Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power Ltd. on 7 April, 2011
1
IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. 439/08
PS Jamia Nagar, New Delhi
U/s 135 r/w/sec. 151 & 154 of Electricity Act, 2003
BSES Rajdhani Power Ltd.
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019
Also at :
Corporate, Legal & Enforcement Cell
Near Andrews Ganj Market, N.Delhi49
Acting through Mr.Binay Kumar
(Authorised Representative)
...Complainant
Versus
Mrs. Nafisa Begum (User/Owner)
Shop in H.No.A18, Ground Floor,
Okhla Vihar, Jamia Nagar, New Delhi
...Accused
COMPLAINT INSTITUTION ON : 28.07.2008
JUDGMENT RESERVED ON : 04.04.2011
JUDGMENT PRONOUNCED ON : 07.04.2011
JUDGEMENT
1 The complainant company filed the present complaint u/s 135 r/w/sec. 151 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused committed an offence punishable u/sec. 135 (1) of the Act and also to determine the civil liability as provided under the provisions of section 154 (5) of the Act. 2 Cognizance for offence was taken on a complaint filed by the complainant company BSES Rajdhani Power Ltd. through its authorised officer.
23 The accused was summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 16.09.2008 after recording the presummoning evidence and hearing the arguments on summoning. Accused appeared and was granted bail on furnishing personal bond in the sum of Rs.10,000/ and one surety of the like amount. Separate notice u/sec. 251 Cr.P.C was framed against the accused by the Ld. Predecessor Court to which the accused pleaded not guilty and claimed trial. 4 The complainant company examined Mohd. Sadiq - Field Executive as PW1, Binay Kumar - Legal Officer & AR as PW2 and Vivek Arora - Proprietor of M/s Arora Photo Studio as PW3. The statement of the accused was recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against him. The accused wanted to lead evidence in defence, therefore, the accused was given an opportunity to lead evidence in defence. The counsel for the accused filed an application to examine the accused as a defence witness which was allowed by the court. The accused, in her defence evidence, examined herself as DW1. The accused also examined Mohd. Shoeb S/o Sh.Ashraq Hussain as DW2 & Sh. Ayaz Alam - GET, Division Sarita Vihar, New Friends Colony, New Delhi as DW3.
5 I have heard the Ld. counsel for accused represented by Sh.Ahmed Gulrez and prosecution represented by Sh.Sunil Fernandes, counsel/ deemed P.P and have perused the entire records.
6 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and 3 circumstances of this complaint case, it has to be seen and considered whether this court, being the special court under the Act, can take cognizance of the offence punishable u/sec. 135 of the Act. Section 151 of the Act reads as under:
''Cognizance of offences - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.'' In the case of Vardhman Properties Ltd. Vs BSES Rajdhani Power Ltd.
157 (2009)DLT 636, it was held by the Hon'ble High Court that:
''The special electricity court can take cognizance of the offence u/sec. 135 of the Act without awaiting committal of the case to it by the Magistrate. Therefore, in the instant case when by the order dt. 07.04.2006, the Ld.ASJ took cognizance of the offence and summoned the petitioner for offence u/sec. 135 of the Act, the Ld.ASJ was exercising the powers u/sec. 151 of the Act.'' The Hon'ble High Court of Delhi in its order dated 06.02.2009 passed in Crl. MC 2059/2008 & Crl. MA 7669/2008 entitled Dalbir Singh Vs BSES Rajdhani Power Limited held that :4
''Section 154 (1) mandates that every offence punishable under sections 135 to 140 & section 150 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. Considering the fact that Section 154 (3) the Special Courts are expected to proceed with the trial of the complaints under sections 135 to 140 & Section 150 in a summary way, it is inconceivable that the Parliament intended that the cognizance of the offence should first be taken by the learned MM and thereafter the case committed to the Special Court. Further Section 155 begins with the words ''Save as otherwise provided in this Act'' when it talks of the applicability of the Cr.PC. Therefore, on a collective reading of Section 135, 151, 154 (3) and 155 it is plain that as regards the trial of the complaint case under the Act, the intention of the Parliament is that it is the Special Court will take cognizance of the offences and proceed to try the case, to begin with, in a summary way.'
7 Further, it is to be considered whether the special electricity court is required to give reasons for proceeding with the trial in a summary way. Section 154 (3) reads as under :
''The Special Court may, notwithstanding anything contained in sub section (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 in a summary way in accordance with the procedure prescribed in the said code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this sub section, it appears to the Special court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re hear the case in the manner provided by the provisions of the said code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.'' In this regard, the Hon'ble High Court of Delhi in the case Dalbir Singh (Supra) further held that :5
''A plain reading of the above provision reveals that the intention of the Parliament was that cases concerning theft or illegal abstraction of electricity, attracting the offence under section 135 to 140 and section 150 of the Act, should be tried, to start with, in a summary way. Since the substantive portion of the above provision itself empowers the Special Court in this regard, it is unnecessary for the Special Court to give reasons for trying the case in a summary way. The procedure under section 154 (3) is indeed a departure from the procedure of trial of warrant cases under the Cr.PC Section 154 (3) contains a nonobstante clause which indicates that it is a departure from the normal procedure. Even Section 155 of the Act which otherwise makes the entire Cr.PC applicable, begins with the words ''save as otherwise provided in this Act.''
8 After taking cognizance of the offence on the complaint, the accused namely, Nafisa Begum was summoned to face the present complaint case. Accused appeared and was granted bail on furnishing personal bond in the sum of Rs.10,000/ with one surety of the like amount. The notice u/sec. 251 Cr.P.C. was framed against the accused, however, the accused pleaded not guilty and claimed trial. In this regard, I would refer the case of Sanghi Brothers (Indore) P. Ltd. Vs Sanjay ChaudharyI (2009) SLT 144, it was held by the Hon'ble Supreme Court of India that ''strong suspicion about commission of offence and involvement of accused is sufficient to frame charge.'' The statement of the accused was recorded u/sec. 313 Cr.P.C. In this context, I would refer the judgment delivered in the case of Chander Dev Rai Vs State (NCT of Delhi) 156 (2009) DLT 229 (DB), it was held by the Hon'ble High Court of Delhi that ''Examination of accused u/sec. 313 Cr.P.C is not a mere formality. Answers given by him have practical utility for criminal courts. Apart from affording an opportunity to the accused to examine incriminating circumstances against him also help the court in appreciating the entire evidence adduced in the court during the trial.'' 6 9 Admittedly, the accused Nafisa Begum is now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against her. A criminal charge could be proved on the basis of circumstantial evidence and the requirement is that circumstances incriminating in nature must be proved by cogent evidence and then circumstances so proved must form the complete chain so as to be not consistent with the innocence of accused. In this context, a reliance can be had upon the judgment passed by the Hon'ble Supreme Court of India in the case reported as AIR 1970 SC 1286 held that:
'' There is no predetermined way of proving any fact. The fact is said to have been proved where after considering the matter before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the specification that it exists.'' In the case of Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay AIR 1961 Supreme Court 1316, it was held that :
''...The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact....'' 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, it was held by the Hon'ble Supreme Court of India that :
''A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.'' 7
10 Let us firstly examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. Sh. Binay Kumar, Legal Officer being an authorized representative (hereinafter referred to as 'AR') of the complainant company filed the present complaint case. The AR entered into witness box and examined himself as PW2. PW2, during examination in chief, deposed that he is working with the complainant company i.e. BSES Rajdhani Power Ltd. as Officer Legal. He has been authorised by the complainant to file and pursue the cases on behalf of the complainant company in the special court including the present case. He has been authorised to do so by letter of authority dt. 23.10.2006 by Sh. Lalit Jalan - Chief Executive Officer of the complainant company in the capacity of Manager U/sec. 2 (24) of the company's Act. The said letter of authority already exhibited as Ex.CW1/2 and the copy of the board resolution already exhibited as Ex.CW1/1. PW2 also deposed that the present complaint which bears his signature at point A already exhibited as Ex.CW1/3. PW2 further deposed that he has no personal knowledge of the facts of the case and has deposed as per record provided by the complainant company. During cross examination, PW2 deposed that he does not have any personal knowledge of the present complaint case as he did not visit the premises in question. Sh. Lalit Jalan, Chief Executive Officer of the complainant company was having the powers on behalf of the complainant company to authorise him for filing and pursuing this case for the complainant company. PW2 denied the suggestion that he is not authorised to file the present case. Perusal of Ex.CW1/2 dated 23.10.2006 reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani 8 Power Ltd. authorised Binay Kumar, legal officer to institute and/or defend legal proceedings of whatsoever nature before the Special Courts and to sign & verify plaints, affidavits, written statements, petitions of claims, objections, memorandum of appeal & petition and application of all kinds and to file them in any such courts or office apart from other authorisation as mentioned in the said document Ex.CW1/2. The complainant is rendering services for distribution of electricity to the public and all the complaint cases by the company are being filed through the authorised representatives on its behalf. PW2 not only proved the authority letter Ex.CW1/2 in his favour and also the extract of copy of board resolution as Ex.CW1/1 but also the complaint filed by him Ex.CW1/3. Whereas, the accused has not led any evidence and failed to prove that the AR has not been authorised by the complainant company to file the present complaint case. Thus, I hold that Sh.Binay Kumar, AR of the complainant company is duly authorised and competent person to file and represent the present complaint case on behalf of the complainant company.
11 Now, let us secondly examine whether members of the inspection team were the authorised officers of the complainant company to carry out inspection at the premises in question. Sh. Mohd. Sadiq - Field Executive examined himself as PW1 and deposed that on 18.05.2008, he alongwith Sh.Prasanjit Ghatak - Assistant Manager and Ramesh - Photographer from M/s. Arora Photo Studio and one electrician inspected the premises shop in H.No.A18, Ground Floor, Okhla Vihar, Jamia Nagar, New Delhi. Copy of the notification No.F11(93)/2003/ power/1566 dt. 17.05.2005 filed by the complainant reveals that in exercise of the powers conferred by subsection 9 (2) of section 135 of the Electricity Act, 2003 (36 of 2003) read with Govt. of India, Ministry of Home Affairs, Notification No. F.No.U11030/2/2003/UTL dt. 20.02.2004, the Lt. Governor of National Capital Territory of Delhi has authorised the technical officers, not below the rank of Assistant Engineer/Assistant Manager and above, in the departments dealing with distribution (District/ Zones) commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited and North Delhi Power Limited who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of Section (2) of section 135 of the said Act in respective areas of the said companies in the National Capital Territory of Delhi. In view of the above notification and foregoing discussions, I hold that Prasanjit Ghatak - Assistant Manager was the 'Authorised Officer' to carry out the inspection of premises in question under the provisions of section 135 of the Act on 18.05.2008. 12 What aspects and evidence have to be considered and examined for ascertaining mode of theft of electricity. Here, I would place a reliance upon the judgment dated 23.10.2007 passed by the Hon'ble High Court of Delhi in Crl. Appeal No.531/2007 entitled Mukesh Rastogi Vs North Delhi Power Limited, it was held that even if the inspection was not a valid inspection, complainant had a right to prove theft of electricity done by the appellant irrespective of the status of the inspection. The invalid inspection does not make theft of electricity as a noncrime. Theft of electricity remains the crime irrespective of fact that the inspection is valid or not. Supreme Court in State & ors. Vs. N.M.T.Joy Immaculate 2004 (5) SSC 729 observed that admissibility or otherwise of a piece of evidence has to be judged having 10 regard to the provisions of the Evidence Act. Neither Evidence Act nor Cr.P.C. or any other law excludes relevant evidence on the ground that it was obtained under an illegal search of seizure. Even if the inspection was not conducted by an officer as designated under the notification dated 31 st March, 2004, the members of the inspection team, who had visited the site and found the electricity being stolen are competent witnesses to depose in the court about the theft of electricity and the manner in which electricity was being stolen. It was further held that tapping of electricity could be seen standing outside the buildings since wires going on LT main to the building through a window could be seen. The photographs of the spot were taken by the photographer showing wires going from LT main to the window, from window to meter place then to cut out and from cut out to the house and business place of the appellant. The visit of the enforcement staff proved by the defence witnesses themselves who stated that persons from electricity department did come on that day and the appellant was at the spot at that time. It is his own case that members of NDPL visited the house on that day, thus, the inspection of the premises by enforcement staff of the NDPL and the photographs showing his premises cannot be doubted. 13 It was also held by the Hon'ble High court in the aforesaid case that 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, 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 11 property as such, since the stolen property i.e. electricity is simultaneously consumed. The enforcement staff therefore seizes the material through which the theft is committed. Mere non production on 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 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 other evidences that electricity was being stolen by hooking wires directly to LT main. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through meter. Under section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection report is merely a piece of evidence and inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the 12 court by cogent evidence, therefore, the validity of the inspection report cannot be attached too much of importance. Similarly, non production of the single core PVC wires through which electricity was being stolen is not a serious infirmity in this case since there is sufficient oral testimony supported by photographs showing the theft of electricity. 14 The issue involved in the present criminal complaint case is on the point of detection of theft of electricity which is the crucial aspect. Let us finally examine whether the accused Nafisa Begum has committed the offence u/sec. 135 of the Act. It is well settled principle that prosecution has to prove its case against the accused beyond reasonable doubt. The complainant through its witnesses has tried to prove the case against the accused that the accused was committing direct theft of electricity at the premises in question. PW1 deposed in his examination in chief that on 18.05.2008, he along with Sh. Prasanjit Ghatak - Assistant Manager and Ramesh - photographer from M/s. Arora Photo Studio and one electrician, the name of whom PW1 dis not remember at the time of his examination in chief, inspected the premises shop in H.No.A18, Ground Floor, Okhla Vihar, Jamia Nagar, New Delhi. On reaching the said premises, they found that welding and drilling job work was going inside the said shop and at the time of inspection, accused was illegally tapping the electricity from the BSES LVDS (Low voltage distribution system), bus bar through black coloured aluminum wires. At the time of inspection, there was no electricity meter found installed at the said shop and the entire connected load of the said shop was running directly. The team members assessed the total connected load of the said shop as 5.843 KW for commercial purpose. The 13 connected load was taken on the basis of the electrical equipments found installed at site i.e. two welding sets, drilling machines, one lamp of 250 watts and one lamp of 60 watts etc. The KW of the said electrical equipments mentioned in the assessed connected load prepared by them at the time of inspection. The inspection report already exhibited as Ex.CW2/1(colly) was prepared by Sh. Prasanjit Ghatak and it bears the signature of PW1 at point A. The meter details report already exhibited as Ex.CW2/2 was prepared by him bearing his signature at point A. The assessed connected load report already exhibited as Ex.CW2/3 (colly) was also prepared by PW1 which bears his signatures at point A. The videography of the said inspection was taken by photographer of M/s. Arora Photo Studio under their instructions. The CD pertaining to said inspection already exhibited as Ex.CW2/4. PW1 further deposed that the illegal wires through which accused was committing theft of electricity could not be removed due to height and the resistance offered by the person who was sitting in the said shop. After preparation of the documents i.e., inspection, report, meter details report and load report, they tendered the same to the said person but he refused to accept and sign the said documents. PW3/ Sh. Vivek Arora is the proprietor of M/s. Arora Photo Studio who deposed in his examinationinchief that an inspection was carried out by the complainant on 18.05.2008 at A18, Ground Floor, Okhla Vihar, Jamia Nagar, New Delhi. Mr. Ramesh - Photographer accompanied the inspection team during inspection for the purpose of photography/videography of the premises in question. Mr.Ramesh was his employee and now he has left the service from M/s Arora Photo Studio one year back. The videography/ photography was done by Mr. Ramesh at the time of inspection at the 14 premises in question. After covering the visual footage of the inspection, the same was handed over to him in his office. The data was transferred from the camera to the computer installed at his office. PW3 deposed that he prepared the compact disc already exhibited as Ex.CW2/4. Then, he submitted the same data containing in compact disc in the office of the complainant next day i.e. on 19.05.08. PW3 deposed that he has seen the CD displayed in the court and it contained the same data which was down loaded by him in his office.
15 The accused at the time of framing of notice u/sec. 251 Cr.P.C. stated that she has filed documents Mark A, B and C and she had already applied for a meter. The said premises was rented out by her and no such articles were there as were alleged to be seized by the complainant. At the time of statement u/sec. 313 Cr.P.C., the accused stated that she is the owner of the shop in premises in question. She was not present at her shop on 18.05.2008 when the officers namely, Prashanjt Ghatak - AM Enforcement and M.D.Sadiq - Field Executive Enforcement inspected the premises in question. She came to know about the inspection on the same day in the evening. The accused further stated that since she was not present at site, therefore, she does not know as to the alleged reports i.e. inspection reports Ex.CW2/1 (colly), inspection report (Meter details) Ex.CW2/2, load report Ex.CW2/3 (colly) and CD of inspection Ex.CW2/4 was prepared by the team members on the date of inspection. The accused also stated that the whole building where the shop situates is already electrified. The shop in question was not in running condition by anyone and some goods & welding sets, drill machine were lying at the shop since the tenant who was rented out the 15 shop by her did not start any activity or function through the aforesaid materials placed at shop till the date of inspection. She had already applied for installation of electricity meter at shop in the premises in question on 05.12.2007. However, the meter was not installed till the date of inspection i.e. 18.05.2008. In pursuance of the demand note dated 22.05.2008, she had deposited the amount and the meter was installed at the shop in question on 02.06.2008. The accused also deposed that she was not committing any theft of electricity at the premises in question on the date of inspection. False and fabricated case has been made out against her.
16 The accused in her defence evidence examined herself as DW1 and deposed in her examination in chief that she is the owner of A18, Ground Floor, Okhla Vihar, Jamia Nagar, New Delhi25, premises. After the death of her husband, she converted her drawing room into a shop in order to get some help in maintaining herself and children as she had no other source of income. She has a domestic meter installed at her above said house and she has been regularly paying the bills. The bills for the month of May2008 and May2009 exhibited as Ex. DW1/A (colly). DW1 further deposed that she had applied for a commercial meter for her shop in December2007 and a copy of the application dated 05.12.2007 exhibited as Ex.DW1/B (colly) and the copy of the revised demand note dated 22.05.2008 is a part of Ex.DW1/B. The meter was installed after 5 to 6 months from the date of application. She was not present at the premises at the time of inspection but, she came to know that some BSES officials had visited the premises and she thought that they had visited the premises for installation of the meter. DW1 also deposed that she had rented out the said shop to one Mohd. Shoeb as the 16 said premises is a part of her already electrified house, there was one fan and a bulb already installed in the alleged premises. DW1 does not remember the exact date of the death of her husband but she can produce the slip of Kabristan where he was buried. DW1 started taking rent from Mohd. Shoeb after a month from the installation of her commercial meter although she had permitted him for keeping his goods/ instruments in the alleged premises prior to the installation. DW1 came to know regarding the registration of theft case when she received the theft bill dated 02.06.2008. After receiving theft bill, she approached the BSES office but she was told to submit the theft bill amount otherwise the case will be registered and transferred to the court. DW1 further deposed that she does not remember the exact date of the installation of the commercial meter but she produced the bills of the said commercial meter which were exhibited as Ex. DW1/C(colly) dated 09.09.2010 and 04.11.2010. DW2/ Mohd. Shoeb deposed in his examination in chief that he is the tenant at A18, Ground Floor, Okhla Vihar, Jamia Nagar, New Delhi25 and Ms. Nafisa Begum is the owner of the said shop. He started giving the rent of the said premises from May2008. DW2 did not enter into the rent agreement nor the rent receipt are issued as the deceased husband of Ms. Nafisa Begum was known to him for the last 89 years prior to his death. Before the raid, he was using the premises only for storage purpose. On dated 05.12.2007, Ms. Nafisa Begum applied for the commercial meter for the said shop. Thereafter, he along with Nafisa Begum visited the BSES office many times for 56 months for the installation of commercial meter and he has all the records pertaining to that and also which have already been exhibited as Ex.DW1/A (colly), Ex.DW1/B(colly) & Ex.DW1/C(colly). On 18.05.2008, DW2 was at the 17 premises cleaning as it was a sunday some people came to the premises but, however, they did not disclose their identity and their purpose of visit. DW2 came to know much later that it was a raid by BSES officials and a theft case has been booked against Nafisa Begum. Thereafter, the commercial meter installed at the said shop after about 1012 days of the alleged raid and thereafter, he has been depositing the electricity bills. On an average, the bill of the said meter is Rs. 500/ to Rs. 600/.
17 DW3 is the witness of complainant company and deposed in his examination in chief that he is posted as GET at BSES office at New Friends Colony. He brought the computer generated summoned records of application for new connection vide No. N 254107120660 dated 05.12.2007 for the Nondomestic purpose in the name of Mrs. Nafisa Begum. Secondly the record of domestic meter vide CRN No.2540149848 with New K No. 2541 C 1081885 at district Sarita Vihar in the name of Mrs. Nafisa Begum and the another record of Nondomestic meter vide CRN No. 2541244839 New K No. 2541 C 2070889 in Sarita Vihar in the name of Mrs. Nafisa Begum. These records include as under : (1) Consumer details for domestic meter vide CRN No. 2540149848 in the name of Mrs. Nafisa Begum billing address - H.No. A18, Khasara No. 170/2, Ground Floor, Okhla Vihar, Jamia Nagar, New Delhi exhibited as Ex.DW3/A1, along with the meter reading details exhibited as Ex.DW3/A2, payment details exhibited as Ex.DW3/A3, meter details exhibited as Ex.DW3/A4 and the Status details as Regular exhibited as Ex.DW3/A6. 18 (2) Consumer details for Nondomestic meter vide CRN No.2541244839 in the name of Mrs. Nafisa Begum billing address - Shop in H.No. A18, Khasara No. 170/2, Ground Floor, Okhla Vihar, Jamia Nagar, New Delhi exhibited as Ex.DW3/B1, along with the meter reading details exhibited as Ex.DW3/B2, payment details exhibited as Ex.DW3/B3, meter details exhibited as Ex.DW3/B4 and the Status details as Regular exhibited as Ex.DW3/B6.
(3) The consumer closed data vide application No. N 254104031406 exhibited as Ex.DW3/A5, the consumer closed data vide application No. N 254107120660 with CRN No. 2541244839 exhibited as Ex.DW3/B5 and New K No. 2541 C 1082849 with the date of complaint/ application as 05.12.2007, date of commercial feasibility as 28.12.2007 and date of technical feasibility as 22.05.2008. Issuing date of demand note stated by DW3 as 22.05.2008, payment date 23.05.2008, book allotment date 23.05.2008 & Meter installation date 23.05.2008.
18 It is admitted case of the accused that she is the owner of the A18, Ground Floor, Okhla Vihar, Jamia Nagar, New Delhi25 which is the premises in question, the accused is also the owner of the shop in the premises in question, the shop in question was not in running condition by anyone and some goods and welding sets, drill machine were lying at the shop, the accused had already applied for installation of the electricity meter at shop in the premises on 05.12.2007 but the meter was not installed till the date of inspection carried out by the officials of the complainant on 18.05.2008, however, in pursuance of demand note dt. 22.05.2008, the accused 19 deposited the amount and the meter was installed and the shop in question on 02.06.2008, the whole building where the shop situates is already electrified. The accused is already having a domestic meter installed at her premises and she has been regularly paying the bills. The accused has proved the bills for the month of May, 2008 and May, 2009 as Ex.DW1/A (colly). However, nothing has been produced or filed on record by the complainant as to what steps taken by the complainant company for installation of the commercial meter at the shop in question after receiving the application from the accused for installation of commercial meter and it is strange that after a long time, the complainant issued a revised demand note on 22.05.2008 for installation of commercial meter, reasons are best known to the complainant. During cross examination, PW1 deposed that he is in non technical staff at BSES and Prashanjit Ghatak - Assistant Manager was the team leader. PW1 admitted that he cannot on his own conduct the inspection. Prashanjit Ghatak - Assistant Manager who was the team leader and authorised officer neither appeared nor examined as a witness to prove the inspection carried out by him being the officer/ technical person. PW1 further deposed in his cross examination that the drill machine as well as the welding set were not running at that time and one bulb and one fan were running. The CD Ex.CW2/4 has been displayed at the court computer at this moment and I have seen that only one fan seen running and the machines are not in running condition.
19 PW1 also deposed in his cross examination that the persons present at site refused to sign the reports at the time of inspection. They did not paste the reports at site on the date of inspection. PW1 admitted that the 20 reports were required to be pasted at site. PW1 in his examination in chief deposed that the illegal wires could not be removed due to height and the resistance offered by the person who was sitting in the said shop. In the video CD Ex.CW2/4, neither the public persons nor the person present at site seen, therefore, it cannot be said that there was a resistance by the person present at site. If any resistance was made, the team members of the inspection team were at liberty to take police assistance which the team members did not take, reasons are best known to the complainant. No resistance either shown or covered in the CD refusing by the persons present at site to sign the reports. Neither the reports were pasted at site on the date of inspection. PW1 admitted that the persons present at site shown the receipt against which the application was filed in the office of the complainant for installation of new meter. Neither Prashanjit Ghatak - Assistant Manager nor Ramesh - Photographer and electrician have been produced or examined who were the team members except PW1 who is a field executive. Meaning thereby, PW1 was neither the technical person nor the authorised officer for conducting the inspection at the premises in question. PW3 is the proprietor of M/s. Arora Photo Studio who had neither visited the site nor having knowledge regarding the raid and even he was not present at site on the date of inspection, therefore, the testimony of PW3 does not support the case of the complainant. DW2 categorically deposed in his examination in chief that before the raid, he was using the premises only for storage purpose. DW3 has no personal knowledge about the inspection and the documents brought by him in the court. Further, the alleged illegal wire was not seized from the premises in question. Nothing prevented the team members to seize the illegal wire from site on the date of inspection 21 which is clearly seen in the CD Ex.CW2/4. Therefore, I have found from the testimony of PW1 to PW3 and DW1 to DW3 that the complainant has miserably failed to prove that the accused was committing direct theft of electricity on the date of inspection. Whereas, the accused has proved by her cogent evidence i.e. the electricity bills Ex.DW1/A (colly), application & revised demand Ex.DW1/B (colly), the documents Ex.DW3/A1 to Ex.DW3/A6, Ex.DW3/B1 to Ex.DW3/B6 that she was using the electricity through the meter installed at the H.NoA18, Ground Floor including the shop in question, Okhla Vihar, Jamia Nagar, New Delhi. Thus, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the accused through her witnesses examined as DW1 to DW3 that the accused was not using the electricity directly at the premises in question.
20 For the foregoing reasons discussed above in details, to my considered opinion, the circumstances and evidence proved by the complainant do not establish the involvement of the accused in the offence of direct theft of electricity. The complainant has not proved its case against the accused beyond reasonable doubt. The present complaint case is not squarely covered within the provisions of section 135 of the Act and also the aforesaid judgment in the case of Mukesh Rastogi (Supra). Thus, I acquit the accused Mrs. Nafisa Begum u/sec. 135 of the Electricity Act, 2003.
Announced in the open (YASHWANT KUMAR)
court on 07.04.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
22
CC No. 439/08
07.04.2011
Present AR for the complainant
Sh. Ahmed Gulrej, counsel for the accused with
accused in person
Vide separate judgment of the day, the accused is acquitted u/sec. 135 of the Electricity Act, 2003. The copy of the judgment be made available to the complainant and the accused immediately.
File be consigned to record room.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 07.04.2011