Delhi District Court
Bses vs . Sajjan Thakur (424516/2016) Page No. 1 ... on 20 December, 2018
IN THE COURT OF SH. MUKESH KUMAR : ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 424516/2016
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
Sajjan Thakur
S/o Sh. Bhola Thakur
R/o Dairy in LHS of Plot No. 552 and 560,
Near Pole No. 10, Goyla Dairy, Najafgarh,
New Delhi110043.
Also at :
42, Gopalpur, Town/Village Gopalpur,
AnchalHayaghat, District Darbangha,
Bihar847106. ... Accused
Date of institution : 26.08.2013
Arguments heard on : 19.12.2018
Judgment delivered on : 20.12.2018
JUDGMENT:
BSES Vs. Sajjan Thakur (424516/2016) Page No. 1 of 16
1. The brief facts of the case are that on 08.05.2013, at 12:30 PM as per the directions of the Manager, Enforcement, a Joint Inspection Team Comprising of Sh. Sudhanshu Diwedi Assistant Manager, Sh. Sandeep Engineer, Sh. Manoj Sharma Technician and Sh. Parmod Radiographer from M/s Arora Photo Studio inspected the premises of the accused i.e Dairy in LHS of Plot No. 10, Goilda Dairy, Najafgarh, 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, no meter found installed, at the said premises, and the electricity at the said premises was being drawn & consumed illegally by the accused by connecting illegal wires directly by tapping from the LV Mains system and the entire load of the said premises was found running directly.
2. The Inspection team has assessed the total connected load running on the direct theft supply was found as 1.539 KW for commercial use was found connected i.e. for Milk Dairy, which was illegally used by the accused and the load report was prepared. At the time of raid the photographs and videography of the spot was also done by the Joint Inspection team. It is stated that the officials of the complainant company seized the illegal wires/ materials from the spot.
3. The Inspection report, Load Report and Seizure memo were prepared at site. It is stated that by the BSES Vs. Sajjan Thakur (424516/2016) Page No. 2 of 16 aforesaid illegal act, the accused have caused and was found to be causing wrongful loss to the Complainant Company and wrongful gain to himself and was 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. 1,00,997/ with due date as 27.05.2013 but the accused had failed and neglected to make the payment of the theft bill amount.
4. The complainant company has filed a criminal complaint before this Court and the same has been registered as criminal complaint against the accused. The accused 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 06.01.2015 by the Ld. Predecessor of this Court to which accused pleaded not guilty and claimed trial.
5. In order to prove its case Prosecution has examined the following witnesses, the details of which are as follows:
6. PW 1 Sh Sudhanshu Diwedi, Assistant Manager, Hari Nagar, Enforcement, BSES RPL, Division Hari Nagar, New Delhi, who deposed that on 08.05.2013 at around 01:20 PM, he along with Sh. Sandeep KumarEngineer, Sh. Manoj SharmaTechnician and one videographer from M/s Arora Photo Studio inspected the premises I.e Dairy at left hand side of Plot No. 552 and 560, Near Pole No. 10, Goyala Dairy, BSES Vs. Sajjan Thakur (424516/2016) Page No. 3 of 16 Najafgarh, New Delhi. He further deposed that during inspection the said premises was being used by accused Sajjan and accused Sajjan was present at the site during inspection. He further deposed that there was no electricity meter found installed at the site during inspection and accused was found indulging in direct theft of electricity by tapping from BSES LV Mains through illegal wires which were further connected to the load of the premises. He further deposed that there was total connected load of around 1.539 KW for commercial purposes I.e for running a milk dairy. He further deposed that the videography of the premises was done at the site by Sh. Pramodvideographer. He further deposed that they prepared the inspection report, load report and seizure memo at the spot and proved the same as Ex.CW2/A, Ex.CW2/B and Ex.CW2/C respectively. He further deposed that the video of the inspected premises was done by Sh. PramodVideographer. The witness identified the contents of the CD as Mark X. He further deposed that they removed and seized two number of yellow colour multi strand copper wire having size of 1.5 mm sq and length around one meter each from the site vide seizure memo. PW 1 further deposed to the effect that after preparation of the reports, they offered the same to accused present at the site but he refused to sign the same. During cross examination, PW1 stated that they had got information to conduct the raid in the area at around 10 AM BSES Vs. Sajjan Thakur (424516/2016) Page No. 4 of 16 on the date of inspection and it was routine mass inspection in the said area. He stated that their DGM had instructed them for conducting the said raids in the said area. He further stated that they had also visited to the concerned PS Chhawla for seeking their assistance in the raid and he has no knowledge regarding DDR number in the concerned Police Station. He voluntarily stated that the DGM might have the knowledge regarding the same. PW 1 further stated in this cross examination that he do not remember how many police officials had accompanied them. He further stated that he along with Sh. Sandeep Kumar, DET, Sh. Manoj Sharma Line Man, a Photographer from Arora Photo Studio, were in the raiding team. He further stated that they reached at the site at around 1:30 PM and the raided premises was a dairy which was in the left hand side of plot No. 552 and 560 near Electric Pole No.10, at Goyla Dairy. PW 1 further stated that the plot no. of the raided premises is not mentioned and the owner of the said plot was told as Soma as disclosed by the neighbours as well as by the accused. He further stated that the distance between the premises and the pole was around 5 to 10 meters. PW 1 further stated that the premises was of Cemented roof Sheets and the illegal taping wire was of 1.5 mm square. He stated that 7 or 8 Public persons also gathered at the spot and no public person came forward to become a witness.
PW 1 further stated in his cross examination that at BSES Vs. Sajjan Thakur (424516/2016) Page No. 5 of 16 that time offering the documents to the accused for signing, the Police officials were not with them. He further stated that it is correct that the seizure memo of the case property is not bearing the signatures of the police officials as well as the accused or any public person. PW 1 further stated that as far as the connected load report, one bulb, one Submersible Pump, one fan and other load mentioned in the load report, found at the site and it took around 2025 minutes in the all the proceedings. He further stated that case property and all the reports were deposited with their office on the same day. He further stated that he do not remember any dairy number through which they had deposited the case property with the office. He further stated that the accused is covered in the videography conducted at the site. He denied the suggestion that the person covered in the said videography is not the present accused. He also denied the suggestion that the accused has no concern with the present case.
7. PW 2 Sh. Ashutosh Kumar, Sr. Manager (Legal) BSES Rajdhani Power Ltd., he exhibited GPA in his favour as Ex.PW2/A.
8. PW 3 Sh. Pramod, Videographer from M/s Arora Photo Studio, who deposed that he was working as Videographer and on 08.05.2013, he along with Sh. Sandeep Engineer, Sh. Manoj SharmaTechnician and Sh. Sudhanshu DiwediAssistant Manager, visited the area of Goyla Dairy. He BSES Vs. Sajjan Thakur (424516/2016) Page No. 6 of 16 further deposed that he had conducted the videography as per the direction of Sudhanshu Dwivedi. The witness identified the contents of the CD and proved the CD as Ex.PW3/A. PW 3 further deposed to the effect that he had downloaded the data in the studio computer and his owner Sh. Vicky Arora, prepared the CD of the same.
In his cross examination PW 3 deposed to the effect that at about 10:00 AM, he got information in the office to join the raiding team for inspection in the area of Goyala Dairy. He further stated that the inspected premises was a dairy which was at the left hand side of Plot No. 552560 near Pole No. 10. Thereafter, the PE was closed.
9. After recording the evidence of these witnesses, statement of the accused, U/s 313 Cr.P.C. was recorded wherein he denied all the allegations of the prosecution and no defence Evidence was led.
10. I have heard Sh. Ashutosh Kumar, A.R of the complainant and counsel Sh. M.K. Padhee for the complainant and counsel Sh. Umesh Kumar for the accused and perused the entire record carefully.
11. Ld. counsel for the complainant has argued that the accused is the user of the inspected premises where no electricity meter was found installed on the day of inspection. He has further argued that there was direct theft of electricity from LV Mains of the complainant and it is apparent from the BSES Vs. Sajjan Thakur (424516/2016) Page No. 7 of 16 testimony of PW Sh. Sudhanshu Diwedi a member of the inspecting team and Sh. Pramod Kumar, Videographer who joined the investigating team and entire inspection was covered in the videography by PW3 vide Ex.PW3/A. On the other hand, counsel for accused has argued that all the witnesses are interested witnesses and the accused was not involved in the theft of electricity. It is further submitted that the accused has no concern with the premises in question and he is not the owner of the inspected premises. It is further submitted that the accused was not available at site and he has been falsely implicated in this case. It is further submitted that the owner of the inspected premises was one some Soma who has not been arrayed as accused and not brought forward by the complainant for his prosecution before the Court. It is further submitted that the signatures of the accused or any Police personnel has not been taken on the seizure memo. The inspection report was also not got signed by the accused. It is submitted that the entire inspection report has been prepared by the raiding team while sitting in their office.
In his arguments, it is also submitted by Ld. Defence counsel that as per the testimony of PW 1, the distance of the premises from the Pole is around 8 meters and height of the Pole was around 15 meters, while as per the seizure memo only one meter wire has been seized at the site. In his arguments it is also submitted by Ld. Defence BSES Vs. Sajjan Thakur (424516/2016) Page No. 8 of 16 counsel that there is no clarity whether any Police personnel has joined the investigation as there is no DD entry was recorded in the Police Station. Even no such seizure memo has been prepared by the Police or signed by the Police witnesses. It is submitted that no such investigation has been done by the Police at the site. In his arguments, it is also submitted by Ld. defence counsel that it has not been brought on record that the inspection team has been authorised by the Department to carried out the inspection at the premises of the accused.
12. As far as the authority of Sh. Pankaj Tandon, A.R of the complainant is concerned, it is an admitted position that the present complaint was filed in the year 2013 on the basis of Authority Letter issued by Sh. Lalit Jalan vide Ex.CW1/B and Sh. Lalit Jalan was the CEO of the company who was authorised vide Board Resolution dated 22.03.2006. So it is proved that on the date of filing of the suit, Sh. Pankaj Tandon is competent to file the present complaint and there is no merit in the objection of the accused.
13. As far as the question of obtaining prior written authority to carry out inspection is concerned and that too in a case of direct theft, the perusal of regulation is necessary and same is being reproduced here as herein below :
"Regulation 25 (i) of DERC Regulations 2002, The licensee, suo moto or on receipt of reliable information regarding commitment of any offence of BSES Vs. Sajjan Thakur (424516/2016) Page No. 9 of 16 theft/tempering/dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumers premises. The inspection team shall carry a written authority signed by designated officer of the licensee.
The inspected team shall prepare a report giving details such as connected load, conditions of seal, working of meter and mention any irregularity notices (such as artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
14. The very perusal of the above mentioned regulation shows that this regulation applies for cases where some information is received and raid is to be plant and not for direct theft cases which comes to the notice of some team during routine inspection as applying of this regulation to such direct theft cases, will frustrate the very purpose of raid as in matters of urgency, it is not expected from raiding team members to first obtain written permission. Even otherwise, the DERC regulations are drafted to protect the interest of innocent consumers and not to protect the wrong doers from the process. The regulations are directly in nature and not mandatory.
15. The complainant has examined three witnesses whereas accused has not adduced any evidence in his defence. The testimony of PW 1 Sudhanshu Diwedi is material as he headed the inspection team. I have also perused the testimony of PW1 to PW 3 and statement under 313 Cr.P.C BSES Vs. Sajjan Thakur (424516/2016) Page No. 10 of 16 recorded.
16. The basic requirement of the complainant to prove its case is that the complainant has to link the accused with the inspected premises either as an owner or user. The complainant has to show that accused was responsible for committing the theft of the premises in the inspected premised.
17. It is an admitted fact that on 08.05.2013, at about 01:20 PM, an inspection was carried out in the inspected premises by the officials of BSES including PW 1 and PW 3. It is also established that in the videography accused is appearing in the video and he has been shown as user of the inspected premises. At the time of inspection there was no electricity meter found installed at the site and there were two number of illegal tapping were found connected with the LV Main. It is also established on record that two wires has been seized from the site which is clearly video graphed by PW 3 in his videography.
18. The accused has taken the defence that he was no involved in theft of the electricity and he is not the owner of the premises. It is also submitted that the inspecting team did not inspect the complete premises nor they inquired about the owner and other occupants of the premises and no public witness was joined in the inspection. The accused has failed to show why he was present in the premises at the time of inspection. Even he was not wearing any shirt as appearing in BSES Vs. Sajjan Thakur (424516/2016) Page No. 11 of 16 the videography, which clearly indicates that he was not the visitor at site, who could have visited the premises as a guest. No other such defence has been taken by the accused to deny the allegations of direct theft. He has also failed to satisfy this Court regarding his presence at site, in what capacity he was present at site. It shows that accused has taken a bald plea without any merit. Moreover, PW 1 Sudhanshu Diwedi and PW 3 has correctly identified the accused to be the same person who had met them at the time of inspection and who has not signed the report and allowed the PW 1 to pate the same at the site.
19. The accused has not led any defence evidence despite opportunity given to him.
20. The testimony of PW 1 and PW 3 shows that no electricity meter was found at the premises at the time of inspection and the accused Sajjan Thakur was the user of the premises and he was running a dairy at the inspected premises.
The testimony of PW 1 and PW 3 also shows that there was direct theft of electricity from LV Mains. The wires were connected to the connected load of the premises. The accused has not placed any paid electricity bill on record on or before the date of inspection.
The arguments taken by Ld. Defence counsel that the seizure memo was not signed by any public witness or BSES Vs. Sajjan Thakur (424516/2016) Page No. 12 of 16 police personnel is having no much relevance particularly in the facts and circumstances where the accused was found present at site and he has been covered in the videography.
21. All the material witnesses has been cross examined at length by Ld. Defence counsel but nothing fruitful has come on record to dispute the truthfulness of the complainant witnesses. Neither he has brought any witnesses on record to distort the case of complainant The complainant has placed CD vide Ex.PW3/A.
22. 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 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, BSES Vs. Sajjan Thakur (424516/2016) Page No. 13 of 16 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 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,] BSES Vs. Sajjan Thakur (424516/2016) Page No. 14 of 16 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 shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.
23. The bare reading of Section 135 of the Electricity Act clearly indicates that it put an onus on the complainant to prove that there was abstraction of electricity by means not authorised by the complainant. The complainant has discharged his onus of proving the abstraction of electricity by the means not authorised by the complainant. The complainant has BSES Vs. Sajjan Thakur (424516/2016) Page No. 15 of 16 discharged its onus of proving the abstraction of electricity by examining the member of joint inspection team. The complainant has successfully discharged the onus. The onus shifted to the accused to show that there was no abstraction of electricity through illegal means. The accused has failed to show that the electricity was used through electricity meter or through any other alternative source. The accused has failed to discharge its onus.
24. In view of the above discussion, I am of the opinion that complainant has successfully able to prove its case beyond reasonable doubt that the accused was committing theft of the electricity by tapping from the LV Mains system through illegal wires as alleged by the complainant and therefore, the accused Sajjan Thakur is liable to be convicted for the offence punishable under Section 135 of Electricity Act. Accordingly accused Sajjan Thakur is convicted for the aforesaid offence. Let he be heard on the quantum of sentence.
Digitally signedAnnounced in the open MUKESH by MUKESH
KUMAR
Court on dated December 20, 2018 KUMAR Date: 2018.12.20
15:44:20 +0530
(Mukesh Kumar)
ASJ: Special Electricity Court
Dwarka: New Delhi
BSES Vs. Sajjan Thakur (424516/2016) Page No. 16 of 16