Delhi District Court
Bses vs . Shashi Kumar, Cc No. 48/08 Page 1 Of Page ... on 5 April, 2013
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. 48/08
PS Hazrat Nizamuddin, New Delhi
U/s 135 of Electricity Act, 2003
Unique ID No. R0017062009
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
Shashi Kumar,
R/o Kasana Bhawan, adjacent to T86 G,
Sarai Kale Khan, New Delhi
...Accused
Appearances : AR with Sh. Rajesh Kumar, proxy counsel for
Sh. Rishab Raj Jain, counsel for complainant.
Accused on bail with Sh. N.K. Nagar, Advocate.
Complaint instituted on : 22.01.2008
Judgment reserved on : 25.03.2013
Judgment pronounced on : 05.04.2013
JUDGMENT
1 The case of the complainant in brief is that on 27.11.2007, the officers of the complainant company namely, Sh. Dheeraj Mehta - Assistant Manager (Enforcement), Shri Alok Kumar - GET Enforcement BSES Vs. Shashi Kumar, CC No. 48/08 Page 1 of page 17 and Sh. Wasi Ahmed - Trainee Engineer Enforcement, under supervision of Manager Enforcement, along with other team members, inspected the premises of the accused at Kasana Bhawan, adjacent to T86 G, Sarai Kale Khan, New Delhi and it was found that the premises was being used by the accused Shashi Kumar and no electric meter was installed at the said premises for supply of electricity, but it was found that accused was illegally using the electricity by directly tapping from the four core service line of the complainant, with the aid of illegal tapping/ wires, which were feeding the connected load of the premises. The accused was committing direct theft of electricity by directly tapping from the service line of the complainant and that a connected load of 34.061 KWs and 7.350 KWs energy was found being connected / used through the stolen energy for domestic and commercial purpose respectively and the connected load was mentioned in the load report prepared at the spot and that the videography of the said theft was got conducted and the illegal tappings/ wires of yellow colour four core wire and an inspection report was also prepared at the spot including the sketch of the manner of theft and the said reports and memos were refused to be signed by the accused at the spot and thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting dishonestly.
BSES Vs. Shashi Kumar, CC No. 48/08 Page 2 of page 17 2 It is further mentioned in the complaint that it was a case of
direct theft of electricity and theft bill, as per the DERC regulations and tariff order was raised by the complainant for Rs.8,66,300/ with a due date as 07.12.2007 and was served upon the accused person but he failed to pay the said theft bill.
3 The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my ld. predecessor vide his order dt. 18.07.2008 and the accused appeared and was supplied with the copies of the documents and my ld. predecessor vide his order dt. 22.12.2008 framed a notice U/sec. 135 of the Electricity Act, 2003 against the said accused and accused pleaded not guilty and claimed trial as the case against him was false as he was using the electricity as bonafide consumer against electricity installed and that he had also paid the bills although there was irregularity of payment in bills earlier and that he was not liable to pay any damage and loss to the complainant company.
4 In order to prove the case of the complainant, four witnesses were produced, which have been discussed below.
BSES Vs. Shashi Kumar, CC No. 48/08 Page 3 of page 17 5 The statement of the accused was recorded U/sec. 313 Cr.P.C.,
wherein he pleaded his innocence and denied the evidence as false and he answered that no such inspection had taken place of his house / shop in his presence and that the load report is false and exaggerated and that no document was prepared at the spot but he admitted that name of his father is Arjun Singh and that of mother is Smt. Prasani Devi, but the building shown in the videography is not owned by him and that he did not know if any wires were removed from the spot at the time of inspection nor he was aware if any videography was taken and he further answered that he was not committing any theft of electricity nor any commercial activity was being performed by him or by his tenants and that tenants were occupying only three rooms on the ground floor for residential purpose. He further answered in his statement without oath that he had applied for electricity connection on 22.07.2007 and the connection was not sanctioned and tenants were inducted about one or two years prior to that and that he had generator installed at the premises and used to supply electricity to the tenants for 34 hours at night by the same and thereafter, he himself appeared as DW1 in his defence under permission vide section 315 Cr.P.C., and he also produced DW2 in his defence which have been discussed below BSES Vs. Shashi Kumar, CC No. 48/08 Page 4 of page 17 6 I have heard the counsel for the complainant and counsel for the accused Sh. N.K. Nagar, advocate, and perused the record including the videography displayed on the computer screen of the court. 7 PW1 Shri Wasi Ahmed was partly examined in chief and thereafter he never appeared either for his further examination in chief or for cross examination and as such his statement is not being considered by me for the decision of the present case. 8 PW2 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. PW2/1 and he identified the signatures of the previous A.R. on the complaint Ex. PW1/3 and he further proved letter of authority of the previous A.R. as Ex. CW1/1 and he deposed that he has no personal knowledge of the facts of the case and has deposed as per records. In his cross examination on behalf of the accused he replied that he had seen the bill Ex. PW2/DA which was issued by the complainant and that he had seen the photocopy of the bill for the month of May 2008 with respect to premises no. T86, Sarai Kale Khan, New Delhi, which is marked as Mark PW2/DB.
BSES Vs. Shashi Kumar, CC No. 48/08 Page 5 of page 17 9 PW3 Shri Sunder Lal was the videographer from M/s. Arora
Photo Studio who deposed that on 27.11.2007 at about 11.15 a.m., he alongwith Shri Dheeraj Mehta, Shri Alok Kumar, Shri Wasi Ahmed and Shri Daya visited premises bearing no. T86/G, Kasana Bhawan, Sarai Kale Khan, New Delhi, the house of Shri Ramesh Chand and he visited the premises for the purpose of taking videography and he proved the same, which was earlier Ex. PW2/5. In his cross examination on behalf of the accused, he replied that he did not remember the contents of CD and that he had tried to conduct complete videography of the illegal wire leading to the point of tapping. He further replied that he conducted the videography on the directions of Shri Dheeraj Mehta but there was no specific directions to videograph the property of Shri Ramesh Chand and that he could not say if the inspected premises was owned by Shri Ramesh Chand. He further replied that after videography he had gone to the studio alongwith the camera and videotape which was converted into a CD and was given to the complainant company. He replied that he did not know as to how to convert tape into a CD and the same was being done by Mr. Arora. He did not remember the number of the floors in the premises nor he remember the nature of work being conducted. He did not notice if there was any meter in the premises in question. He did not know if BSES Vs. Shashi Kumar, CC No. 48/08 Page 6 of page 17 the accused was regularly paying the consumption bills of the aforesaid meters.
10 PW4 Shri Dheeraj Mehta deposed that on 27.11.2007 at about 1.00 p.m., he alongwith the said officials and Shri Sunder, the photographer, visited and inspected the premises i.e. Kasana Bhawan, Sarai Kale Khan, adjacent to house no. T86 G (house of Ramesh Chand), New Delhi and there was no meter installed at site at the time of inspection and consumer was indulged in direct theft of eletricity by directly tapping from BRPL service line of yellow colour by four core aluminium cable of size 25/4 mm.sq. which was further jointed with wooden stick via underground wall and all the three phase and neutral wires of cable after wooden stick were further connected with several wires of entire load of the premises and that there was domestic as well as commercial activities going on at the time of inspection and that there was embroidery work going on at the site and few workers were present at the spot and the inspection team assessed the total connected load of the premises out of which domestic load was 34.061 KW whereas the commercial load was 7.350 KW and that the inspection report alongwith meter details and load report were prepared by him at the spot which are already Ex. CW2/1 and CW2/2 respectively and the BSES Vs. Shashi Kumar, CC No. 48/08 Page 7 of page 17 four core aluminium cable with wooden stick alongwith bunch of wires were seized vide seizure memo already Ex. CW2/3 and that they offered the documents prepared during inspection to the persons available at site but the persons available at site had refused to receive and sign the same and he identified the videography after display on the computer screen of the court and he identify the carbon copy of the seizure memo as Ex. PW4/A which was kept in the bag at the time of seizure of the articles and he also identified yellow colour four core aluminium cable with wooden stick alongwith bunch of wires as Ex. PW4/B. 11 In his cross examination on behalf of the accused, PW4 replied that the items mentioned in the load report are correct and same were connected to the electricity at the time of inspection and that the illegal wires seized at the spot were deposited in the malkhana situated at Andrews Ganj. He replied that he did not remember as to whether he has visited the house of Ramesh Chand or not. He denied the suggestion that there were two meters installed at the premises or that accused was paying electricity bills regularly. He did not know if any other meter was applied on 22.09.2007. He replied that there was no requirement of conducting any revenue verification of the property.
BSES Vs. Shashi Kumar, CC No. 48/08 Page 8 of page 17 12 The accused appeared as DW1 who deposed that he had applied
for electricity connection vide application no. 254007091189 on 22.09.2007 alongwith a copy of letter written by Smt. Tajdar Babar which is Mark A and that on 10.10.2007, the complainant company had rejected his application vide its letter no. 110475 dated 10.10.2007 mentioning the reason that "commercial feasibility rejected and outstanding dues" and original of the same is Ex. DW1/1. He further testified that he personally verified and clarified from the complainant company at its office at Nizamuddin, New Delhi about the facts of the case and that outstanding dues shown in the letter Ex. DW1/1 did not pertain to him and the same pertained to one Shri Satyapal resident of T86, Sarai Kale Khan and one Shri Prem Raj resident of T86, Sarai Kale Khan, New Delhi and copies of the computer generated details of the abovesaid persons are collectively as Ex. DW1/2. He further deposed that on 27.11.2007 an inspection team of BSES company had visited his premises in hide and seek manner as he was not present there and it raised a bill for an amount of Rs. 8,66,300/ against him and that on 09.01.2008 one official from BSES division Nizamuddin visited his premises to check the feasibility to install the meter as to whether the applicant was entitled for installation of a new connection or not and the computer generated commercial feasibility report is Ex. DW1/3 BSES Vs. Shashi Kumar, CC No. 48/08 Page 9 of page 17 and that on instructions from the complainant company, he deposited Rs. 4200/ on 11.02.2008 for installation of new electricity meter and thereafter a demand note dated 24.01.2008 was issued by BSES company alongwith payment details and same is exhibited as Ex. DW1/4.
13 In his cross examination on behalf of the complainant, the DW1 replied that he was residing at T86, Sarai Kale Khan, New Delhi for last 10 years and that there was no meter installed at the time of inspection dated 27.11.2007 and that since there was no meter at his house, he used generator and the same was used in the night only. He further replied that there were two ceiling fans, three/ four bulbs and one small TV at his premises and his family consisted of five members and the area of his premises was 60 sq.yds. having five rooms. DW1 after the videography Ex. CW2/5 was displayed and looking at the same, replied that videography did not pertain to his premises. He further replied that out of the said five rooms, he had let out three rooms to the tenants namely Mahesh, Shambhu and Dileep for residential purposes at a monthly rent of Rs. 1500/ each, but there was no rent agreement executed between him and his tenants. He further replied that premises by the name of Kasana Bhawan, Sarai Kale Khan, New Delhi BSES Vs. Shashi Kumar, CC No. 48/08 Page 10 of page 17 belongs to his cousin namely Raju, Ramesh etc. and the distance between his premises and the premises of his cousins was about 200 yards and the summon was served upon him at his premises as mentioned above. He could not produce the receipt of purchase of generator or any other documentary evidence of its running. He replied that the ownership of Kasana Bhawan, Sarai Kale Khan, New Delhi belong to his late grandfather. He could not bring or produce any document showing his residential proof at T86 G, Mahal Sarai Kale Khan, Nizamuddin East, New Delhi. He replied that present owner of the premises are Ramesh, Raju, Vijay, Rakesh, Balraj, Indraj, Sunil, Bhola, Sonu and Bittoo. He admitted that his cousin Ramesh Chand was occupant of house no. T86 G, Sarai Kale Khan, New Delhi. He denied the suggestion that he was user in occupation of the premises i.e, Kasana Bhawan at the time of inspection and was involved in direct theft of electricity. He further denied the suggestion that his tenants were carrying on embroidery work in the premises in question. 14 DW2 Shri Lalit Kumar, diploma engineer, of the complainant was summoned who produced the computer generated record pertaining to K. Number 2540C3301939 and copy of the application status was already Ex. DW1/3, copy of the application moved by the BSES Vs. Shashi Kumar, CC No. 48/08 Page 11 of page 17 consumer, which was earlier Mark A, was exhibited by him collectively as Ex. DW2/A. He also produced photocopy of the indemnity bond executed by accused Shashi Kumar alongwith affidavit and identity proof which are collectively exhibited as Ex. DW2/B and he also produced the latest bill pertaining to the period from 28.12.2011 to 26.02.2012 as Ex. DW2/C. He deposed that at the time of inspection of feasibility of meter, it was not noticed as to whether theft was being committed or not. He could not personally depose as to whether there was any theft being committed or not at the time of feasibility checking on 24.01.2008. He deposed that the release of connection, pre supposes that there was no outstanding bill against the applicant. 15 The claim of PW3, the videographer and that of PW4, the only witness who was the member of the inspection team, is that on 27.11.2007, they alongwith the other members of the inspection team visited the premises adjacent to the premises number T86/G, which was house of one Ramesh Chand. It is further admitted by PW4 in his cross examination as reproduced above that there was no requirement of conducting any revenue verification of the property where the inspection was conducted. Admittedly, the accused was not found present at the premises nor his presence is established by any of the BSES Vs. Shashi Kumar, CC No. 48/08 Page 12 of page 17 document proved on record by PW3 and PW4 so as to connect the accused with the premises in question.
16 On the other hand, right from the very beginning and rather prior to the date of inspection upto the accused appearing as DW1, he is claiming that his premises is bearing no. T86/G, Sarai Kale Khan, New Delhi, wherein he is residing for last 10 years. The accused nowhere claimed that he was residing in the premises "adjacent" or "adjoining" to premises no. T86/G as has been claimed by PW4 as the premises which was inspected. The accused supported his said defence by calling the official of the complainant company itself as DW2 to produce certain documents in the possession of the complainant company to that effect and he himself also proved certain documents which go to establish that his premises was T86/G, Sarai Kale Khan, New Delhi. The accused confronted two bills Ex. PW2/DA which was of bill month March 2008 and Mark PW2/DB which was for the month of May 2008, wherein his address was the same, to the authorised representative of the complainant company, the PW2, who admitted the same and in the said two bills his address is mentioned as "T86, Ground Floor, Gee Mahal, Sarai Kale Khan, New Delhi110013". In the document Ex. DW1/1, it is mentioned that accused who had applied BSES Vs. Shashi Kumar, CC No. 48/08 Page 13 of page 17 for a new connection of electricity meter vide his application dated 22.09.2007, much prior to the date of inspection which is 27.11.2007, but his application was rejected by the document Ex. DW1/1 by the complainant company and in the said document also, the address of the accused is mentioned as T86, Ground Floor, GeeMahal, Sarai Kale Khan, New Delhi110013. Why his request for the meter was turned down has been given as "outstanding dues against the premises" and the accused has produced two documents collectively Ex. DW1/2, wherein against the premises no. T86, Sarai Kale Khan, the outstanding dues were in the name of one Shri Prem Raj and one Shri Satya Pal. In the document Ex. DW1/3 of the complainant company, again the address of the accused was shown as reproduced above and in the demand note for depositing the amount for supply of new connection vide document of the complainant company Ex. DW1/4, the address of the accused is again the same. In the documents collectively Ex. DW2/A which is an acknowledgement for new connection to be provided by the complainant company, again the address of the accused is T86, Ground Floor, GeeMahal, Sarai Kale Khan and again in the letter of recommendation written by the MLA for supply of meter to the accused dated 19.09.2007 the address of the accused is same and in the indemnity bond, affidavit, copy of ration card, given by the accused BSES Vs. Shashi Kumar, CC No. 48/08 Page 14 of page 17 to the complainant company on 22.08.2007, collectively Ex. DW2/B, the address of the accused is again T86, Ground Floor, GeeMahal, Sarai Kale Khan and yet in the document Ex. DW2/C which is electricity bill pertaining to April 2012 and computer generated schedule of the payment electric charges, the address of the accused is the same. Moreover, accused in his cross examination on behalf of complainant as DW1 after the display of the videography, Ex. CW2/5, specifically denied the premises which is depicted in the videography belonging to him.
17 Further there is a substantial contradiction in the deposition of PW3 and PW4 with regard to the time of inspection of the alleged premises and as per PW3 it was inspected at 11.15 a.m. on 27.11.2007, whereas PW4 deposed that the premises was inspected at about 1.00 p.m. Moreover, PW3, the videographer, specifically deposed in his examination in chief that he alongwith other members of the inspection team visited premises bearing number T86/G, Kasana Bhawan, Sarai Kale Khan, New Delhi, which was house of Ramesh Chand, but PW4 specifically deposed that they inspected the premises "adjacent" to the premises i.e. Kasana Bhawan, Sarai Kale Khan, bearing no. T86/G, house of Ramesh Chand.
BSES Vs. Shashi Kumar, CC No. 48/08 Page 15 of page 17 18 The accused is not supposed to prove his defence 'beyond reasonable doubt' under the law and if any economic law shifts the burden on the accused to rebut any presumption, the extent of onus to be discharged by him has been laid down by the Hon'ble Supreme Court in case titled Hiten P. Dalal Vs Bratindranath Banerjee 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 reasonability being that of the 'prudent man'."
19 In this case, the complainant in my considered opinion have failed to discharge their onus beyond reasonable doubt on the above mentioned grounds to raise the presumption as provided u/s. 135 of Electricity Act, 2003 and as such it cannot be said that onus at any stage, shifted on the accused to rebut the said presumption and he has been successful in creating a reasonable doubt in the story of the complainant that inspecting team ever visited the premises which was having any connection with the accused at the relevant time. BSES Vs. Shashi Kumar, CC No. 48/08 Page 16 of page 17 20 In view of my above discussion, I am of the considered opinion that PW3 and PW4 have miserably failed to bring home the guilt of the accused beyond reasonable doubt and hence, accused is acquitted of offence u/s. 135 of the Electricity Act, 2003 as mentioned in the notice u/s. 251 Cr.P.C. His PB and SB are cancelled. File be consigned to record room.
Announced in the open ( RAKESH TEWARI )
court on 05.04.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Shashi Kumar, CC No. 48/08 Page 17 of page 17