Delhi District Court
Taken By Their Lordship In Koli Tikram ... vs Gujrat Air on 24 July, 2012
Page 1 of 28
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 248/10/08
ID No. 02405R0850282007
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
Ashok Kumar
615, Khasra No.126,
Bhooton Wali Gali,
Saini Mohalla, Nangloi, New Delhi
......................... Accused
Date of institution: 16.04.2007
Arguments heard on: 13.07.2012
Judgment passed on : 24.07.2012
JUDGMENT:
1. The facts of the case are like this. On 22.1.2007 at 1.00 CC No. 248/10/08 Page 2 of 28 pm a joint inspection team headed by Sh Manish Arora, Manager (Enforcement) of the complainant company inspected the premises bearing No. 615, Khasra No 126, Bhooton Wali Gali, Saini Mohalla, Nangloi, New Delhi (hereinafter referred to as inspected premises). The premises is used by accused for industrial purposes i.e for manufacturing PVC and Gulla. The supply to the premises was found running through CT meter No. DVB/2000CT011954 which was not installed in the premises as no record to this effect is maintained by the complainant. The meter No. 27049752 sanctioned for the inspected premises has already been seized during another raid conducted on 07.04.05. No legal meter was found in the premises. The entire load in the premises was running directly through the said fake meter. The yellow colour BSES cable is illegally connected between outgoing of the meter and load. The meter was also found tampered. IRs No. 59709 and 10 were pasted on the meter in order to maintain status quo. The photographs were taken. The video was done through a photographer from M/s Arora Photo Studio. A connected load of 115.656 KW was found for industrial purposes. Inspection report, meter details and load report were prepared and offered to the accused who refused to receive and sign the same. A theft bill was raised against the accused which remained unpaid. Hence, this CC No. 248/10/08 Page 3 of 28 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 three witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein he has taken the defence that he is not user of the inspected premises. He was not present at the spot. He has been residing at 615, Bhooton Wali Gali, Mandir Marg, Nangloi, New Delhi. He has examined eleven witnesses in defence evidence including himself as DW1.
4. PW1 Manish Arora is one of the members of joint inspection team. He stated that on 22.01.2007 at 1.00 p.m., he along with other officials of the complainant company, police personnel and videographer from M/s Arora Photo Studio inspected the inspected premises. The inspected premises was being used by accused who reached at the spot after some time. The accused is identified by him. One old electromechanical meter was found installed at site. They inquired from the office where no record in CC No. 248/10/08 Page 4 of 28 electronic billing system pertaining to the meter was found. They asked the accused and other persons present at the spot to produce the consumption bills but in vain. A connected load of 115 KW approximately was found running in the premises for manufacturing PVC and Gulla. Photographs Ex. PW2/C were taken. The video of the spot was done. CD Ex. CW2/C1 was prepared. The photographs and CD are identified by him. They did not seize the meter on the request of the accused as he wanted to trace out the bills. Meter report, inspection report and load report Ex. CW2/A, PW1/A and CW2/B were prepared at the spot and offered to the workers and persons present at the spot who refused to receive and sign the same. The meter was also found slow by 21% by the standard accucheck instrument. The IRs were pasted on the meter in order to maintain status quo. On the next day, Dheeraj Mehta was sent to inquire about the bill from the accused but meter, service cable and connected load were not found at the site.
5. In the cross examination, he admitted that entire premises of the accused was inspected on the day of inspection. They found only one meter installed in the inspected premises. He cannot say if the meter was installed some where prior to 2002 by DVB. He did not find any confectionery work at the inspected premises of the accused.
CC No. 248/10/08 Page 5 of 28 The meter no. 27049752 was removed from the same site by raiding team in an earlier inspection in 2005. He cannot say why the meter was removed or in whose name it was installed. There were two electricity poles and transformer near the inspected premises but he does not recollect the pole numbers. The labour disclosed that accused is user of the inspected premises and this fact is also disclosed by the accused himself. He met the accused at site who reached during the conclusion of the inspection. He cannot admit or deny if the correct address of the accused is 615, Khasra no. 126/56, Bhooton Wali Gali, Mandir Marg, Nangloi, New Delhi and same is different from the inspected premises or he was having a confectionery workshop in the said premises. He is not aware if electricity meter is installed in the name of Patal Verma at the said premises. The suggestion is denied that load shown in the load report, photographs or video does not pertain to house no. 615, Khasra no. 126, Bhooton Wali Gali, Saini Mohalla, Nangloi, New Delhi. They did not find any sign board at the inspected premises. Dheeraj Mehta had gone at the inspected premises on the next day of the inspection to seize the meter. He admitted that load was taken of by the accused from the inspected premises when Dheeraj Mehta visited the inspected premises on the next day of inspection. Transformer is a CC No. 248/10/08 Page 6 of 28 landmark near the inspected premises at Bhooton Wali Gali which is situated within a distance of 100 meters. The labour did not disclose their names. They could not click the photograph of accused as he remained at site for a short duration. The suggestion is denied that accused was not present at site at the time of inspection or is in no way connected with the inspected premises or reports placed on record are false and fabricated or he has seen the accused for the first time in the court or they have not mentioned about the presence of the accused in the reports.
6. On 22.01.2007 only one inspection was carried out in the inspected premises where one meter was found installed. He admitted that they had also inspected the premises of Suresh situated at 615, Khasra no. 126, Saini Mohalla, Nangloi, New Delhi at 1.30 p.m. where one meter No. DVB2000CT012282 was found installed. Ex. PW1/D1 are the documents of other inspection. The photographs placed in both the cases appear to be same (voluntarily the photographs ID number AG29010700004 are in fact photographs of the present case). The persons present at site disclosed the number of premises to them at the time of inspection. He had seen the accused at site from the side view that too from a distance of five meters. The suggestion is denied that he had in fact seen Suresh Kumar at the time CC No. 248/10/08 Page 7 of 28 of inspection.
7. PW2 Vivek Arora stated that he is proprietor of M/s Arora Photo Studio. Sumer was his employee who has left the services of his studio. Sumer had handed over one cassette and camera to him on the same day. He downloaded the data in the CD Ex. CW2/C1. He has identified the contents of CD. The photographs Ex. CW2/C were taken at site. In the cross examination, he stated that he can produce the original cassette, if required. The suggestion is denied that Sumer was not his employee or Sumer did not visit the site. He admitted that he has not visited the site. He has downloaded the data from original cassette.
8. PW3 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/A on the basis of authority Ex. CW1/B given to him by the complainant.
9. The accused has led defence evidence. The accused has examined eleven witnesses. DW1 Ashok Kumar Budhiraja, is the accused. He stated that he is running the confectionery shop under name and style of Kumar Confectionery Shop at 615, Khasra No 126, Bhooton Wali Gali, Mandir Marg, Nangloi, New Delhi where one electricity connection with CRN No 2630053936 (previous reference CC No. 248/10/08 Page 8 of 28 No 2220/50001853) is installed in the name of Patal Verma. Ex DW1/A (collectively) are electricity bills for the months of December, 2006, FebruaryMarch, 2007 and July, 2011. Ex. DW1/B, C and D are the telephone bill dated 9.1.2007, challan receipt for Value Added Tax and certificate of Sales Tax Registration in the name of Kumar Confectionery Shop. He has nothing to do with the inspected premises. There is confectionery shop in his premises and there is no factory of manufacturing Gulla in his premises.
10. He has been running Kumar Confectionery works at the premises i.e. 615, Khasra No 126, Bhooton Wali Gali, Mandir Marg, Nangloi, New Delhi. Ex. DW1/E are photographs to this effect. His wife Veena Bhudiraja has purchased the said premises from Sarvesh Kumar through GPA, agreement to sell and affidavit dated 19.03.87 Ex.DW1/F who in turn had purchased the same from Patal Verma on 27.11.84 through sale deed Ex. DW1/G. One electricity meter, in the name of Patal Verma, has been installed in the said premises which is used for confectionery work. Ex. DW1/H (collectively) are meter change report with AMR installation dated 01.11.06, AMR repair dated 19.10.07, replacement of AMR dated 21.07.08 and periodic meter testing dated 03.06.2011. Ex.DW1/I is the acknowledgment of receipt for the return of Value Added Tax from 01.04.2007 till CC No. 248/10/08 Page 9 of 28 31.03.2008.
11. In the crossexamination, he stated that the premises is owned by his wife which is used by him for Kumar Confectionery Work. There is only one gali by the name of "Bhooton wali Gali''. He admitted that khasra No 126 is a big area containing several houses. He cannot tell if bills Ex. DW1/A pertain to differently identified sub divided Khasra number as denoted by Khasra No. 126/56. He admitted that Ex. DW1/B to D do not reflect Mandir Marg. He has not filed any income tax details. He admitted that no electricity connection is installed in his name or in the name of any of his family members in Bhooton Wali Gali. He has been residing at D210, Oozari Apartment, Shiv Vihar, Main Rohtak Road. The suggestion is denied that he was using the inspected premises on the date of inspection or he was present at site or he has been using two premises including the inspected premises or the meter installed in the name of Patal Verma was never used for confectionery work or inspected premises is owned by him.
12. DW2 Sanjay Kumar stated that accused is his neighbour who is running his confectionery workshop under the name and style of Kumar Confectionery Work i.e Manufacturing of toffees at 615, Bhooton Wali Gali, Mandir Marg, Village Nangloi, New Delhi.
CC No. 248/10/08 Page 10 of 28 Accused does not have any premises or workshop in Saini Mohalla. Ex DW2/1 is the copy of his election ICard. In the cross examination, he stated that he cannot tell about the other business of accused. He has come to the court with accused. He does not know the accused personally as he simply knows that accused is running a business of toffees.
13. DW3 Sh. Krishan Bir is Patwari, in the office of SDM, Punjabi Bagh. He stated that he has brought the record. Khasra No. 126 is a Abadi Deh in Village Nangloi as per Khatoni Ex. DW3/A. DW3/B is nakshaakssajra. They do not have any record pertaining to House No. 615, Saini Mohalla, Bhooton wali Gali which falls in Abadi Deh.
14. DW4 Sh. Ram Sahai is an officer in the Commercial Division (situated at Nangloi) of the complainant. He stated that he has brought the record. Ex DW4/13 is the record pertaining to meter No. 27049752 with CRN No. 2630055334, meter reading details and disconnection details of the meter. Ex DW4/4 is the meter details of above CRN number. Ex DW4/5 is the bill pertaining to the abovestated electricity connection in the name of Kishan Singh Chauhan. Ex. DW4/6 is the K Number file of meter/connection No. 27049752. In the crossexamination, he stated CC No. 248/10/08 Page 11 of 28 that meter was disconnected. On 28.3.2005 the meter No. 27049752 was removed from the premises.
15. DW5 Sh Aditya Krishan is an official of the complainant who has brought the summoned record. He stated that Ex. DW5/1 is the current bill for CRN No. 2630053936. Ex DW5/2 are the billing details of said CRN Number from July, 2002 till September, 2011. In the crossexamination, he stated that he cannot tell the portion or the area wherein meter and CRN Number was used. He cannot tell even from the record that meter or CRN Number was installed at Saini Mohalla or not.
16. DW6 SI Rajinder Sharma stated that on 22.4.09 he along with BSES officials and Sachin visited the premises in question and gave his report Ex. DW6/1 on NBW which is also signed by Sachin at point B. Smt Risal Kaur told that no one by the name of Ashok was ever a tenant in the property. In the crossexamination, he stated that Smt. Rishal Kaur was told as owner of the premises. He admitted that Smt. Risal Kaur told that she has not subletted the property to anyone during last twenty years. He admitted that there was a factory at the said premises as stated by the lady which stand demolished in 2009.
17. DW7 Naresh Chander, Manager, BSES stated that he has brought the photographs Ex DW7/A (16 in number) and CD Ex.
CC No. 248/10/08 Page 12 of 28 DW7/B of case ID No. AG29010700004 of Suresh Kumar which pertains to Khasra No. 126, Plot No 615, Bhooton Wali Gali, Saini Mohalla, Nangloi, New Delhi. The inspection took place on 22.1.2007. The CD contains only one clipping which was recorded on 22.1.2007.
18. In the crossexamination, he admitted that he was not the member of raiding party. He cannot tell if the same photographs also pertain to the case of Ashok Kumar.
19. DW8 Sumer Kumar is videographer from M/s Arora Photo Studio. He stated that on 22.1.2007 he had conducted the video of Khasra No. 126, Plot No. 615, Bhootonwali Gali, Saini Mohalla, Nangloi, New Delhi. He cannot tell the name of the owner of the premises. He cannot tell if accused was present at the site or not. The original cassette containing the video is Ex. DW7/B. The original cassette is Ex. DW8/A. On 22.1.2007 only one video was conducted at Khasra No. 126, Plot No. 615, Bhootonwali Gali, Saini Mohalla, Nangloi, New Delhi. One person from the labour was present inside the premises whereas other persons were present outside the premises. The team members can tell in which capacity the labour was present inside the premises. In the crossexamination, the suggestion is denied that other persons and accused were present at the site during CC No. 248/10/08 Page 13 of 28 video of Khasra No. 126, Plot No. 615, Bhootonwali Gali, Saini Mohalla, Nangloi, New Delhi or two separate videos were conducted in the premises of Suresh Kumar and Ashok Kumar. The team leader was Sachin Gupta. He cannot tell in which case he had conducted the video. He cannot tell if video placed in this case is different from the case of Suresh Kumar. He admitted that he cannot tell if video contained in the original cassette pertains to Suresh or Ashok Kumar.
20. DW9 Nathu Singh, Legal Executive, BSES stated that on 22.1.2007 he along with Sachin Gupta and others had gone for a raid in Khasra No. 5, Bhootonwali Gali. The person appearing in the white clothes in CD Ex. DW7/B disclosed his name as Ashok Kumar who met them outside the inspected premises. Some labour was present inside the premises who were working for the person shown in the white clothes in video. No person present in the court was present at the site at the time of inspection.
21. In the crossexamination, he stated that the raiding team members had an interaction with the person wearing white clothes who disclosed that he is the user of the premises. He admitted that he has not signed any of the reports prepared at the spot.
22. DW10 Kamal, Record Keeper, Nangloi Division, BSES stated that he has brought the record pertaining to K. No. CC No. 248/10/08 Page 14 of 28 2630KC010838. The said connection was given for the user of premises No. 126/56, property No. 615, Bhooton wali gali, Village Nangloi, New Delhi in the name of Patal Verma. The connection was sanctioned for the confectionery work for the said premises. Ex DW10/A dated 10.6.2002 is an application moved by Patal Verma to DVB for the reduction of the load for the purpose of confectionery work. The confectionery work is going on in the said premises as per letter Ex. DW10/B dated 11.6.2002. Patal Verma had filed an application dated 31.12.95 Ex.DW1/C for the installation of energy meter in commensurate with the connected load for confectionery work which is duly supported with undertaking Ex. DW10/D. The earlier K number was subsequently changed to 2220/5000/1853 on 1.9.2006 in the name of Patal Verma. Ex DW10/A bears the signature of user of meter Ashok Kumar at point A. The user of the electricity connection was Ashok Kumar. No cross examination was done though opportunity was given.
23. DW11 Sachin Gupta stated that he had inspected the premises bearing Khasra No. 126, Plot No. 615, Bhootonwali Gali, Saini Mohalla, Nangloi, New Delhi as per IR Ex. CW2/A. He might have inspected only one premises bearing No 615, Khasra No 126, Saini Mohalla, Bhootonwali Gali, Nangloi on that day. The user is CC No. 248/10/08 Page 15 of 28 covered in CD. He does not remember whether the user is covered in video or not. Two electricity meters bearing No. 27049752 and DVB2000CT011954 were found at the spot. Meter No. 27049752 was removed and record of other meter was not available in the office.
24. In the crossexamination, he stated that he does not know if premises of one Suresh was also inspected on that day. He cannot identify the user of inspected premises from the persons present inside the court room.
25. 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 a owner or user. The complainant has to show that accused was responsible for committing theft of electricity in the inspected premises.
26. The complainant has examined three witnesses in order to prove its case whereas accused has examined eleven witnesses in order to controvert the case of complainant. The complainant has examined only one member of the joint inspection team as PW1 as such his testimony needs close scrutiny. Some members of the inspection team are examined by the accused in order to advance his case. I have perused the entire oral as well as documentary evidence CC No. 248/10/08 Page 16 of 28 on record and considered the submission of ld counsel for the parties.
27. The testimony of PW1 that accused was present at the spot does not find support from the evidence on record. PW1 is one of the members of joint inspection team. DW8, 9 and 11 were also in the inspection team on that day as such their testimony is equally important. The testimony of PW1 that accused reached at the spot during the course of inspection and left the spot on the premise that he will trace out the bills. The meter was not seized on the request of accused. The testimony of DW8,9 and 11 is silent to this effect. Their testimony is otherwise. DW8 has conducted the video who stated that labour was present inside the site whereas some persons standing outside the premises. DW9 stated that person shown in the white clothes in CD Ex. CW7/B disclosed his name as Ashok who met them outside the premises. He has failed to identify that person or even accused in the court. DW11 has failed to identify the accused. The testimony of DW8 and 9 is in contradiction to the testimony of PW1. The complainant has failed to explain the contradiction in the testimony of PW1 and that of DW8 and 9. which creates a doubt over the testimony of PW1 that accused was present at the spot and had interaction with him. PW1 has allegedly an interaction with accused so the question of seeing him from the side view that too CC No. 248/10/08 Page 17 of 28 from a distance of five meters does not arise at all. PW1 has improved his version to the reasons best known to him and as such no reliance can be placed on his testimony to this effect that accused met him at the spot who left the spot with the request to trace out the electricity bills.
28. The fact that PW1 has improved his version find support from the other evidence on record. Ex. CW2/A is an inspection report cum meter details. Ex. CW2/B is the load report. The front page of inspection report cum meter details as well as of load report shows that name of user is Ashok Kumar as stated meaning thereby that the name of accused Ashok Kumar was disclosed by someone. Page 2 of inspection report nowhere reflects that labour was found working or accused reached at the spot during the course of inspection and disclosed his name. The complainant has failed to explain why all the necessary details are not reflected in the inspection report so that it should have been inconsonance with the oral testimony of the witnesses.
29. The documents Ex. CW2/A, PW1/A and CW2/B were prepared at the spot. The testimony of PW1 shows that the documents were offered to the persons and workers present at the spot who refused to receive and sign the same. This fact does not find CC No. 248/10/08 Page 18 of 28 support if we perused the documents. There is no remark in all the three documents that documents were offered to the persons and workers present at the spot who refused to receive and sign the same meaning thereby that the documents were not offered to anyone present at the spot and same were not even prepared at the spot otherwise factum of refusal would have find reflection in the documents. The documents were not pasted at site for the reasons best known to the members of joint inspection team. There is no explanation from the complainant to this fact which creates a doubt whether documents were prepared at the spot or not.
30. The case of the complainant is that meter no. 27049752 was removed from the site during an inspection in 2005 and only one electromechanical meter bearing No. DVB/2000CT011954 was found at the spot. This fact does not find support from the testimony of DW11. His testimony shows that two meters bearing no.27049752 and DVB/2000CT011954 were found at the spot. No question or suggestion is put to this witness during the course of cross examination that meter number 27049752 was removed during the course of inspection in the same premises in 2005. The non explanation shows that some facts have been concealed by the complainant which put the testimony of PW1 in the zone of doubt.
CC No. 248/10/08 Page 19 of 28
31. The meter in question was not removed from the site. The only explanation coming in the testimony of PW1 that it was left at the site at the request of the accused who wanted to trace out the electricity bills. The question of leaving the meter at site does not arise at all when no record in the electronic billing system of the complainant was found. The non seizure of meter and wires puts a question mark over the testimony of PW1.
32. The defence of the accused that he is not the user of the inspected premises. It is admitted case of the complainant that meter number 27049752 was installed in the inspected premises. The accused has examined DW4 Ram Sahai, from the office of complainant to prove documents Ex. DW4/16. Ex. DW4/6 (collectively) are the documents namely application for installation of meter, application of enhancement of load, proof of ownership, lal dora certificate, affidavit, receipt of payment of Rs. 4,806/, report dated 10.05.1999 of dealing assistant of DVB and report dated 24.05.99 dealing assistant of DVB for re allocation of K number. Roop Singh had applied for the installation of electricity meter in the inspected premises. Meter number 27049752 was installed in the name of Roop Singh in the inspected premises as apparent from consumer details and meter details Ex. DW4/14. Ex. DW4/5 is the CC No. 248/10/08 Page 20 of 28 electricity bill of meter No. 27049752 raised in the name of Kishan Singh Chauhan. The testimony of DW6 SI Rajender Sharma shows that he had gone to execute the non bailable warrant against the accused where Smt. Rishal Kaur met him and told that premises belongs to her and she does not know any person by the name of Ashok Kumar. The complainant should have examined either Roop Singh or Kishan Singh in order to show as to who is the user of the inspected premises because one of the meters stand installed in the name of Roop Singh. The complainant should have called Smt. Rishal Kaur to show from whom she has purchased the premises and whether anyone by the name of Ashok Kumar was in possession of the inspected premises. Their examination would have unfolded the real facts about the real user of inspected premises. Their examination was essential and their non examination calls for adverse inference against the complainant.
33. Ld counsel for the accused contended that the CD Ex.CW2/C1 and photographs Ex.CW2/C do not pertain to the case in hand and CD of case in hand was not prepared as such no reliance can be placed on CD and photographs. He further submitted that photographs filed along with Ex. PW1/D1 pertain to the case of Suresh Kumar. He further submitted that photographs Ex. DW7/A CC No. 248/10/08 Page 21 of 28 and CD Ex. DW7/B pertains to the case of Suresh Kumar as inspection of the premises of Suresh Kumar bearing khasra no.126, Plot no.615, Bhooton Wali Gali, Saini Mohalla, Nangloi New Delhi was conducted on that day. He further submitted that Ex. DW8/A is the original cassette of CD Ex. DW7/B. Ld counsel for the complainant contended that the CD and photographs placed on record pertain to the case in hand as it reflects the meter number as well as IR pasted on the meter. Heard and perused the record. It is admitted case of the complainant that inspection of the premises of one Suresh Kumar bearing khasra no.126, Plot No. 615, Bhooton Wali Gali, Saini Mohalla, Nangloi, New Delhi was also conducted on that day. Ex. PW1/D1 are the certified copies of inspection report, meter details, load report and photographs of the inspection pertaining to the premises of one Suresh Kumar. It shows that one meter number DVB/2000CT012282 was found in the premises of Suresh Kumar and IR no.59712 was pasted. I have perused the CD Ex.CW2/C1, Ex.DW7/B and cassette DW8/A along with photographs Ex.CW2/C and DW7/A. Ex. DW8/A is the original cassette. CD Ex.CW2/C1 and DW7/B were prepared from cassette Ex DW8/A. Photographs are the digital print out taken from Ex. DW8/A. The original cassette is placed on record. The video was conducted by CC No. 248/10/08 Page 22 of 28 DW8 Sumer Singh. The data in CD was downloaded by PW2 Vivek Arora. In view of this fact, CD can be looked into. The testimony of PW1 shows that photographs of this case were placed in the file of Suresh Kumar. The testimony of DW7 shows that CD and photographs Ex. DW7/A and B pertains to the case of Suresh Kumar. The testimony of DW8 shows that only one video of premises bearing no. 126, plot no.615, Bhooton Wali Gali, Saini Mohalla, Nangloi was conducted. I have perused the CD and photographs placed on record. The recording in CD Ex. CW2/C1, DW7/B and DW8/A is the same. It appears after viewing the CD that one video of the two premises was taken by DW8. There is one video of both the premises. The earlier part of the CD pertains to the premises of case in hand as it reflects the meter number DVB/2000CT011954. The CD also shows that IRs number 59709 and 710 were pasted on the meter. To my mind, the CD to this extent pertains to the inspected premises because another meter having different reading is shown in the video immediately after pasting of IRs. The later part of the CD reflects that some persons are standing in the gali. The persons standing in the gali can not be connected to the inspected premises because none of them finds reflection in the earlier part of the CD that is till IRs were pasted on the meter. The argument of ld counsel for CC No. 248/10/08 Page 23 of 28 the accused that CD Ex. CW2/C1 or Ex. DW7/B or cassette Ex.DW8/A exclusively pertain to the case of Suresh Kumar does not hold water.
34. Ld counsel for the complainant submitted that certain suggestions have been put to PW1 by Ld counsel for the accused which can only be put by the person who is connected with the premises as such suggestions are enough to point out that accused is user of the inspected premises. Ld defence counsel contended that accused cannot be connected with the inspected premises merely on the basis of suggestions. Heard and perused the record. I have perused the testimony of PW1. He stated that he did not find any confectionery work at the inspected premises of the accused. He has denied the suggestion that load shown in the load report or in video does not pertain to house no.615, Saini Mohalla, Bhooton Wali Gali, Nangloi. He has admitted that load was taken off by the accused from the inspected premises when Dheeraj Mehta visited the inspected premises on the next date of inspection. The suggestion is denied that reports were not served upon accused. It is correct that certain suggestions are put by ld counsel for the accused to PW1 which are not inconsonance with the defence taken by the accused. However, the complainant cannot draw any capital out of this fact. The complainant CC No. 248/10/08 Page 24 of 28 has not examined Dheeraj Mehta to prove that accused had removed the load from the inspected premises on the next day of inspection or he did not find the meter in the premises on the next day of inspection when he went to collect the bill. The examination of Dheeraj Mehta was essential as he was the best person to unfold the real facts. His non examination is fatal to the complainant. Moreover, suggestions put to a witness in the cross examination are no evidence against the accused and no inference of admission of guilt can be drawn against the accused merely on the basis of such suggestions. The suggestions cannot be used to fill in the gaps in the evidence of the prosecution because prosecution has to discharge the initial burden to prove its case. The complainant cannot draw any mileage out of the suggestions put by ld counsel for the accused to PW1. I am fortified by the view taken by their Lordship in Koli Tikram Jivraj & anr. Vs Gujrat AIR 1969 and criminal revision no.141 of 1990 titled as Jagannath Rana & anr. Vs. State decided on 04.08.93 by Hon'ble Mr. Justice B N Dash of High court of Orissa.
35. Ld counsel for the accused contended that accused is running his confectionery work at 615, Khasra No.126, Bhooton wali gali, Mandir Marg, Nangloi, New Delhi. The said premises is owned by his wife where one meter with CRN No. 2630053936 (previous CC No. 248/10/08 Page 25 of 28 reference no.2220/50001853) stand installed in the name of Patal Verma. He has examined eleven witnesses in all including himself as DW1. He has laid emphasis on the testimony of DW1,2,5 and 10. The accused has placed on record certain documents to show that his wife is owner of the premises. Ex. DW1/G is the copy of the sale deed dated 27.11.84 which shows that Patal Verma has sold the premises No. 615, Khasra No.126, Bhooton Wali Gali, Mandir Marg, Nangloi, New Delhi to Sarvesh Chander who in turn executed Ex. DW1/F (collectively) namely GPA, affidavit and agreement in favour of Veena Bhudhiraja, wife of accused. The wife of accused has allegedly purchased the said premises. An electricity meter was installed in the said premises in the name of Patal Verma as apparent from electricity bills Ex. DW1/A. A telephone connection is installed in the name of accused at the said premises as apparent from telephone bill Ex. DW1/B. The accused has been running his confectionery business at the said premises. A license Ex.DW1/D in the name of M/s Kumar Confectionery Works, 615, Bhootonwali gali, Nangloi, New Delhi was issued in the name of accused by MCD. Ex. DW1/C and 1/I are the challan receipts for the payment of Delhi Value Added Tax and acknowledgment of the return from 01.04.2007 till 31.03.2008 filed by M/s Kumar confectionery works. Ex.
CC No. 248/10/08 Page 26 of 28 DW1/H (collectively) are meter change report with AMR installation dated 01.11.2006, AMR repair dated 19.10.07, replacement of AMR dated 21.07.08 and periodic meter testing dated 03.06.08 of electricity meter installed in the name of Patal Verma in the said premises.
36. DW5 has exhibited bills Ex.DW5/1 of CRN No. 2630053936 for the month of September 2011. Ex DW5/2 are the billing details of the said consumer reference number from July, 2002 till September, 2011. DW10 has proved the record pertaining to K number 2630KC010838 which was later on changed to 2220/5000/1853 on 01.09.2006 in the name of Patal Verma. The application Ex. DW10/A is application dated 10.06.2012 moved by Patal Verma for reduction of load for confectionery work. Letter Ex. DW10/B dated 11.06.2006 written by Patal Verma shows that confectionery work is going on in the premises instead of steel casting and press works. Ex. DW10/C is the letter written by Patal Verma duly supported by an undertaking Ex.DW10/D to DESU for installation of energy meter in accordance with connected load for confectionery work.
37. The entire documentary evidence placed on record by the accused shows that premises No. 615, Khsara No.126/56, Mandir Marg, Bhooton Wali Gali, village Nangloi, New Delhi was initially CC No. 248/10/08 Page 27 of 28 owned by Patal Verma who got installed one electricity meter with K number 2630KC010838 in his name and the said number was changed to 2220/5000/1853 and again changed to 2630053936. The said property was sold by Patal Verma to Sh Sarvesh who in turn executed GPA and other documents in favour of the wife of the accused. The accused is in possession of the said premises. The telephone connection is installed in the name of accused in the said premises. He has been running his confectionery work under the name and style M/s Kumar Confectionery Work in the said premises and a license has been issued by MCD to this effect. The accused has been paying Value Added Tax on the goods and has filed the necessary return with the concerned authority to this effect. Patal Verma had applied for the reduction of load as confectionery work is going on in the premises. The electricity bills are being regularly paid as apparent from the consumption details and bills placed on record. There is nothing on the record to view all these documents with the aid of spectacle. The complainant has failed to bring on record any document to create a doubt on the documents placed on record by the accused as such there is nothing on record to view these documents with the aid of spectacle. All these documents show that accused has been running his confectionery business under the name and style M/s CC No. 248/10/08 Page 28 of 28 Kumar Confectionery Work at 615, Khasra No. 126/56, Mandir Marg, Bhooton Wali Gali, Village Nangloi, New Delhi (as this address finds reflection in the electricity bill Ex. DW5/1 bearing CRN No. 2630053936 ).
38. The complainant has failed to bring any cogent and convincing evidence to show that inspected premises was under the use of accused on the day of inspection. On the other hand, the accused has led the defence evidence which has out weighed the evidence led by the complainant. The defence adduced by the accused is convincing and reliable which show that accused has been using the premises no. 615, Khasra No. 126/56, Mandir Marg, Bhooton wali gali, Village Nangloi, New Delhi for running his confectionery work. The evidence adduced by the complainant is not relied upon.
39. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against the accused beyond shadow of reasonable doubt and accordingly accused is acquitted of the offence charged. File on completion be consigned to record room.
Announced in the open
Court on dated 24.07.2012 (Suresh Kumar Gupta)
Addl. Sessions Judge,
Special Electricity Court
Dwarka: New Delhi
CC No. 248/10/08