Delhi District Court
570/10/08 Titled As Bses Rajdhani Power ... vs Kamli Vide on 12 October, 2011
Page 1 of 9
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 139/2011
ID No. 02405R0648582008
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
Kamli
WZ326, Back Portion,
Harijan Colony, Tilak Nagar,
New Delhi
......................... Accused
Date of institution: 25.02.2008
Arguments heard on: 22.09.2011
Judgment passed on : 01.10.2011
JUDGMENT:
1. The facts of the case are like this. On 20.11.2007 at 4:10 CC No. 139/2011 Page 2 of 9 pm a joint inspection team headed by Rakesh Kumar, AM; of complainant company inspected the premises No. WZ326 back portion, Harijan Colony, Tilak Nagar, New Delhi. The premises is used by accused. No electricity meter was installed in the premises. Accused was indulging in direct theft of electricity by tapping LV mains of the complainant with the help of wires which were connected to the connected load of the premises. The connected load was 6.596 KW for industrial purposes. The photographs were taken and downloaded in the CD. The wires were not seized due to resistance created by the accused. Inspection and load reports 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 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) . NOA U/s 251 Cr.P.C was put to the accused on 5.2.2011 to which she 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 CC No. 139/2011 Page 3 of 9 she has taken the defence that she was not using the premises. She has let out the premises. She was not present at the spot.
4. PW2 Rajeev Sharma is one of the members of the joint inspection team. He stated that on 20.11.2007 at 4 10 pm he along with PW3 Rakesh Sharma and Sher Singh, Lineman inspected the premises No WZ326 back side, Harijan Basti, Hari Nagar New Delhi. No meter was found at the spot. The accused was using the premises who was indulging in the theft of electricity by tapping LV Mains of the complainant. The connected load was 6.5. KW for industrial purposes. The photographs were taken. They could not seize the wires due to resistance created by the workers and accused present at the spot. Inspection and load reports Ex CW2/A and B were prepared at the spot and offered to the workers who refused to receive and sign the same. Ex CW2/C are the photographs taken at the spot and same are identified by him. CD Ex. CW2/D contains the photographs taken at the spot. In the crossexamination he stated that back portion is used for factory purposes. The inspected portion is around 30 sq yards. They could not inspect the front portion as public persons gathered at the spot. Photographs Ex. CW2 /C bearing No. 1,3,5,68 were clicked by him. The suggestion is denied that CC No. 139/2011 Page 4 of 9 photographs do not pertain to inspected premises. The labour refused to give their statement. No one from neighbourhood came forward to give statement. The labour disclosed the name of the accused and mobile number which was written on the wall. They had talked to the accused. The premises number is not reflected on the gate.
5. PW3 Rakesh Sharma has corroborated the version of PW2 in his examinationinchief. He stated in crossexamination that the back portion measuring 2025 sq yards was inspected . They had inspected the ground and first floor of the premises. The labour disclosed that premises belong to accused. Their main concern is to focus on the load running illegally. The premises was also inspected in May, 2008. LV mains is focused in photograph No.4 but pole is not focused in the photographs. The wires in photographs No 2 and 4 are going from the back side of the house of the accused i.e near the Park. The suggestion is denied that the wires focused in the photographs are not going to the premises of the accused. The machines found installed in the premises were not running through motor. It is correct that some appliances like table fan, ceiling fan, submersible and cooking heater are not focused in the photographs. The area is electrified. The photographs pertain to the back side of CC No. 139/2011 Page 5 of 9 the premises. He is confronted with photographs where portion is not reflected. It is correct that photographs cannot be said to be of first and second floor.
6. PW1 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.
7. Ld counsel for the complainant submitted that accused being user of the premises was indulging in the direct theft of electricity and this fact is duly proved by examining the members of joint inspection team. He further submitted that there is nothing on the record to discard the testimony of PWs. Ld counsel for the accused contended that accused is not the user of the premises. He further submitted that accused was not present at the spot. He further submitted that there is nothing on the record that accused is owner of the premises. He further submitted that there is no evidence on record to fasten the liability upon the accused.
8. 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 CC No. 139/2011 Page 6 of 9 complainant has to show that accused was responsible for committing theft of electricity in the inspected premises. To prove this fact, the complainant has placed heavy reliance on the testimony of PW2 and 3 as both of them are the members of joint inspection team. I have perused their testimony. Their testimony clearly shows that premises No. WZ326 back portion, Harijan Basti, Tilak Nagar, New Delhi was inspected. There is no dispute with respect to the premises inspected by them. The identity of the inspected premises stands established.
9. The question is whether accused was present at the spot or not and whether accused is using the premises or not. The complaint Ex. CW1/A shows that accused was present at the spot but the cross examination of PW1 and 2 shows that accused was not present at the spot. The labour was present at the spot who disclosed that premises is used by the accused and even disclosed her name. The accused in her statement U/s 313 Cr.P.C categorically stated that she has given the premises on rent meaning thereby that premises is owned by her. It was for the accused to disclose the name of the person to whom premises has been let out because this fact is exclusively within her knowledge. She did not disclose the name of tenant meaning thereby that she did not let out the premises and premises is being used by her CC No. 139/2011 Page 7 of 9 and the labour present at the spot was working for her. PW3 in the crossexamination stated that machines installed in the premises were not running through motors. Some of the premises are not shown in the load report. These questions can only be put by a person who is using the premises otherwise there is no occasion to put such questions. All this show that premises is under the use and occupation of accused but she was not present at the spot.
10. The testimony of PW2 and 3 further shows that there was no electricity meter. Their testimony further shows that accused was tapping the electricity from LV mains of the complainant. The wires are clearly shown in the photographs which are allegedly going from the back side of the house of the accused. The accused is using the appliances as shown in load report Ex. CW2/B. There is no meter in the premises which clearly reflects that there is direct theft of electricity. The complainant has discharged the initial burden of proving the factum of theft. The onus shifted to the accused to show that she has means to use the electricity. The accused has put a question to PW3 in the cross examination that machines are running through motors. No defence evidence is adduced by the accused to show that he is using any motor CC No. 139/2011 Page 8 of 9 of a particular HP to run the machines. No such defence is even taken in the statement U/s 313 Cr.P.C. The is nothing on the record that accused is using the electricity either through meter or through motor. The entire evidence on the file shows that accused has failed to discharge the onus and it is clear that she was indulging in the direct theft of electricity.
11. The load shown in the load report Ex CW2/B is nowhere challenged in the crossexamination of PW2 and 3. This means that load shown in the report stands admitted.
12. It is correct that members of the inspection team did not join either workers or public persons as witnesses. It is nowhere the requirement of law that public persons must always be associated. The workers do not come forward to depose against their employer for the obvious reasons. The testimony of PW2 and 3 has corroborated the version of the complainant in material particulars. No material contradiction is brought on record to bring their testimony within the zone of doubt. There is no evidence of enmity so the question of false implication. The testimony of PWs is consistent as such non association of independent witness is no infirmity. The argumetns advanced by ld counsel for the accused do not hold water. The CC No. 139/2011 Page 9 of 9 testimony of PWs is relied upon.
13. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused beyond shadow of reasonable doubt. Hence, accused is held guilty U/s 135 Electricity Act, 2003 and is convicted. Let the file to come up for quantum of sentence on 5.10.2011.
Announced in the open
Court on dated 01.10.11 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 139/2011
CC No. 139/2011
Page 1 of 5
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 139/2011
ID No. 02405R0648582008
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
........................ Complainant
Versus
Kamli
......................... Convict
ORDER ON POINT OF SENTENCE:
1. Ld. Counsel for the complainant submitted that convict has committed theft of electricity. He further submitted that convict is a repeated offender as she has already been convicted in CC No 570/10/08 titled as BSES Rajdhani Power Ltd Vs Kamli vide judgment and sentence dated 19.9.2011 and 21.09.2011 by this court and such kind of convict does not deserve any leniency from the court.
2. Ld counsel for the convict submitted that convict is a lady who has no source of income. He further submitted that she has to CC No. 139/2011 Page 2 of 5 look her family and any substantive sentence will affect the entire family and request is made to take a lenient view.
3. I have heard ld counsel for the parties and perused the record. It is clear from the bare reading of proviso to sub section 1 of Section 135 of the Act that sentence shall be imprisonment for a term not less than 6 months but which may extend to 5 years with fine not less than 6 times the financial gain on account of such a theft of electricity in case of a second or subsequent conviction.
4. The convict has been convicted for the direct theft of electricity. The connected load was 6.596 KW for industrial purposes. The electricity theft is on the increase. It also causes loss to State exchequer. The theft of electricity forces the honest consumer to bear with power cuts. The electricity is a national asset. A deterrent sentence should be imposed in case of repeated offenders. No sympathy should be shown to such offenders otherwise it will be an encouragement to the like minded persons. The convict is a repeated offender. Such kind of offenders should bear in mind that they will have to face serious consequences including conviction and imprisonment. To my mind, convict is not entitled for any sympathy.
5. The load is less than 10 KW. The convict was also CC No. 139/2011 Page 3 of 5 convicted in CC No. 570/10/08 titled as BSES RPL Vs Kamli as this fact is admitted by ld counsel for the convict. Ld counsel for the convict submitted that the convict was convicted in CC No 570/10/08 in which date of commission of offence was 5.5.2008. He further submitted that civil liability was determined for the theft of energy for an amount equivalent to two times of the tariff rate applicable for a period of 12 months proceeding the date of detection of theft. He further submitted that the date of commission of offence of present case is 20.11.2007. He further submitted that some period is common in both the cases and the theft bill raised by the complainant is not accurate as period already covered in earlier case should be deducted from the present case. Ld counsel for the complainant has no where disputed the preposition raised by the ld counsel for the accused. The date of inspection of the present case is 20.11.2007 and bill raised should be for an amount equivalent to two times of the tariff rate applicable for a period of 12 months proceeding the date of detection of theft. The inspection was carried out on 5.5.2008 in CC No. 570/10/08 and bill in that case is also raised for a period of one year prior to the date of inspection. The bill raised in CC No 570/10/08 was from 06.05.07 till 05.05.08 so the period starting from 06.05.07 CC No. 139/2011 Page 4 of 5 till 20.11.07 has to be deducted from the case in hand while calculating the theft bill of present case. The bill of present case will be from 21.11.2006 till 06.05.2007. The bill on the basis of applicable tariff rate comes to 46,014.68. The fine should not be less than 6 times the financial gain on account of theft of electricity. Hence, convict is sentenced to undergo SI for six months with a fine of Rs.2,76,088/ and in default of payment of fine to undergo SI for 5 months. The convict is also liable to pay civil liability U/s 154 (5) of the Act so amount of civil liability shall be paid to the complainant towards satisfaction of the civil liability, out of fine, if realized. ORDER ON CIVIL LIABILITY:
6. Section 154 (5) of the Act says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
7. The convict has been held guilty U/s 135 of the Act. The connected load was 6.596 KW. The bill for one year comes to around 46,014. The bill should be for an amount equivalent to two times of the tariff rate applicable for a period of 12 months proceeding the date CC No. 139/2011 Page 5 of 5 of detection of theft. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 92,029/. Copy of the order be given to the convict free of cost. File on completion be consigned to record room.
Announced in the open
Court on dated 12.10.2011 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 139/2011
CC No. 139/2011