Delhi District Court
Complainant vs Kusum ......................... ... on 24 January, 2014
Page 1 of 10
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 225/12
ID No. 02405R0157592012
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
Kusum ......................... Accused
Opposite House No. 218,
Hans Nagar Colony,
Pindwala Kalan,
Najafgarh, New Delhi.
Date of institution: ........................ 27.07.2012
Arguments heard on: ........................ 15.01.2014
Judgment passed on : ........................ 20.01.2014
CC No. 225/12
Page 2 of 10
JUDGMENT:
1. The brief facts of the case are like this. On 13.02.2012 at 12.30 pm a joint inspection team headed by Sh. Vikash KumarAsstt Manager (Enforcement) of the complainant company inspected the premises situated opposite to House No. 218, Hans Nagar Colony, Pindwalan Kalan, Najafgarh, New Delhi (hereinafter referred to as inspected premises). The accused is user of the inspected premises where no electricity meter was installed. The accused was indulging in the direct theft of electricity by tapping electricity from distribution box of pole no. JFPP065 of the complainant with the help of wires which were further connected to the inspected premises. A connected load of 3.389 KW was found for domestic purposes. The video of the inspected premises was taken at the time of inspection. The illegal wires were removed and taken into possession. Inspection report, load report and seizure memo were prepared and offered to the accused who refused to receive and sign the same. An assessment bill for theft of electricity was raised against the accused which remained unpaid. Hence, this complaint.
2. Accused was summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were CC No. 225/12 Page 3 of 10 supplied to her. NOA U/s 251 Cr.P.C was put to the accused to which she pleaded not guilty and claimed trial.
3. The complainant examined three witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C. Her defence is of denial simplicitor. However, no defence evidence has been led.
4. The complainant has examined three witnesses. PW1 Vikash Kumar stated that on 13.02.2012 at 12.30 pm he along with other officials of the complainant company has inspected the inspected premises being used by accused. No electricity meter was installed in the premises at the time of inspection. The accused is duly identified by him. The accused was indulging in direct theft of electricity by tapping electricity from distribution box of pole no. JFPP065 with the help of wires which were connected to the load of the premises. There was a total connected load of 3.389 KW for domestic purposes. The video of the inspected premises was taken and CD mark X was prepared. He has identified the video in the CD as same was recorded during the course of inspection. Two white colour copper wires and two blue colour aluminum wires were removed and taken into possession vide separate seizure memo Ex. CW2/C. The CC No. 225/12 Page 4 of 10 wires Ex. P1 and P2 are produced in the court and duly identified by him. Inspection report, load report and seizure memo Ex. CW2/AC were prepared and offered to the accused who refused to receive and sign the same.
5. During cross examination, he stated that they had inquired about the name of the owner and user of the inspected premises. The accused did not disclose the name of owner but disclosed that she is user of the inspected premises and also disclosed her name. They remained at the spot for 30 minutes where some persons had gathered. It is correct that they had asked public persons to become a witness but they refused on the ground that they do not want enmity with the accused. The suggestion is denied that accused is in no way connected with the inspected premises or accused was working as a labourer in a nearby premises or she was indulging in construction activity or accused came at the spot to watch the proceedings along with other persons or she was not indulging in theft of electricity or documents were not offered to the accused or accused is implicated in order to save the owner of the inspected premises.
6. PW2 Vivek Arora stated that on 13.02.2012 he has sent Bobby i.e. his employee to conduct the video with the inspection CC No. 225/12 Page 5 of 10 team. Bobby has handed over one camera along with cassette/chip after the inspection to him. He has downloaded the data from the cassette/chip and prepared CD mark X. He has identified the video in the CD as it was recorded at site.
7. During cross examination, he stated that he has not brought any document to show the employment of Bobby. It is correct that he has no personal knowledge of data/chip/cassette given to him by Bobby.
8. PW3 Pankaj Tandon stated that he is authorized representative of the complainant. On 09.10.2006 Sh Lalit Jalan was Chief Executive Officer of the complainant company. The Board of Directors of complainant company has passed a resolution Ex. CW1/A in a meeting dated 22.03.2006 vide which Sh Lalit Jalan has been authorized to institute, conduct, defend, settle and to appear before any court and to appoint consultants, professionals, advocates and attorney for the company. Sh Lalit Jalan has been further authorized to delegate any of his powers to any person. He has been duly authorized by Sh Lalit Jalan to institute or defend or sign or verify plaints, affidavits, written statement and to appear before any court vide authority letter Ex. CW1/B. He has filed the complaint CC No. 225/12 Page 6 of 10 Ex. CW1/C on the basis of authority given to him by the complainant.
9. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for committing theft of electricity in the inspected premises.
10. The complainant has examined three witnesses in order to prove its case. PW1 is a material witness as he is a member of joint inspection team. His testimony needs close scrutiny. I have perused his testimony. He has categorically stated that on 13.02.2012 at 12.30 p.m he along with other officials have carried out an inspection in the inspected premises. His testimony to this effect is consistent meaning thereby that inspection was carried out in the inspected premises.
11. Ld counsel for the accused contended that accused was working as a labourer in a nearby premises who reached at the spot to watch the proceedings. He submitted that accused is not the user of the inspected premises. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The testimony of PW1 clearly shows that accused met them at the inspected premises and CC No. 225/12 Page 7 of 10 told that she is user of the inspected premises. The accused also disclosed her name. The accused has been identified by PW1. The accused is identified when she is seen at the time of inspection. There is no evidence of ill will or enmity on record so the question false identification of accused does not arise at all. The defence of the accused that she is working as a labourer in a nearby house does not inspire confidence. She has not disclosed the premises number where she was allegedly doing the labour work. She could have easily examined any person from the locality to show that she was not user of the inspected premises. Mere denial is not enough. Apart from it, the accused was served at the address given in the inspection report Ex.CW2/A. The accused would not have been served in case she is resident of some other place. All these facts show that accused was the user of the inspected premises at the time of inspection. She was present at the time of inspection. The arguments of ld counsel for the accused do not hold water.
12. The testimony of PW1 further shows that there was no electricity meter in the inspected premises and accused was indulging in direct theft of electricity by tapping from distribution box of pole no. JFPP065. There is nothing on record that there was an electricity CC No. 225/12 Page 8 of 10 meter in the inspected premises. The accused has not placed any paid electricity bill on record to show that there was consumption of electricity through meter. There is no evidence that generator was used by the accused. There was no means to use the electricity for the inspected premises and the only means was to tap the electricity from distribution box of pole no. JFPP065.
13. The appliances used by the accused were recorded in the load report. The load report Ex. CW2/B was prepared. The testimony of PW1 to this effect has gone unrebutted meaning thereby that load report is admitted by the accused.
14. The wires Ex. P1 and P2 used to tap the electricity were removed and taken into possession vide seizure memo Ex. CW2/C. The wires are produced in the court and duly identified by PW1. The testimony of PW1 to this effect has gone unrebutted meaning thereby that removal and seizure of wires stand admitted by the accused.
15. Ld counsel for the accused contended that no reliance can be placed on the CD as it is not proved in accordance with law. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The complainant has placed CD mark X on record in order to show that it pertains to inspected premises. PW2 has CC No. 225/12 Page 9 of 10 downloaded the data in the computer and thereafter prepared the CD. The person who has taken the video at the time of inspection is not examined by complainant. His examination was essential to show that he has correctly recorded the video at the time of inspection. His non examination calls for an adverse inference against the complainant. There is no certificate on record to show that computer through which data was downloaded was working in the perfect condition. The original cassette is not placed on record. The CD is not proved in accordance with section 65B of Indian Evidence Act as such complainant cannot draw any support out of it. I find force in the argument advanced by ld counsel for the accused.
16. Section 135 of the Act puts an onus on the complainant to prove that there was abstraction of electricity by the means not authorized by the complainant. The complainant has discharged its onus of proving the abstraction of electricity by examining the member of joint inspection team and by producing the wires in the court through which accused was tapping the electricity. The complainant has successfully discharged the onus. The onus shifted to the accused to show that she was not indulging in the abstraction of electricity through illegal means. The accused has failed to show that CC No. 225/12 Page 10 of 10 she was using the electricity through legal means. The accused has failed to discharge the onus.
17. The testimony of PW1 is consistent. The accused has failed to shatter him during the course of cross examination. There is no evidence of enmity on record. PW1 has no axe to grind against the accused. In these circumstances, the non association of public persons is of no infirmity. The testimony of PW1 is relied upon.
18. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused beyond shadow of reasonable doubt. Hence, accused is held guilty U/s 135 Electricity Act, 2003 and is convicted. Let the file to come up for quantum of sentence on 24.01.2014.
Announced in the open
Court on dated 20.01.2014 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 225/12
Page 1 of 3
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 225/12
ID No. 02405R0157592012
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
........................ Complainant
Versus
Kusum
........................ Convict
ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that convict was indulging in direct theft of electricity and such kind of convict should not be shown any kind of leniency.
2. Ld counsel for the convict submitted that convict is a first offender. He further submitted that convict has two daughters aged 5 years and 3 months. He further submitted that convict is working as a maid. He further submitted that husband of the convict is residing in the native village in order to look after his ailing mother. He further submitted that convict has little source of income and entire family is CC No. 225/12 Page 2 of 3 dependent upon her so request is made to take a lenient view .
3. Heard and perused the record. The convict is a first offender. There is nothing on the record to show that she has been previously convicted for the same offence. There is allegedly no other person in the family to take care of her minor daughters. I am of the view that any substantive sentence will affect her daughters as one of the daughters is three months old. The convict is allegedly working as a maid. All these facts are sufficient to take a lenient view. To my mind, interest of justice shall be met by taking a lenient view. Hence convict is sentenced to undergo imprisonment till rising of the court. ORDER ON CIVIL LIABILITY:
4. Section 154 (5) of the Act says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
5. The convict has been held guilty U/s 135 of the Act. The connected load was around 3.389 KW for domestic purposes. The bill was raised for a sum of Rs 55128/. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 55128/ . CC No. 225/12 Page 3 of 3 The amount already paid, if any, shall be adjusted towards civil liability. Copy of the order be given to the convict free of cost. File on completion be consigned to record room.
Announced in the open
Court on dated 24.1.2014 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 225/12