Delhi District Court
Titled As M.C. Mehta vs . Uoi. Accused Also Pleaded That The on 24 July, 2010
1
IN THE COURT OF SH. K.S. PAL. ADDL. SESSIONS JUDGE:
SPECIAL COURT ( ELECTRICITY ): KARKARDOOMA
COURTS: DELHI
C.C. NO. 43/05
P.S. GOKAL PURI
U/S 135 OF THE ELECTRICITY ACT, 2003
BSES YAMUNA POWER LIMITED
HAVING ITS REGISTERED OFFICE AT:
SHAKTI KIRAN BUILDING,
KARKARDOOMA,
DELHI110 032.
VERSUS
1. M/S ASHOKA PAPER MILLS
LONI ROAD,
JAWAHAR NAGAR,
DELHI
&
2. BRIJ BHUSHAN GUPTA
PROPRIETOR OF
M/S ASHOKA PAPER MILLS
DATE OF INSTITUTION : 21.12.04
DATE OF RESERVING JUDGMENT : 21.07.10
DATE OF JUDGMENT : 24.07.10
JUDGMENT
C.C. NO. 43/05 1 of 35 2
1. The present criminal complaint U/s 154 read with Section 151 of the Electricity Act, 2003 for the offence punishable U/s 135 of the Electricity Act, 2003 against accused M/s Ashoka Paper Mills, Loni Road, Jawahar Nagar, Delhi was originally filed on 21.12.04 but lateron on 12.08.05 accused Brij Bhushan Gupta being the alleged sole proprietor of M/s Ashoka Paper Mills was also impleaded as an accused on the basis of the application moved by the complainant company and accordingly amended memo of parties including the name of Brij Bhushan Gupta was also filed on record. The allegations of the complainant company against the accused Brij Bhushan Gupta being the proprietor of M/s Ashoka Paper Mills, Loni Road, Jawahar Nagar, Delhi are that on 17.07.04 an inspection was carried out at the premises of M/s Ashoka Paper Mills, Loni Road, Jawahar Nagar, Delhi by the raiding team headed by Sh. Anil Kumar, Head Enforcement, BSES with the help of local police force at about 10.15 a.m. and in portion No.2 as shown C.C. NO. 43/05 2 of 35 3 in the site plan Ex.PW1/3, a factory for manufacturing khaki papers in the name of M/s Ashoka Paper Mills was found in operation and lot of raw materials along with finished products were lying in the premises and even 22/30 trucks containing raw materials as well as finished products were also there and in this portion there was no electricity connection, although two huge generators were found in this portion but these were found in idle condition and the total connected load of this portion No.2 was found to the tune of 3,596.151 KW. It was also noticed by the inspection team that there were 5 no. of cables entering into portion No.3 near gate no. 6 but representative of M/s Ashoka Paper Mills did not allow them to inspect that portion. It is also stated that during this period of raid, it was also observed that load at Ghonda grid at Johri Pur feeder fell down from 150 Amp to 100 Amp. Since no direct illegal tappings from the BSES lines were found by the inspection team and as such FLC Van was called on 20.07.04 to C.C. NO. 43/05 3 of 35 4 trace out the source of commission of theft of electricity through underground HT cable and FLC Van identified that HT underground cable was deviated from its route near Tunda Nagar, Sub Station raising the presumption that theft of electricity was being committed by the accused being the proprietor of M/s Ashoka Paper Mills through this HT underground cable for running M/s Ashoka Paper Mills in portion No.2. The premises in question was also inspected on 21.07.04. Inspection reports dt. 17.07.04, 20.07.04 and 21.07.04 were prepared at site and load report was also prepared on 17.07.04 at the time of inspection and the premises was also videographed showing that the factory of M/s Ashoka Paper Mills in portion No.2 was running by accused Brij Bhushan Gupta by committing the theft of electricity dishonestly and as such on the basis of the load report, supplementary bill for the theft of electricity to the tune of Rs.44,52,19206/ was raised as per applicable tariff and since this C.C. NO. 43/05 4 of 35 5 amount was not paid by the accused and accordingly the present criminal complaint has been filed by the complainant company through its authorized officer Sh.Anil Kumar, Head Enforcement for summoning the accused for the offence punishable U/s 135 of the Electricity Act, 2003 for his trial with further prayer to determine the civil liability of the accused.
2. Complainant company in its presummoning evidence has adduced the evidence of CW1 Sh. Shailender Chaudhary as well as CW2 Sh. Jitender Raghav by way of their affidavits Ex.CW1/1 and Ex.CW2/1 respectively along with the relevant documents i.e. inspection reports, load report, CD of videography and supplementary bill for theft of electricity etc. and thereafter pre summoning evidence of the complainant company was closed on 01.08.05. Vide order dt. 16.08.05 passed by Sh. Chandra Gupta, the then ASJ, predecessor of this court found a prima facie case against accused Brij Bhushan Gupta being the proprietor of M/s Ashoka C.C. NO. 43/05 5 of 35 6 Paper Mills for the offence punishable U/s 135 of the Electricity Act, 2003 and accordingly process for summoning the accused was issued and the accused Brij Bhushan Gupta appeared before this court.
3. Copies of the complaint along with relevant documents were supplied to him and thereafter notice U/s 251 Cr.P.C. for the offence punishable U/s 135 of the Electricity Act, 2003 was given to accused Brij Bhushan Gupta being the sole proprietor of M/s Ashoka Paper Mills on 03.06.09 to which accused pleaded not guilty and claimed trial.
4. Thereafter complainant company in its after notice evidence has examined as many as 12 witnesses namely PW1 Anil Kumar; Head Enforcement BSES RPL, PW2 Sita Ram; DGM Enforcement, BSES RPL, PW3 Jitender Raghav; Trainee Engineer BSES YPL, PW4 Vinay Gupt; Trainee Engineer BSES YPL, PW5 Banwari Goswami; Senior Manager EHV Transmission Lines Patparganj, C.C. NO. 43/05 6 of 35 7 PW6 Mohan Singh;DGM EHV ( South) BSES, PW7 Kapil Pandey; Manager Nand Nagri BSES YPL, PW8 Vivek Arora; proprietor of M/s Arora Photo Studio, PW9 Khushal Singh; earlier Vigilance Inspector BSES YPL, PW10 Jitender Shankar, Assistant Manager (Legal) BSES YPL, PW11 Munesh Kumar; Reader to SDM Seelampur and PW12 Dinesh Jindal, Assistant Law Officer, Delhi Pollution Control Board. All these witnesses examined by the complainant company have also been cross examined thoroughly by ld. counsel for accused Brij Bhushan Gupta.
5. PW1 Anil Kumar; Head Enforcement BSES RPL is the material witness of the complainant company, being the head of inspection team which conducted raid at M/s Ashoka Paper Mills on 17.07.04 and this witness has adduced his evidence by way of his affidavit Ex.PW1/A and he has also proved on record the joint inspection report dt. 17.07.04 as Ex.PW1/1, load report as Ex.PW1/2, site plan as Ex.PW1/3, grid data for the period 01.06.04 C.C. NO. 43/05 7 of 35 8 to 17.07.04 as Ex.PW1/4, CD of videography prepared at spot as Ex.PW1/5, joint inspection report dt. 20.07.04 as Ex.PW1/6, joint inspection report dt. 21.07.04 as Ex.PW1/7, letter dt. 21.07.04 of accused Brij Bhushan Gupta as Ex.PW1/8, copy of grid consumption data of Johri Pur feeder for the period 01.06.04 to 11.08.04 as Ex.PW1/9, soft copy of grid data as Ex.PW1/10, original log sheets for the period 15.06.04 to 17.08.04 as Ex.PW1/11 and copy of the order of CGRF dt. 27.08.05 as Ex.PW1/12.
6. PW2 Sita Ram, DGM Enforcement, PW3 Jitender Raghav, Trainee Engineer, PW4 Vinay Gupt, Trainee Engineer, PW6 Mohan Singh DGM EHV, PW9 Khushal Singh, earlier Vigilance Inspector BSES YPL are also the material witnesses of the complainant company being the members of the inspection teams which inspected the premises of M/s Ashoka Paper Mills, Loni Road, Jawahar Nagar, Delhi on 17.07.04, 20.07.04 and 21.07.04 C.C. NO. 43/05 8 of 35 9 and they have deposed about the commission of theft of electricity by the accused Brij Bhushan Gupta, being the proprietor of M/s Ashoka Paper Mills through underground cables. PW7 Kapil Pandey, Manager ( O & M ), Nand Nagri BSES YPL is also the material witness of the complainant company who was positioned at Ghonda grid on 17.07.04 at the time of inspection of the premises of M/s Ashoka Paper Mills. PW8 Vivek Arora is the concerned photographer who proved on record the CD of videography prepared at the spot at the time of inspection on 17.07.04 as PW1/5. PW10 Jitender Shankar, AM ( Legal) BSES YPL has proved on record the letter of authority dt. 09.06.04 authorizing Sh. Anil Kumar to file the present complaint as Ex.PW10/1 and moreover he has also identified the signatures of Sh. Anil Kumar on this criminal complaint Ex.PW10/2.
7. It is here pertinent to mention that after recording the evidence of PW10 Jitender Shankar, evidence of the complainant company C.C. NO. 43/05 9 of 35 10 was closed by this court vide order dt.20.03.10 after dismissing its application moved U/s 91 read with Section 294 & 311 Cr.P.C. and statement of accused U/s 313 Cr.P.C. was recorded on 22.03.10 in order to give him an opportunity to explain the circumstances appearing in evidence against him. Accused denied the allegations of the complainant company by submitting that he is not the proprietor of M/s Ashoka Paper Mills and in fact he was the proprietor of M/s Ashoka Pulp & Paper Mills, Loni Road, Jawahar Nagar, Delhi which was closed by Sh. Kishan Kumar, the then DCP ( N/E) on 29/30.11.96 in compliance with the directions given by the Hon'ble Apex Court in its order dt. 08.07.96 in the case titled as M.C. MEHTA VS. UOI. Accused also pleaded that the factory in portion No.2 was being run through two generators and no theft of electricity was committed and in fact Sh. Devi Singh, the then Business Manager, BSES YPL had also given his report dt. 29.07.04 concluding therein that no theft of electricity was C.C. NO. 43/05 10 of 35 11 detected but that report has not been filed on record by the complainant company. Further, accused has also submitted that the present case has been planted upon him by some officials of the complainant company in connivance with his elder brother Jagdish Prasad with whom he was having strained and uncordial relations. Accused has also pleaded his innocence but he did not prefer to lead any defence evidence and accordingly this case was adjourned to 26.03.10 for final arguments but vide order dt. 07.05.10 Hon'ble High Court of Delhi allowed the complainant company to summon and examine the concerned witnesses from the offices of SDM, Seelampur and Delhi Pollution Control Board and accordingly PW11 Munesh Kumar, Reader to SDM Seelampur and PW12 Dinesh Jindal, Assistant Law Officer, DPCB were examined on 25.05.10. After recording the evidence of PW11 Munesh Kumar & PW12 Dinesh Jindal, fresh statement of accused U/s 313 Cr.P.C. was recorded on 04.06.10 wherein accused also pleaded his C.C. NO. 43/05 11 of 35 12 innocence by denying the allegations of the complainant company as false and incorrect but he did not prefer to lead any defence evidence. Thereafter this case was again adjourned for final arguments.
8. Accordingly, I have heard the final arguments made by Sh.Anil Bhasin, Ld. counsel for the complainant company as well as Sh. Anil Gupta, Ld. counsel for the accused at great length and have also carefully gone through the evidence as well as materials adduced on record. Moreover I have also gone through the written submissions filed on record by ld. counsel for the complainant company.
9. During the course of arguments, Sh. Anil Bhasin, Ld. counsel for the complainant company has vehemently contended that from the evidence as well as materials placed on record by examining the aforesaid 12 witnesses, it is established on record that accused Brij Bhushan Gupta was previously running a paper mill in the C.C. NO. 43/05 12 of 35 13 portion No.2 as shown in the site plan Ex.PW1/3 in the name of M/s Ashoka Pulp & Paper Mills, Loni Road, Jawahar Nagar, Delhi which was sealed and closed by Sh. Kishan Kumar, the then DCP ( N/E) on 29/30.11.96 in compliance with the directions/orders given by Hon'ble Apex Court in the case of M.C. MEHTA VS. UOI and even portion No. 1 & 3 as shown in the site plan Ex.PW1/3 were in possession of accused Brij Bhushan Gupta at the time of inspection on 17.07.04 and as such it is established on record that portion No.2 as shown in the site plan in which a paper mill was being run in the name of M/s Ashoka Paper Mill by accused Brij Bhushan Gupta despite the closure of his previous firm M/s Ashoka Pulp & Paper Mills. It was also argued by ld. counsel for the complainant company that although at the time of inspection on 17.07.04 no direct illegal tappings with the BSES Lines/system was noticed by the members of the inspection team but there are sufficient circumstantial evidence showing that this C.C. NO. 43/05 13 of 35 14 factory/mill in portion No.2 as shown in site plan Ex.PW1/3 was being run by illegal abstraction of energy of BSES through underground cables because there was no electricity connection in this portion No.2 and the two generator sets found in portion No.2 were idle and not in operation and moreover load at Johripur feeder came down heavily on 17.07.04 during the period 6.00 a.m. to 2.00 p.m. It was also submitted that when HT underground cable was dug with the help of FLC Van, a deviation was found towards portion No.3 pointing out the possibility of source of energy which was being used in portion No.2. it was also argued that accused Brij Bhushan Gupta being in possession of portion No.1 & 3 as shown in site plan Ex.PW1/3 did not disclose the name of actual user of portion No.2 at the time of inspection on 17.07.04 particularly when his representative and nephew Sunil Gupta was present there and he did not allow the inspection team to enter the premises for about 4 hours and all these facts and circumstances C.C. NO. 43/05 14 of 35 15 clearly go to prove that accused was running the mill in portion No.2 at the time of inspection on 17.07.04 by commission of theft of electricity through underground cable as there was no other source of energy for running this mill. Ld. counsel for the complainant company also placed reliance on the case of Jagan Nath Sen Vs. Rama Swami AIR 1966 SC 846 in support of his submissions that guilt of accused for the theft of electricity can also be proved by circumstantial evidence.
10. Sh. Anil Gupta, Ld. counsel for the accused, on the other hand submitted that on 17.07.04 no direct illegal tapping with BSES Lines/system was noticed by the inspection team and as such digging was also done on 20.07.04 with the help of FLC Van for tracing out the source of illegal abstraction of energy but no source of illegal abstraction of energy was detected and as such Sh. Devi Singh, the then Business Manager, BSES YPL gave his report dt. 29.07.04 concluding therein that no theft of electricity was detected C.C. NO. 43/05 15 of 35 16 but that report has not been filed on record by the complainant company despite the directions given by this court and as such an adverse inference has to be drawn against the complainant company and that report demolishes the entire story of the prosecution/ complainant company regarding the alleged theft of electricity in portion No.2 and photocopy of that report has been filed on record as mark "X" during the cross examination of PW1 Anil Kumar. It was also argued by ld. counsel for the accused that paper mill at portion No.2 was being run through two huge generator sets having the capacity of 1500/2000 KW and this fact about the keeping of two generator sets has also been admitted by the members of the inspection teams during their cross examination. It was also submitted by ld. counsel for the accused that it was not possible to commit the theft of electricity through HT underground cables as nobody can repair or touch such lines without putting the system off and transformer is required for C.C. NO. 43/05 16 of 35 17 taking the supply of electricity from such HT underground cables. It was next argued by ld. counsel for the accused that in a criminal trial, the burden to prove the guilt of accused is always on prosecution by leading cogent and convincing evidence and guilt of accused can not be proved on the basis of conjectures, surmises and inferences and even the circumstantial evidence should be fully and cogently established and these proved circumstances should be of conclusive nature and definite tendency, unerringly pointing towards the guilt of accused. It was also argued by ld. counsel for the accused that even the circumstance regarding the down fall in the load at Johri Pur on 17.07.04 during the period 6.00 a.m to 2.00 p.m. is not much reliable because on that date, 7/8 inspection teams of BSES YPL had conducted raids in this area at different places and record of grid consumption data of Johri Pur feeder proved on record as Ex.PW1/4 and Ex. PW1/9 to Ex.PW1/11 is also not much reliable because PW1 Anil Kumar during his cross examination C.C. NO. 43/05 17 of 35 18 admitted that entry of 120 Amp. at 8.00 a.m. at Johri Pur feeder Ex.PW1/4 is incorrect in comparison to the original log sheet data of 17.07.04 forming part of Ex.PW1/11. It was also argued by ld. counsel for the accused that the present criminal proceedings have been initiated against the accused by some officials of the BSES in connivance with the elder brother of the accused Brij Bhushan Gupta with mala fide intention to cause harassment and torture to the accused and even to extort money as a complaint was lodged by the complainant company at P.S. Gokal Puri against the accused in respect of this alleged theft of electricity but complainant company vide letters Ex.PW2/D1 & Ex.PW2/D2 duly signed by Sh. Sita Ram, DGM, BSES YPL asked the concerned SHO not to lodge the FIR but to get recovered the amount of impugned bill raised from the accused with the help of some Constable and then filing the present criminal complaint in the court. It was also submitted that even the supplementary bill for the theft was raised by the C.C. NO. 43/05 18 of 35 19 complainant company after about 5/6 months after the commission of alleged theft of electricity on 17.07.04 which is in contravention of DERC Regulations. Hence, it is submitted by ld. counsel for the accused that since the guilt of accused for the alleged offence could not be established on record even by circumstantial evidence relied upon by the complainant company and as such accused is entitled to be acquitted in this case.
11. I have bestowed my careful consideration to the rival submissions made by ld. counsel for the complainant company as well as ld. counsel for the accused in the light of the facts and circumstance of the case as well as the material and evidence adduced on record by examining the aforesaid twelve witnesses.
12. The law is well settled that in a criminal trial, it is for the prosecution to prove the guilt of accused for the alleged offence by leading cogent and convincing evidence and an accused is presumed to be innocent unless his guilt is proved by such cogent C.C. NO. 43/05 19 of 35 20 and convincing evidence and for reaching to the conclusion about the guilt of an accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. In this respect reference can be made to the case of CHIKKARANGAIAH VS. STATE OF KARNATAKA 2009 (4) JCC 2644 ( SC). Moreover, if on careful analysis and scrutiny of evidence and materials, there is any doubt about the involvement of accused in the commission of offence, then the benefit should be given to the accused and moreover prosecution must stand on its own legs and it can not take the advantage of the weaknesses of the defence. In this respect reference can be made to the cases reported as DEVA VS. STATE OF RAJASTHAN 1999 (1) C C CASES ( SC) 1 & LAKHA SINGH VS. STATE OF PUNJAB 1998 (2) C C CASES ( P & H) 397. Further if two views are possible on the basis of evidence adduced on record by the prosecution in the case, C.C. NO. 43/05 20 of 35 21 one pointing towards the guilt of an accused and other to his innocence, then the view in favour of the accused should be adopted. In this respect reference can be made to the cases reported as STATE OF UP VS. BABU & OTHERS 2003 (3) C C CASES ( SC ) AND VIKRAMJIT SINGH VS. STATE OF PUNJAB 2007 (1) C C CASES ( SC) 35. No doubt guilt of accused for the alleged offence may also be proved by the prosecution by circumstantial evidence but it is well settled proposition of law that in a case of circumstantial evidence all the circumstances from which the conclusion of guilt is to be drawn should be fully and cogently established and all the facts so established should be consistent only with the hypothesis of guilt of accused and the proved circumstance forming a complete chain should be of conclusive nature and definite tendency, unerringly pointing towards the guilt of an accused, excluding every hypothesis consistent with the innocence of the accused. In this respect C.C. NO. 43/05 21 of 35 22 reference can be made to the cases of VIJAY KUMAR VS. STATE OF KERELA AIR 2000 SC 586, CHANDRA PAL VS.
STATE 1998 VI AD ( DELHI) 177 & MOHAN LAL PONGASA VS. STATE OF UP AIR 1974 SC 1144.
13. Keeping in view the aforesaid principles/ observations enunciated in the above cited cases for appreciating and analyzing the evidence and materials in a criminal trial and applying the same to the facts and circumstance of the present case, I have come to the conclusion that complainant company being the prosecution has miserably failed in proving the guilt of accused for the offence punishable U/s 135 of the Electricity Act, 2003.
14. Admittedly, on 17.07.04 the premises / portion No.2 as shown in site plan Ex.PW1/3 was inspected by the inspection team with the help of police officials but no direct illegal tapping with the BSES Lines/ system was noticed and in this portion No.2, a paper mill was found in operation for manufacturing the khaki papers and C.C. NO. 43/05 22 of 35 23 raw materials and finished products were lying there and even some trucks loaded with such materials were also there as shown in videography CD of which has been proved on record as Ex.PW1/5. Since no direct illegal tapping with the BSES Lines/ system was found by the inspection team and as such further inspections were conducted on 20/21.07.04 after taking approval for digging the underground HT cables with the help of FLC Van and when HT underground cable was dug with the help of FLC Van, a deviation of this HT underground cable from its route near Tonda Nagar Sup Station was found towards portion No.3 as shown in the site plan Ex.PW1/3. On the basis of this deviation in the route of HT cable, members of the inspection team expressed the possibility of commission of theft of electricity. It is thus established on record that on 17.07.04 members of the inspection team did not find any direct illegal tapping with the BSES Lines/system for the commission of theft of electricity for running C.C. NO. 43/05 23 of 35 24 the alleged Ashoka Paper Mill in portion No.2 as shown in the site plan Ex.PW1/3.
15. Even during the course of arguments, ld. counsel for the complainant company has frankly admitted that no direct illegal tapping with the BSES Lines/system was found but he vehemently contended that there are sufficient circumstantial evidence to prove the guilt of accused for the alleged offence. The circumstantial evidence relied upon by the prosecution/ complainant company to prove the guilt of accused are as follows:
1. At the time of inspection on 17.07.04 there was no electricity connection in portion No.2 as shown in site plan Ex.PW1/3.
2. The mill for manufacturing the khaki papers in portion No.2 as shown in the site plan Ex.PW1/3 was in operation and lot of raw materials as well as finished products were C.C. NO. 43/05 24 of 35 25 lying therein along with some trucks and workers were running by jumping the walls as shown in the videography prepared at the time of inspection.
3. Inspection team was not allowed to enter the premises for about 3.45 hours by one Sunil Gupta, representative of the accused and during this period there was possibility of removing the incriminating materials from the spot for the commission of theft of electricity.
4. The two huge generator sets in portion No.2 were found idle and not in operation and there was no other source of energy except from the BSES Lines/system.
5. Portion No.3 as shown in the site plan Ex.PW1/3 was not allowed to be inspected by the representative of the accused raising an adverse inference against the accused.
6. The deviation in the route of HT underground cable was found with the help of FLC Van raising the possibility of C.C. NO. 43/05 25 of 35 26 commission of theft of electricity in portion No.2.
7. Accused was previously running a paper mill in this portion No.2 in the name of M/s Ashoka Pulp & Paper Mills which was closed/sealed by Sh. Kishan Kumar, the then DCP ( N/E) on 29/30.11.96 in compliance with the directions given by the Hon'ble Apex Court in the case of M. C. Mehta Vs. UOI.
8. The load at Johri Pur feeder came down heavily on 17.07.04 during the period 6.00 a.m. to 2.00 p.m.
9. Accused was admittedly in possession of portion No.1 & 3 as shown in the site plan Ex.PW1/3, which is also proved on record from the letter Ex.PW1/8 written by accused to CGRF, Karkardoom, Delhi.
16. It is well settled proposition of law that in order to prove the guilt of an accused for the alleged offence on the basis of circumstantial evidence, all the circumstances from which C.C. NO. 43/05 26 of 35 27 conclusion of guilt of accused is to be drawn should be fully and cogently established and all the facts so established should form a complete chain which should be consistent only with the hypothesis of the guilt of an accused and such proved circumstances should be of conclusive nature and definite tendency, unerringly pointing towards the guilt of accused, excluding every hypothesis consistent with the innocence of the accused and no fantastic possibilities nor freak inferences are to be drawn.
17. Admittedly during his statement recorded U/s 313 Cr.P.C. accused denied his any concern with portion No.2 as shown in site plan Ex.PW1/3 and even he has also denied about his being the proprietor of M/s Ashoka Paper Mill but from the evidence and materials adduced on record, it is established on record that portion No.s1 & 3 as shown in Ex.PW1/3 were in possession of accused Brij Bhushan Gupta and this is also proved when letter Ex.PW1/8 C.C. NO. 43/05 27 of 35 28 was written by accused to CGRF, Karkardooma, Delhi for illegal disconnection of 5 electric connections in portion No.3 by the inspection team on 20.07.04. It is also established on record that previously accused being the proprietor of M/s Ashoka Pulp & Paper Mills was running the factory at Loni Road, Jawahar Nagar, Delhi but that mill was closed and sealed by Sh. Kishan Kumar, the then DCP ( N/E ) on 29/30.11.096 in compliance with the directions given by the Hon'ble Apex Court in its order dt. 08.07.96 in the case titled as M.C. MEHTA VS. UOI and this fact is also proved on record by PW12 Dinesh Jindal. Admittedly at the time of inspection on 17.07.04, one Sunil Gupta the alleged representative of accused was present and he is in fact the nephew of this accused. Although accused being in possession of portion No.1 & 3 must have special knowledge as to by whom the mill in portion No.2 was being run at the time of inspection, if not by him but he has not mentioned the name of the user of this portion No.2 C.C. NO. 43/05 28 of 35 29 at the time of inspection during his statement recorded U/s 313 Cr.P.C. and as such necessary inference which can be drawn is that either accused Brij Bhushan Gupta or Sunil Gupta, his nephew and alleged representative of the accused must be the user of this portion No.2 as shown in the site plan Ex.PW1/3.
18. Now the question which arises for consideration is whether the complainant company being the prosecution has succeeded in proving the guilt of accused for the alleged offence on the basis of aforesaid circumstantial evidence. In my view, the circumstances as detailed above are not much reliable and trustworthy and these circumstances do not constitute a complete chain pointing towards the guilt of accused for the alleged offence. Admittedly, on 17.07.04 inspection team did not find any direct illegal tappings with the BSES Lines/system and as such further inspections were conducted on 20/21.07.04 and HT underground cable was also dug with the help of FLC Van which identified a deviation in its route C.C. NO. 43/05 29 of 35 30 towards portion No.3 as shown in site plan Ex.PW1/3 and as such members of the inspection team expressed the possibility of commission of theft of electricity but in my view mere possibility does not prove the guilt of accused particularly when PW5 Banwari Goswami, Sr. Manager, EHV Transmission Lines admitted during his cross examination that nobody can repair or touch 11 KV Lines without putting the system off. Even during his crossexamination PW1 Anil Kumar avoided to answer the question put by ld. counsel for the accused that step down transformer is required for distributing the electricity from the HT Line. Hence I agree with the submission made by ld. counsel for the accused that it is not possible to commit the theft of electricity through HT cable lines without the help of stepdown transformer for distributing the electricity from the HT lines. Admittedly, at the time of inspection, two huge generator sets were found in this portion No.2 and this fact has also been admitted by the members C.C. NO. 43/05 30 of 35 31 of the inspection team during their cross examination but members of the inspection team asserted that those two generator sets were found in idle condition and not in operation. Admittedly, those two generator sets were of huge size and worth of lakhs of rupees and those can not be kept there merely as a show piece by the user. Hence, this plea taken on behalf of the complainant company that those two generator sets were idle is not much reliable and trustworthy in view of the specific assertion of the accused in his statement recorded U/s 313 Cr.P.C. that the paper mill in portion No.2 was being run through those two generator sets. Similarly, the down fall in the load at Johri Pur feeder on 17.07.04 during the period 6.00 a.m. to 2.00 p.m. does not go to show that this down fall in the load was due to the theft of electricity which was being used in portion No.2 for running the paper mill because on 17.07.04 there were 7/8 inspection teams which conducted the raids in this entire area at different places and even grid C.C. NO. 43/05 31 of 35 32 consumption data at Johri Pur feeder is not much reliable and trustworthy because during his cross examination PW1 Anil Kumar admitted that the entry of 120 Apm at 8.00 a.m. at Johri Pur feeder as shown in Ex.PW1/4 is incorrect in comparison to the original log sheet data of 17.07.04 forming part of Ex.PW1/11. It is also worth noticing that this Johripur feeder was supplying the energy/ electricity to entire Johripur Village as well as Jawahar Nagar Industrial Area. The plea taken by complainant company that inspection team was not allowed to inspect the premises for about 4 hours and even portion No.3 was not allowed to be inspected by the Sunil Gupta alleged representative of the accused does not appeal to the reason because police officials were also with the inspection team consisting of many members and it was not possible for alleged representative of the accused not to allow the entry of the inspection team in the premises. These aforesaid circumstances on the basis of which complainant company being C.C. NO. 43/05 32 of 35 33 the prosecution, wants to prove the guilt of accused do not constitute a complete chain and moreover these are not of conclusive nature and definite tendency pointing towards the guilt of accused for the commission of the theft of electricity.
19. Here it is pertinent to refer to the case of STATE OF PUNJAB VS. JAGIR SINGH ETC. AIR 1973 SC 2407 wherein Hon'ble Supreme Court has observed as follows " A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of C.C. NO. 43/05 33 of 35 34 witnesses."
20. Reference can also be made to the case of STATE OF HIMACHAL PRADESH VS. LEKH RAJ & SONS 1999 ( 9) AD ( SC) 611 wherein Hon'ble Apex Court has observed that "
The criminal trial can not be equated with the mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of an accused arraigned. In arriving at the conclusion about the truth, the courts are required to adopt rational approach and judge the evidence by its intrinsic worth and the animus of witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at a conclusion regarding the existence or otherwise of a particular circumstances, keeping in view the peculiar facts of each case."
21. It is thus well settled that in a criminal trial, accused can not be C.C. NO. 43/05 34 of 35 35 convicted on the basis of the conjectures, surmises, fantastic possibilities and freak inferences in the absence of cogent and convincing materials and evidence, direct or circumstantial, showing the involvement of accused in the commission of the offence for which he is charged.
22. Hence, in view of my above discussion coupled with the reasons given, I have come to the conclusion that complainant company being the prosecution has miserably failed in proving the guilt of accused Brij Bhushan Gupta, the alleged proprietor of M/s Ashoka Paper Mills even on the basis of aforesaid circumstantial evidence. Accordingly, accused Brij Bhushan Gupta is acquitted in this case. His personal bond and surety bond cancelled/discharged. File be consigned to the record room after necessary compliance.
ANNOUNCED IN THE OPEN
COURT ON DT. 24.07.10. ( K.S. PAL)
ASJ/SPECIAL COURT (ELECTRICITY)
KKD/DELHI
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