Delhi District Court
Bses Rajdhani Power Ltd vs Ms. Rajni W/O Rakesh on 18 August, 2022
IN THE COURT OF M.P. SINGH, ADDITIONAL SESSIONS
JUDGE, SPECIAL ELECTRICITY COURT, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI
CC No. 102/2017
BSES Rajdhani Power Ltd.
Registered office at - BSES Bhawan,
Nehru Place, Delhi - 19
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market, Andrews Ganj,
Delhi - 49 .....Complainant
Versus
1. Ms. Rajni w/o Rakesh
Address - opposite B/9-C, Gali no. 6,
Near electricity Pole No. VKP N 719
Subzi Mandi Road, Shani Bazar,
Uttam Nagar, New Delhi - 110059
2. Makhan Lal (expired; proceedings abated on 10.11.17)
Address - opposite B/9-C, Gali no. 6,
Near electricity Pole No. VKP N 719
Subzi Mandi Road, Shani Bazar,
Uttam Nagar, New Delhi - 110059 ......Accused
Case instituted on - 19.01.2017
Judgment pronounced on - 18.08.2022
JUDGMENT
1. Complainant's case is as follows:
I) On 30.12.2015 at about 01:30 pm a team comprising of CC No. 102/17 BSES v. Rajni Page 1 of 16 PW1 Kapil (Technician, BSES), Shivam Tiwari (Assistant Manager, BSES), Rajesh (Graduate Engineer Trainee, BSES) and a videographer, namely, Surender Rathor (PW3), conducted an inspection/ raid at premises of accused situated opposite B/9-C, street no. 6, near pole number VKP N 719, Subzi Mandi Road, Shani Bazar, Uttam Nagar, Delhi - 110059. Accused were occupiers of the premises in question. They were users of electricity.
They were allegedly using electricity illegally.
II) Members of the raiding /inspection team detected direct theft of electricity in the premises of accused. They observed the following: (a) there was no electricity meter,
(b) accused were committing direct theft of electricity by tapping the supply through illegal cable connected to BSES pole, (c) connected load of 4.523 KW was found running in premises of accused through stolen energy for domestic purpose. Videographer PW3 Surender Rathor videographed (Ex. PW1/A) the inspection/ raid.
III) Members of raiding /inspection team prepared Enforcement Inspection Report (Ex. PW1/C), Load Report (Ex. PW1/D) and Seizure Memo (Ex. PW1/E) at the spot. Due to resistance on the part of users, no material could be seized. Accused allegedly refused to receive and sign these reports/ memos. Based on inspection/raid, complainant CC No. 102/17 BSES v. Rajni Page 2 of 16 raised a theft bill of ₹ 76,317.14 against the accused.
IV) Complainant alleges that accused acted dishonestly with an intention to cause wrongful gain to themselves and wrongful loss to it. They had employed an illegal method to steal electricity. They illegally abstracted and consumed electricity without paying the applicable tariff. They are thus alleged to have committed direct theft of electricity punishable under section 135 of Electricity Act, 2003.
V) On these averments, complainant lodged the instant complaint alleging commission of offence punishable under section 135 of Electricity Act, 2003 through its authorised representative Mr. Ashutosh Kumar.
2. It is pertinent to mention here that on demise of accused no.2 Makhan Lal, proceedings qua him abated on 10.11.2017.
3. Accused Ms. Rajni was supplied the copies of complaint, annexures as also videography of the inspection.
4. On 20.09.2018 accused Ms. Rajni was admitted to bail on furnishing of personal bond and a surety bond in the sum of ₹ 20,000/- and subject to deposit of ₹ 20,000/- with the complainant on or before 26.11.2018. Bail bonds were furnished and accepted, but accused Ms. Rajni made no deposit of ₹ 20,000/-. She unsuccessfully challenged this order before Hon'ble CC No. 102/17 BSES v. Rajni Page 3 of 16 Delhi High Court. It appears that this order for conditional bail on deposit of ₹ 20,000/- was also challenged unsuccessfully before the Apex Court by way of Special leave Petition.
5. To a notice for the offence under section 135 of Electricity Act, 2003, served on 05.03.2022, accused Ms. Rajni pleaded not guilty and claimed trial.
6. In complainant's evidence, following three witnesses were examined.
PW1 Kapil (Technician, BSES). He was a member of the raiding team. His evidence is more or less along the same lines as averred in the complaint. He deposed that on 30.12.2015 at about 01:30 pm he along with Shivam Tiwari, Rajesh Kumar and videographer Surender Rathor conducted an inspection at the site and found that Ms. Rajni and Makhan Lal were committing direct theft of electricity; that they had no electricity meter; that they were found tapping electricity from BSES Low Voltage (LV) mains through two core black colour illegal wire which was further connected to load of the premises; that at the time of inspection, total connected load was 4.523 KW for domestic purpose; that the inspection was videographed (Ex. PW1/A); that illegal material used to steal electricity could not be seized due to resistance on the part of accused;
CC No. 102/17 BSES v. Rajni Page 4 of 16that inspection report Ex. PW1/C, connected load report Ex. PW1/D and seizure memo Ex. PW1/E were prepared and the accused refused to receive and sign the same. He correctly identified the accused. He also identified the videography Ex. PW1/A of the inspection/ raid. He exhibited the certificate under section 65B of Evidence Act in support of the videography as Ex. PW1/B. In his cross- examination he, inter alia, deposed that accused had removed the illegal wire; that the premises comprised of ground and first floor; that in the videography, the appliances are not seen working; that he could not recollect whether the refrigerator was on the ground floor or the first floor; that public persons were asked to join the proceedings, but none of them joined; that there were no public persons at the time of raid. He denied the suggestion that accused was owner of ground floor. He also denied the suggestion that refrigerator was on the first floor under the possession of someone else. He further denied the suggestion that illegal wires were not seized as accused had not indulged in electricity theft.
PW2 Ashutosh Kumar. He is complainant's authorised representative. He deposed that he had been authorised vide Power of Attorney Ex. PW2/A to institute the present complaint. In his cross-examination, he stated that he was CC No. 102/17 BSES v. Rajni Page 5 of 16 not part of the enforcement/ inspection team. He denied the suggestion that the authorisation in his favour was defective.
PW3 Surender Rathor. He is the videographer. He had videographed the inspection/ raid. Compact disc of the videography of inspection/ raid is Ex. PW1/A and the certificate under section 65B of Evidence Act in its support is Ex. PW1/B. He deposed that he along with Shivam Tiwari, Rajesh Kumar and Kapil had visited the premises, i.e. opposite B/9C, street no.6, Subzi Mandi Road, Shani Bazar, Uttam Nagar, Delhi - 59 on 30.12.2015 at about 01:30 pm; that as per directions of Team Leader, namely, Shivam Tiwari he had videographed the inspection/ raid. He correctly identified accused Ms. Rajni. He also identified the videography Ex. PW1/A of the inspection/ raid. In his cross-examination, he deposed that the videography had been recorded in parts; that there was no resistance to the videography; that he had prepared the CD from the videography.
7. Examined under section 313 of CrPC, accused pleaded innocence. She stated, "It is correct that we do not [did not] have electricity meter at that time. We used inverter battery. We used to recharge the inverter battery from a nearby shop." She went on to state, "I am falsely implicated in the present case because the CC No. 102/17 BSES v. Rajni Page 6 of 16 property dealers want to grab our property and on their instance, BSES officials has implicated me in this case."
8. In defence evidence, pursuant to an application under section 315 of CrPC that was allowed vide order dt. 13.05.2022, accused Ms. Rajni entered the witness box and examined herself as DW1. She deposed that she has been residing at A-3/26, Sainik Enclave, Mohan Garden, Uttam Nagar, Delhi since her marriage; that the property in question belongs to her and her husband; that at the time of inspection she was in possession of only the ground floor of the premises in question; that rest of the floors were in possession of her husband's brothers; that they (accused and her husband) used to come to the premises in question occasionally; that during the course of their visit to the premises in question, they used to draw electric energy from an inverter; that since they did not live in the premises in question, therefore there were no electric appliances, except for one bulb and a fan; that the refrigerator shown in the videography belongs to her brother-in- law, who used to live on the first floor; that they never indulged in any kind of electricity theft and that they had been falsely implicated. In her cross-examination, she, inter alia, stated that she was in possession of only two rooms, of the ground floor; that other two rooms of the ground floor were in possession of her brother-in-law Deepak and his wife Ms. Jyoti; that in the portion under her control, there were only two fans; that she never used CC No. 102/17 BSES v. Rajni Page 7 of 16 any refrigerator; that her dewar and dewarani were using the other electric appliances.
9. Arguments heard. Record perused.
10. It is an admitted fact that accused Ms. Rajni was occupier of the premises in question. Accused Ms. Rajni (DW1), in her oral evidence, very much admits that she was occupier of the premises in question. However, as per her, she occupied only the ground floor and used to visit the premises in question occasionally. In her examination-in-chief she stated, "Property bearing no. WZB-7, gali no. 6, near Shani Bazar, Uttam Nagar, New Delhi belongs to me and my husband. At the time of inspection, I was in possession of only the ground floor of WZB- 7, gali no. 6, near Shani Bazar, Uttam Nagar, New Delhi. Rest of the floors of this property were in possession of brothers of my husband. We used to come to WZB-7, gali no. 6, near Shani Bazar, Uttam Nagar, New Delhi sometimes."
11. Next, it is an admitted fact that accused had no electricity meter in her premises at the time of inspection on 30.12.2015. She admits this in her statement under section 313 CrPC. Further, in her own evidence as DW1, to a query whether there was electricity meter in her premises when inspection/ raid was carried out on 30.12.2015, she replied, "Shayad nahi tha."
12. Further, the evidence on record clearly establishes that at CC No. 102/17 BSES v. Rajni Page 8 of 16 the time of inspection on 30.12.2015 the premises in question belonging to accused Ms. Rajni was receiving electricity from the system of the complainant, albeit illegally. PW1 Kapil (Technician, BSES) in his evidence testified that on 30.12.2015 at about 01:30 pm he along with his team members Shivam Tiwari, Rajesh Kumar and videographer Surender Rathor (PW3) conducted an inspection at the site, which had no electricity meter, and found that Ms. Rajni and Makhan Lal (since deceased) were committing direct theft of electricity by tapping electricity from BSES Low Voltage (LV) mains through two core black colour illegal wire that was further connected to load of the premises. To this, I find that there is nothing in his cross- examination that could create any doubt on this score in complainant's case.
13. The aforesaid establishes two things: (a) that accused Ms. Ms. Rajni was occupier of the premises in question that had no electricity meter, and (b) that the premises in question, whereof accused Ms. Rajni was the occupier, was connected for the purpose of receiving electricity with the works of the licensee, that is, complainant BSES, albeit illegally.
14. Therefore, there can be no manner of doubt that accused Ms. Rajni was/ is a 'consumer' as defined in Electricity Act qua the premises in question. Section 2 (15) of Electricity Act, 2003 defines 'consumer' as follows, "Consumer" means any person CC No. 102/17 BSES v. Rajni Page 9 of 16 who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be."
15. The fact that accused Ms. Rajni may have been visiting the premises in question, that admittedly was hers, only occasionally does not at all alter her legal status, in any manner, of being a 'consumer' as set out in section 2 (15) of Electricity Act, 2003. It is to be noted here that at the time of the inspection on 30.12.2015 at about 01:30 pm she was very much found present in the premises in question. There is no dispute to this by the accused. In fact, to a query in her cross-examination whether she (DW1) had told the inspection team members that her brother-in-law Deepak and his wife Jyoti were in occupation of the entire first floor, she replied, "They did not ask me about this." Thus, there appears to be no dispute to the fact that accused Ms. Rajni was very much present in the premises in question.
16. Next, as per accused Ms. Rajni, she was in occupation of only the ground floor of the premises in question. Her stand that she was in occupation of only the ground floor of the premises will not suffice to take her out of the ambit of definition of CC No. 102/17 BSES v. Rajni Page 10 of 16 'consumer'.
17. Having established that accused was the 'consumer' of the premises in question, we now come to the next aspect. From the evidence on record, it clearly emerges that complainant had carried out an inspection/ raid in the premises of accused on 30.12.2015. Evidence of PW1 Kapil and PW3 Surender Rathor (videographer) establishes this. They, in their oral evidence, have stated that 30.12.2015 at about 01:30 pm they had inspected premises of accused. There is nothing in their cross-examination to contradict this. This is also corroborated by the videography of the inspection/raid that done by PW3 Surender Rathor. Compact disc of the videography is Ex. PW1/A. From the videography, it is clear that complainant had indeed conducted an inspection/ raid.
18. Next, the complainant, through its witness (PW1), has proved that there was theft of electricity in the premises in question at the time of the inspection. PW1 Kapil in his oral evidence has categorically stated that at the time of inspection, accused was consuming electricity sans a meter through two core black colour illegal wires by tapping from BSES pole and that the total connected load was found to be 4.523 KW. As already stated hereinabove, there is nothing in his (PW1's) cross-examination to create any doubt on this count. There admittedly was no electricity meter at the site. Inspection Report (Ex. PW1/C) shows CC No. 102/17 BSES v. Rajni Page 11 of 16 no electricity meter at the site. It further shows that electricity was being tapped through illegal wires from BSES electricity pole for domestic purpose. The Connected Load Report (Ex. PW1/D) shows that there was usage of bulbs, fans, tube lights, refrigerator, cooler, window air conditioner, washing machine and submersible in the premises of accused. Connected Load Report (Ex. PW1/D) shows the total connected load at the time of inspection/ raid to be 4.523 KW. These reports prepared by the officers of complainant is an act in discharge of their duties and cannot be straightaway disbelieved unless there is definite and cogent material on record to arrive at such a finding {see Punjab State Electricity Board & Others v. Ashwani Kumar, (2010) 7 SCC 569}.
19. It was the stand of the accused that she used to draw electric energy in her dwelling unit through an inverter and that she used to get the inverter battery recharged from a nearby shop. This defence of the accused stands not proved. It is merely a self- serving ipse dixit of accused. The shopkeeper has not been examined to prove this. There is no document to show that accused had purchased any inverter. There are no photographs showing an inverter in the house of accused. There are no receipts of payment made to the shopkeeper for recharging the inverter battery. That apart, it is doubtful if the inverter battery can take the load of the entire premises. In short, this plea is not proved.
CC No. 102/17 BSES v. Rajni Page 12 of 1620. It was the argument of learned counsel for the accused that the videography of the inspection cannot be relied upon as the same was done in parts. In this regard, he relied on the deposition of PW3 Surender Rathor (videographer), who in his cross- examination stated, "It is correct that videography is recorded in parts." This by itself does not establish that the accused had not committed theft of electricity. Making video of the inspection in parts will not by itself show that the accused had not been resorting to direct theft of electricity. Making of such a video will at the most make one cautious in accepting what is seen therein. It is to be noted that besides the videography there is also oral evidence of the witnesses of the complainant to establish theft of electricity by accused. The oral evidence adduced by the complainant inspires confidence. Therefore, even de hors the videography, I see no reason to doubt the case of the complainant.
21. It was the argument that the refrigerator did not belong to the accused. Even assuming that the refrigerator did not belong to the accused yet this will not absolve her. This will not suffice to prove that the accused had not stolen electric energy.
22. It is the view of this court that complainant has discharged its onus of proving that there was abstraction, consumption or use of electricity on the part of the accused through artificial means or means not authorised by complainant.
CC No. 102/17 BSES v. Rajni Page 13 of 1623. Complainant having discharged its initial onus, the onus now shifts to the accused to rebut the statutory presumption as set out in the Proviso to section 135 of Electricity Act, 2003. This statutory presumption reads as follows, "Provided also that if it is proved that any artificial means or means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer." This presumption has to be read against the accused. In terms of this statutory presumption, it is to be presumed that the accused, being consumer of electricity, had dishonestly resorted to abstraction, consumption or use of electricity. It is not the case of the accused that she was having authorised electricity meter or authorised electricity connection in the premises. Clearly this onus stands not discharged by the accused.
24. The fact that the accused was not arrested on spot does not disprove complainant's case. The members of the inspection team had no previous enmity with the accused to falsely implicate her.
25. The illegal wires, used to tap electricity was not seized. As per Seizure Memo Ex. PW1/C, the illegal wires could not be seized owing to user resistance and also because the consumer had removed the wires in front of the team. The factum of non-
CC No. 102/17 BSES v. Rajni Page 14 of 16seizure of the illegal wires used to tap electricity again does not disprove the case of the complainant. This is no infirmity in complainant's case since allegations of electricity theft can very well be proved by oral deposition coupled with videography and / or photographs showing theft of electricity. Electricity is not a tangible object and therefore recovery of case property may not be necessary akin to other cases where case property like, jewellery, cash, motor vehicle etc. may be recovered. Non-seizure of the illegal wire is not fatal to the case of the complainant and reference in this regard can be had to Mukesh Rastogi v. North Delhi Power Limited, 2007 SCC OnLine Del. 1435.
26. Relying on the deposition of PW3 Surender Rathor (videographer) it was argued by learned counsel for accused that there was never any resistance on the part of the accused. PW3 Surender Rathor (videographer) in his cross-examination had stated, "There was no resistance during videography." Even if this contention on the part of the accused is accepted, yet it does not disprove complainant's case. Non-seizure of the illegal wires, for whatsoever reason, cannot fatal to the case of the complainant.
27. It is clearly proved beyond doubt that officers of complainant had carried out an inspection/ raid on 30.12.2015 at about 01:30 pm in the premises of the accused. It is also proved that the accused was the consumer of electricity in the said CC No. 102/17 BSES v. Rajni Page 15 of 16 premises. It is also proved that accused was present at the site at the time of inspection. It is also proved beyond of doubt that accused had resorted to direct theft of electricity in her premises, which admittedly had no electric meter, by tapping electric energy from BSES electric pole through illegal wires. It is also proved that connected load at the time of inspection was 4.523 KW.
28. Accordingly, accused Ms. Rajni is held to be involved in the commission of offence of electricity theft punishable under section 135 of Electricity Act, 2003. Accused Ms. Rajni stands convicted of offence punishable under section 135 of Electricity Act, 2003. Accused Ms. Rajni is also held liable for the civil liabilities for using electricity illegally for domestic purpose under section 154 (5) of Electricity Act.
Digitally signed by MURARIMURARI PRASAD SINGH PRASAD Date:
Announced in the open SINGH 2022.08.20
16:48:41
Court on 18.08.2022 +0530
(M. P. Singh)
ASJ: Special Electricity Court
South West District,
Dwarka Courts, Delhi
CC No. 102/17 BSES v. Rajni Page 16 of 16