Delhi District Court
Bses vs . Mohd. Ovesh, Cc No. 138/11 Page 1 Of Page ... on 15 May, 2013
1
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. : 138/11
Police Station : Malviya Nagar, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406RO117932011
BSES Rajdhani Power Ltd.
A company duly incorporated
under the Companies Act, 1956
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
Md. Ovesh
R/o House No. 263B, Hauz Rani,
Malviya Nagar, New Delhi
...Accused
Appearances : AR with Sh. P.M.Bhatt, counsel for complainant.
Accused on bail with Sh. Mukesh Kumar, advocate.
Complaint instituted on : 25.04.2011
Judgment reserved on : 03.05.2013
Judgment pronounced on : 15.05.2013
JUDGMENT
1 The case of the complainant in brief is that on 11.02.2009, the officers of the complainant company namely, Sh.Manoj Yadav - BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 1 of page 13 2 Assistant Manager, Sh. R.V.Singh - Trainee Engineer and Sh. Farhan Raja
- Graduate Engineer Trainee inspected the premises bearing H.No.263 B, Hauz Rani, Malviya Nagar, New Delhi and it was found that accused was user of the electricity at site. Accused was found indulging in direct theft of electricity by directly illegally tapping from BRPL service line with the help of illegal wire and that a connected load of 4.61 KWs energy was found being connected / used through the stolen energy for domestic and nondomestic purposes and the connected load was mentioned in the load report prepared at the spot and that the videography and visuals of the said theft was got conducted and inspection report was also prepared at the spot thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting dishonestly.
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.1,05,488/ with a due date as 16.03.2009 and same was served upon the accused but he failed to pay the said theft bill.
BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 2 of page 13 3 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. 09.06.2011 and the accused appeared on execution of NBWs issued by my ld. Predecessor, vide his order dt. 01.10.2011. My ld. predecessor vide his order dt. 19.12.2011 framed a notice u/s. 251 Cr.P.C. for the offence u/s. 135 of the Electricity Act, 2003, against the said accused and accused pleaded not guilty and claimed trial on the ground that he was not committing any theft of electricity and that a false and fabricated case has been made out against him and that the inspection was carried out in another premises, bearing the same address which is owned by his brother and that he is not liable to pay any damages 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.
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 he was not committing any direct theft of electricity at the premises in question on the date of inspection as he was not the owner or user of the inspected premises. His elder brother Mohd. Israel BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 3 of page 13 4 is the owner of the inspected premises and that the load report or any other document was not prepared in his presence and that the load report is wrong and that he is not aware of videography/ photography having been conducted by complainant company and he was not committing any theft of electricity and that a false and fabricated case has been made out against him. He further replied that he was not the owner or user of the premises in question and his elder brother namely Mohd. Israel was the owner of the inspected premises and had also given an undertaking admitting his liability. He further replied that he had signed the undertaking as a witness and he was the owner and occupier of the adjoining house bearing no. 263 A, Ground Floor, Hauz Rani, New Delhi and all the said four meters in the inspected premises belongs to his brother Mohd. Israel, who had undertaken to pay the theft bill and that he was called by his brother to sign as a witness on the undertaking.
6 The accused has produced DW1 in his defence by calling the official of the complainant company, who proved that meter numbers 23417217, 23419107, 23419110 and 23419108, exhibited as Ex. DW1/A to Ex. DW1/D, respectively, were in the name of Mohd. Izrail @ Mohd. Israil S/o Mohd. Abbas.
BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 4 of page 13 5 7 I have heard the counsel for the complainant and counsel for the accused Sh.Mukesh Kumar, advocate and perused the record including the videography displayed on the computer screen of the court. 8 PW1 Ranvir Singh, Diploma Engineer of the complainant company deposed that on 11.02.2009 at around 12.15 p.m., he along with Sh.Manoj Yadav - AM, Sh.R.V.Singh - TE and Sh.Farhan Raja - GET along with two electricians visited and inspected the premises bearing No.263B, Hauz Rani, Malviya Nagar, New Delhi and that they found that direct theft of electricity from BSES service line was going on and that output terminal of the meter was found disconnected at the time of inspection and that theft was being committed by the accused for domestic as well as commercial purposes and that accused was present at site at the time of inspection, who is also present in the court and that the inspection report, meter details and load report are Ex.CW2/1 to Ex.CW2/3 respectively and the videography of the connected load of the premises in question was done by the photographer and the same is Ex.CW2/6 and that the inspection team offered the documents to the accused present at the spot to receive and sign the same but he refused to receive and sign the same and that the accused gave undertaking in BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 5 of page 13 6 writing that ''he will pay all the charges of the theft bill'' and copy of the said undertaking is Ex.CW2/4. Thereafter, the inspection team handed over all the documents to their department for further action in the matter.
9 In his cross examination on behalf of the accused, PW1 admitted that they did not enquire the status of the meters from the concerned department as it was not required. He replied that he has no knowledge whether the aforesaid meters were installed in the name of the accused or not. After seeing the CD Ex.CW2/6 in the court computer, PW1 stated that all the gadgets mentioned in the load report were not covered in the videography but most of them are shown in the videography. He denied the suggestion that H.No.263 B, Hauz Rani, Malviya Nagar, New Delhi does not exist. He answered that the said house no. 263 B, Hauz Rani, Malviya Nagar, New Delhi was told by the accused, who was present at the time of inspection and who also gave undertaking in writing. He denied the suggestion that the said undertaking was not given by the accused. He did not remember as to whether the accused had signed the undertaking before giving to the team member. He admitted that there was no signatures of any of the team member on the said undertaking. He replied that he had read the contents of the Ex. CW2/4 BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 6 of page 13 7 and he admitted that it records as "I, Mohd. Israel, undertake to .......". He volunteered that the undertaking was given on behalf of both i.e. Mohd. Israel and Mohd. Ovesh. After going through the CD at the court computer, PW1 stated that only the name of Mohd. Israel was shown in the document Ex. CW2/4, but the same was not signed. He admitted that neither the name of the accused nor the signature has been shown in the videography in respect of document Ex. CW2/4. He admitted that accused was not shown in the videography. He denied the suggestion that above said four electricity meters were not in the name of the accused and were in the name of Mohd. Israel. He admitted that no material was seized from the spot by the inspection team and he volunteered that it was due to undertaking given by the accused. 10 PW2 Shri Sunder Lal was the videographer, who deposed that on 11.02.2009 at about 12.15 p.m., he along with Shri Manoj Yadav, Shri Ranbir Singh and Shri Farhan Raja visited premises bearing house no. 263 B, Hauz Rani, Malviya Nagar, for conducting the videography of the inspection at site and he conducted the videography of the premises at the spot during the inspection with the help of video camera and he proved the videography as already Ex. CW2/6. In his cross examination on behalf of the accused, he admitted that address, house no. 263 B, BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 7 of page 13 8 Hauz Rani, Malviya Nagar, New Delhi was not shown in the videography. He replied that he could not say as to whether the premises no. 263 B, Hauz Rani, Malviya Nagar was in existence or not.
11 PW3 is the A.R. of the complainant company who proved the complaint Ex. CW1/1 and in his cross examination he admitted that he has no personal knowledge of the case and the complaint has been filed on the basis of the said documents.
12 PW4 Shri A.S. Menon was the Deputy Finance Officer of the complainant company who proved the theft bill of electricity as Ex. CW2/5.
13 It is categorically admitted by PW1 in his cross examination that accused was not shown in the videography, though he claimed in his examination in chief that accused was present at the spot, who allegedly gave the undertaking Ex. CW2/4. PW1 further admitted in his cross examination that they did not enquire the status of the meter found at the inspected premises from the concerned department as it was not required and as such he had no knowledge as to whether the four meters were in the name of the accused or not. PW1 has further BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 8 of page 13 9 categorically admitted that the language of the undertaking Ex. CW2/4 is in singular first person starting as "I, Mohd. Israel...". PW1 further admitted that neither the name of the accused nor the signature were shown in the videography in respect of the said undertaking Ex. CW2/4. 14 The accused has taken the defence that there was no premises by no. 263 B, Hauz Rani, Malviya Nagar, New Delhi. As per inspection report Ex. CW2/1, there were four meters found at alleged premises no. 263 B and the numbers of the meters were 23417217, 23419107, 23419110 and 23419108. The said meter numbers as per own official of the complainant company, DW1 and as per record of the complainant company itself, which have been proved as DW1/A to DW1/D, were installed at premises no. 263 A, First Floor, Ground Floor, Ground Floor and Second Floor, Hauz Rani and certainly the said meters were not installed at premises no. 263 B as claimed by PW1 and the said meters were in the name of Mohd. Israel as per deposition of DW1. 15 From the above said discussion, a reasonable doubt has arisen as to whether accused Mohd. Ovesh was at all present at the time of inspection or not and with regard to existence of any premises bearing house no. 263 B as claimed by PW1.
BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 9 of page 13 10 16 The ld. counsel for the complainant has vehemently argued that the undertaking Ex. CW2/4 has also been signed by accused Mohd. Ovesh and he has not signed as a witness as claimed by him in his statement u/s. 313 Cr.P.C. nor the word "witness" is mentioned below or by the side of his name and as such this is an admission on the part of accused also of his having indulged in the theft of electricity. On the other hand, the contention of the ld. counsel for accused is that nothing has stopped the accused and Mohd. Israel to use the words in plural first person by mentioning in the undertaking the words "We, Mohd. Israel and Mohd. Ovesh do hereby undertake...". The ld. defence counsel has further contended that mere missing of the word "the witness" below the signature of Mohd. Ovesh does not mean that he is bound by the said undertaking or the said undertaking was also given on behalf of the accused. He further contended that even otherwise the four meter numbers mentioned in the said undertaking have been proved on record to be in the name of Mohd. Israel and installed at premises no. 263 A showing that accused Mohd. Ovesh was nothing to do with the said meter numbers or the premises and as such there was no occasion for accused to give such an undertaking.
BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 10 of page 13 11 17 If two interpretations of a piece of evidence or a situation or a circumstance in a criminal case are coming on the record, needless to repeat the established law that the interpretation which is favourable to the accused must be adopted. From this point of view, I am in complete agreement with the ld. defence counsel regarding his said contentions raised on behalf of the accused qua the undertaking Ex. CW2/4 and I am of the considered opinion that merely signing a document does not declare a person to be bound by the document if the language of the document does not permit the same or creates a doubt about the liability of the person signing the document.
18 Even if, the accused failed to show that he was residing in the adjoining house, does not mean that if the accused has failed to prove his defence upto a particular extent, the benefit of the same may be given to the prosecution. If the doubt has been created, which is reasonable from a prudent man's point of view by the accused in the prosecution story, it is for the prosecution to prove the case beyond reasonable doubt, for the simple reason that any presumption raised by an statute against the accused, as is the case of the Electricity Act providing third proviso to section 135, accused is not required to rebut the presumption "beyond reasonable doubt". I am fortified in my view BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 11 of page 13 12 by the judgment of 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 From the said discussion, I am of considered opinion that the complainant has miserably failed to bring home the guilt of the accused beyond reasonable doubt and as such I extend the benefit of doubt to the accused, who is acquitted of the offence alleged against him 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 and discharged. The file be consigned to record room.
Announced in the open ( RAKESH TEWARI )
court on 15.05.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 12 of page 13
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CC No. 138/11
15.05.2013
Present AR with Sh. Rajesh Kumar, proxy counsel for
Sh. P.M.Bhatt, counsel for complainant
Accused present on bail with Sh. Mukesh Kumar, advocate Vide my separate order of the day, accused is acquitted of the offence punishable Under Section 135 of the Electricity Act, 2003.
His PB and SB are cancelled and discharged.
The earlier amount, if any, deposited by the accused with the complainant company is directed to be returned to the said accused along with an interest @ prime landing rate of the Reserve Bank of India from the date of deposit till realisation, after the expiry of the time of appeal/ revision, etc. The copy of this order be given dasti to both the parties for necessary compliance.
The file be consigned to Record Room.
( RAKESH TEWARI ) ASJ/SPL.COURT(ELECT.)SOUTH SAKET COURTS/15.05.2013 BSES Vs. Mohd. Ovesh, CC No. 138/11 Page 13 of page 13