Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power Ltd. on 12 May, 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.438/07
PS Amar Colony, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Ltd.
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal & Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through its authorised Officer
Sh. Binay Kumar
...Complainant
Versus
1. Smt. Shakuntala (User)
2. Sh. Dhanpat (R/C)
House No.A156, First Floor,
DDA Quarters, Garhi, New Delhi. ...Accused
COMPLAINT INSTITUTION ON : 27.04.2007
JUDGMENT RESERVED ON : 06.05.2011
JUDGMENT PRONOUNCED ON : 12.05.2011
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 committed an offence punishable u/sec. 135 (1) 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. 15.05.2007 after recording the presummoning evidence and hearing the arguments on summoning. Accused No.1 appeared and was granted bail on furnishing PB & SB in the sum of Rs.20,000/ with one surety of the like amount. Separate notice u/sec. 251 Cr.P.C was framed against the accused No.1 by the Ld. Predecessor Court to which the accused pleaded not guilty and claimed trial. The accused No.2 was declared P.O. by the Ld. Predecessor Court vide order dated 28.11.2007. 4 The complainant company examined Sh. Shailesh Gupta - GET as CW1, Sh. V.D.Pal - DGM as PW1 and Sh. Ashutosh Kumar - Assistant Manager Legal & AR as PW2. The statement of the accused was recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against her. The accused wanted to lead evidence in defence, therefore, the accused was given an opportunity to lead evidence in defence. The accused, in her defence evidence, examined Smt. Raj W/o Sh. jagdish as DW1 and Sh. Satpal S/o Sh. Kesar Singh as DW2. 5 I have heard the Ld. counsel for accused represented by Sh. D.K.Sharma and prosecution represented by Sh.S.S.Mittal, 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 of the offence punishable u/sec. 135 of the Act. Section 151 of the Act reads as under:
3
''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 ''Save as otherwise provided in this Act'' when it talks of the applicability of the Cr.PC.4
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 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 5 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. Accused No.1 appeared and was granted bail on furnishing PB & SB in the sum of Rs.20,000/ with one surety of the like amount. The accused No.2 was declared Proclaimed Offender by the Ld. Predecessor Court. The notice u/sec. 251 Cr.P.C. was framed against the accused/ Shakuntala, 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 was 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 No.1 Shakuntala is now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against her. A criminal charge could be proved on the basis of circumstantial evidence and the requirement is that circumstances incriminating in nature must be proved by cogent evidence and then circumstances so proved must form the complete chain so as to be not 6 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 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 PW2. PW2, during examination in chief, deposed that he is working with the 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 7 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. PW2 proved the GPA and exhibited it as Ex.PW2/A (OSR). PW2 further deposed that 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/A. PW2 proved the letter of authority of Sh.Binay Kumar already exhibited as Ex.CW1/B. PW2 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. PW2 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, PW2 deposed that Sh.Arun Kanchan, CEO of the complainant company was having the powers on behalf of the complainant company to authorise him to appear in this case for pursuing this case for the complainant company before the Court. PW2 further deposed that he does not have any personal knowledge of the present complaint case. He has not visited the site. PW2 denied the suggestion that a false & fabricated case against the accused has been filed. Perusal of Ex.PW2/A & Ex.CW1/B 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 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.PW2/A & 8 Ex.CW1/B. PW2 has also identified the signatures of Sh. Binay Kumar in the complaint at point A in Ex.CW1/A. 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 has not led any evidence and failed to prove that the ARs have not been authorised by the complainant company to file and represent 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 and represent 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. Sh. V.D.Pal - DGM Enforcement examined himself as PW1 and deposed that on 04.01.2007 at about 12:45 PM, he along with Sh. Shailesh Gupta - GET and Rohit - GET inspected the premises bearing No.A156, DDA Quarters, Garhi, 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 9 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 V.D.Pal - DGM the then Assistant Manager was the 'Authorised Officer' to carry out the inspection of premises in question under the provisions of section 135 of the Act on 04.01.2007.
12 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 has committed the offence u/sec. 135 of the Act. 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. In the present case, CW1 was partly examined. The complainant was given ample opportunities to produce CW1 for his remaining examination in chief and cross examination but CW1 did not appear. In this context, a reliance can be had upon the judgment reported in Kuldip Kumar & Ors. Vs. State of H.P.(DB) 1993 (1) HC 454, it was held that testimony of a witness includes examination inchief and crossexamination u/sec. 137 and 138 of Indian Evidence Act. Statement of a witness who is not tendered for crossexamination by the opposite party is no evidence in the eye of law. Principles of natural Justice and fair for just & trial it also requires that a witness must be tendered for crossexamination of the opposite party failing which his statement cannot be relied upon. It was further held that if a witness is not tendered for cross examination by the opposite party, the evidence given by him is no evidence in the eye of law. Further, in the case reported in Anand Gupta & Ors. Vs Shri 10 J.S.Grover, Inspector customs 2006 VII AD (DELHI) 529, it was held by the Hon'ble High Court of Delhi that the testmony of PW3 was incomplete. In such circumstances, in view of the Ripen Kumar Vs Department of customs 2001 CLJ 1288, it cannot be recorded as evidence, the testimony of PW3 cannot be regarded as evidence at all and there is no question of testimony being taken as proof of anything. This is so because neither his examination in chief was complete nor was he subjected to any cross examination. No credibility attached to this statement which had been recorded till 14.10.1999 and the same has to be discarded in toto. In the present complaint case, the testimony of CW1 is also not complete, therefore, the examination in chief of CW1 cannot be read in evidence and the same is discarded.
13 At the time of statement u/sec. 251 Cr.P.C., the accused stated that at the time of inspection the premises was locked and no one present on behalf of accused No.1. There were 4 meters installed underneath the staircase of different floors. The assessment load was prepared on the basis of statement of neighbourers but there is no witness cited in the complaint case who has disclosed the assessed load. The cable which shown in the photographs were of cable TV connection and the change over switch which is shown in the inspection report was a MCB and also at the time of raid the load was running on the said meter and without presence of accused No.1. The meter was removed and false complaint case under direct theft has been made out by the complainant and the accused No.1 was regularly paying the electricity bills as raised by the complainant. Even though the videography does not show the meter number which actually contains to accused No.1 and at the time of inspection the meter No. 22381621 was having a reading of 3758 but this was not reflected in either in photography or videography. The photographs/ 11 snaps taken by accused No.1 placed with the court file and the same were attached.
14 In the present case, the inspection in the premises in question was carried on 04.01.2007. In inspection report Ex. CW2/A, the name of the user is mentioned as Shakuntala. Supply address is mentioned as A156, DDA Quarters, FF, Garhi, New Delhi. The names of the inspection team members are mentioned as Rohit - GET, Shailesh - GET and V.D.Pal - Assistant Manager. V.D.Pal is stated to be the inspection team leader. It is stated in the inspection report Ex.CW2/A that this premises visited with the staff of local Business Manager office. Salient points are as under :
1. At the time of inspection consumer of first floor Flat, A156, found indulge in direct theft of electricity by directly tapping from service line by two white colour, copper, 7/22 wires, at the back of meter Board. These wires are further controlled by a switch at first floor.
2. Consumer's meter No. 22381621 reading 3758, which is off at the time of inspection.
3. Consumer's son present at the time of inspection but he did not open his premises for checking the load. He was saying that he does not have key.
4. Confirmation of direct theft was made by switching on gallery side bulb of this that ( This time meter mode switch off, and consumer does not has inverter as such he says, still consumer has supply.)
5. Load of this premises assessed as per i. as said by neighbours ii.By counting number of rooms iii. Assessing load from seeing outside 12
6. load report prepared vide No. AG/02/1796
7. Meter report prepared vide No. AG/01/5785
8. Seizure memo prepared two illegal white colour wire and meter removed from the site.
As per the inspection report (meter details) Ex.CW2/B, the bill has not been shown to the raiding team members. Load report Ex.CW2/C reveals the details of the appliances and items used at site on the date of inspection. Ex.CW2/D is the seizure memo which reveals the details of the illegal wire and one meter seized from the site on the date of inspection. Ex.CW2/E are the photographs clicked at the site. Ex.CW2/F is the CD of inspection. Ex.CW2/G 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/A and CW2 is the member of raiding team who proved the inspection report, inspection report (meter details), load report, seizure memo, photographs, CD and assessment bill, Ex.CW2/A to Ex.CW2/G. After presummoning evidence and pre summoning order, summons issued to the accused and the summons served upon the accused No.1 Shakuntala before the first date of hearing after issuance of summons. Accused Shakuntala with her counsel appeared and filed the application for grant of bail to her. The accused had already deposited a sum of Rs. 40,000/, therefore, the accused No.1 was released on bail upon furnishing PB and SB in the sum of Rs. 20,000/ with one surety of the like amount. The accused No.2/ Dhanpat was declared as Proclaimed Offender vide order dated 28.11.2007 of the Ld. Predecessor Court. 13 15 It is an admitted case of the accused Smt. Shakuntala that she was the owner and the user of the premises in question but she was not present on the date of inspection. The premises in question was locked. The accused Shakuntala was paying the regular bills of the electricity consumption used through the meter installed at the premises in question. The accused was using the electricity through the meter installed at the premises in question. The accused in her defence examined Smt. Raj W/o Sh. Jagdish as DW1 and Sh. Satpal S/o Sh. Kesar Singh as DW2. DW1 deposed in her examination in chief that the accused Shakuntala is her elder sister and residing at A156, Garhi, East of Kailash, New Delhi. On 03.01.2007, as she was cronic patient of tuberculosis and was seriously ill, she called the accused No.1 being elder sister to her house. At about 12.30 PM, blood was oozing from her mouth, she was panicked and her elder sister i.e. accused no.1 came to her house at about 02:00 PM. The accused No.1 took her to Sharma Clinik, Khan Market for Medical Check up. They came back to her house and she requested the accused to stay with her on the night of 03.01.2007. On 04.01.2007, her health was improving in the evening and the accused no.1 left her house at about 07:30 PM. DW2 deposed in his examination in chief that accused no.1 is his mother. On 03.01.2007, he was at his duty place i.e. Oberoi Hotel from 10:00 AM to 06:00 PM. His mother gave him a call at about 05:30 PM stating that his Mausi is seriously ill and his mother is at her house at C8, H.No.10, Sewa Nagar, New Delhi. After his duty, he went to his mausi's residence and he stayed whole night. On 04.01.2007, he went to his office at about 10:30 AM from the residence of his mausi. At his residence no one was there on 04.01.2007 and the house was locked. The accused has also filed on record the copies of the electricity bill for the billing month of November2005, 14 January2006, March2006, May2006 & the bill for the month of July2006 which reveals the bills basis as Actual. The counsel for the accused has also filed the electricity bills for new connection for the month of May2008, May2009 and January2010. DW1 admitted in her crossexamination that she did not bring and file any medical prescription issued by the doctor which treated her on 03.01.2007. However, DW1 volunteered that the medical documents have been misplaced due to white wash and painting in her house. DW2 in his crossexamination deposed that he used to go Oberoi Hotel by his motor cycle No. 9708. On the date of inspection, his motor cycle was got punctured. Perusal of the photographs Ex.CW2/E reveals the photographs of the motor cycle vide registration No. DL 3 S AV 9708, meaning thereby, the said motor cycle was standing outside the premises in question on the date of inspection.
16 The complainant examined Sh. V.D.Pal - DGM Enforcement as PW1 and Sh. Ashutosh Kumar - Assistant Manager (Legal), AR as PW2. PW2 is the formal witness who has been discussed above in detail on the aspect of authorisation and filing of this complaint. PW1 deposed in his examination in chief that on 04.01.2007 at about 12:45 PM, he alongwith Sh. Shailesh Gupta - GET and Rohit - GET inspected the premises bearing No. A156, DDA Quarters, Garhi, New Delhi. At the time of inspection, consumer Shakuntala Devi, present in the court and identified by him, was found to be indulging in direct theft of electricity by illegally and directly tapping from the meter board with the help of white colour 7/22 copper wire. Dhanpat was the registered consumer of the electricity. One meter, whose number he did not recollect, was also found installed at the time of inspection but there was no load on the meter and the entire load of the premises in question was running on direct 15 theft of supply and they assessed the load running on direct theft which was 9.44 KW being used for domestic purpose. The inspection team also prepared documents/ reports i.e. inspection report, meter details report, load report already exhibited as Ex.CW2/A, Ex.CW2/B and Ex.CW2/C which bears his signature at point B respectively. The illegal wires used by the accused for committing theft of electricity as well as the meter in question installed at the premises were also seized by the inspection team vide seizure memo Ex.CW2/D. The photography was also done by the team members and the four still photographs are already exhibited as Ex.CW2/E(colly) and two video clippings made by the team members at the time of inspection, shown to the witness on the computer screen of the court, duly identified by the witness and the CD is already exhibited as Ex.CW2/F. The documents prepared at site were also offered to the accused but the accused refused to receive and acknowledge the same. The accused even did not allow the team members to paste the said reports at site. After completion of inspection, all the reports were submitted to their office at Andrews Ganj, New Delhi and on the basis of the said reports, bill Ex.CW2/G was raised by the office of the complainant company. PW1 deposed that he can identify the case property. A sealed parcel duly sealed, although exact alphabets were not visible, was opened and copy of the seizure memo Ex.P1, one meter bearing Serial No.22381621 Ex.P2 and one white colour wire Ex.P3 was found in the bag and the same was duly identified by PW1 as recovered from the site by the joint inspection team at the time of inspection. During Crossexamination, PW1 deposed that the Flat No. A156 is a double Storey flat. The flats are occupied separately at ground floor and first floor. PW1 volunteered that the flat in question is situate at first floor. PW1 further deposed that the block consists of four flats out of which two are on the ground floor and two are on the second floor and stair goes in 16 between the two flats at the ground floor. All the four meters of ground floor and first floor house are fixed in the staircase at the ground floor at one place. 17 PW1 denied the suggestion that the wiring of all the flats are underground wiring. They reached the site and started inspection, the flat in question was locked. The son of the accused reached the site after 5 minutes of reaching of the inspection team. The accused was also present at site but left the spot after two minutes only. PW1 admitted that they have not inspected the premsies from inside. PW1 denied the suggestion that the load was assessed by the inspection as per their own observations. PW1 volunteered that the load was disclosed by the son of the accused. The load as detailed in the load report was as per the load disclosed by the son and duly corroborated by the neighbourers and the accused. No public witness joined at the time of inspection. It is also admitted by PW1 that Police was not with them at the time of inspection. PW1 further admitted that the load mentioned in Ex.CW2/C was not physically seen by him and the same was raised on the statement of the son of the accused. PW1 admitted that the photograph of the son of the accused was not captured in the photography/ video clippings. Here, I take a pause. According to the complainant, the inspection was carried at the premises in question on 04.01.2007 and the illegal material i.e. the meter and the illegal wires were seized from the site. If, the photographs of the site and the motor cycle were taken by the team members then what prevented the team members to take the photographs of the accused as well as the son of the accused who were present at site. Further, there is neither signature nor remarks for refusal of the receiving of the inspection reports, load report, etc. against the column of the signature of consumer/ representative/ user of the said reports. Moreover, no neighbourer either has 17 been named or focused in the photographs to show that the load was informed by them and even also by the son of the accused. No public witness joined at site on the date of inspection. There was no resistance shown and mentioned by the complainant in support of its case, therefore, the theft of electricity as well as the accused, son of the accused and the neighbourers could have been easily focused in the photographs as well as the video clippings which is not so in this case, reasons are best known to the complainant. The team members never entered the premises in question for inspection. If the premises was found locked and the accused or her son did not open the lock of the premises, the complainant had every right to call for the Police assistance which the complainant has not failed to do so. PW1 himself admitted that they did not inspect the premises from inside. The remaining team members as claimed to have inspected the premises in question have not been examined by the complainant. In the inspection report Ex. CW2/A, it is categorically mentioned that the load of the premises assessed by the neighbours, counting number of rooms and also from seeing outside. The complainant has mentioned in para no.6 of the complaint that the load of the premises was assessed as per the assessment made from outside and further as told by the neighbour. The name of the son of the accused not mentioned in the complaint that he informed about the load at site. The photograph of MCB was taken and not of change over switch. The premises in question is the Janta flat, then how such a load as mentioned in the load report Ex.CW2/C can be assessed outside the premises, meaning thereby, the load report is the self assessment of the inspection team. Therefore, the complainant has not proved on record that the accused was committing direct theft of electricity at the premises bearing No.A156, First Floor, DDA Quarters, Garhi, New Delhi on 04.01.2007. Thus, I find that there is 18 no reason not to accept the circumstances and the aforesaid evidence proved by the accused through its witnesses examined as DW1 & DW2 against direct theft of electricity.
18 For the foregoing reasons discussed above in details, to my considered opinion, the complainant company has not established the involvement of the accused in the offence of direct theft of electricity. The complainant has not proved its case against the accused beyond reasonable doubt. The present complaint case is not covered within the provisions of section 135 of the Act. Thus, I acquit the accused Smt. Shakuntala u/sec. 135 of the Electricity Act, 2003. The proceedings against coaccused Dhanpat (since P.O.) is ordered to be consigned to record room u/sec. 299 Cr.P.C.
Announced in the open ( YASHWANT KUMAR )
court on 12.05.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
19
CC No. 438/07
12.05.2011
Present AR for the complainant
Sh. Manish Kumar, proxy counsel for
Sh. D.K.Sharma, counsel for the accused with
accused in person
Vide separate judgment of the day, the accused Smt.Shakuntala is acquited u/sec. 135 of the Electricity Act, 2003. Surety for the accused discharged. The amount of Rs. 40,000/ already deposited by the accused with the complainant be returned to her within one month from today. The proceedings against coaccused Dhanpat (since P.O.) is ordered to be consigned to record room u/sec. 299 Cr.P.C.
The copy of this order and the judgment be made available to the complainant and the accused immediately and thereafter file be consigned to Record Room.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 12.05.2011