Delhi District Court
Complainant vs Guptaji on 21 September, 2012
Page 1 of 13
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 542/10/07
ID No. 02405R0849702009
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
Guptaji
T39, Rajapuri,
Uttam Nagar, New Delhi
......................... Accused
Date of institution: ........................ 19.12.2007
Arguments heard on: ........................ 18.07.2012
Judgment passed on : ........................ 14.08.2012
Final Order: ........................ Conviction
JUDGMENT:
1. The facts of the case are like this. On 25.09.07 at 12.10 p.m, a joint inspection team headed by Sh. G L Meena, Manager CC No. 542/10/07 Page 2 of 13 (Enforcement) of the complainant company inspected the premises no. T39, Rajapuri, Uttam Nagar, New Delhi (hereinafter referred to as inspected premises). The accused is user of the inspected premises. No electricity meter was found installed in the inspected premises. The accused was indulging in the direct theft of electricity by tapping LV mains of the complainant with the help of wires. A connected load of 7.190 KW was found running for domestic purposes. The photographs were taken. The videography of the spot was also conducted. The wires were removed and taken into possession. Inspection report, meter details report, load report and seizure memo were prepared at the spot. A theft bill was raised against the accused which remained unpaid. Hence, this complaint.
2. The complainant examined two witnesses in pre summoning evidence. Accused was summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act). Copy of complaint and documents were supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused to which he pleaded not guilty and claimed trial.
3. The complainant examined five witnesses. Complainant evidence was closed. Accused was examined u/s 313 Cr.PC wherein he has take the defence that he has no connection with the premises.
CC No. 542/10/07 Page 3 of 13 He was not present at the spot. He did not tell his name as Gupta Ji. He has been falsely implicated. However, he has examined himself in defence evidence as DW1.
4. PW1 D C Sachdeva, stated that on 25.09.07 at 12.10 p.m, he along with PW2 Anil Kaushik, PW3 G L Meena and videographer from M/s Arora Photo Studio inspected the inspected premises being used by accused. The accused was present at the spot who disclosed his name as Gupta ji. The accused is identified by him. There was no meter at site. The accused was indulging in direct theft of electricity by directly tapping LV mains with the help of wires. There was a total connected load of 7.190 KW for domestic purposes. Video of the spot was taken by the videographer. They removed PVC aluminum single core wires of 1.5 mm in size and took into possession vide separate seizure memo. They prepared the inspection report along with meter details report, load report and seizure memo Ex CW2/1 3 and offered to the accused who refused to receive and sign the same. CD Ex. CW2/4 is played on computer screen which is identified by him as prepared at the spot. The wires Ex.P1 to P4 are produced and identified by him as removed and seized from the spot. Likewise is the testimony of PW2 Anil Kaushik and PW3 G L Meena in their examination in chief.
CC No. 542/10/07 Page 4 of 13
5. PW1 and 2 have stated during cross examination that it was a routine inspection. They were five members in the raiding team. It is correct that Yashbir Singh and Engineer Ram Chander were not the members of the inspection team. The inspected premises is around 150200 sq yards. 45 rooms were built up on the ground floor where 810 persons/ladies were present. Accused reached at the spot after sometime who could not be focused in the video as accused had left the site. The persons present at the spot disclosed that property belongs to the accused. They asked the names and addresses of the persons but they refused to disclose the same. The suggestion is denied that the electrical appliances were not found in running condition. Firstly, they detected the illegal wires going from L V mains to the premises in question and thereafter they inspected the premises. The suggestion is denied that accused is neither user nor registered consumer or accused was residing at D1/8, Krishan Nagar, New Delhi at the time of inspection. They are not aware if wife of the accused is owner of property no. A35, Rajapuri, Uttam Nagar, New Delhi.
6. PW1 also stated in the cross examination that inspection was carried out in his presence. The persons present at the spot were asked to put signatures on the documents as Gupta ji had left the site CC No. 542/10/07 Page 5 of 13 after sometime. Accused remained at the spot for five minutes who himself disclosed his name. It is correct that area is a big colony.
7. PW3 stated in the cross examination that it was a routine inspection. He was Incharge of the inspection team. After reaching at the spot, they checked the wire which were going to T39 from L V mains. Only single wire was going to the said premises from the pole. 89 persons were present in the inspected premises. The area of inspected premises is around 150200 sq yards in which 56 rooms were built up on the ground floor. The video of the premises was taken when the accused reached at the spot. It is correct that Yashbir and Engineer Ram Chander are not the members of the inspection team. The ladies present at the spot disclosed the name of the owner of the inspected premises. The suggestion is denied that appliances were not in working condition. The documents were signed by members of the raiding team. The wires were seized in his presence. It is correct that family members of the accused were not present at the spot. The suggestion is denied that accused is not the user of the premises. He is not aware if Smt. Rajeshwari, wife of the accused, is owner of the property no. A35, Rajapuri, Uttam Nagar New Delhi or accused was also residing at D1/8, Krishna Nagar, Delhi at the time of raid. It is correct that there were many persons by the name of CC No. 542/10/07 Page 6 of 13 Gupta Ji.
8. PW4 Shekhar is a videographer. He stated that on 25.09.07 he along with officials of the complainant visited the inspected premises. He conducted the video of the premises. He handed over the cassette and camera to Mr. Vivek Arora who downloaded the data in the computer in his presence and prepared CD Ex.CW2/4. He has identified the CD. During cross examination, he stated that there were five members in the raiding team. There were some tenants in the inspected premises at the time of raid and inquiry was made from them in his presence. The wires were seized in his presence but he did not sign the seizure memo. The suggestion is denied that appliances shown in the videography were not in working condition. The area of inspected premises is 80 sq yards in which 45 rooms were built. 78 tenants were present in the inspected premises. The name and address was disclosed to him by Anil Kaushik after the inspection. The inspection of premises no. T39, Rajapuri, Uttam Nagar, New Delhi was carried out. He cannot identify the owner of the premises.
9. PW5 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the CC No. 542/10/07 Page 7 of 13 complainant.
10. During cross examination, he stated that he has filed the complaint on the basis of facts narrated to him by the members of the raiding team and records maintained by the complainant.
11. The accused has led defence evidence. Prahalad Rai Gupta is accused who has examined himself as DW1. He stated that he along with his family used to reside at D2/20, Krishna Nagar in the year 198687. His wife Smt. Rajeshwari Gupta had purchased a vacant plot situated at T35 A, Rajapuri, Uttam Nagar, New Delhi through GPA, the copy of which is mark A. The copy of life insurance policy of his wife is Ex.DW1/A. He had sold his house no. 132, Gali No.4, East Azad Nagar, Delhi in 2003 and shifted to E2, Krishna Nagar, New Delh. His wife got a insurance policy Ex.DW1/B. He shifted to house no.107/77, East Azad Nagar, Delhi and again shifted to house no.107/4, East Azad Nagar, Delhi. Ex.DW1/C and D are the copies of fixed deposit receipt of Rs. 10,000/ issued by Punjab National Bank and school identity card of his son. He again shifted to D1/8, Krishna Nagar, New Delhi in 2007 and got prepared election I card and ration card, the copies which are Ex.DW1/E and F. He has been residing at D1/8, Krishna Nagar, New Delhi. Ex.DW1/G is the copy of sale deed in favour of his wife. Property bearing no. T39, CC No. 542/10/07 Page 8 of 13 Rajapuri, Uttam Nagar was constructed in 2006. They applied for the electricity meter. Ex.DW1/H N are the receipts for applying the meter and bills of installed meter. Neither he nor any of his family members reside in the inspected premises. He has been falsely implicated.
12. During cross examination, he stated that he had purchased two plots in Rajapuri. Plot no. T35A was constructed in the year 200506. He had applied for electricity connection on 30.08.07 for property no. T35 A and meter was installed in 30.10. 07. The suggestion is denied that he was present at the inspected premises at the time of inspection and disclosed his name and address or he was found committing theft of electricity.
13. 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 an owner or user. The complainant has to show that accused was responsible for committing theft of electricity in the inspected premises.
14. The complainant has examined five witnesses in order to prove its case whereas accused has examined himself as DW1 in order to controvert the case of the complainant. PW13 are the members of the joint inspection team as such their testimony is CC No. 542/10/07 Page 9 of 13 material to determine the guilt of the accused. I have perused the entire oral as well as documentary evidence and considered the submissions advanced by ld counsel for the parties. The testimony of PWs show that on 25.09.07 at 12.10 p.m, an inspection was carried out in the inspected premises. The accused is user of the premises. The accused reached at the spot during the course of inspection. The accused was present at the spot who himself disclosed his name as Gupta ji and even 810 persons present at the spot disclosed that Gupta ji is owner of the premises. The accused is identified by the witnesses.
15. The defence of the accused is that he has been residing at D1/8, Krishna Nagar, Delhi and earlier he used to reside at some other place. He has further taken a defence that he has no connection with the inspected premises. I have considered the defence adduced by the accused. It is correct that accused also used to reside at house no.132, Gali No. 4, East Azad Nagar, Delhi, E2, Krishna Nagar, Delhi, 107/77, East Azad Nagar, Delhi, 107/4, East Azad Nagar, Delhi and lastly shifted to D1/8, Krishna Nagar Delhi as apparent from the documents Ex. DW1/A to F placed on record. The accused has changed his place of residence for the reasons best known to him. The question that arises is whether the accused is the user of the inspected CC No. 542/10/07 Page 10 of 13 premises or not. The evidence on the file shows that accused is user of the inspected premises and PW1 to 3 have categorically deposed to this effect. There is no motive on their part to falsely depose against the accused. The inspected premises is under the use of accused and this fact also gets support from the other facts on record. The summons to the accused in respect of this complaint was served at the same address where the theft of electricity has allegedly taken the place. The accused has appeared in the court in pursuant to the service of summons dated 08.12.09. The accused appeared in the court on 08.12.09 and admitted after the perusal of CD that premises belongs to him. This fact is apparent from the ordersheet dated 08.12.09 passed by my ld Predecessor. There was no question of admitting that premises shown in CD belongs to him. Further, his wife is allegedly owner of premises no. T35 A, Rajapuri, Uttam Nagar where one electricity meter has been installed in the name of his wife as apparent from electricity bills and receipts for the payment of installation of meter Ex.DW1/IN. The number of inspected premises is T39, Rajapuri, Uttam Nagar, New Delhi. The premises belonging to the wife of the accused is nearby to the inspected premises. The accused could have easily disclosed the name of the person to show that inspected premises belongs to some other person. He could have CC No. 542/10/07 Page 11 of 13 easily examined someone residing in the inspected premises or nearby houses or anyone resident in the house belonging to his wife to show that inspected premises is owned by some other person. He has not examined any witness to this effect for the reasons best known to him. The very fact that summons was served upon the accused at the same premises and he did not inform the court as to who else is the owner of the premises means that he is user of the inspected premises. The defence of the accused is that he is neither user nor registered consumer of the inspected premises does not inspire confidence.
16. The testimony of PW13 shows that there was no meter at site and theft of electricity was going on in the inspected premises. There is no evidence on record that there was any other source of electricity available with the accused for the use of inspected premises. The theft of electricity was the only way to use the electricity for the inspected premises. The load was recorded in load report Ex.CW2/2. PWs have denied the suggestion that all the appliances shown in the video were not in the running condition. Such kind of suggestion can only be put by person who is user of the premises. The accused has not put any question or suggestion that a particular appliance was not in use. It is apparent from the evidence that all the appliances found at the spot were in use at the time of CC No. 542/10/07 Page 12 of 13 inspection. There is no evidence on record that load recorded in the load report is on the higher side.
17. The wires Ex. P1 to P4 used for drawing the electricity from LV mains of the complainant were removed and taken into possession vide seizure memo Ex. CW2/3. The wires are duly identified by PW13. The complainant has also proved the mode of theft of electricity by producing the wires.
18. Section 135 of the Electricity Act, 2003 puts an onus on the complainant to prove the theft of electricity. The complainant has discharged its onus of proving the theft of electricity by examining the members of joint inspection team as well as by producing the wires used for committing the theft. The onus shifted to the accused to show that he was not indulging in the theft of electricity. It is not the case of the accused that he was having any authorized meter or any other source to use the electricity. The accused has failed to discharge the onus.
19. The testimony of PWs is cogent and convincing. There is nothing on the record that PWs are having any enmity with the accused. The question of false implication is out of question. In these circumstances, nonassociation of public persons is of no infirmity. The accused has failed to further his defence. The testimony of PWs CC No. 542/10/07 Page 13 of 13 is relied upon.
20. 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 17.08.2012.
Announced in the open Court on dated 14.08.2012 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 542/10/07 Page 1 of 3 IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTRICT COURT DWARKA, NEW DELHI CC No. 542/10/07 ID No. 02405R0849702009 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 Guptaji T39, Rajapuri, Uttam Nagar, New Delhi ........................... 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 has filed an application to take a CC No. 542/10/07 Page 2 of 3 lenient view against the convict. He submitted that convict is 71 years old who is suffering from various ailments. He further submitted that wife of convict is 65 years old who has undergone by pass surgery.
He further submitted that the son of convict is 15 years old. He further submitted that wife of convict is a pensioner and convict has no source of income. He further submitted that a lenient view be taken in favour of convict .
3. Heard and perused the record. The convict is a first offender. There is nothing on the record to show that he has been previously convicted for the same offence. The premises was used for domestic purposes. The load was around 7 KW. The convict is ready to deposit the entire civil liability. The convict is 71 years old. The convict is suffering from various ailments as apparent from the medical record annexed with the application. The wife of the convict has undergone by pass surgery. The son of the convict is minor. The entire family is dependent upon the convict as there is no other member in the family to take care of the family of the convict. I am of the view that any substantive sentence will badly affect his family. 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.
CC No. 542/10/07 Page 3 of 3 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 7KW. The bill was raised for a sum of Rs 1,40,778/. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 1,40,778/. A sum of Rs. 30,000/ has already been paid by the convict to the complainant and said amount shall be adjusted towards civil liability. The entire balance civil liability of Rs. 1,10,780/ is paid through Banker's cheque no.223311 dated 10.09.2012 of Rs. 1,10,780/ drawn on South Indian Bank Ltd., Delhi in favour of complainant to Sh Prakash Jha, Legal Retainer of the complainant whose signature is taken on record. 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 21.09.2012 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 542/10/07