Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power Ltd. on 27 April, 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. 171/08
PS R.K.Puram, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi - 110019
Also at :
Corporate, Legal & Enforcement Cell
Near Andrews Ganj Market, New Delhi49
Acting through Mr. Binay Kumar
(Authorised Representative) ...Complainant
Versus
1 Kala Wati (User)
W/o late Harphool Singh
2 Suleman (User) ...Accused
COMPLAINT INSTITUTION ON : 29.02.2008
JUDGMENT RESERVED ON : 23.04.2011
JUDGMENT PRONOUNCED ON : 27.04.2011
JUDGEMENT
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 persons 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.
23 The accused were summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 04.08.2008 after recording the presummoning evidence and hearing the arguments on summoning. The accused no.1 & 2 were granted bail on furnishing personal bond in the sum of Rs.5,000/ each with one surety of the like amount. Separate notice u/sec. 251 Cr.P.C was framed against the accused to which the accused pleaded not guilty and claimed trial.
4 The complainant company examined Ashok Kumar - Senior Manager as PW1, Prabhash Chand - Senior Manager as PW2, Krishan Kumar - Trainee Engineer as PW3 & Ashutosh Kumar - Assistant Manager (Legal) & AR as PW4. The statement of the accused were recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against them. The accused wanted to lead evidence in defence, therefore, the accused were given opportunity to lead evidence in defence. The counsel for the accused filed an application u/sec. 315 Cr.P.C. to allow the accused as defence witness which was allowed by this court. The accused, in their defence evidence, examined Suleman as DW1. 5 I have heard the Ld. counsel for accused represented by Sh.S.Satya Narayana and prosecution represented by Sh.Sunil Fernandes, counsel/ deemed P.P and have perused the entire records.
6 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 3 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 :
''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 4 ''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, 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 5 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 were summoned to face the present complaint case. The accused appeared and were granted bail on furnishing personal bond in the sum of Rs.5,000/ each with one surety of 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 were 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 are now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against them. A criminal charge could be proved on the basis of circumstantial evidence and the requirement is that circumstances incriminating in nature must be proved 6 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 I have gone through the testimony of PW1 to PW4 & DW1 and also seen the CD Ex.CW2/ُ5. Let us firstly examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. Sh.Ashutosh Kumar, Assistant Manager (Legal) being an authorized representative (hereinafter referred to as 'AR') of the complainant company entered into witness box and examined himself as PW4. PW4, during examination in chief, deposed that he is working with the 7 complainant company i.e. BSES Rajdhani Power Ltd. as Assistant Manager 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 case. He has been authorised to do so by GPA dt. 18.08.2009 by Sh.Arun Kanchan, Chief Executive Officer of the complainant company in the capacity of Manager U/sec. 2 (24) of the company's Act. PW4 proved the GPA already exhibited as Ex.PW4/A (OSR). The present complaint has been filed by the previous AR of the complainant company Sh.Binay Kumar which bears his signature at point A already exhibited as Ex.CW1/1. PW4 proved the letter of authority of Sh.Binay Kumar already exhibited as Ex.CW1/2. PW4 also deposed that he has been working with the previous AR Sh.Binay Kumar since last three years and he identified his signature on the present complaint. PW4 further deposed that he has no personal knowledge of the facts of the case and he has deposed as per record provided to him by the complainant company. During cross examination, PW4 deposed that Sh.Arun Kanchan, CEO of the complainant company was having the powers on behalf of the complainant company to authorise PW4 to appear in this case for pursuing this case for the complainant company before the Court. PW4 further deposed that he does not have any personal knowledge of the present complaint case. He has not visited the site. PW4 denied the suggestion that a false & fabricated case against the accused has been filed. Perusal of Ex.PW4/A & Ex.CW1/2 dt. 18.08.2009 & 23.10.2006 respectively reveals that Sh.Arun Kanchan CEO & Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorized Sh.Ashutosh Kumar, Assistant Manager Legal & Sh.Binay Kumar, legal officer respectively to institute and/or defend legal proceedings of 8 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.PW4/A & Ex.CW1/2. PW4 has also identified the signatures of Sh. Binay Kumar in the complaint at point A in Ex.CW1/1. The true copy of the extract of the resolution passed by the board of directors of the complainant company deligating powers to Sh. Lalit Jalan - CEO (Manager u/sec. 2 (24) of the Company's Act, 1956) to represent, institute, conduct, defend, etc. any legal proceedings by or against the company, etc. filed and proved as Ex.CW1/3 at the time of presummoning evidence. 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. Whereas, the accused have not led any evidence and failed to prove that the ARs have not been authorised by the complainant company to file the present complaint case. Thus, I hold that Sh.Binay Kumar, AR and Sh.Ashutosh Kumar, Assistant Manager legal of the complainant company are duly authorised and competent to file 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 10.01.2008. Sh.Ashok Kumar & Sh.Prabhash Chand - both Senior Managers who were the Assistant Managers and also one of them the team leader at the time of insepction examined themselves as PW1 & PW2 and deposed that on 10.01.2008, they 9 along with Krishan Kumar & Hoshiar Singh - both Trainee Engineers inspected the premises bearing No.285 A/1, Village Munirka, R.K.Puram, New Delhi. Copy of the notification No.F11(93)/2003/ power/1566 dt. 17.05.2005 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 has authorised the technical officers, not below the rank of Assistant Engineer/Assistant Manager and above, 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 who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of Section (2) of section 135 of the said Act in respective areas of the said companies in the National Capital Territory of Delhi. In view of the above notification and foregoing discussions, I hold that Ashok Kumar & Prabhash Chand - both the then Assistant Managers were the 'Authorised Officers' to carry out the inspection of premises in question under the provisions of section 135 of the Act on 10.01.2008.
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 10 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 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 11 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 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 12 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 had committed the offence u/sec. 135 of the Act at the premises in question on 10.01.2008. 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 case against the accused that the accused were committing direct theft of electricity at the premises in question bearing No.285 A/1, Village Munirka, R.K.Puram, New Delhi. PW1/ Sh. Ashok Kumar in his examination in chief deposed that on 10.01.2008, at around 12:05 PM, he alongwith Sh. Prabhash Chand - Assistant Manager, Sh. Krishan Kumar - Trainee Engineer and Sh. Hoshiar Singh - Trainee Engineer inspected the premises bearing No. 285 A/1, Village Munirka, R.K.Puram, New Delhi. On reaching the said premises, they found that the accused persons found indulging in direct theft of electricity tapping from BSES LV mains and electricity was found stealing through two core 10 mm sq. PVC black colour wire and whole connected load was found 35.5 KW for domestic and commercial purposes at the time of 13 inspection. The said connected load was taken on the basis of the electrical equipments found connected/ installed at site i.e., 10 immersion rod of 1500 watts, two room heaters of 2000 watts, 3 iron of 750 watts each etc. The said electrical equipments and their kilowatts are mentioned in the assessed connected load prepared by them at the time of inspection. PW1 further deposed that he prepared inspection report/ observations made therein already exhibited as Ex.CW2/1 (colly) bearing his signatures at point A. The meter report already exhibited as Ex.CW2/2 was prepared by Sh. Krishan Kumar bearing his signature at point A. The load report already exhibited as Ex.CW2/3(colly) was prepared by Sh. Krishan Kumar bearing his signature at point A. Seizure memo already exhibited as Ex.CW2/4 was prepared by Sh. Prabhash Chand. At the time of inspection, they seized two core 10 mm. sq. PVC black coloured wire in two pieces i.e. two meter and one meter each through which accused persons were committing theft of electricity. The CD pertaining to the said inspection already exhibited as Ex. CW2/5 was taken by them at the time of inspection through a digital camera. Commercial load consisted of 4 shops which were situated at the ground floor of the premises. The accused No.2 Suleman was present at the time of inspection and witness identified him in the court. After preparation of the reports, the team members tendered the same to the accused Suleman but he refused to accept and sign the same. One sealed parcel sealed with the seal of Prabhash Chand - Senior Manager was opened and two pieces of black colour two core 10 mm aluminium wire, one piece of two meter and another piece of one meter were taken out which were exhibited as Ex.P2 and Ex.P3 and the witness identified the same seized from the spot at the time of inspection. Carbon copy of seizure memo was also taken out and exhibited as Ex.P1 bearing the 14 signature of Sh. Prabhash Chand - Senior Manager and PW1 identified the signature of Sh. Prabhash Chand at point A. 15 PW2/ Sh. Prabhash Chand - Senior Manager deposed in his examinationinchief that on 10.01.2008 at about 12:05 PM, he along with Krishan Kumar - Trainee Engineer, Sh. Ashok Kumar - Senior Manager and Hoshiar Singh - Trainee Engineer inspected the premies bearing No. 285 A/1, Village Munirka, R.K.Puram, New Delhi. On reaching the said premises, they found that the accused persons found indulging in direct theft of electricity tapping from BSES LV mains and electricity was found stealing through two core 10 mm sq. PVC black colour wire and whole connected load of the premises were running on direct theft. Total connected load was found to be 35.5 KW for domestic and commercial purposes at the time of inspection. The said connected load was taken on the basis of the electrical equipments found connected/ installed at the site i.e. 10 immersion rods of 1500 watts each, two room heaters of 2000 watts each, three iron of 750 watts each. The said electrical equipments and their wattage are mentioned in the assessed connected load prepared by them at the time of inspection. Ashok Kumar prepared the inspection report already exhibited as Ex.CW2/1 bearing his signature at point B. The meter report already exhibited as Ex.CW2/2 was prepared by Sh. Krishen Kumar bearing his signature at point B. The load report already exhibited as Ex.CW2/3 was prepared by Sh. Krishan Kumar bearing the signature of PW2 at point B. Seizure memo already exhibited as Ex. CW2/4 was prepared by him. At the time of inspection, they seized two core 10 mm sq. aluminium wire, in two pieces i.e. two meters and one meter each through which the accused were committing theft of electricity. The CD 15 pertaining to the said inspection already exhibited as Ex.CW2/5 was taken by them at the time of inspection through a digital camera. Commercial load consisted of four shops which were sitauted on ground floor of the premises. Accused No.2 was present at the site at the time of inspection and PW2 identified him present in the court. After preparation of the reports, they tendered the same to the accused Suleman but he refused to accept and sign the same. One sealed parcel with his seal was opened and two pieces of black colour two core 10 mm aluminium wire, one piece of two meter and another piece of one meter were taken out which were exhibited as Ex.P2 and Ex.P3 and the witness identified the same seized from the spot at the time of inspection. Carbon copy of seizure memo exhibited as Ex.P1 was also taken out bearing his signature at point B. 16 PW3/ Sh. Krishan Kumar deposed in his examinationinchief that on 10.01.2008 at about 12:05 PM, he along with Sh. Prabhash Chand - Senior Manager, Sh. Ashok Kumar - Senior Manager and Hoshiar Singh - Trainee Engineer inspected the premises bearing No. 285 A/1, Village Munirka, R.K.Puram, New Delhi. On reaching the said premises, they found that the accused persons found indulging in direct theft of electricity tapping from BSES LV mains and electricity was found stealing through two core 10 mm sq. PVC black colour wire and whole connected load of the premises were running on direct theft. Total connected load was found to be 35.5 KW for domestic and commercial purposes at the time of inspection. The said connected load was taken on the basis of the electrical equipments found connected/ installed at the site i.e. 10 immersion rods of 1500 watts each, two room heaters of 2000 watts each, three iron of 750 watts each. The said 16 electrical equipments and their wattage are mentioned in the assessed connected load prepared by them at the time of inspection. Ashok Kumar prepared the inspection report already exhibited as Ex.CW2/1 bearing his signature at point C. The meter report already exhibited as Ex.CW2/2 was prepared by him bearing his signature at point C. The load report already exhibited as Ex.CW2/3 was prepared by him bearing his signature at point C. Seizure memo already exhibited as Ex. CW2/4 was prepared by Sh. Prabhash Chand and PW3 identified the signature of Prabhash Chand at point B. At the time of inspection, they seized two core 10 mm sq. aluminium wire, in two pieces i.e. two meters and one meter each through which the accused were committing theft of electricity. The CD pertaining to the said inspection already exhibited as Ex.CW2/5 was taken by them at the time of inspection through a digital camera. Commercial load consisted of four shops which were sitauted on ground floor of the premises. Accused No.2 was present at the site at the time of inspection and PW3 identified him present in the court. After preparation of the reports, they tendered the same to the accused Suleman but he refused to accept and sign the same. One sealed parcel which was earlier opened during the testimony of PW2 on the same day when the aforesaid examination in chief of PW3 recorded and two pieces of black colour two core 10 mm aluminium wire, one piece of two meter and another piece of one meter were taken out which were already exhibited as Ex.P2 & Ex.P3 and the witness identified the same seized from the spot at the time of inspection. Carbon copy of seizure memo was already exhibited as Ex.P1 which was bearing signatures of Prabhash Chand at point B. 17 17 The accused stated at the time of framing of notice u/sec. 251 Cr.P.C. that they were not misappropriating the electricity by way of directly tapping from the BSES LV mains and thus not committed theft to the extent of connected load of 35.314 KW for domestic as well as commercial purpose and also not cause loss and damage to the extent of Rs. 5,05,891/ to the complainant. The accused No.1 stated at the time of statement u/sec. 313 Cr.P.C. that she was neither the owner nor the user of the premises in question on the date of inspection. The premises was owned by her son who is the accused no.2 in this case. The premises in question was rented out and the tenants were occupying the premises on 10.01.2008. However, she has now been residing at the premises in question. She was not committing any theft of electricity at the premises in question since she was neither the owner nor the user of the premises in question on the date of inspection. She does not have any knowledge about the inspection carried out and also the load report prepared at site on the date of inspection. According to the accused No.1, the false and fabricated case made out against her. Further, the reports and visual footages are false and fabricated. Therefore, she is not liable to pay any amount as allegedly claimed by the complainant against her. The accused no.2 also stated at the time of statement u/sec. 313 Cr.P.C. that he as well as his brother namely, Habib are the owners of the premises in question. The premises in question was occupied by their tenants on the date of inspection. Therefore, he was neither using the premises nor he was present at site on the date of inspection. He have no knowledge that the officers of the complainant company as alleged to have inspected the premises in question on 10.01.2008. He was not committing any theft of electricity at the premises in question on the date of inspection. He does not have any knowledge about the inspection 18 carried out and also the load report prepared at site on the date of inspection. However, the meter installed at the premsies in question was burnt and the same was removed by the officials of the complainant company and no new meter was installed by the complainant company in place of burnt meter. Even, the average bills were paid prior to the date of inspection. According to the accused No.2, the load mentioned in the load report is not only excessive but exorbitant. The new meter was not installed by the complainant company and no electricity of the complainant was being used in the premises in question. However, the reports and visual footage are false and fabricated prepared against him.
18 The accused in their defence evidence examined Suleman as a witness DW1. DW1 in his examination in chief deposed that he is running a provisional store. In the aforesaid premises, his father namely Sh. Harphool Singh got installed one electricity meter from the BSES Rajdhani Power Ltd. The BSES officials after completing all the formalities issued one electricity meter against new K No.2550 L 6320469 in his father's name. The name of his father was printed as Sh. Hasphool Singh in the electricity bills generated by BSES Rajdhani Power Ltd. but the correct name is Sh. Harphool Singh. The meter installed against said K number was burnt on 07.03.2007. An information to this effect has been given to the BSES Rajdhani Power Ltd. by filing an application vide its No. E255007030296. After receiving the said information, the BSES officials have given him the acknowledgement for meter burnt on the same day i.e. on 07.03.2007 with the remarks that the expected date to resolve the issue in 30 days. The computer generated acknowledgement for meter burnt, customer copy was exhibited as 19 Ex.DW1/1. DW1 further deposed that he has also deposited Rs.1,145/ on 11.04.2007 on account of replacement of burnt meter as advised by the BSES office. However, the said receipt was not available with him at that time but the same could be available with the record of BSES. The officials from BSES did not initiate any action for replacement of burnt meter. Unfortunately, on 03.05.2007, the meter in question was found missing. Thereafter, his brother Habib went to BSES office to inform about the missing of the meter. On the advice received from BSES office, his brother Habib went to PS Vasant Vihar to lodge a complaint about missing of electricity meter. The said complaint was duly got endorsed from PS Vasant Vihar on 23.05.2007. The photocopy of the complaint dated 23.05.2007 was marked as Mark A. Thereafter, the BSES Rajdhani Power Ltd. officials generated a bill showing the date of amendment as 08.06.2007 with a due date as 15.06.2007 and demanded Rs.29,050/. After receiving the said bill, DW1 went to District R. K. Puram office of BSES and requested for installment. The representative of BSES company at R.K.Puram directed him to deposit Rs. 22,000/ as a part payment at first instance and thereafter, the burnt meter will be replaced. Upon the advice received, he deposited Rs.22,000/ with the complainant company on 21.06.2007. The computer generated bill and the payment of Rs. 22,000/ were exhibited as Ex.DW1/2 and Ex.DW1/3 respectively. The BSES officials did not replace the burnt meter till date for the reasons best known to them. Due to Non replacement of the meter, he was not in a position to use the electricity in that premises.
19 In the present case, the inspection in the premises in question was carried on 10.01.2008. In inspection report Ex. CW2/1 (colly), the names of the 20 users are mentioned as Kalawati W/o late Sh.Harphool Singh and Suleman. Supply address is mentioned as H.No.285A/1, Munirka Village, New Delhi. The names of the inspection team members are mentioned as Prabhash Chand - Assistant Mananger, Ashok Kumar - Assistant Manager, Krishan Kumar - Trainee Engineer and Hoshiar Singh - Trainee Engineer. Sh.Prabhash Chand - Assistant Manager is stated to be the inspection team leader and trade description (nature of works) found at site mentioned as General Store at Ground Floor (Four shops). It is stated in the inspection report Ex.CW2/1 (colly) that as per directions of HOD (Enforcement), joint inspection team inspected the said premises under the direct supervision of Manager (Enforcement) with coordination of CISF and Local Police of PS Vasant Vihar. Observations are as under:
1. No meter found installed at site and consumer found indulging in direct theft of electricity tapping from the nearby BSES LV mains through 2 core 10 mm sq. black AL. The LHS and RHS of premises feeding through the same cable. The entire load found DT wires.
2. In view of above, it is acase of DT.
3. Total 35 rooms and 04 shops found on DT supply (i.e. LHS and RHS) both are unified at F/Fs, S/F, T/F.
4. Total connected load have been assessed at site and reports prepared.
5. Illegal wires have been removed and seizure memo prepared.
6. Necessary photographs have been taken at site by joint team.
7. Load report, meter report, seizure memo prepared at site attached.
20 The sketch/diagram was also prepared by the team members on page no.3 of the aforesaid inspection report Ex.CW2/1 (colly) to show the mode of theft of electricity at the premises in question on 10.01.2008. As per the inspection report (meter details) Ex.CW2/2, no electricity meter was found at site on 10.01.2008. Load report Ex.CW2/3 (colly) reveals the details of the 21 appliances and items used at site on the date of inspection. Ex.CW2/4 is the seizure memo which reveals the details of the illegal wire seized from the site on the date of inspection. Ex. CW2/5 is the CD of photographs prepared at site. Ex.CW2/6 is the assessment bill for theft of electricity. 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.CW1/1 and CW2 is the member of raiding team who proved the inspection report, inspection report (meter details), load report, seizure memo, CD and assessment bill, Ex.CW2/1 (colly) to Ex.CW2/6. After presummoning evidence and pre summoning order, summons issued to the accused and the summons served upon the accused Kalawati and Suleman before the first date of hearing after issuance of summons. Accused Kalawati and Suleman with their counsel appeared and filed the applications for grant of bail to them. The accused were released on bail upon furnishing PB and SB in the sum of Rs. 5,000/ each with one surety of the like amount. On the one hand, the accused no.1 has taken the defence in her statement u/sec. 313 Cr.P.C. that she is neither the owner nor the user of the premises in question on 10.01.2008 and she has now been residing at the premises in question. On the other hand, the summons issued to the accused nos.1 & 2 served upon them for their appearance in the proceedings of this complaint case in the court for 05.09.2008. However, the accused Nos.1 & 2 appeared later on and were released on bail. The witnesses PW1 to PW3 nowhere deposed in their examination in chief that the accused No.1 was present at site on the date of inspection. The CD pertaining to the inspection of the premises Ex.CW2/5 22 also reveals that the accused No.1 has not been found present at site on the date of inspection. Here, I take a pause. If the accused No.1 was not present at site at the time of inspection, it does not mean that the accused No.1 was not the user of the premises unless otherwise proved by evidence. The accused No.2 is the son of the accused No.1 who with the permission of the court examined as DW1. DW1 in his crossexamination categorically deposed that he along with his mother have been residing in the premises in question. Moreover, the summons also served upon the accused No.1 in the year 2008. The inspection of the premises in question was also conducted in the year 2008. Further, PW1 to PW3 in their examination in chief deposed that Suleman/ accused No.2 was present at site on the date of inspection and PW1 to PW3 identified the accused No.2 present in the court at the time of their examinationinchief. The CD Ex.CW2/5 also reveals that the accused No.2 was present at site on the date of inspection. The accused No.2 admitted that the premises in question is owned by him as well as his brother Habib. The accused No.2 also took the defence that the premises in question was occupied by the tenants on the date of inspection. Neither any rent agreement and any rent receipts filed on record nor any tenant produced or examined as a defence witness to prove that the tenants were the users of the premises in question on 10.01.2008. DW1 admitted in his crossexamination that he has no rent agreement which shows that he has given the rooms and shops to the tenants. However, PW2 in his crossexamination deposed that there were some tenants using the premises in question. They did not try to enquire the names of the tenants. PW2 further deposed that in case, the owner of the premises present at site, theft of electricty can be booked against him and not against the tenants. PW2 denied the suggestion that the name of 23 the actual users/ tenants have been intentionallly not included in the reports prepared at site. Thus, it emerges from the above testimony of PW1 to PW3 & DW1 and I also hold that the accused No. 1 & 2 along with the tenants were the users of the premises in question on the date of inspection i.e. 10.01.2008. 21 During crossexamination, PW1 deposed that they seized two pieces of wire of 10 mm sq. two core aluminium wire black in colour admeasuring two meters and one meter. PW1 denied the suggestion that seizure memo was not prepared at site. PW1 also deposed that the entire gadgets mentioned in the connected load havae been photographed. PW2 in his crossexamination deposed that the connected load mentioned in the load report was engraved on the machines/ gadgets. PW2 further deposed that Sh. Ashok Kumar prepared the inspection report, load report and meter details report was prepred by Krishan Kumar and seizure memo prepared by PW2. PW2 denied the suggestion that the reports were not prepared at site and the same were prepared in the office. PW2 further denied the suggestion that no illegal wires were seized from the spot. PW3 in his crossexamination deposed that the entire gadget mentioned in the connected load have been photographed. They seized two pieces of wires of 10 mm sq. two core aluminium wire black in colour admeasuring two meters and one meter. PW3 also denied the suggestion that no documents were present at the site. PW3 further denied the suggestion that seizure memo was not prepared at site. PWs deposed that the accused Suleman present at site refused to receive the reports prepared at site on the date of inspection. PWs denied the suggestion that the accused have been falsely implicated in the present case. Whereas, DW1 in his cross examination deposed that he has two premises i.e. one of them is premises in 24 question and another is 285A. The premises in question consisted of 32 rooms and shops. DW1 admitted in his crossexamination that on 10.01.2008, there was no electricity meter installed at the premises in question. DW1 further admitted that he had no generator set in the premises in question. DW1 also admitted that till now there is no electricity meter in the premises in question so, he did not file any regular electricity bill from the premises in question. DW1 denied the suggestion that he along with his mother was committing direct theft of electricity without electricity meter in the premises in question on the date of inspection. It is pertinant to mention that when there was no electricity meter and even no generator was used at the premises at the time of inspection, it can definately be presumed which has also been deposed by PWs that the electricity was being used directly at the premises in question on the date of inspection. Mark A and Ex.DW1/1 is the acknowledgment for meter burnt issued by the complainant office which reveals the application date 07.03.2007 and the expected days to resolve : 30 days. Further, Mark A dated 23.05.2007 written by Habib to the SHO Vasant Vihar, New Delhi regarding missing of electric meter. Ex.DW1/2 is the electricity bill in the name of Sh. Hasphool Singh for the billing month of April2007 for an amount of Rs. 29,050/ and the due date was by 15.06.2007. Ex.DW1/3 is also the electricity bill for an amount of Rs. 22,000/ and the due date for deposit of the said amount was 22.06.2007 which was paid on 21.06.2007.
22 The inspection of the premises in question was carried out on 10.01.2008. If the officials from the complainant company did not initiate any action for replacement of burnt meter, the accused had every right to file 25 application/ complaint before the competent authorities for not taking action for replacement of the meter. The photocopy of the complaint dated 23.05.2007 Mark A was filed on record. The accused have neither produced the original of the receipt for filing of the said complaint in the Police Station nor summoned the records from the Police Station to prove that the said complaint was filed in the Police Station Vasant Vihar, New Delhi on 23.05.2007. Moreover, by filing only one application for replacement of burnt meter in the office of the complainant on 07.03.2007 and sleeping over it without taking any further step to know as to the reasons for not installing the new meter in place of burnt meter, it does not give any right to the accused to use the electricity directly from the BSES LV mains through illegal wires. Even otherwise, the accused were not found using the electricity directly for days but several months which reveals that the accused were intentionally stealing the electricity directly from the BSES LV mains by the illegal wires on the pretext that they had already applied for replacement of burnt meter. There is no enmity of the complainant with the accused. Further, there is no ambiguity or contradiction found in the testimony of PWs. I have found from the testimony of PW1 to PW4 and DW1 that the testimony of PW1 to PW4 has the credibility than the testimony of DW1. The complaint also corroborated by the testimony of PW1 to PW4. The accused Smt. Kalawati and Suleman have miserably failed to prove that they were not committing direct theft of electricity at the premises in question on the date of inspection. Whereas, the complainant has proved by its cogent evidence i.e. inspection report Ex.CW2/1(colly), inspection report (meter detalis) Ex.CW2/2, load report Ex.CW2/3(colly), seizure memo Ex.CW2/4, CD Ex.CW2/5, theft bill Ex.CW2/6, carbon copy of seizure memo Ex.P1 and the illegal wires Ex.P2 & Ex.P3 that 26 the accused were found committing direct theft of electricity at the premises bearing H.No. 285 A/1, Village Munirka, R.K.Puram, New Delhi. Therefore, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the complainant through its witnesses examined as PW1 to PW4 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.'' 23 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 Smt.Kalawati and Suleman u/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 27.04.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
27
CC No. 171/08
27.04.2011
Present AR for the complainant
Accused Nos.1 & 2 in person
Vide separate judgment of the day, the accused are 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 30.04.2011.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 27.04.2011