Delhi District Court
Bses Rpl vs Nirmal Kochar 1 Of 13 on 27 August, 2011
IN THE COURT OF SH. UMED SINGH GREWAL,
ADDITIONAL SESSIONS JUDGE,
SPECI AL ELECTRICITY COURT
DWARKA COURTS, NEW DELHI
CC.No.100/2006
U/s 135 of Electricity Act, 2003.
BSES Rajdhani Power Ltd.
Having its registered office at:
BSES Bhawan Nehru Place,
New Delhi 110019
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049 ...........Complainant
Versus
Nirmal Kochar
Resident of D/44A, Saraswati Garden, New Delhi - 110015
Also at:
Factory Add: 25/3, Plot No. 385,
Nangli Sakrawati, Najafgarh,
New Delhi ..................Accused
Date of institution: 29.5.2006
Arguments heard on: 18.8.2011
Judgment passed on: 27.8.2011
Present: Sh. Prakash Jha, legal retainer of the complainant company.
Sh. Bhagwan, legal aid counsel for accused.
BSES RPL v/s Nirmal Kochar 1 Of 13
CC NO. 100/2006
JUDGMENT:
1. PVC pipe manufacturing factory located at Khasra No. 25/3, plot no 385 in the area of Nangli Sakrawati, Najafgarh, New Delhi was inspected by the raiding team members of the complainant company on 9.3.2006. The accused was running the factory without any electricity meter and was tapping energy directly from LV Mains with the aid of illegal cables. The connected load 72.844 KW for industrial purpose for which theft assessment bill of Rs. 56,15,313/ was raised.
2. Notice of accusation u/s 135 of Electricity Act, 2003 was framed to which accused claimed trial.
3. The complainant company examined its authorized representative Pankaj Tandon as PW1 who has been authorized on the strength of authority letter Ex.CW1/B to file complaint Ex.CW1/A. PW2 Sanjay Kumar is the raiding team member and PW3 Vivek Arora is the proprietor of M/s Arora Photo Studio whose employee Sh.Narender Kumar captured the factum of theft of electricity.
4. The accused examined his brother Devender Kumar Kocchar as DW1 and he is the Chartered Accountant handling accounts of the factory of the accused which was running in the name and style of M/s Ambika Industries. DW2 is accused himself. DW3 Ram Chander BSES RPL v/s Nirmal Kochar 2 Of 13 CC NO. 100/2006 s/o Mahender Singh is the private electrician who deposed that wire of 10 mm cannot bear the load morethan 15 KW. DW4 Umesh Arya is the neighborer of the accused who appeared in the Court just to say that accused was running his factory from 8.30 am to 5.30 pm.
5. In order to establish the case of theft of electricity the complainant company is required to establish the identify of the accused and premises, his connection with the premises and that theft was being committed in that premises. PW2 raiding team member described the identify of the accused as Nirmal Kocchar running his factory in Khasra no. 25/3 plot no. 383 Nangli Sakrawati and residing at D44A, Saraswati Garden, New Delhi. He further deposed that the accused was not present initially at the time of inspection but later on he joined the inspection. DW1 & DW2 also admitted that accused's name is Devender Kumar Kocchar and he was running a factory in the area of Nangli Sakrawati and that his home address was D44A, Saraswati Garden, New Delhi. It is not the case of the accused that he was not Nirmal Kochhar and that he was not residing on the address as disclosed by PW2. Identity of the accused has also been mentioned in inspection report Ex.PW1/A, load report Ex.CW2/B, and seizure memo Ex.CW2/C. The accused himself admitted while deposing as DW2 that he was appearing in the photographs Ex.CW2/D. Taking BSES RPL v/s Nirmal Kochar 3 Of 13 CC NO. 100/2006 into account all these facts the identify of the accused cannot be disputed.
6. On the point of identity of the premises, PW2 deposed that it was a PVC pipe manufacturing factory running in K.No. 25/3, plot no. 383, Nangli Sakrawati, New Delhi. On this point he is corroborated by PW3 also. In his statement u/s 313 of Cr.P.C. the accused stated that he was not associated with any factory located in Khasra no. 25/3 plot no. 383, Nangli Sakrawati but admitted that he was running a factory in the same Khasra. About the photographs Ex.CW2/D and videography contained in the CD Ex.CW2/D1, he stated in answer to question no.8 that these pertain to 25/1 and not to Khasra No. 25/3. So, the dispute is whether the inspected premises was located in Khasra NO. 25/1 or in 25/3. In order to substantiate his defence the accused examined his Charted Accountant brother Devender Kumar Kochhar as DW1 who deposed that accused was proprietor of the firm namely M/s Ambika Industries running at Khasra No. 25/1, Nangli Sakrawati, New Delhi and in this regard he relied upon the photostat copy of document issued by DW1 himself in which it is stated that the accused is running M/s Ambika Industries at Khasra No. 25/1. DW1 also filed VAT receipts as deposited by the accused. In these receipts Ex.DW1/B the factory has been shown running at BSES RPL v/s Nirmal Kochar 4 Of 13 CC NO. 100/2006 Khasra No. 25/1, Nangli Sakrawati, New Delhi. So, from these documents and deposition of DW1 & DW2 and statement of accused u/s 313 of Cr.P.C it becomes clear that the accused was running the PVC pipe manufacturing factory in Khasra no. 25/1 and not in 25/3. But now it is to be seen whether the factory of the accused running in Khasra no. 25/1 was inspected on 9.3.2006 by the raiding team or not. On this point following crossexamination of accused/DW2 is quite relevant.
"...it is correct that I am focussed in the photographs produced in court record. It is correct that the photographs were clicked at the site by the BSES raiding team member at around 11.00 pm. Vol. I was called from my residence to the inspected premises by my guard/chowkidar namely Pancham Kumar who informed me that BSES officials are there to inspect my factory. It is correct that the inspected premises is used and occupied by my family members and myself since 1999. Vol. The premises is in the name of my wife Smt. Neelam Kochar. It is correct that after the purchase of the premises in the year 1999, I have BSES RPL v/s Nirmal Kochar 5 Of 13 CC NO. 100/2006 been using the same continuously and I do not own any other premises nor I have conducted or run my factory at any other premises..."
It is quite apparent from the above crossexamination that the accused is using the premises located in Khasra No. 25/1 since 1999 and it stands in the name of his wife Neelam Kocchar. The accused does not run any other factory except the factory in that Khasra no. It also becomes quite clear from this crossexamination that initially during the inspection he was not present but later on he was intimated by the Chowkidar Pancham Kumar that raiding team was there in the factory for inspection. In his statement u/s 313 of Cr.P.C. he had taken the stand that the photographs do not pertain to his premises but in crossexamination he admitted that these pertain to his premises DW1 had stated in crossexamination that accused was running a factory for manufacturing PVC pipes and that he was appearing in the photographs placed on record by the complainant company. DW2 also admitted that he is running PVC factory. Finished goods and machinery are visible in the photographs Ex.CW2/D and CD Ex.CW2/D1. Some labourers are also visible who, as per deposition of DW2, were his labourers. Accused is also visible in the photographs. All these observations shows that the premises of the BSES RPL v/s Nirmal Kochar 6 Of 13 CC NO. 100/2006 accused located in Khasra no. 25/1 was inspected by the complainant company.
7. On the last point of theft of energy in the premises, Ld. Defence counsel argued that accused had purchased a generator in 1999 vide receipt Ex. DW2/C for running household appliances but later on he used that generator to run the factory also. The receipt Ex.DW2/C shows that the said generator was purchased in the months of February 1993 and it is only of 23 Kg. Such an old and light generator cannot run the factory of 72 KW.
8. Ld. Defence Counsel further argued that his client had purchased another old generator of 25 KVA from M/s Venus Electrical Industries vide receipts Ex.DW2/A & Ex.DW2/B. These receipts were not proved by examining the seller. Their genuinity could have been proved by producing the carbon copy of the receipt contained in the book by the seller. The counsel further argued that the accused started his business in 2005 and at that time he had clicked the photographs of the inaugural ceremony. These photographs are Ex.DW2/G. The counsel stated that the photo no.3 of Ex.DW2/G corresponds to photo no.1 appearing on page no.3 of bunch of photographs Ex.CW2/D. By saying so he argued that a generator is visible from a window in the photograph Ex.DW2/G and the accused BSES RPL v/s Nirmal Kochar 7 Of 13 CC NO. 100/2006 was running the factory with the help of that generator. When these two photographs are juxtaposed, these appear to be of the same room of the same premises. A machine is visible through the window but it cannot be said with certainty that it is a generator.
9. The accused also relied upon 80 Diesel purchase receipt which are collectively exhibited as Ex.DW2/E. But these receipts are doubtful due to following reasons:
a) All receipts do not bear the year of purchase of diesel.
b) None of the receipt states that the diesel was purchased by the accused. The coloumn of purchaser is blank.
c) Some of the bills pertain to petrol pumps of Amritsar and Ambala. Some have been issued by the petrol pumps situated in the far flung areas of Delhi. As per the accused/DW2, the nearest petrol pumps were in Kirti Nagar and Subhash Nagar. If the nearest petrol pumps were in Kirti Nagar and Subhash Nagar, what was the need to purchase petrol from Amritsar, Ambala and far flung area of Delhi to run a factory located in Nangli Sakrawati, West Delhi.
d) None of the bill is above of 3540 liters diesel. Accused was running a factory for manufacturing PVC pipes. Daily consumption would be in 100s of litres. The accused admitted by appearing DW2 that he is maintaining JEEP (Jonga) and Tata Sumo. So the possibility BSES RPL v/s Nirmal Kochar 8 Of 13 CC NO. 100/2006 that the purchase bills of the deisel pertain to the vehicles of the accused cannot be ruled out.
e) Noise of the Generator is not audible in the CD Ex.CW2/1.
10. Ld. Defence counsel argued that 4 seized cables of 10 mm square of the length of 11 metres, 10 metres, 9 metres and 9 metres collectively exhibited as Ex.P14 in trial cannot bear the load more than 10 KW and in this respect he drew the attention of the Court towards the deposition of DW3 Ram Chander. Ram Chander is a private electrical contractor and he deposed that aluminium wire of 10 mm sq. can bear the load at the maximum 15 KW and if the load exceeds 15 KW, the wire gets blasted. This witness is known to the accused for last 6 years and he supplies him the wires and also repairs the machinery of the factory. To justify his deposition DW3 relied upon a document Ex.DW2/F issued by a company namely 'Capital Cables'. This document mentions the load bearing capacity of the cables according to their diameter. At point D of this document it is stated that 10 mm sq. cable bear the load of 18.6 KW. This load of 18.6 is the maximum and as per DW3. If the maximum load is put on that cable, it might get blasted. In all 4 cables were seized. The load bearing capacity of all 4 cables comes out to 18.6 X 4 = 74.4 KW. The connected load in the load report has been shown as roughly 72 KW.
BSES RPL v/s Nirmal Kochar 9 Of 13 CC NO. 100/2006 This was the maximum load. Following suggestion was given to PW2 in crossexamination: "...it is correct that there is apparent burn marks on the joint..."
These burn marks on the joints of the cables suggest that maximum load was put on these cables. Instead of helping the accused this suggestion is helping the complainant company.
11. The counsel for the accused next stated that the only star witness i.e. PW2 did not state in examinationinchief that the illegal wires were leading to the premises and that there is no photography or videography of those wires. His this contention is untenable because the illegal wires are visible though dim in the CD. These wires are not visible in the photographs because first 4 are either blank or are showing only darkness. Moreover, PW2 had deposed that the accused was found indulging in direct theft of electricity by tapping from LV Mains through 4 wires.
12. The counsel next apprehended that the CD Ex.CW2/D1 has been distorted because it is only of few seconds whereas inspection had continued more than one hour. He stated that in beginning the time is appearing in the CD but it disappears after 26 seconds. The site was photographed by Narender and he has not been examined and moreover the chip of the camera was not placed on the file. It is true BSES RPL v/s Nirmal Kochar 10 Of 13 CC NO. 100/2006 that the photographer Narender was not examined by the complainant company but the photographs were clicked and the videography was done in presence of PW2 and he duly identified the photographs and videography by saying that these were prepared at the site. The data in the chip was converted into the CD by PW3 Sh. Vivek Arora. No suggestion was given to PW3 that the CD was containing distorted version of the chip. The accused did not place on record anything to show that the CD has been tampered with. Merely because the time disappears from the CD after 26 seconds, it cannot be said that this is a tampered CD.
13. The accused raised apprehension about the piece of paper frequently appearing in the CD as well as photographs. On this piece of paper the name and address of the accused has been mentioned. The counsel argued that the raiding team had brought this paper prepared and that is why it is appearing right from the beginning of the inspection. This contention is also untenable because inspection begins first by locating the meter and if no meter is found then the raiding team tries to know the source of energy. After the theft is detected then the photography begins. So it cannot be said that inspection began right from the point of clicking of the photographs.
14. The next contention of the accused is that the raiding team BSES RPL v/s Nirmal Kochar 11 Of 13 CC NO. 100/2006 member who disconnected and removed four illegal wires has not been examined and the person who sealed the case property was also not examined. PW2 is the star witness. Whole proceedings took place in his presence. The court is to see only the quality of the evidences and not the quantity of the witnesses. Testimony of PW2 went unimpeached.
15. It is also argued that process of preparation of reports and refusal of the accused to receive and sign those reports has not been videographed. Each and every process is not required to be videographed and only the material points are to be corroborated either by photography or videography. Seizure memo Ex.CW2/C has also been assailed on the point that its scribe has not been examined. About seizure memo PW2 deposed that it bears his signatures at point 'X'. It was prepared in his presence. The case property for which the seizure memo was prepared was produced in the Court as Ex.P1 and it was deposed by PW2 that it bore the seal of Manager Enforcement and when it was produced in the Court it was having the seals of Manager Sanjay. So, description of seals also nearly tallied each other. All witnesses to a single fact need not be examined. Only one will suffice. The last contention is that in the date column of meter report Ex. CW2/A, there is an alteration and initially the date was 19.3.2006 BSES RPL v/s Nirmal Kochar 12 Of 13 CC NO. 100/2006 and after over writing it has been made as 9.3.2006. This fact will also not help the accused because the date has been mentioned morethan 20 times in all documents and there is a cutting only at a single place.
16. On the other hand the testimonies of PW2 & 3 are corroborated by meter detail report Ex. CW2/A, inspection report Ex.PW1/A, connected load report Ex.CW2/B1, seizure memo Ex.CW2/C, production of the case property in the Court as Ex.P1, photographs Ex.CW2/D and CD Ex.CW2/D1. Factum of inspection has been admitted by the accused also.
17. For foregoing reasons, complainant has brought home the charge against the accused beyond reasonable doubt. The accused is accordingly convicted u/s 135 of the Electricity Act, 2003.
Announced in the open court (UMED SINGH GREWAL)
on 27.08.2011. ASJ, Spl. Electricity Court,
Dwarka Courts, Delhi
BSES RPL v/s Nirmal Kochar 13 Of 13
CC NO. 100/2006
CC No. 100/2006
BSES RPL Vs Nirmal Kochar
27.8.2011
Present: Sh. Prakash Jha, counsel for the complainant company.
Sri Bhagwan, legal aid counsel.
Vide judgment even dated the accused has been
convicted/held guilty of the offence u/s 135 of Electricity Act, 2003.
Put up on 1.9.2011 for argument on quantum and civil liability.
(Umed Singh Grewal)
ASJ: Special Electricity Court
Dwarka: New Delhi
27.8.2011
BSES RPL v/s Nirmal Kochar 14 Of 13
CC NO. 100/2006