Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power Ltd. on 8 August, 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. 92/08
PS Mehrauli, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Ltd.
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi - 110019
and its Corporate, Legal & Enforcement Cell
at Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through its Authorised Officer,
Sh. Binay Kumar
...Complainant
Versus
Avatar Singh S/o Lakhi Ram,
House Near House No.34,
Fatehpur Beri,
New Delhi ...Accused
COMPLAINT INSTITUTION ON : 02.02.2008
JUDGMENT RESERVED ON : 06.08.2011
JUDGMENT PRONOUNCED ON : 08.08.2011
JUDGMENT
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 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. 2 3 The accused was summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 09.09.2008 after recording the presummoning evidence and hearing the arguments on summoning. The accused was admitted to bail on furnishing personal bond in the sum of Rs. 5,000/ with one surety in the like amount. Separate notice u/sec. 251 Cr.P.C was framed against the accused person by the Ld. Predecessor Court to which the accused pleaded not guilty and claimed trial.
4 The complainant company examined Sh. L.R.Jaswal - Sr. Manager, Sh. Binay Kumar - Legal Officer & AR as PW2 and Sh. J.S.Bisht - Lineman as PW3. The statement of the accused Avtar Singh 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 opportunity to lead evidence in his defence. The accused, in his defence evidence, examined Sh. Jarnail Singh S/o Sh. Surja Ram R/o H.No.64, Village Fatehpur Beri, New Delhi as DW1, Sh. Rohtash S/o Sh. Deep Chand, R/o H.No.60, Village Fatehpur Beri, New Delhi as DW2. The application u/sec. 315 Cr.P.C. was filed for permission to the accused to depose as the defence witness which was allowed by this court. The accused examined himself as DW3 and Sh. Amit Kumar Bansal - GET, Division Adhchini as DW4.
5 I have heard the Ld. counsel for accused represented by Sh. Bijendra Sharma and prosecution represented by Sh. Rishab Raj Jain, counsel/ deemed P.P and have perused the entire records.
36 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and 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 subsection (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 subsection, 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 rehear 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 :
''A plain reading of the above provision reveals that the intention of the Parliament was that cases concerning theft or illegal abstraction of electricity, 5 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 was summoned to face the present complaint case. The accused appeared and admitted to bail on furnishing personal bond in the sum of Rs.5,000/ with one surety in 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.'' 9 Admittedly, the accused Avatar Singh is now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against him. A criminal charge could be proved on the basis of 6 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.''
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 entered into witness box and examined himself as PW2. PW2, during examination in chief, deposed that he 7 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 court. He has been authorised to do so by letter of authority dated 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.CW1/1(OSR). The copy of Board Resolution in favour of Sh. Lalit Jallan already marked as Ex.CW1/2. PW2 further deposed that he has filed the present complaint case as per the record provided by the complainant company. The said complainant is true and correct as per the said record and already exhibited as Ex.CW1/3 bearing his signature at point already marked A. PW2 also deposed that he has no personal knowledge of the facts of the case and has deposed as per record provided by the complainant company. Despite opportunity given, the counsel for the accused did not crossexamine PW2. Perusal of Ex.CW1/1 dated 23.10.2006 (OSR) reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorized 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.CW1/1. 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.CW1/1 in his favour but also the complaint filed by him as Ex.CW1/3 8 as well as the copy of the board resolution in favour of Sh. Lalit Jalan as Ex.CW1/2. Whereas, the accused has not led any evidence and failed to prove that the said AR has not been authorised by the complainant company to file the present complaint case. Thus, I hold that Binay Kumar, AR of the complainant company is duly authorised and competent 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 on 09.10.2007. Sh. L.R.Jaswal - Senior Manager examined himself as PW1 and deposed that on 09.10.2007 at about 11 AM, he along with Sh. Vidhan (Vedant) Sethi - Trainee Engineer, Sh. Naushad - ITI and Sh. J.S.Bisht - ITI visited premises i.e. House near H.No.34, Village Fatehpur Beri, New Delhi. Copy of the notification No.F11(93)/2003/Power/2291 dated 12.09.2007 filed by the complainant reveals that in exercise of the powers conferred by subsection (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 authorised the technical officials not below the rank of Assistant Engineer/Assistant Manager and above working 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 as 'Authorised Officers' for the purpose of clause (a) and clause (b) of sub section (2) of section 135 of the aforesaid Act in respective areas of the said companies in the National Capital Territory of Delhi. In view of the above notification and foregoing 9 discussions, I hold that Sh. L.R.Jaswal - the then 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 09.10.2007.
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 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 31st 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 10 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 sence, in case of theft of electricity there can be no case 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 11 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 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 Avatar Singh had committed the offence u/sec. 135 of the Act at the premises in question on 09.10.2007. 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 12 case against the accused that the accused was committing direct theft of electricity at the premises in question. PW1, in his examination in chief, deposed that on 09.10.2007, he along with Sh. Vidhan (Vedant) Sethi - Trainee Engineer, Sh. Naushad - ITI and Sh. J.S.Bisht - ITI visited premises i.e. House near H.No.34, Village Fatehpur Beri, New Delhi. They saw that at the back portion of the said house/ property there was an illegal tapping coming from the LV Mains of the complainant i.e. BSES and was leading to the premises in question. There was no gents present at the said house and only ladies were there. On their asking they disclosed that the said house/ premises belongs to Avtar Singh S/o Sh. Lakhi Ram. From the illegal tapping the supply was connected to back portion of the said property. They checked the same by disconnecting the wire from the LV mains on which the supply of the back room portion was switched off. They further saw that there was a connected load of 10.338 KW approximately connected through that illegal tapping. The connected load included two A.C.'s of 2.5 KW each, one geyser 2 KW, tubelights, ceiling fans, washing machine etc. The details of the connected load was recorded by the team members in the load prepared at the spot. The load report already marked Ex.CW2/2 was put to PW1 who stated that it is the same load report. The team members including PW1 took the photographs of the site from outside only with the help of digital camera as they were not allowed to take photographs from inside as only ladies were there. The photograph clicked by them at spot (3 in number) already marked Ex.CW2/4 (colly). PW1 furthere deposed that the photographs shows the premises in question as well as the illegal tapping from the LV mains. The CD containing these photographs already marked Ex.CW2/5 and it is the same which were taken by them at the spot. The details of the inspection were recorded by the inspection team 13 including PW1 in the inspection report already marked Ex.CW2/1 bearing signature of PW1 at point A. It was also deposed by PW1 that they could not seize the illegal tappings/ wires from the site as there was resistane from the ladies as well as the mob had collected there. Because of the mob collection, the team members also could not serve upon the copies of the inspection report and load report to the said ladies. There was no electricity meter installed at the back portion where the supply through the illegal tapping was leading. PW3 deposed in his examination in chief that on 09.10.2007, he along with Sh. L.R.Jaswal - Assistant Manager, Sh. Bedan (Vedant) Sethi - Trainee Engineer & Naushad - photographer visited premises i.e., a house near H.No.34, Fatehpur Beri Village, New Delhi. They found that two wires were connected on the LT lines of the complainant near the wall of the said house and which were further going inside the said house. They tried to get the gate of the house opened but the lady of the house did not open the same. The officers got the door opened. The officers went inside and noted the details of the gadgets which as per them comprised of AC's and geysers. PW3 further deposed that the team members further told that the consumer did not allow to take the photographs of those gadgets. The lady present in the house disclosed that Avtar Singh S/o Lekh Ram was the user of the said house. Avtar Singh was not present at at the time of inspection. PW3 further deposed that his seniors prepared inspection report at the spot. He also signed the same. PW3 also deposed that he can identify the same if shown to him. The inspection report Ex.CW2/1 and load report Ex.CW2/2 were the documents prepared at the spot which he also signed and his signatures appears at point B on the said reports. The team members did not seize any wires from the spot. The team members clicked photographs at the spot. PW3 further deposed that 14 he can identify the same. The photographs were taken through digital camera. PW3 after seeing the photographs collectively marked as Ex.CW2/4 said that these are the same photographs which were taken at the spot and a soft copy containing CD already marked as Ex.CW2/5. PW3 does not remember if the reports were offered to the lady present at the spot.
15 At the time of statement u/sec. 251 Cr.P.C., the accused Avatar Singh stated that he has an electricity meter installed at his house the bills of which has already been admitted by the complainant and he was consuming the electricity from that meter only and not by any illegal means. The load consumption report and other documents filed by the inspecting team are totally false. The inspecting team never visited or entered his house on that day and without examining and verifying his house, this false case has been filed against him. He had also made representations concerning his false implication in this case. The accused Avatar Singh stated at the time of statement u/sec. 313 Cr.P.C. that he is not the owner & user of the premises in question. The premises in question is pertaining to his neighbour. He was not present at the time of inspection on 09.10.2007 but he does not know the names of the officers visited and inspected the premises in question on the date of inspection. He was not committing any theft of electricity at the premises in question on the date of inspection. False and fabricated load report has been prepared against him. The accused further stated that he is the owner of H.No.30, Fatehpur Beri, New Delhi which is near to the premises in question. He also filed representation dated 19.02.2008 to the complainant after receipt of the theft bill in question stating that the premies in question does not pertain to him. No response/ reply sent by the complainant to him 15 against the said representation. He also filed another representation dated 23.05.2008 to the complainant but no response to it also. The accused has also filed the electricity bills of his residence No.30, Fatehpur Beri, New Delhi at the time of bail application. The accused in his defence examined four witness i.e DW1, DW2, DW3 and DW4. DW1 & DW2 in their examination in chief deposed that they have been residing at the address bearing H.No.64 & 60 respectively, Village Fatehpur Beri, New Delhi since their birth. Avtar Singh, who is their neighbour is residing at House No.30, Village Fatehpur Beri, New Delhi. The BSES officials had never raided at the premises of Sh. Avtar Singh. Avtar Singh is residing at his house since 2001 and an electricity meter is installed at his aforesaid premises and he is consuming the electricity through the said electricity meter. The photographs Ex.CW2/4 were shown to DW1 & DW2, after seeing the photographs DW1 & DW2 stated that these photographs are the photographs of the house of Sh. Sanjay S/o Sh. Parmal R/o Village Fatehpur Beri and these photographs are not the photographs of Sh. Avtar Singh. The photograph showing the tree through which the electricity wires by which the direct theft was being conducted also situates in the house of Sh. Sanjay S/o Sh. Parmal. The present case has been falsely booked against Sh. Avtar Singh. Some photographs of the premises exhibited as Ex.DW1/A(colly) and Ex.DW1/B(colly) shown to DW1 & DW2. After seeing the photographs, DW1 & DW2 stated that these photographs belongs to the house of Sh. Avtar Singh. The house of Avtar Singh is situated about a distance of next 23 houses from the house of Sanjay S/o Sh. Parmal. DW1 & DW2 are not having any enmity with Sanjay S/o Sh. Parmal.
1616 Accused examined himself as DW3 and deposed in his examination in chief that he is residing at H.No.30, Fatehpur Beri, New Delhi since 2001 and one electricity meter was installed in the said premises in 2002 in his name. The H.No.30 is adjacent to the premises in question where raid was conducted. One electricity bill in the name of Sh. Avtar Singh was shown to DW3 which was exhibited as Ex.DW3/A. As per the electricity bill Ex.DW3/A electricity meter bearing CRN No.2520075860, K NO. 2520 G 4251119, the amount of Rs. 3,88,000/ was paid to the BSES for consumption of electricity on 22.11.2010. One Acknowledge slip bearing application No.E252010110914 was exhibited as Ex.DW3/B. DW3 further deposed that his old meter bearing CRN No.2520075860 was removed from his house bearing No.30, Fatehpur Beri and after payment of Rs. 3,88,000/ to BSES the new meter installed in his name in the said premises exhibited as Ex.DW3/B. Notice u/sec. 163 of the Electricity Act 2003 was shown to DW3 which was sent by the BSES to DW3 and the same was exhibited as Ex.DW3/C. One letter sent to the Business Manager, BSES regarding the theft case by the witness was placed on record marked as Mark A along with the postal receipts marked as Mark B and one more letter to the Senior Executive Engineer, BSES sent on 16.05.2008 marked as Mark C. DW3 further deposed that the raid was conducted in the house of Sanjay S/o Sh. Parmal bearing No.34, Fatehpur Beri, New Delhi and he was falsely implicated in the present case and no raid was ever conducted in his premises. DW4 deposed in his examination in chief that he is on the position of GET in BSES Rajdhani Power Ltd., Division Adhchini(Saket). He is a summoned witness in this case. DW4 further deposed that he brought the office record of electricity meter bearing its K No. 2520 G 4251119 (old K No. 711/152127). Application for grant of new connection was made by Sh. Avatar Singh S/o Sh. 17 Likhi Ram bearing its H.No. 30, Village Fatehpur Beri, New Delhi in the year 2000. The photocopy of the said application exhibited as Ex.DW4/A (colly) (OSR). In pursuant to that application of grant of new connection the electricity meter bearing K No. 2520 G 4251119 was installed on 30.03.2001 at H.No. 30, Village Fatehpur Beri, New Delhi in the name of Sh. Avtar Singh. The computer generated record in this regard exhibited as Ex. DW4/B. The accused Avtar Singh has made the last payment on 30.08.2002 and since then till 22.11.2010, he has not paid any amount towards electricity bill. The document in this regard exhibited as Ex.DW4/C. The document already exhibited as Ex. DW3/A is shown to DW4 and DW4 stated that it is correct that the accused Avtar Singh has paid the entire arrears of Rs. 3,88,000/ on 22.11.2010. 17 In the present case, the inspection in the premises in question was carried on 09.10.2007. In inspection report Ex.CW2/1, the name of the user is mentioned as Mr. Avatar Singh S/o Lakhi Ram. Supply address is mentioned as house near house No.34, Fatehpur Beri, New Delhi. The names of the inspection team members are mentioned as Sh. L.R.Jaswal - Assistant Manager, Sh. Naushad ITI, Sh. Vedant Sethi - Trainee Engineer and Sh. J.S.Bisht Lineman. Sh. L.R.Jaswal - Assistant Manager is stated to be the inspection team leader. It is stated in the inspection report Ex.CW2/1 that as per directions of BM (SKT) and DGM (DT) a joint inspection was carried out in presence of CISF and local Police. It was found that consumer is using supply directly by tapping LT line behind the house. Necessary photographs of load inside the house could not be taken properly. But some of the photographs has been taken. A total load of 10.339 KW was found connected and was looked under direct theft. As per the inspection report (meter details) Ex.CW2/1, no meter was 18 found at site. Load report Ex.CW2/2 reveals the details of the appliances and items used at site on the date of inspection. Ex.CW2/3 is the assessment bill for theft of electricity. Ex.CW2/4 is the photographs and Ex. CW2/5 is the CD of photography. Upon filing of this complaint, cognizance of the offence punishable u/sec135 of the Act was taken and complainant was allowed to lead presummoning evidence. The complainant led presummoning evidence by way of affidavits. CW1 is the authorised representative who proved his complaint as Ex.CW1/3 and CW2 is the member of raiding team who proved the inspection report & inspection report (meter details), load report, assessment bill, photographs and CD as Ex.CW2/1 to Ex.CW2/5. After pre summoning evidence and presummoning order, summons issued to the accused and the summons served upon the accused Avatar Singh before the first date of hearing after issuance of summons. On the first date of hearing, the accused did not appear and an application for exemption of the accused from personal appearance in the proceedings of this complaint case was filed which was allowed by the Ld. Predecessor Court. On the next date, accused Avatar Singh with his counsel appeared and filed the application for grant of bail to him. The accused was released on bail on furnishing personal Bond in the sum of Rs. 5,000/ with one surety in the like amount.
18 It is an admitted case of the accused that he is neither the owner nor user of the premises in question bearing house near H.No.34, Fatehpur Beri, New Delhi on the date of inspection i.e. 09.10.2007. Even he was not present at site on the date of insepction. On the one hand, the accused has taken the defence that he has no concern with the premises in question. On the other hand, the summons issued to the accused served upon him and he appeared 19 on the second date of hearing after the summon was issued to him. If the accused has no concern with the premises in question then how the summon was served upon the accused and he appeared in the proceedings of this complaint, the reasons are best known to him. DW1 & DW2 are the neighbours of the accused and deposed that the accused is residing at H.No.30, village Fatehpur Beri, New Delhi and the BSES officials had never raided the aforesaid premises bearing H.No.30 of the accused since the accused is residing at H.No.30 since 2001 and an electricity meter is also installed at the premises of the accused bearing H.No.30 and the accused is consuming the electricity through the said meter. Further, the photographs Ex.CW2/4 taken at the time of inspection of the premises in question bearing house near H.No.34, were also shown to the witnesses DW1 & DW2 and the witnesses DW1 and DW2 deposed that these photographs Ex.CW2/4 pertain to the house of Sh. Sanjay S/o Sh. Parmal R/o Village Fatehpur Beri and these photographs do not pertain to the house of the accused Avtar Singh. The house of the accused Avtar Singh is situated about a distance of next twothree houses from the house of Sanjay S/o Sh. Parmal. During Crossexamination, DW1 deposed that he was present at his house on 09.10.2007 when the raiding team inspected the house bearing No.34, Village Fatehpur Beri, New Delhi. DW2, in his crossexamination, deposed that he can not say that who is the owner of the house bearing No.34, Fatehpur Beri, New Delhi. It is strange that DW1 and DW2 are the neighbourers and residing at H.Nos. 64 & 60 respectively and well aware about the H.No.30 which has been said by DW1 & DW2 concerning with the accused but DW2 does not know as to who is the owner of H.No.34, Fatehpur Beri, New Delhi. Moreover, if the aforesaid photographs Ex.CW2/4 taken on the date of inspection pertains to the house of Sh. Sanjay S/o Sh. Parmal, then why Sh. 20 Sanjay has neither been got summoned nor examined as defence witness to prove on record by him that the photographs Ex.CW2/4 pertains to the house of Sh. Sanjay S/o Sh. Parmal, reasons are again best known to the accused. Even otherwise, DW1 & DW2 in their crossexamination admitted that one person has more than one premises. DW1 in his crossexamination admitted that no document has been placed on record by him to show that an electricity meter is installed at the house of witnesses. DW2 also admitted in his crossexamination that he has never seen any electricity bill in the name of accused Avatar Singh and even no document has been placed on record by him which shows that the electricity meter is installed at the house of Avatar Singh. On the one hand, DW2 deposed in his examination in chief that the accused Avatar Singh is residing at H.No.30, Village Fatehpur Beri, New Delhi. On the other hand, DW2 in his crossexamination denied the suggestion that the accused Avatar Singh is residing at H.No.30, Village Fatehpur Beri, New Delhi. Moreover, DW2 further deposed in his crossexamination that he has come to depose as a witness upon the instance of Avatar Singh/accused.
19 The accused Avatar Singh examined himself as DW3 and deposed in his crossexamination that he does not have any document at present in the court which shows the ownership of house bearing No.30, Village Fatehpur Beri, New Delhi. The distance between H.No.30 and H.No.34 is approximately 4050 meters as deposed by DW3 in his crossexamination. DW2 further deposed in his crossexamination that the photographs Ex.DW1/A (colly) does not mention any house number in the column of address. DW3 also admitted that Ex.DW3/B also does not bear any house number in the specified column address. DW3 admitted in his crossexamination that he does not have any 21 electricity bill for the month of October2007. It is relevant to metion here that the inspection of the premises in question which is the house near H.No.34, Fatehpur Beri, New Delhi was conducted on 09.10.2007. DW3 further admitted in his crossexamination that he does not have any electricity bill prior to the date of inspection or subsequent to the date of inspection. DW4 who is the official of the complainant brought the summoned record and deposed that the application for grant of new connection was made by Avatar Singh S/o Sh. Likhi Ram for H.No.30, Fatehpur Beri, New Delhi in the year 2000. The electricity meter bearing K No.2520 G 4251119 was installed at H.No.30, Village Fatehpur Beri, New Delhi in the name of Avatar Singh on 30.03.2001. The accused Avatar Singh had made the last payment on 30.08.2002 and since then till 21.11.2010, he did not pay any amount towards electricity bill. However, the accused Avatar Singh paid the entire arrears of Rs. 3,88,000/ on 22.11.2010. It is to be noticed that the accused Avatar Singh never paid any amount to the complainant company for consumption of the electricity from 31.08.2002 to 21.11.2010. Whereas, PW1 in his examination in chief categorically deposed that ladies present at site disclosed that the house near H.No.34, Village Fatehpur Beri, New Delhi which is in question belongs to Avatar Singh S/o Sh. Lakhi Ram. During crossexamination PW1 denied the suggestion that on 09.10.2007, the house of the accused was lying locked and none was present. PW1 further denied the suggestion that the photographs Ex.CW2/5 (Ex.CW2/4) do not pertain to the house of the accused. PW1 also denied the suggestion that the premises consist of double storey having three rooms on each of the storey and having no back portion as such. PW1 volunteered that there is a back door entry in the premises also, however, the premises is a double storey and they did not see whole of the premises. PW3 is 22 a lineman and his job pertains to see and remove the illegal cable/ line at the inspected premises. PW3 categorically deposed in his examination in chief that they tried to get the gate of the house opened but the lady of the house did not opened the same. The officers got the door opened and the officers went inside and noted the details of the gadgets. PW3 also deposed in his cross examination that he is merely a lineman. PW3 denied the suggestion that there was no theft of electricity at the spot and that is why no such illegal wire was seized from the premises in question. PW3 denied the suggestion that the raided premises belongs to one Sh. Sanjay S/o Sh. Parmal R/o Dargahi Mohalla, Village Fatehpur Beri. PW3 deposed in his crossexamination that only ladies were present and no gents were there at site. There is no house number mentioned over the electricity bills Ex.DW3/A to Ex.DW3/C. The accused has never filed any document of ownership, election card, ration card, gas connection, driving license if any or any document of his family members residing with him at the premises bearing H.No.30, Village Fatehpur Beri, New Delhi, reasons are further best known to him. It emerges from the aforesaid evidence of the complainant and the accused that the accused Avatar Singh was found committing direct theft of electricity at the premises in question on 09.10.2007. Therefore, I have found from the testimony of PW1 to PW3 that the testimony of PW1 to PW3 has the credibility and the complaint also corroborated by the testimony of PW1 to PW3. The accused Avatar Singh has miserably failed to prove that he was neither having any concern with the premises in question nor committing direct theft of electricity at the premises in question i.e. house near H.No.34, Village Fatehpur Beri, New Delhi on 09.10.2007. Thus, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the complainant through its witnesses 23 examined as PW1 to PW3 on the point of direct theft of electricity. In BSES Rajdhani Power Ltd. Vs Saurashtra Color Tones Pvt. Ltd. and Anr. 161 (2009) DLT 28 (FB), it was held by the Hon'ble High Court of Delhi that ''Electricity is a public property. Law in its majesty benignly protects public property and behoves everyone to respect public property.'' 20 For the foregoing reasons discussed above in details, to my considered opinion, the circumstances and evidence proved by the complainant company established the involvement of the accused in the offence of direct theft of electricity. The complainant has proved its case against the accused beyond reasonable doubt. The present complaint case is 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 convict the accused Avatar Singh u/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 08.08.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
24
CC No.92/08
08.08.2011
Present AR for the complainant
Sh. Bijender Sharma, counsel for the accused with
accused in person
Vide separate judgment of the day, the accused Avatar Singh is convicted u/sec. 135 of the Electricity Act, 2003. The copy of the judgment be made available to the complainant and the convict immediately.
Upon request, to come up for arguments on the point of the sentence and determination of civil liability on 12.08.2011.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 08.08.2011