Delhi District Court
Complainant vs Smt. Lajwanti (Since Expired) on 24 November, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT.,
KARKARDOOMA COURTS, DELHI
CC NO.219/16 (Old No.1390/07)
P.S. SEELAMPUR, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003
B.S.E.S. YAMUNA POWER LIMITED,
SHAKTI KIRAN BUILDING,KARKARDOOMA,
DELHI110032
THROUGH ITS AR MR. JITENDER SHANKAR.
......... Complainant.
VERSUS
1. Smt. Lajwanti (since expired)
2. Sh. Pappu
Both R/o H.No. H1/107108,
New Seelampur, Delhi.
......Accused persons.
DATE OF INSTITUTION OF THE CASE : 27.11.2007
DATE ON WHICH JUDGMENT WAS RESERVED : 24.11.2017
DATE OF JUDGMENT : 24.11.2017
JUDGMENT
(A) FACTS :
1. The Complainant Company i.e. BSES Yamuna Power Ltd. (in short called as complainant company) has filed the present Complaint case under Section 135 r/w sections 151 of The Electricity, Act 2003 (hereinafter referred to as 'the Act') against the accused persons namely Lajwanti (since 1/18 expired) and Pappu (hereinafter called as accused persons) with a prayer to summon, try and punish the accused as per law with additional prayer to determine the civil liability of accused as per the provisions of Section 154 (5) of the Act.
2. Case of the Complainant Company in brief is that on 02.05.2006 at about 12 : 20 p.m., an inspection team of Complainant Company headed by Sh.K.P. Singh (A.M), had conducted an inspection at the premises i.e. H.No.1/107108, New Seelampur, Delhi (hereinafter referred to as 'inspected premises') where both the accused persons namely Lajwanti and Pappu were found indulged in direct theft of electricity by directly tapping the BSES LV MAINS through illegal PVC wire.
It has been further alleged that at the time of inspection, there was no meter at site and accused persons were illegal user of the electricity of the abovesaid inspected premises.
3. It has been further alleged in the Complaint that a total connected load of 37.874 KW/IX/DT (in short KW) was checked & assessed during the course of said inspection which was being illegally used by the accused persons through artificial means not authorized by the complainant company. It has been further alleged that inspection report, load report and seizure memo were prepared at the spot. The photographs of the inspected premises showing irregularities were also taken and the occupant/user of the premises were found committing direct theft of electricity at the time of inspection 2/18 by using electricity illegally from the system of the Complainant Company. Hence, the present Complaint case was filed against the accused persons for initiating legal action as per law including the determination of civil liability against them as per the provision of Section 154(5) of the Act.
(B) SUMMONING AND NOTICE :
4. In the present case, after recording the pre summoning evidence on behalf of the complainant company, both the accused persons were summoned to face trial for the offence punishable u/s 135 read with section 150 of the Act. Notice of accusation as per the provisions of section 251 of Cr.P.C. was framed against both the accused by the Ld. Predecessor Court on 24.08.2012 for the offence punishable u/s 135 of the Electricity Act, to which they pleaded not guilty and claimed trial.
(C) COMPLAINT'S EVIDENCE :
5. In support of its case, the Complainant Company has examined three witnesses namely PW1 Sh. K.P. Singh (Sr. Manager), PW2 Sh. Ashok Bhaskar (Vice President) and Sh. PW3 Sh. Mukesh Sharma (Manager). Thereafter evidence of the Complainant Company was closed as per their oral submission made on 05.09.2017.
6. PW1 Sh. K. P. Singh (Sr. Manager), BSES YPL has appeared on behalf of the Complainant Company at after 3/18 notice stage who has tendered his affidavit as Ex.PW1/A in lieu of his examinationinchief and relied upon documents i.e Inspection Report as Ex.PW1/1, Load Report as Ex.PW1/2, Seizure Memo as Ex. PW1/3, photographs as Ex. PW1/4, CD containing said photographs as Ex.PW1/5. He has also identified the accused and case property i.e. two piece of black colour single core PVC alluminium wire of size of 16 mm sq. having length of 3 meter each appx., as Ex.P1 (colly). This witness was cross examined at length on behalf of the accused persons.
7. The next witness examined in this case on behalf of the Complainant Company is PW2 Sh. Ashok Bhaskar (Asstt. Vice President of the Complainant Company), who has tendered his affidavit as Ex.PW2/A. He has relied upon the document. i.e. seizure memo already Ex. PW1/3. This witness was cross examined at length by ld. Defence counsel.
8. PW3 Sh. Mukesh Sharma, Manager, BSES YPL has deposed and relied upon documents i.e. Complaint filed by Sh. Jitender Shankar as Ex.PW3/1, authorization letter as Ex. PW3/2, GPA dt. 05.07.2013 as Ex. PW3/3 & copy of Board Resolution as Ex. PW3/4. This witness was also cross examined by ld. Defence counsel.
9. The Complainant's evidence after notice stage was closed on the same day i.e 05.09.2017 and matter was fixed for 4/18 recording of Statement of the Accused No.2 Pappu @ Harish Kumar U/sec.281 r/w Sec.313 Cr.P.C.
(D) STATEMENT OF ACCUSED :
10. On 25.09.2017, statement of the accused no.2 Pappu @ Harish U/sec.281 r/w Sec.313 Cr.P.C was recorded explaining all the incriminating evidence against him on record which he denied as false & incorrect. Accused Pappu has admitted in his statement that the inspected premises was in the name of his mother i.e. coaccused (since deceased). However he denied that any inspection was conducted on 02.05.2006. Accused has asserted in his statement that he is innocent and his mother used to run the industry through generator. Accused preferred to lead defence evidence and examined Mr. Sonu Singh as DW1.
(E) DEFENCE EVIDENCE :
11. Now turning to the defence evidence of the accused, wherein he has examined Mr. Sonu Singh as DW1.
DW1 has deposed in his examination in chief that he is the neighbour of the accused Harish @ Pappu and was residing in house no. H1/45, New Seelampur since birth. He has further deposed that accused Pappu was running an ice cream factory. He has again said that the mother of the accused no.2. i.e. co accused Lajwanti (since deceased) was running the icecream factory. He has further deposed that the factory was being run on generator which was being operated by father of accused 5/18 for electricity supply in the locality in some houses as well as for running the factory and there was no electricity raid at the premises H1/107 and H108 where the icecream factory was being run. He has further deposed that the generator was installed at a distance of about 20 foot across the road which was of 62 KV. He has further deposed that accused was running a tea stall at a distance of about 100/150 yards near the boundary of primary school and accused was residing at H 1/112 and the said tea stall was demolished perhaps in between the year 20082010 and thereafter accused shifted his stall at rented premises in another gali in front of Gurudwara. This witness was cross examined by ld. Counsel for the complainant company
12. Thereafter defence evidence was closed on 03.10.2017 as per the oral submission made by the accused and matter was fixed for final arguments.
(F) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :
13. I have heard final arguments advanced on behalf of the parties. I have also perused the record as well as written submissions filed on behalf of the Complainant Company and contents of CD.
Before going through the facts of the present case, it would be relevant to reproduce the relevant provisions of Electricity Act for ready reference :
6/18Section 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 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,
(d)uses electricity through a tampered meter;or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, ..............................
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;
14. Thus, from the aforesaid provison of law, it is made clear that the Complainant Company is required to prove as under :
(a) That there was theft/abstraction of electricity 7/18 by tempering the meter etc./directly not from a valid source.
(b) That it was being done by the
accused/consumer.
15. The law is well settled that in case the aforesaid ingredients are proved, there is presumption in Proviso III of Section 135 of the Electricity Act, 2003 which is reproduced for ready reference : "Provided also that if it is proved that any artificial means or means not authorised 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".
(G) FINDINGS :
16. The case of the complaint is that an inspection was carried out on 02.05.2006 at about 12.20 pm at the premises bearing H. NO. H1/107108, New Seelampur, Delhi and both the accused were found in direct theft of electricity dishonestly by tapping supply from BSES LV Mains through illegal PVC wires and there was no meter at site. Further case is that the illegal electricity was being used for running the ICE factory and the total connected load was found 37.874 KW.
17. During the pending trial the accused Lajwanti 8/18 expired and proceedings against her was ordered to be abated vide order dated 08.08.2016. Thus, only contesting accused is Pappu @ Harish Kumar. The defence of the accused is that he was not present at the time of inspection and at the time of inspection the deceased accused Smt.Lawanti, mother of contesting accused was in occupation of the inspected premises. His further defence is that he was residing at premises no. H1/112, Seelampur, Delhi and had no concern with inspected premises or any work there.
18. In the present case, from the evidence available on the record, it is clear that a raid was conducted at the premises bearing House No. H1/107108, New Seelampur, Delhi on 02.05.2006 by raiding team comprising of witnesses PW1 Sh. K.P Singh with other members. It has been proved on record in the testimony of PW1 that at the time of inspection, it was found that there was direct theft of electricity by taking direct supply of electricity from BSES LV Mains through illegal PVC wires.
19. It has been further proved from the testimony of PW1 that at the time of inspection, there was no valid/authorised source of consumption of electricity at the inspected premises and same was going on through illegal tapping. It has been further proved that the documents i.e. Inspection report as Ex.PW1/1 and form for assessment of Load report as Ex.PW1/2 were prepared at site by the 9/18 inspecting team bearing the signature of PW1. Those documents were tendered to the accused persons but they refused to sign the same. It has been further proved that even the documents were not allowed to be pasted. It has been further proved from the testimony of PW1 that the entire proceedings were photographed vide photographs Ex.PW1/4 and CD of the photographs was also prepared which is Ex.PW 1/5. It has been further proved in the testimony of PW1 & PW2 that PW2 seized the illegal wires Ex. P1 after getting it removed by the members of the inspection team vide seizure memo Ex.PW1/3. It has been further proved that the theft bill Ex.CW2/E was raised against both the accused persons. PW3 has proved due filing of the Complaint as Ex.PW3/1.
20. Nothing has come out in the crossexamination of any of the witnesses or there is nothing on record to dis believe the testimonies of PW1 to PW3 as their testimony remained unrebutted and unshakened despite lengthy cross examination. All the witnesses have correctly identified the contesting accused. Thus, from the above testimonies of PWs, it is proved that at the inspected premises, there was electricity theft by direct tapping from BSES LV mains through illegal wires. Thus, the ProvisoIII U/Sec.135 of Electricity Act, 2003 comes into operation and now it is for the accused to prove contrary that he was not involved in electricity theft in any manner being the consumer of the electricity.
10/1821. In his defence accused has produced Mr. Sonu Singh as DW1. He himself in his examination in chief has stated that the contesting accused was running an ICE cream factory. Though he has again deposed that it was being run by the coaccused Lajwanti but no explanation was given byh him regarding his first deposition. He has admitted in his cross examination that at the relevant point of time an ICE cream factory was being run at the inspected premises. He has also admitted that factory premises is shown at point A in photographs Ex. PW1/4. He has also admitted that one wire is shown connected with LV Mains. Perusal of the CD makes it clear that said wire was connected with inspected premises.
22. One defence has been taken that the said ICE cream factory was being run through a generator and the accused was running a tea stall at a distance about 100150 yards near the boundary of primary school. However nothing has been proved in the record in the defence evidence or in the crossexamination of the witnesses PW1 to PW3 that the factory was being run on the basis of generator. Witness PW1 in his cross examination has categorically stated that there was no generator set in the premises or outside the premises at the time of inspection. Though witness DW1 has claimed in his examination in chief that the said generator was being operated by father of the accused but no document has been placed regarding the purchase of generator or purchase of fuel for consumption to run the generator when it is claimed that 11/18 the said generator was being used for supply in locality as well as for running ice factory. It is to be noted that an ice factory cannot be run without regular supply of electricity. There is no disclosure address of the primary school where the accused was allegedly running the tea stall by this witness.
23. Further the defence of the accused that he was residing at another premises is of no help to him as in the present case it is not the case of the complainant that the inspected premises was being used by the accused for the purposes of residence but the case is that it was being used for running the factory. This fact has been proved even in the testimony of DW1.
24. Even the witness DW1 himself has admitted that he was not present at the inspected premises of accused on the date of inspection. Thus, this witness was not in a position to depose that no raid was conducted at the inspected premises. Furthermore this witness has no where that on the date of inspection, the accused was not present on the spot but was running his tea stall. The witness DW1 has also belied the stand of the accused taken in his statement u/s 281 read with section 313 Cr.P.C. that no industry was running at the inspected premises and only Kabad/debris were lying there as the witness DW1 has clearly admitted in his examination in chief itself that an ICE factory was running in the inspected premises.
12/1825. The law on the point of rebuttal is well settled. Rebuttal of presumption is to be established from a "prudent men's test" making the court to belief the existence of defence of the accused. In other words, the accused is not supposed to prove his defence beyond reasonable doubt under the law and if any law shift the burden on the accused to rebut the presumption, the extent of onus to be discharged by him, which has been answered by the Hon'ble Supreme Court in case titled as "Hiten P. Dalal Vs. Bratindranath Banjerjee"
cited as 2001(6) SCC 16 in Para 20 as follows : "Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reason ability being that of the "prudent man".
26. There is nothing on record to suggest that there was any enmity between accused persons and officials of Complainant Company or he has been falsely implicated in the present case. Moreover, it has been categorically held in judgment titled as "Punjab State Electricity Board & Anr. Vs. Ashwani Kumar" in Civil Appeal No.3505/07 alongwith Civil Appeal No.,3506/07, decided on 08.07.2010, reported in 2010(7) SCC 569, which is reproduced for ready reference : "The report prepared by the Officer of the Electricity Board is an act done in discharge 13/18 of their duties and could not be straight away reflected or disbelieve unless and until there was definite and cogent material on record to arrive at such a finding. It has been further observed in the said judgement that the inspection report is a document prepared in exercise of its official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus, there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct"
27. It is well settled principle of law that the onus to prove the false implication is on the person/accused who pleads false implication. In the present case, no cogent evidence has been brought on record by the accused that any of the documents were falsely fabricated and implicated upon him. The accused has taken a vague plea that he has been falsely implicated in the present case. During the evidence, the accused was duly identified by the witnesses alongwith the case property.
28. From the record it is clear that the defence of the accused that the coaccused was running the industry through generator is not corroborated in any manner by any cogent evidence. There is nothing on record brought in defence evidence that any generator was being used to run the industry. Though it has been argued that all the machines 14/18 were three phase and were in disorder and the case property i.e. illegal wires are of only two core wires and even the witness PW1 has admitted in his cross examination that with the help of case property the three phase machines cannot run. However this defence appears to be of no help to the accused as the witness PW1 himself has clarified that all the connected load were taken by the inspection team is of single phase motor and they did not take the load of three phase motors. This testimony of the witness PW1 is corroborated from Ex. PW1/2 where no connected load is shown of any three phase machine.
29. Further the defence of accused is that he is not appearing in the photographs or that machines are not shown in running condition in the photographs is of no help to him as even in the electricity theft cases the presence of the accused on the spot is not must and in the photograph the machine cannot be seen in running condition. Moreover it is not necessary that the machine must be found running at the time of inspection. There may be many reasons for non running of the machines at the time of inspection. What is relevant is that machine must be in running condition. It is not the case of the accused that machines installed at the inspected premises was not in running condition nor he has proved any such facts. Instead of that he himself has admitted in his statement u/s 281 read with section 313 of Cr.P.C. that the factory was being run at the inspected premises by coaccused.
15/1830. The argument advanced on behalf of the accused that only three meter wires are allegedly seized which are not sufficient for illegal tapping. This argument is inconsequential as even in the electricity theft cases no seizure of the case property is not fatal to the case of the complainant as the electricity is not a substance and in this regard reliance may be placed upon judgment titled as "Mukesh Rastogi Vs. North Delhi Power Limited" decided on 23.10.2007 in criminal appeal no. 531/2007.
31. It is to be noted that even living in the premises in question or to be present at the time of inspection with regard to theft of electricity is not necessary because of the very nature of the electricity as a substance. The presence of the accused at the spot at the time of commission of offence may be necessary like the offence of pickpocketing but for the theft of electricity, fixation or use of certain devices may be sufficient to continue the theft of electricity without the accused being personally present there and electricity as a stolen material is consumed simultaneously. Electricity is not a tangible object and therefore, even recovery of the case property may not be necessary like other cases where the case property like jewellery, cash, motor vehicle etc. may be recovered. Thus, even the defence like absence of the accused and non recovery of case property do not appeal in case of theft of electricity.
16/1832. It is to be further noted that in electricity theft cases, the word 'Consumer' has been used. Thus, the scope of Electricity Act is wider than in ordinary cases of commission of offence. Here the user may be a actual person or constituted person i.e. defacto or dejure real or notional as in case of Deity of temple and in relation of master and servant, landlord and tenant and or even any unauthorized person who is in occupation of place, where electricity theft has been committed.
33. In view of the aforesaid discussion and law laid down by the Hon'ble Supreme Court, it can be safely held that accused has failed to rebutt the presumption arising against him under the ProvisoIII of the Electricity Act that he was not involved in the direct theft of electricity on the date of inspection at the inspected premises when it has been proved on record that accused was very much present at the inspected premises and was doing the industrial activity without having any valid licence/source of electricity to consume it.
(H) CONCLUSION :
34. In the light of the aforesaid discussion, this Court is of the opinion that it has been proved on record that it was the accused Pappu @ Harish Kumar, who was directly involved in the electricity theft and this fact has been proved beyond reasonable doubt from the testimony of PW1 to PW3 coupled 17/18 with the seizure of illegal wires from the inspected premises no. H.No. 1/107108, New Seelampur, Delhi as well as the photographs placed on record, Accordingly, the accused Pappu @ Harish Kumar is held guilty and convicted for the offence punishable u/s 135 of the Electricity Act and is also held liable for the civil liabilities for using electricity illegally for industrial purpose under section 154(5) of the Electricity Act.
Main file be consigned to record room after due compliance as per rules.
Ahlmad is directed to prepare the misc. file for the purpose of arguments on Sentence.
Be put up for arguments on the point of sentence on 30.11.2017 as prayed.
ANNOUNCED IN THE OPEN COURT TODAY ON 24th NOVEMBER, 2017 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 18 no. of pages) (One Spare copy is attached) 18/18