illegal DT wires, which were connected to the service cable and were further connected to change over switch which is shown in the diagram in the inspection report at page 2 and that the load of the first and the second floor of the premises was running through the illegal DT wires and that the consumer had made a provision to run the load of the electricity either BSES Vs. M.P. Singh, CC No. 152/09 Page 5 of page 36 6 by direct mode or through meter with the help of a change over switch connected at first floor of the said premises and that the inspection team could not seize the DT wires and the cables from the site as there was a heavy resistance by the consumer along with some anti social elements and that necessary videography was done at site to show the said theft and the person present at the spot during the inspection disclosed his name as M.P. Singh, who has also been covered in the videography and that all the reports were prepared at site but the consumer refused to sign and that there was connected load of 19.078 KW, which was used for non domestic purpose by means of direct theft and the CD is Ex. CW2/3. He further proved the inspection report, load report, CD and the assessment bill for the theft as Ex. CW2/1 to Ex. CW2/4, respectively.
8 In his cross examination on behalf of the accused, PW1 replied that he did not remember as to how many floors were in existence in the said premises or as to how many electricity meters were installed there nor he remembered as to who was the registered consumer of the electricity meter in the premises. He did not remember which meter was domestic or non domestic installed in the premises. He replied that he did not ask as to who was occupant of basement or the ground BSES Vs. M.P. Singh, CC No. 152/09 Page 6 of page 36 7 floor. He did not know as to whether the first and second floor of the premises were rented out or not and he volunteered that M.P. Singh was present. He did not remember the number of electricity meter installed for first and second floor nor he remembered as to whether all the meters were installed at the same location on the ground floor or not. He did not remember the colour of the service cable connected to different meters. He admitted that premises was having an underwall wiring. He replied that it was a mass raid and the police and CISF personnel were present, but they had not made witnesses from the police officials in the present case. He volunteered that during the mass raid, the situation became violent and some anti social element gathered at the site and started pelting stones on the members of the team and that the members of the team were protected by the police and were taken out from the area for their safety concern. He did not know as to how many raid teams were involved in the mass raid at Nai Basti. He admitted that the crowd gathered at in the locality were throwing stones on the inspection team. He admitted that the yellow cable mentioned in the site plan in the inspection report at page no. 2 of Ex. CW2/1, was not having any cut mark. He admitted that he had not recovered any article from the premises during the raid. He further admitted that he had not recovered the change over switch from the BSES Vs. M.P. Singh, CC No. 152/09 Page 7 of page 36 8 premises. He did not remember as to whether there was any videography of the change over switch or not. He admitted that he had not checked the meter installed in the premises and volunteered because of the crowd at the time of inspection. He further admitted that black colour cable was not mentioned in the diagram in Ex. CW2/1 at page no. 2 and he volunteered that service cable mentioned in the diagram was of black colour. He did not remember that the meter no. 13395377 mentioned in the assessment of connected load was of first floor and second floor. He admitted that during the time of raid, they were three members of the team. He further admitted that there was no signature of the accused in the inspection report, connected load report and other documents.
9 PW2 Shri Sonu, photographer from M/s. Arora Photo Studio, deposed that on 16.01.2009, he alongwith Shri Rajesh Kumar and Shri Sanjeev Kumar visited the premises bearing no. 670/20, Devali Village, Nai Basti, Khanpur, New Delhi and videographed the inspection of the premises and identified CD of videography, which was earlier Ex. CW2/3. In his cross examination on behalf of the accused, PW2 replied that he did not know as to whether there was a basement or not. He further replied that when they reached the spot there was dark and BSES Vs. M.P. Singh, CC No. 152/09 Page 8 of page 36 9 he volunteered that there was a quarrel and that at the time of videography there were 5060 persons gathered in the street. He admitted that he had not signed any document at the time of inspection. He did not remember as to on which floor he conducted the videography. He could not say about the change over switch, service cable and the meter if covered in the videography on the date of inspection and he volunteered that other team members can tell about the change over switch, service cable and the meter. 10 PW3 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. PW3/1 and he identified the signatures of the previous A.R. on the complaint Ex. CW1/3 and he further proved letter of authority of the previous A.R. as Ex. CW1/2 and he deposed that he has no personal knowledge of the facts of the case and has deposed as per records. In his cross examination on behalf of the accused he replied that Shri Arun Kanchan, Chief Executive Officer of the complainant company has powers to authorise him to appear in the present case on behalf of complainant company and that he had not visited the site. PW3 denied the suggestion that false and fabricated case has been filed against accused.
BSES Vs. M.P. Singh, CC No. 152/09 Page 9 of page 36 10 11 DW1 Smt. Kanchanlata Singh deposed that she was residing on the ground floor of the premises in question since year 1995 and having domestic electricity meter and that there were three electricity meters installed at the said premises and produced copy of rent agreement as Mark A and Mark B vide which the basement, first and second floor the premises were given on rent since the year 2004 and thereafter, she collectively proved the photographs of the meter number 23414343 and meter number 24113441, wherein the colours of the cables were also shown and she further deposed that meter installed for first and second floor was for commercial connection and meter installed at ground floor was for domestic purpose and she collectively exhibited the bills for both the said meters as Ex. DW1/B and Ex. DW1/C and she further proved the meter bill of basement as Ex. DW1/D. She further deposed that her husband was working in Airport Authority of India, being a government servant he was posted at Agra, U.P., at the time of deposition and he used to visit Delhi once in a month and that her children were school going and she was a housewife. She further deposed that on 16.01.2009 at about 8.00 p.m., the BSES officials entered her premises without asking her or her husband and started taking videography of first and second floor which were given on rent BSES Vs. M.P. Singh, CC No. 152/09 Page 10 of page 36 11 and when the summons were received by her husband, it was noticed that the tenant is not being made a party who was using the premises at the time of raid for which the videography was being taken and that her husband was innocent and had been falsely implicated in the present case and that they were regularly paying the bills and never indulged in theft of electricity.
12 In her cross examination on behalf of complainant, DW1 replied that she did not know English and only thing she knew about the documents Mark A and B was that the same were copies of rent agreement and that there were two tenants namely Ram Kumar and Dinesh when the raid was conducted on 16.01.2009. She volunteered that at the time of raid conducted by the authorised officers of the complainant, she had disclosed that Ram Kumar and Dinesh were the tenants, but the officials of the complainant refused to listen to them. She admitted that at the time of inspection, the accused was present in the premises.
13 DW2 Shri D.V. Verma, Labour Inspector was summoned on behalf of accused and he produced the complaint case file pertaining to M/s. R.K. Garments with respect to complaint filed by the employees BSES Vs. M.P. Singh, CC No. 152/09 Page 11 of page 36 12 of the R.K. Garments under the Industrial Dispute Act and photocopy of entire file was collectively exhibited as Ex. DW2/A and he further deposed it as correct that the employee of M/s. R.K. Garments C/o 670/20, 2nd Floor, Nai Basti, Deoli, New Delhi, has given complaint dated 21.08.2009 and that on 27.08.2009, the Labour Inspector visited the said premises along with the said employee and the premises was locked at that time. In his cross examination on behalf of complainant he deposed that he did not have any personal knowledge and deposed on the basis of documents.
14 DW3 Shri Ashok Sharma, Manager, Punjab National Bank, Khanpur, Delhi was summoned on behalf of accused and he produced accounts statements pertaining to account no. 1514000100356730 for the period from 01.01.2006 till 31.03.2011 which was jointly held by Smt. Kanchanlata Singh and Shri M.P. Singh R/o 670/20, Export Zone, Deoli, New Delhi and computer generated copy of same was collectively exhibited as Ex. DW3/A. In his cross examination on behalf of complainant, DW3 replied that he has no personal knowledge of account and had produced summoned documents only. 15 DW4 Shri Ram Avtar Arya, Computer Operator of Punjab BSES Vs. M.P. Singh, CC No. 152/09 Page 12 of page 36 13 National Bank, Khanpur, Delhi produced the statement of account of M/s. R.K. Garments bearing no. 1514002100034023 w.e.f. 16.03.2006 to 24.11.2010 and other statement of account of M/s. Jyoti Enterprises bearing no. 1514002100035165 w.e.f. 09.02.2007 to 03.09.2011, which are exhibited collectively as DW4/A. 16 The first contention raised on behalf of the accused is that the recovery of illegal wires and the change over switch was mandatory and admittedly no such recovery was effected in the case nor the same has been proved on record.
17 The said contention is based on wrong assumption of law by the ld. counsel for the accused because the Hon'ble High Court of Delhi in case titled Jeetpal and Anr. Vs State reported as 1996 JCC 674, already held regarding the non seizure of shunt wire in the said case through which, the abstraction of energy was going on and which was being used as artificial means that it does not affect the credibility of PW1 & PW2, who had no axe to grind against any of the accused persons and thus, the prosecution case cannot be rejected on the ground of non seizure of the shunt wire which appears to be an argument of desperation.
BSES Vs. M.P. Singh, CC No. 152/09 Page 13 of page 36 14 18 Similarly, the Hon'ble High Court of Delhi in Criminal Appeal No. 531 of 2007 decided on 23.10.2007 titled Mukesh Rastogi Vs. NDPL, held that - (para 4, 5 ) "4. In all cases of theft of electricity, the stolen material is simultaneously consumed by the person involved in theft. Electricity is not such a material which can be kept stored for future use. In normal cases, of theft of articles case property is understood by the stolen material. In excise cases the case property is liquor seized, in case of NDPS the case property is the narcotics drugs seized. In that sense in case of theft of electricity, there can be no case property as such, since the stolen property i.e. electricity is simultaneously consumed. The enforcement staff therefore, normally seizes the material through which theft is committed. In the present case, the evidences show that the theft was being committed by connecting wires directly to LT Mains and taking those wires upto the cut out and so electricity was being consumed through other end. This entire process of theft of electricity was captured by way of photographs, which have been placed on record. During inspection, the wires were removed. This also stands proved from the testimony of complainant and Defence Witnesses, who stated that members of team had gone to the roof and removed the wires. Although in the testimony of the defence witnesses, it has come that the removed wires were being used for drying clothes. It is not disputed that they were single core PVC wires which are used for drawing electricity. Such wires are never used for drying clothes because they are much costlier than ordinary steel wires or ordinary plastic ropes available for drying clothes. The plea taken that the single core PVC wires were being used for drying clothes, therefore, does not appeal.
5. From the evidence it is apparent that the wires, cut out and the entire material being used for stealing BSES Vs. M.P. Singh, CC No. 152/09 Page 14 of page 36 15 electricity was collected from the spot. However, it is true that the wires used by the appellant for connecting LT Main directly upto the cut out were not produced in the Court. The counsel for the appellant argued that this nonproduction of the case material is serious lacuna on the part of complainant and the appeal should be allowed. I consider that this argument must fail. The case against the appellant is of theft of electricity and the Court has to see whether this theft has been proved by cogent evidence or not. Mere nonproduction of the wires cannot fail the prosecution, if the theft of electricity is proved by cogent evidence otherwise. It must be kept in mind that complaint is filed by NDPL, which is basically a distribution company. The officials working in enforcement department are not trained in investigation and since this is new job for them, it may take some time for them to learn the technicalities of investigation. Merely because there is a lapse on the part of the complainant company not to retain or not to produce the wires in the Court through which the electricity was being stolen, cannot fail the case if it is sufficiently proved by the other evidences that electricity was being stolen by hooking wires directly to LT Main. In the present case, the evidence of CW2 and CW3 in respect of theft of electricity has gone unchallenged. CW2 and CW3 both were the members of the enforcement team that had visited the spot. CW2 and CW3 had categorically stated that accused was taking supply of the electricity directly from NDPL LT Main through one number single phase two core wire and the electricity was being used for domestic as well commercial purposes. There was meter installed in staircase of the premises and it was lying idle, no load was running through it and a cut out fuse was installed before the meter and supply was coming from LT Main to this cut out through the wires and the supply was going to the premises through this cut out. CW 2 was cross examined at length, no suggestion was given to the CW2 that wires were not connected to LT Mains outside the building and from LT Mains they were not coming to cut out. There was no suggestion BSES Vs. M.P. Singh, CC No. 152/09 Page 15 of page 36 16 that the electricity supply was not coming through the cut out. The suggestions given were that the cables were being used for drying clothes by the tenant. This defence was rightly not believed by the Trial Court. Similarly CW3 was not given a suggestion that no wires were connected to LT Main and the supply was not connected directly from LT Main to cut out.
Testimony of these two witnesses coupled with testimony of CW4 and the photographs proved it beyond reasonable doubt that electricity was being stolen directly from LT Main and meter was lying idle." 19 In the present case, PW1 and PW2 sufficiently deposed giving a justification regarding non seizure of the illegal wires and change over switch as there was a resistance not only from the accused but from the persons present at the spot. It is surprising that such questions were put to PW2 in his cross examination who replied that when the inspection team reached the spot it was dark and that there was a quarrel and at the time of videography there were 5060 persons gathered in the street and similarly PW1 also answered that he could not recover the change over switch or check the meter installed at the premises because of the crowd at the time of inspection. He further answered that during the mass raid, the situation became volatile and some of the antisocial element gathered at the site and starting throwing stones on the members of the team at that time and members of the inspection team were protected by police and taken out from the area for the safety concern and he admitted that at the time of mass BSES Vs. M.P. Singh, CC No. 152/09 Page 16 of page 36 17 raid, the crowd gathered in the locality was throwing stones on the inspection team. In these circumstances, the said contention that non recovery of wire and change over switch, raised on behalf of the accused, does not hold much water and the said things have been supplied by the videography done at the spot and as such the said contention is hereby rejected and for the same reasons, the contention that the resistance at the site was not taken in videography is also rejected.
20 Next contentions raised on behalf of the accused are that the persons actually using the first and second floor, namely the tenants of the accused, were neither arrested nor named in the complaint and that no CISF or police personnel made a witness in the case and in the rented premises, persons working at the site were not examined as witnesses which are based upon ignorance of the law that in the Electricity Act, 2003, under section 135 (2)(a)(b)(c), (3)(4), only the powers of search and seizure have been provided to the authorized officers inspecting the premises where the theft is going on and he has not certainly been provided with "police powers". There are marked distinctions between "power to search and seizure" and "the police powers". The police powers as per Code of Criminal Procedure starts BSES Vs. M.P. Singh, CC No. 152/09 Page 17 of page 36 18 from section 154, wherein an FIR can be registered and under section 157 and 158, the police officer can investigate a cognizable offence as per procedure provided therein and under section 160 of the Code, the police officer has the power requiring the attendance of witnesses, whose statements can be recorded under section 161 Cr.P.C. and non cooperation by any person against the command of section 160 and 161 of the Code, may entail penal consequences under the Indian Penal Code and thereafter, the investigation officer has the search and seizure power under section 165 and 166, and thereafter, he may obtain the police custody or the judicial custody of the accused under section 167 Cr.P.C. and thereafter, he may reach the conclusion either under section 169 or 170 Cr.P.C. and file a chargesheet as per section 173 Cr.P.C. Besides that under section 41 of the Cr.P.C., the police has vast powers of arrest without a warrant. If the present case would have been registered vide an FIR, the said contentions would have been justified to an extent, but in a complaint case where only power to search and seize is provided, the very nature of law does not authorize the persons searching the premises to implicate or to arrest subsequently those persons also who may be found involved in the offence as in the present case the tenants who were not available. The authorized officers who inspected the premises were not having any power to BSES Vs. M.P. Singh, CC No. 152/09 Page 18 of page 36 19 arrest the said tenants subsequently or to force the present accused or any other person under section 160 of the Code to disclose the names and addresses of the accused or he was having no powers to examine the CISF or police personnel who were there to control the law and order situation and were not part of the search and seizure. Thus, the contentions are fallicious having no basis under the law. 21 Even otherwise, the contention that the tenants who were actually committing theft or using the premises were not arrested nor named in the complaint nor made accused in the complaint, then, the present accused who was posted at Agra at the relevant time, being the owner and landlord of the said tenanted portion of the premises, cannot be held liable, has been suitably replied by the Hon'ble High Court of Delhi in the case titled Hindustan Petrolium Corporation Ltd. Vs. BSES Rajdhani Power Ltd. & Anr., reported as 138 (2007) DLT 679, wherein the Hon'ble High Court was dealing with the facts and contentions that if any theft was committed it was committed by the licensee of the premises and the licensor was having no control over the said licensee as far as abstraction of electricity is concerned and the landlord / owner prayed for quashing of entire complaint and it was held that the electricity connection was obtained by the landlord / BSES Vs. M.P. Singh, CC No. 152/09 Page 19 of page 36 20 owner for its own consumption on the petrol pump and as the petitioner had obtained the connection in its own name, it was the responsibility of the petitioner to see the electricity connection was used legally and lawfully and that the licensee i.e. respondent no. 2 was merely selling petrol as the dealer of the petitioner and if adulterated petrol is sold or less petrol is sold to customers by tampering with pump meter or electricity is stolen, it is the responsibility of the petitioner and has duty to regular inspection and keep a check on the petrol pump and that the petitioner can not wash off its hands saying that it has nothing to do with the petrol pump once it gave license. It was further held that the petitioner in its own petition has not stated if it had taken any action against respondent no. 2, when it discovered theft of electricity to the extent that meter was found slow by more than 80% and that shows that the electricity was being stolen either with his connivance or with consent of the petitioner. It was further held that where the theft was being done at the premises of principal agent by a licensee and the principal agent is keeping its eyes closed to the theft or other similar things done by the licensee, the charge of abatement of the offence is prima facie made out and that the abatement is not only done by the positive act, the abatement can also be done by the omission to do the positive act by one who is responsible to act. BSES Vs. M.P. Singh, CC No. 152/09 Page 20 of page 36 21 22 In view of the said distinctions between powers of search and seizure and police powers and in view of the said judgment of the Hon'ble High Court, all the said contentions are futile and cannot come to the help of the accused in the present case.
23 The above said contentions besides the other shortcomings pointed out such as no meter shown in the video except one or that it has not been disclosed as to how many cables were used by the accused have been raised on behalf of the accused by the ld. defence counsel, as if he was dealing with a traditional offence as are mentioned in the Indian Penal Code whereas undisputedly, it is an economic offence and there is a long list of such socio economic offences, such as Taxation Laws, Licensing Laws, Negotiable Instrument and Banking Laws, Food Adulteration Laws, Environment and Pollution Laws, AntiSmuggling, AntiHoarding, AntiCorruption, Human Trafficking Laws, so on and so forth and the said Socio Economic Laws have been developed according to the needs of the society and offences under these laws have been treated on different footings from the offences under the traditional laws such as mentioned under the Penal Codes.
BSES Vs. M.P. Singh, CC No. 152/09 Page 21 of page 36 22 24 Although "the Traditional Offences" and "the Economic Offences"
may be misnomer terms, but there are marked distinctions in the approaches to deal with the said offences.
25 The first marked distinction between the Traditional Offences and Economic Offences is that in the former, the victim is certain and specific such as is the case with offences of murder, dacoity, rape etc., but in the latter offences, the society as whole is the victim either directly or indirectly.
26 The second distinction between the said two kinds of offences is that the traditional offences are committed, generally with the motive of greed, avarice, revenge, pleasure etc. whereas in the economic offences, the main motive is unearned income or enrichment by illegal or shortcut methods without meaning to pay for the means on the basis of which the said unearned income is generated and the said economic offences are generally committed on a mass scale in the society, irrespective of the illresults produced by the same towards the well being of the society as a whole.
BSES Vs. M.P. Singh, CC No. 152/09 Page 22 of page 36 23 27 The third distinction is of the approach attached by the legislatures in enacting the economic laws and to deal with the same with a different approach which is again based upon the said two distinctions. In the traditional offences, it is for the prosecution/ complainant to prove the facts of the case constituting the actus reas and guilty intention i.e. the mens rea beyond reasonable doubt. Although the mens rea has not been dispensed with in economic offences but at the same time, certain safeguards and certain deeming situations and fictions of law have been inserted in the economic laws so as to curb the rising tendency to commit the economic offences and it is with this intention that the legislatures throughout the world, have inserted the presumptions of law in favour of the prosecution/ complainant and the onus has been shifted on the accused to disprove the same.
28 The electricity Act 2003 is also not an exception to the said third distinction because in section 135 of the Act, the third proviso attached to subsection (1) reads as under:
"Provided also that if it is proved that any artificial means or means not authorized by the Board or Licensee or supplier as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any BSES Vs. M.P. Singh, CC No. 152/09 Page 23 of page 36 24 abstraction, consumption or use of electricity has been dishonestly caused by such consumer."
29 The said kinds of presumptions have been dealt and interpreted by the Hon'ble Supreme Court while dealing with the various other economic laws and some of the examples of the judgments may be quoted as follows:
(i) In the case titled as Kundan Lal Rallaram Vs. Custodian Evacuee Property, Bombay reported as AIR 1961 Supreme Court 1316, the full bench of Hon'ble Supreme Court was dealing with the presumption u/s. 118 of the Negotiable Instrument Act and Para 5 of the judgment reads as under: "This section lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a court shall presume, inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of the failure of consideration on the maker of the note or the endorser, as the case may be. The question is, how the burden can be discharged? The rules of evidence pertaining to burden of proof are embodied in Chapter VII of the Evidence Act.
The phrase "burden of proof " has two meaningsone the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e, oral or BSES Vs. M.P. Singh, CC No. 152/09 Page 24 of page 36 25 documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions or law or fact."......"
(ii) In the case of M/s. Sodhi Transport Co. and another Vs. State of U.P. and another reported as AIR 1986 Supreme Court 1099, the Division Bench of the Hon'ble Supreme Court was dealing with the presumption u/s. 28B of U.P. Sales Tax inserted in 1973 and was deciding the facts wherein the appellants who were engaged in the business of transport of goods belonging to other for hire from one place to another and who in the course of their business have to carry goods from one State to another State along roads lying in the State of Uttar Pradesh and if the transit pass is not handed over to the officerincharge of the checkpost or barrier before his exit from the State, it shall be presumed that the goods carried thereby have been sold inside the State by the personincharge of the said goods.
The Hon'ble Supreme Court held in para 14 as follows: "A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. BSES Vs. M.P. Singh, CC No. 152/09 Page 25 of page 36 26 The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances."
The Hon'ble Supreme Court has further held in para 17 as follows: "........ The transporter concerned is not shut out from showing by producing reliable evidence that the goods have not been actually sold inside the State. It is still open to him to establish that the goods had been disposed off in a different way. He may establish that the goods have been delivered to some other person under a transaction which is not a sale, they have been consumed inside the State or have been redespatched outside the State without effecting a sale within the State etc. It is only where the presumption is not successfully rebutted the authorities concerned are required to rely upon the rule of presumption in S. 28B of the Act. It is, therefore, not correct to say that a transaction which is proved to be not a sale is being subjected to sales tax....."
(iii) Similarly, the Hon'ble Supreme Court in the case titled Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal reported as AIR 1999 Supreme Court 1008 has held in para 12 as follows: "Upon consideration of various judgment as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or BSES Vs. M.P. Singh, CC No. 152/09 Page 26 of page 36 27 doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstance upon which he relies...."
(iv) Again, the Hon'ble Supreme Court in the case titled Hiten P. Dalal Vs. Bratindranath Banergee in Criminal Appeal No. 688 of 1995 (From the Judgment and order dated 30.04.1993 of the Special Court at Bombay in Crl. Application no. 1 of 1992) decided on 11.07.2001 and also cited as 2001 (6) SCC 16 has held in para 19 and 20 as follows: "Because both the sections 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras Vs. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the BSES Vs. M.P. Singh, CC No. 152/09 Page 27 of page 36 28 accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact."
(v) The Hon'ble Supreme Court has reiterated the same law in the case titled K.N. Beena Vs. Maniyappan and another reported as AIR 2001 Supreme Court 2895 and held in para 6 as follows: "In our view the impugned Judgment cannot be sustained at all. The judgment erroneously proceeds on the basis that the burden of proving consideration for dishonoured cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under section 139 the Court had to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability. Thus in complaints under section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal Vs. Bratindranath Banergee reported in (2001) 6 SCC 16 has also taken an identical view."
30 Coming to the presumption raised with regard to offence of theft of electricity, under the repealed Electricity Act of 1910, the similar presumption was raised as is mentioned in section 135 of the present Act, as quoted above. The Hon'ble Supreme Court in the case titled Jgannath Singh @ Jainath Singh Vs. B.S. Ramaswamy (now Krishna BSES Vs. M.P. Singh, CC No. 152/09 Page 28 of page 36 29 Murthy) and Another reported as AIR 1966 Supreme Court 849 dealt with the presumption u/s. 39 and 44 of the said Repealed Act and while sustaining the conviction of one appellant for tampering of the meter u/s. 44 but setting aside the conviction u/s. 39 and the another appellant was convicted u/s. 39 of the said Repealed Act and in para 5 of the judgment it was held as follows: "The exposure of the stud hole permits the insertion of foreign material inside the meter retarding the rotation of the inside disc, and is thus an artificial means for preventing the meter from duly registering the energy supplied. For purposes of s. 44, the existence of such an artificial means raises the presumption that the consumer, in whose custody or control the meter is, willfully and knowingly prevented the meter from duly registering. To raise this presumption it is not necessary to prove also that the consumer was responsible for the artificial means or that the meter was actually prevented from duly registering. The appellants did not rebut the presumption and were rightly convicted under s. 44." 31 While giving interpretation to section 39, the court further held in para 6 held as follows:
"Whoever abstracts or consumes or uses electrical energy dishonestly commits a statutory theft. The theft may be proved by direct or circumstantial evidence. Direct evidence of the theft is rarely forthcoming. To facilitate proof of the theft, the section provides that the existence of artificial means for such abstraction is prima facie evidence of such dishonest abstraction. We think that the word "abstraction" should be construed liberally and in the context of S. 39 it means taking or appropriation.
BSES Vs. M.P. Singh, CC No. 152/09 Page 29 of page 36 30 Energy may be dishonestly abstracted by artificial means or unauthorized devices. For instance, energy before it passes through a consumer's meter may be abstracted from the main of the electric company by an unauthorized wire connecting the main with a private terminal, the connecting wire is the artificial means for abstraction. Again by tampering with the meter and causing it to record less than the units actually passing through it, the consumer may take the unrecorded energy without paying for it. The tampering of the meter and the taking of the unrecorded energy are unauthorized by the contract with the electrical company, the unauthorized taking is an abstraction and the crippled meter is an artificial means for abstraction."
33 In para 7 it was further held and in para 8 the Hon'ble Supreme Court went on holding as follows: "(7) The effect of the last part of S. 39 is that the existence of the unauthorized means for abstraction is prima facie evidence of dishonest abstraction by some person. The special rule of evidence goes no further. The prosecution must prove aliund that the accused made the abstraction. The fact that the accused is in possession and control of the artificial means for abstraction coupled with other circumstances showing that he alone is responsible for the abstraction may lead to the inference that he is guilty of the dishonest abstraction."
"(8) An exposure of a stud hole on the meter cover is an artificial means for preventing the meter from duly registering. For the purposes of section 44, the existence of this artificial means gives rise to the presumption that the meter was prevented from duly registering but this presumption cannot be imported into S. 39. A meter with an exposed stud hole without more is not a perfected instrument for unauthorised taking of energy, and cannot be regarded as an artificial means for its abstraction. To BSES Vs. M.P. Singh, CC No. 152/09 Page 30 of page 36 31 make it such an artificial means, the tampering must go further and the meter must be converted into an instrument for recording less than the units actually, passing through it. A check meter affords an easy method of proving the consumer's meter is recording less than the units consumed and is being used as an artificial means for abstraction of the unrecorded energy. To bring home the charge under S. 39 the prosecution must also prove that the consumer is responsible for the tampering. The evidence adduced by the prosecution must establish beyond doubt that the consumer is guilty of dishonest abstraction of energy."
34 Reiterating the said proposition the Hon'ble Supreme Court in the case titled Ram Chandra Prasad Sharma and Others Versus State of Bihar and Another reported as AIR 1967 Supreme Court 349 held as follows:
"Before raising a presumption under S. 39 of the Electricity Act that there is a dishonest abstraction of energy, the presence of a perfected artificial means which will render abstraction of energy possible, has to be established by the prosecution. It is further necessary to show that there was a dishonest abstraction, consumption or use of electrical energy by the accused person. It is not sufficient to say that a meter has been tampered with and that it is under the control of the accused person."
35 However, in both the said cases the Hon'ble Supreme Court was dealing with the cases of tampering of the meter for the purpose of theft of electricity. Subsequent to the said judgments, the section 39 of the Repealed Act was amended and the creation of the offence of theft BSES Vs. M.P. Singh, CC No. 152/09 Page 31 of page 36 32 by fiction of law as theft u/s. 379 IPC was deleted and section 39 was made to define the theft by itself which reads as under:
"39. Theft of energy: Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial means or means not authorised by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed until the contrary is proved, that any abstracting, consumption or use of energy has been dishonestly caused by such consumer."
36 Whatever was earlier provided u/s. 44 of the Repealed Act, has been incorporated in the present Act u/s. 138 substantially, if not ad verbatim.
37 It is important to mention here the difference between the section 39 of the Repealed Act and the present section 135 of the Act, the relevant portion of the same is reproduced below: "135. Theft of electricity ;- (1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformers, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or BSES Vs. M.P. Singh, CC No. 152/09 Page 32 of page 36 33
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damages or destroyed as to interfere with the proper or accurate metering of the electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both...." 38 The bare reading of the said three clauses of section 135 of the present Act goes to establish that the manner and methods in which the dishonest abstraction or consumption or use of electricity can take place, have been elaborately incorporated and the definition has been made inclusive of and not exhaustive which was not there in section 39 of the Repealed Act. The clause (b) of the said section 135 speaks of tampering of the meter in the ways as mentioned in the said subclause and prima facie it overlaps with the language of section 138 of the present Act. But so far as presumption u/s. 135 is concerned, as quoted above, is identical as was mentioned in section 39 of the Repealed Act and thus the law laid down by the High Courts and the Apex Court with regard to the said presumption still holds good when dealing a case under the present Act so far as presumption part is concerned. 39 Judging in the light of the said proposition of law laid down by the Apex court from time to time as pointed out above, I am of the considered opinion that from the said deposition of PW1 and PW2, it BSES Vs. M.P. Singh, CC No. 152/09 Page 33 of page 36 34 has been well established that theft of electricity was going on at the first and second floor of the premises in question and there is no dispute that the accused was the owner / landlord of the premises and no suggestion was thrown to the witnesses that there was no change over switch or artificial means at the time of inspection used for said theft of energy and from the said oral and documentary evidence, the presumption arose in favour of the complainant and onus to disprove the same did shift on the accused.
40 Let me now scrutinize as to whether the accused has discharged his burden or not. The extent to which the onus is to be discharged has already been laid down by the Hon'ble Apex Court in the case titled Hiten P. Dalal (supra). The wife of the accused as DW1 has proved some photographs of different colour wires which were used at the premises in question and it was contended that there was no cut mark in the said cable for direct tapping. I think this argument is based on wrong understanding of the technical aspect of the manner of theft which has been very well depicted in the diagram at page 2 of the inspection team Ex. PW2/1, which shows that there may not be any cut mark necessarily in order to directly tap the energy for the purposes of theft. DW1 further proved certain bills in order to show that the BSES Vs. M.P. Singh, CC No. 152/09 Page 34 of page 36 35 same were being paid regularly. The bills collectively Ex. DW1/B are qua the meter for the ground floor of the premises. The said bills are of no help to the accused because there is no case of theft of electricity at the ground floor of the premises made out by the complainant. The bill Ex. DW1/D is regarding the basement which is again not of any use to the accused because there is no case of theft with regard to theft of electricity in the basement. Two bills collectively Ex. DW1/C with regard to first and second floor have been produced which are for the period w.e.f. 12.10.2010 to 15.12.2010 and 16.04.2010 to 17.06.2010 and admittedly date of inspection when the theft was going on is 16.01.2009 and as such the said bills Ex. DW1/C are not pertaining to the period of the theft or at least covering the said date of inspection. 41 DW1 has further proved the two rent agreements with regard to first floor (Mark B) and second floor (Mark A), which were executed on 01.01.2007 and 19.02.2009 for three years and two years, respectively, and both the agreements do not cover the date of inspection i.e. 16.01.2009 and as such the said rent agreements do not lead us to anywhere. Even otherwise if I take the said two rent agreements into consideration for the sake of argument only, these establish that the said premises were on rent with the persons mentioned as lessees in BSES Vs. M.P. Singh, CC No. 152/09 Page 35 of page 36 36 the same but in view of the said judgment of Hon'ble High Court in Hindustan Petroleum case (supra) and in view of my holding on the said contentions of the accused, the said rent agreement are again of no use so far as criminal liability of the present accused is concerned. For the same reasons, whatever has been proved by DW2 the Labour Inspector, DW3 the official of Punjab National Bank, Khanpur and DW4 the official of Punjab National Bank, Khanpur, is also of no use to the accused which at best go to establish that there were tenants at the first and second floor of the premises.
42 In view of my said discussion, the accused has miserably failed to show a reasonable probability of his defence that the electricity was being consumed against payment through bills or he himself was not liable for any alleged theft. Thus, I am of considered opinion that the complainant has been successful in proving the case against the accused beyond reasonable doubt and accordingly the accused is held guilty under section 135 r/w. section 150 of the Electricity Act, 2003.
Announced in the open ( RAKESH TEWARI )
court on 17.04.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. M.P. Singh, CC No. 152/09 Page 36 of page 36