Delhi District Court
Cc No. 438/2017, Bses vs . Mukesh Kumar Kataria Page No. 1 Of 18 on 29 February, 2020
IN THE COURT OF SH. MUKESH KUMAR : ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 438/2017
U/s 135 of Electricity Act
In the matter of :
BSES Rajdhani Power Ltd.
Having its registered office at:
BSES Bhawan, Nehru Place,
New Delhi110019
Also at:
Corporate, Legal and Enforcement Cell,
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting Through its Authorized Officer
Sh. Ashutosh Kumar
.... Complainant
Versus
Mukesh Kumar Kataria
S/o Sh. Chander Singh
R/o Pole No. 43, Village Ujwa,
Jaffarpur, New Delhi110043.
.... Accused
Date of institution : 14.07.2017
Arguments heard on : 29.02.2020
Judgment delivered on : 29.02.2020
JUDGMENT:
1. By this judgment, I shall dispose of the complaint CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 1 of 18 case filed by the complainant against the accused under Section 135 of the Electricity Act, 2003. The brief facts of the case are that on 12.09.2015 at about 12:45 PM as per the directions of the authorised officers, a Joint Inspection Team Comprising of Sh. Desh DipakAssistant Manager, Sh. Kunal KumarTechnician and Sh. Ganesh KumarGET inspected the premises of the accused i.e premises at at Pole No. 43, Village Ujwa, Jaffarpur, New Delhi110043 (hereinafter referred to as premises in question) which falls within the distribution area of the complainant. It is stated that at the time of inspection of the premises in question, electricity meter bearing No. 40082289 with CA No. 102576958 was found installed at the premises in question and accused was found indulged in direct theft of electricity by directly tapping from Bare Conductors of complainant near Pole No. W326 with the help of illegal wires which was further connected to the load of the premises. It is further stated that there was a connected load of 3.979 KW/DX found in the premises for domestic purpose. The Inspection report, Load Report and Seizure memo were prepared at site.
2. It is stated that the aforesaid illegal act, the accused has caused and was found to be causing wrongful loss to the Complainant Company and wrongful gain to themselves and thus acting dishonestly, thus, it is a case of direct theft of electricity and a theft bill as per the DERC regulations and tariff order was raised by the complainant company for a Sum of Rs. CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 2 of 18 89,168/ with due date as 07.10.2015 but the accused had failed and neglected to make the payment of the theft bill amount.
3. The complainant company has filed a criminal complaint before this Court and the same has been registered as criminal complaint against the accused persons. Accused Mukesh Kumar Kataria was duly served and copies of documents were supplied to him. Notice for the offence under Section 135 of Electricity Act was framed against the accused on 06.10.2017 to which accused pleaded not guilty and claimed trial.
4. In order to prove its case complainant has examined the following witnesses, the details of which are as follows:
5. PW1 Sh. Desh Dipak, Assistant Manager, BSES deposed that in September, 2015 at about 01:00 PM, he along with Sh. Ganesh KumarGET and Sh. KunalTechnician visited Village Ujwa, Near Pole No. 46, New Delhi and the inspection was conducted on the lead given by the Jafarpur Division. He deposed that on reaching there they noticed that two illegal wires were connected to the LV Mains and were going into the property of Sh. Mukesh Kumar Kataria i.e the accused. PW 1 deposed that one meter was also installed in the premises and the gate was open and they noted down the meter number immediately as generally in Villages there is apprehension of altercation and immediately the consumer came out of the CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 3 of 18 house and they noticed the connected load of the said house i.e Submersible Pump, Cooler, two or three Tube Light, one Cooking heater, one or two ceiling fan and the total connected load was about 4 KW and the same was noted in the note pad. PW 1 further deposed that a mob was gathered over there I.e about 1012 persons and they started abusing them and they immediately left the premises to save themselves in order to avoid any altercation and after some distance they prepared the report and submitted to their department. PW 1 proved the inspection report as Ex.CW2/1 bearing his signatures at point A. He further proved the details of the load and proved the Load Report as Ex.CW2/2 bearing his signatures at point A. PW 1 further deposed that they were not able to seize any material from the site due to resistance at the site and the said fact was mentioned in the form of seizure memo already Ex.CW2/3 bearing his signatures at point A. PW 1 further deposed that he is not able to identify the accused, being old matter and at the time of inspection there was blinking in the meter and the same was in off position and the electricity was being used directly from LV Mains.
In his cross examination, PW 1 deposed that they were three persons in total and they were having camera with them, the videogrpaher was not accompnying them. PW 1 further deposed during his cross examination that they could not prepare the video or take photographs as they did not get time in the above mentioned circumstances. PW 1 further CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 4 of 18 deposed during his cross examination that they remained at the spot for about 10 minutes and they could not enter the premises as one person came out of the room and 1012 persons gathered there. PW 1 further deposed that the load mentioned was seen by them from the very entrance of the house in the time before the said person came out of the room and as per his estimation the property was around 6070 sq. yds and he can not say whether the property was constructed upto first floor and second floor. PW 1 further deposed during his cross examination that he could see only one room and he do not know as to how many rooms were there in the said property. PW 1 further deposed that it is correct that the reports were never offered to the accused as they had left the premises.
PW 1 further deposed during his cross examination that he can not say why it is mentioned the word refused on the reports when the same were never offered to the accused. PW 1 further deposed that it is correct that they did not mention as to how consumer resisted the raid proceedings. PW 1 denied the suggestion that no such inspection was ever conducted and all the reports were prepared while sitting in the office and that is why no seizure could be made. PW 1 further deposed that they did not lodge any FIR as it was not a case of manhandling. PW 1 further deposed that it is correct that they could not see the entire load and it is also correct that they did not take the photograph of tapping. PW 1 further deposed that it is correct CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 5 of 18 that when they noticed tapping there was no one and at that time there was no resistance. PW 1 further deposed during his cross examination that they came to know about the theft of electricity when they saw that meter was not working and lights were on in the premises, then they became sure that illegal wire is going into the premises of the accused. PW 1 denied the suggestion that there was no electricity theft in the premises and he is deposing falsely.
6. PW 2 Sh. Kunal, Technician, BSES Rajdhani Power Limited deposed that on 12.09.2015, he along with team leader Desh Dipak and Sh. Ganesh KumarGET inspected the premises located near Pole No. 43, Village Ujwa, Jaffarpur and at the time of inspection, they noticed that electricity meter was installed at the said premises. He further deposed that they noted the meter number but the meter was not working at the time of inspection as there was no blinking light in the said meter and at the time of inspection they saw tapping was coming from the pole to the said premises. PW 1 further deposed that there might be submersible pump, tube lights and a cooking heater in the said premises at the time of inspection. PW 1 further deposed that all the connected load was checked by the team leader and after that 1015 persons gathered at the spot and that was the reason that they could not prepare inspection report, load report, seizure memo at the spot and prepared it at a safe spot I.e outside the Village and they could not seize the electricity mater and tapping at the spot due to CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 6 of 18 gathering of 1015 persons are the spot. PW 2 further proved the inspection report, load report and seizure memo as ExPW 2/1, Ex.PW2/2 and Ex.PW2/3 bearing his signatures at point A. PW 2 further deposed that no photography was done at the spot due to resistance by the consumer and gathering of 1015 persons at the spot. PW 2 furtrher deposed that they submitted the inspection report, load report and seizure memo later in the office and he can not identify as he was behind his team leader. PW 2 further deposed that but certainly theft of electricity was going in the said premises through tapping from the pole of BSES and the electricity meter was not blinking at the time of inspection.
PW 2 deposed during his cross examination that they inspected the premises on the instructions of their DGM and he is not aware whether any entry was made in this regard. PW 2 further deposed during his cross examination that they visited Police Station Jaffarpur before inspecting the premises in question and he do not know whether any team leader asked for any aid from police before inspecting the premises. PW 2 further deposed that no photographs of tapping was taken by our team at the time of inspection as they could not take out their camera due to the gathering of people and also they could not enter the said premises. PW 2 further deposed that the load report was not prepared by him and it was prepared by team leader Sh. Desh Deepak and GET Sh. Ganesh Kumar and he is not aware whether any written complaint was given in the PS CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 7 of 18 Jaffarpur by his team leader Sh. Desh Deepak regarding gathering of 1015 persons at the spot. PW 2 further denied the suggestion that no photograph was taken by them as they were not present at the spot at the time of inspection or that no photograph was taken by them as they were not present at the spot at the time of inspection. PW 2 further denied the suggestion that the user has not committed any theft of electricity or that he is deposing falsely at the instance of his officials. PW 2 further deposed that usually they prepare inspection report at the spot at the time of inspecting any premises and the same is signed by the user present at the spot.
7. PW 3 Sh. Sish Pal, Section Officer, Division Najafgarh, BSES Rajdhani Power Limited, Uttam Nagar, New Delhi deposed that as per their record, a connection in the name of Mukesh kumar Kataria S/o late Sh. Chander Singh with CA No. 102576958 and CRN No. 2620024790 was installed at Pole No. 43, Village Ujjwa, Jaffarpur, New Delhi 110073. PW 3 further deposed that he has brought detailed consumption pattern of the meter No. 22913543, CA No. 102576958 from December, 2011 to June, 2019. PW 3 further deposed that the said consumption pattern is downloaded from their office computer and is true and not tempered with. He proved the consumption patter as ex.PW3/A. PW 3 during his cross examination has deposed that it is correct that CA number is not mentioned in the connection CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 8 of 18 form. He voluntarily stated that CRN No. is mentioned in the form and CA No. is mentioned in the electricity bill issued. PW 3 further deposed during his cross examination that the document ie. consumption pattern produced has been generated on the computer available in their office but the same is not under their control and he has not brought any certificate under Section 65 B of the Evidence Act. PW 3 further deposed during his cross examination deposed that it is incorrect that the consumption pattern document is a manipulated documents. PW 3 further denied the suggestion that he is deposing falsely being the interested witness of the complainant.
8. PW 4 Sh. Ashutosh Kumar, Authorised Representative of BSES deposed that he has been authorized by Sh. Arvinder Singh Gujral vide GPA dated 23.01.2015 to appear before any court on behalf of the company and to appoint consultants, professionals, Advocates, Attorneys, for the company. PW2 proved the GPA in his favour as Ex. CW1/1 PW 2 also proved the complaint as Ex.CW1/2.
In his cross examination, PW 4 deposed that he has filed the present case as per records provided by the complainant company and he has no personal knowledge of the case. PW 4 denied the suggestion that he is not duly authorised to pursue the present complaint or that he is deposing falsely.
9. After recording the evidence of these witnesses, CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 9 of 18 statement of the accused under Section 313 Cr.P.C. was recorded wherein accused denied all the allegations of the complainant. No defence evidence was led.
10. I have heard the arguments and have perused the record carefully.
11. Ld. Counsel for complainant has argued that PW 1 and PW 2 have been able to prove the fact that at the time of inspection, accused was found indulged in direct theft of electricity and one electricity meter found at the site and the accused was committing theft of electricity from BSES Bar Conductors from the Pole with the help of illegal wires. It is submitted that the accused was residing at the inspected premises, therefore, the accused was booked for the electricity theft under Section 135 Electricity Act. It is stated that accused may be punished for the offence under Section 135 Electricity Act as per law and accused be awarded maximum sentence provided under law.
12. On the other hand, Ld. Counsel for the accused Mukesh Kumar Kataria has argued that the complainant has failed to prove its case beyond reasonable doubt.
13. Before coming to the final conclusion, I deem it appropriate to go through the relevant provision of law i.e Section 135 of Indian Electricity Act, which reads as under :
Section 135. (Theft of Electricity): 1[(1) Whoever dishonestly,
(a) taps, makes or causes to be made any CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 10 of 18 connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, 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
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of 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:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use (I) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 11 of 18 months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further 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 abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (2) Any officer authorised in this behalf by the State Government may
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being,] used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 12 of 18 shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
14. The bare reading of the aforesaid provision makes it clear in what manner a person can be booked for the theft of electricity. The complainant has relied upon the testimonies of PW1 and PW2 to prove the fact that it was the accused who was the user of the electricity in the premises in question. PW 1 and PW2 has deposed about the mode of theft as found committed at the premises in question.
15. To prove its case, regarding the theft of electricity against the accused, it is for the complainant to prove beyond reasonable doubt that the accused Mukesh Kumar Kataria was the user of electricity at the premises in question at the time when the alleged inspection was conducted. PW3 is the formal witness in this case. Counsel for complainant has relied upon the testimony of PW1 and PW2 to prove the fact that it was the accused who was the registered consumer and user of electricity at the inspected premises. He has deposed about the mode of theft as found committed at the premises in question.
16. Complainant has examined four witnesses which are disclosed above. Witnesses examined by complainant is PW 1 Sh. Desh Dipak, Assistant Manager who deposed that on inspection they came to know that two illegal wires were connected to the LV Mains and were going into the property of CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 13 of 18 accused. One meter was also installed in the present. He also deposed that he noticed that connected load of the premises and found the house hold equipments and the connected load was around 4 KW. It is also deposed that mob gathered there and they left immediately left the area to same themselves in order to avoid any altercation. PW 1 proved the inspection report as Ex.CW2/1, Load report as Ex.CW2/2 and the form of seizure memo as Ex.CW2/3, bearing his signatures at A. PW 1 further deposed that at the time of inspection, there was no blinking in the meter and the same was in off position.
17. However, in the cross examination, it is admitted by witness that they could not prepare the video or take photographs as they do not get time due to gathering of mob. Even they could not enter in the premises. He deposed that property is of around 6070 sq. yds but he is not aware whether the property was constructed upto first floor or second floor. In cross examination, he further admits that he could not see only one room and he do not know as to how many rooms were there in the property. He also admits to the effect that it is correct that reports were never offered to the accused as they had left the premises. Even they did not lodge any FIR regarding resistance of the accused. He also admits that he could not see the entire load and they made it a case of theft only on the basis of assumptions.
18. Other witness PW 2 Sh. Kunal, Technician was also CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 14 of 18 examined who deposed all on the same lines as deposed by PW 1. He also could not identify the accused. PW 2 also admits in his cross examination that no photographs has been taken by their team and the load report was not prepared by him. PW 3 Sh. Shish Pal produced the consumption pattern to establish that there was theft of electricity by the accused. In the cross examination, he also admits that there is no CA number is mentioned in the connection form and the consumption pattern has been generated on the computer available in their office but the same is not under his control. Even no certificate has been produced to authenticate the consumption pattern. PW 4 Sh. Ashutosh Kumar is the formal witness who has no personal knowledge of the present case and he is authorised signatory to the present complaint.
19. The sole case of the complainant is based on consumption pattern which is not properly proved before this Court. Even as per consumption pattern, there is consistency in particular months when the units are showing the average consumption in the premises. It is submitted by counsel for complainant that complainant through their witnesses has been able to prove its case beyound reasonable doubt that accused has committed theft of electricity.
20. It is submitted by counsel for accused that there is no load has been taken by the inspecting team from the premises and the same has been prepared on assumption and CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 15 of 18 presumptions and there is no photograph or videography to establish that accused was involved in theft of electricity. It is further submitted that sole basis of present case of theft of electricity is based on the consumption pattern which can not be relied upon particularly when certificate under Section 65 B Evidence Act is not produced and the computer from which the document has been generated was not under the control of the witness i.e PW 3 appear before this Court.
21. The name of accused is given in the inspection report as the user and registered consumer of the premises in question. In order to connect the accused with the offence, reliable evidence is required to be led by the company which could prove that the accused was connected with the premises in which the theft was being committed. No signature of any public witness were obtained on the inspection report. No independent person was joined at the time of seizure of case property. PW 1 and PW 2 did not explain as to how and in what manner the electric connections were joined with each other by the accused to make theft of electricity.
22. Complainant has made the inspection on the direction of senior officials but they failed to disclose whether the direction was written or oral. This inspection was carried out on 12.09.2015, the company was under obligation to carry a written authority signed by designated officer of the licensee as per Regulations 25(i) of Delhi Electricity Regulatory CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 16 of 18 Commission (Performance StandardsMetering and Billing) Regulations, 2002, which they failed to do and no such authority was placed on record.
23. Moreover, the reports were admittedly not pasted at the site of the inspected premises. As per regulation 52 (ix) Delhi Electricity Supply Code and Performance Standards Regulation, 2007, the report shall be signed by Authorized officer and each member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Therefore, the complainant has also not complied with the provisions of aforesaid mandatory regulations. As such the complainant company has left a serious lacuna in the present case.
24. In view of submissions made by counsel for parties and in view of the fact that there is no videography or photographs of the connected load and even the witnesses admitted in their cross examination that they could not take the load properly. Even, no complaint has been lodged on the resistance on the part of the accused. Even, there is delay in filing of complaint as the inspection was carried out on 12.09.2015 and the present complaint has been filed on CC No. 438/2017, BSES Vs. Mukesh Kumar Kataria Page No. 17 of 18 14.07.2017, after a gap of around two years.
25. In view of the above discussion, I am of the considered opinion that from the evidence on record, the complainant has failed to prove its case beyond reasonable doubt that it was the accused Mukesh Kumar Kataria who has committed the theft of electricity at the premises in question. Accordingly, the accused Mukesh Kumar Kataria is acquitted for the offence punishable under Section 135 of Electricity Act. Amount if any, deposited at the time of granting bail to the accused or in pursuance to the interim order shall be refunded to the accused within one month along with interest @ 6% per annum from the date of deposit. Accused Mukesh Kumar Kataria shall furnish the surety bond in compliance of provision of Section 437 A Cr.P.C within fifteen days. File be consigned to Record Room.
Digitally signed by MUKESHAnnounced in the open MUKESH KUMAR
Court on dated February 29, 2020 KUMAR Date:
2020.03.17
12:31:06 +0530
(Mukesh Kumar)
ASJ: Special Electricity Court
South West District : Dwarka Courts
New Delhi.
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