Delhi District Court
The Complainant Company I.E. Bses ... vs Bratindranath Banjerjee" Cited As ... on 11 May, 2018
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT., KARKARDOOMA
COURTS, DELHI
CC NO. 684/16 (OLD NO.588/13)
P.S. NEW USMANPUR, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003
B.S.E.S. YAMUNA POWER LIMITED,
SHAKTI KIRAN BUILDING,KARKARDOOMA,
DELHI110032
THROUGH ITS AR MR. JITENDER SHANKAR.
......... Complainant.
VERSUS
SH. SALAM,
R/o ADJOINT OF D443, (LEFT SIDE),
MAZAR ROAD, NEAR BULAND MASJID,
SHASTRI PARK, DELHI.
..........Accused
DATE OF INSTITUTION OF THE CASE : 17.01.2009
DATE ON WHICH JUDGMENT WAS RESERVED : 07.05.2018
DATE OF JUDGMENT : 11.05.2018
JUDGMENT
(A) FACTS :
1. The Complainant Company i.e. BSES Yamuna Power Ltd. (in short called as complainant company) has filed the present Complaint case under Section 135 r/w sections 151 of The Electricity, Act 2003 (hereinafter referred to as 'the Act') PAGE 1/18 against the accused Salam (hereinafter called as accused) with a prayer to summon, try and punish the accused as per law with additional prayer to determine the civil liability of accused as per the provisions of Section 154 (5) of the Act.
2. Case of the Complainant Company in brief is that on 26.08.2008 at about 11 : 45 a.m, an inspection team of Complainant Company headed by Sh. Shivendu Kumar (Asstt.
Manager) had conducted an inspection at the premises adjoining of D443, (left side), Mazar Road, Near Buland Masjid, Shastri Park, Delhi (hereinafter referred to as 'inspected premises') where accused Salam was found indulged in direct theft of electricity by using the electricity directly through tapping BSES LV Mains through illegal wire and there was no meter at the site. It has been further alleged that accused was using the electricity for industrial purpose at the inspected premises.
3. It has been further alleged in the Complaint that a total connected load of 97.067 KW/IX/DT (in short KW) was checked & assessed during the course of said inspection which was being illegally used by the accused through artificial means not authorized by the complainant company. It has been further alleged that inspection report, load report and seizure memo were prepared at the spot. The CD containing videography of the inspected premises showing irregularities were also done and the PAGE 2/18 occupant/user of the premises were found committing direct theft of electricity at the time of inspection by using electricity illegally from the system of the Complainant Company. Hence, the present Complaint case was filed against the accused for initiating legal action as per law including the determination of civil liability against them as per the provision of Section 154(5) of the Act.
(B) SUMMONING AND NOTICE :
4. In the present case, after recording the pre summoning evidence on behalf of the complainant company, the accused was summoned to face trial for the offence punishable u/s 135 of the Act and thereafter notice of accusation as per the provisions of section 251 of Cr.P.C. was framed against accused by the Ld. Predecessor Court on 27.09.2012 for the offence punishable u/s 135 of the Electricity Act to which he pleaded not guilty and claimed trial.
(C) COMPLAINT'S EVIDENCE :
5. In support of its case, the Complainant Company has examined two witnesses namely PW1 Sh. Virender Kumar (DET) and PW2 Sh. Mukesh Sharma (Manager) and thereafter evidence of the Complainant Company was closed as per their oral submission made on 29.01.2018.
PAGE 3/186. PW1 Sh. Virender Kumar, DET of the Complainant Company has tendered his affidavit in lieu of examination in chief and relied upon documents Ex.PW1/1 to PW1/4 i.e. Enforcement Inspection Report and meter detail report as Ex. PW1/1 (colly.), Load report as Ex.PW1/2, Seizure memo as Ex.PW1/3 and CD containing videography as Ex. PW1/4. He has also identified the case property i.e. one piece of single core white and red (joint) alluminium wire of size 10 mm sq. having length of 8 meter, three pieces of single core black colour alluminium wire of size 25 mm sq having length of 37 meter appx. He has also identified the accused as person who was present at the site at the time of inspection. He has been cross examined at length by Ld. counsel for accused.
7. The next witness examined in this case on behalf of the Complainant Company is PW2 Mukesh Sharma, Manager, BSES YPL, who has tendered his affidavit in examinationinchief as Ex.PW2/A and relied upon documents i.e. Complaint filed by earlier A.R Sh. Jitender Shankar as Ex.CW1/B, authority letter in favour of Sh. Jitender Shankar as Ex. CW1/A, GPA dt. 05.07.2013 in his favour as Ex.PW2/A and Copy of Board Resolution as Ex.PW2/B. He has been crossexamined by Ld. Defence counsel.
8. The Complainant's evidence after notice stage was PAGE 4/18 closed on 29.01.2018 and matter was fixed for recording of Statement of the accused U/sec.281 r/w Sec.313 Cr.P.C.
(D) STATEMENT OF ACCUSED :
9. On 12.02.2018, statement of the accused U/sec.281 r/w Sec.313 Cr.P.C was recorded explaining all the incriminating evidence against him on record which he denied as false & incorrect. Accused has asserted in his statement that the said raid was conducted in the neighbourhood in the house of Mr. Jalal bearing house no. A443, Buland Masjid, Shastri Park, Delhi53 and he has no concern with any kind of electricity theft at the subject premises. Accused has asserted in his statement that no raid was conducted at his house in his presence. He has further asserted in his statement that documents were offered to him but he refused to sign stating that the inspected premises did not belong to him. He has further asserted in his statement that his mother house was situated i.e. H.No. D446, after leaving three four houses of Mr. Jalal. He has further asserted in his statement that he had been falsely implicated in this case as the Mr. Jalal asked him to let out the property no. D446 on rent but he refused. Accused preferred to lead defence evidence and matter was fixed for defence evidence.
(E) DEFENCE EVIDENCE :
10. Now turning to the defence evidence of the accused, PAGE 5/18 he has examined two witnesses namely Smt. Sushila Devi as DW 1 and Mohd. Saeed as DW2. DW1 has deposed that she is working as Ragpicker (kabadi) and in the year 2008 she was also doing the same work. DW1 has further deposed that she was working at the inspected premises at the time of raid and was doing the washing work of the utensils used for polishing work at the inspected premises. DW1 has further deposed that the work of polishing was owned by Mr. Jalal. She has further deposed that she knew the Salam who was also doing the same work.
This witness was cross examined by AR for the complainant company.
11. The next defence witness was examined on behalf of accused is Mohd. Saeed as DW2. DW2 has deposed that he is a rickshaw puller by profession and was plying the rickshaw for one Mr. Jalal. He has further deposed that as per his knowledge the raid was conducted by the BSES officials at the premises of Mr. Jalal and there were frequent raids in the said premises. He has further deposed that he knew the accused Salam for last about 15 years.
This witness was cross examined by AR for the complainant company.
12. Thereafter defence evidence was closed on 05.03.2018 as per the oral submission made by the accused and matter was fixed for final arguments.
PAGE 6/18(F) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :
13. I have heard final arguments advanced on behalf of the parties. I have also gone through the record as well as contents of CD which was played during final arguments.
14. Before going through the facts of the present case, it would be relevant to reproduce the relevant provisions of Electricity Act for ready reference :
Section 135 Theft of electricity - (1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,
(d)uses electricity through a tampered meter;or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable PAGE 7/18 with imprisonment for a term which may extend to three years or with fine or with both;
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted us :-
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity.
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station;...............................................
15. Thus, from the aforesaid provision of law, it is clear PAGE 8/18 that the Complainant Company is required to prove as under :
a) That there was theft/abstraction of electricity illegally by tempering the meter or by illegally tapping from a source not validly authorised to the accused.
b) That it was being done by the accused/consumer in the inspected premises.
16. The law is well settled that in case the aforesaid ingredients are proved, there is presumption in Proviso III of Section 135(1) of the Electricity Act, 2003 which is reproduced for ready reference : "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".
(G) FINDINGS :
17. In the present case, from the evidence available on the record, it is clear that at the time of conducting raid at the inspected premises D443, (left side), Mazar Road, Near Buland Masjid, Shastri Park, Delhi, no photograph of the accused is appearing or has been proved on record showing presence of the accused on the spot. No doubt in electricity theft cases, presence PAGE 9/18 of the accused is not sine qua non as the very nature of the electricity is not the same as in other offences. The presence of the accused at the spot at the time of commission of offence may be necessary like the offence of pickpocketing but for the theft of electricity, fixation or use of certain devices may be sufficient to continue the theft of electricity without the accused being personally present there and electricity as a stolen material is consumed simultaneously. Electricity is not a tangible object and therefore, even recovery of the case property may not be necessary like other cases where the case property like jewellery, cash, motor vehicle etc. may be recovered. Thus, even the defence like absence of the accused and non recovery of case property do not appeal in case of theft of electricity. However it is equally true that presence of a person in a premises does not mean that he is the owner or consumer or the tenant of the said premises.
18. In the present case, it is a case of complainant that the accused was the user of the property which was inspected by the officials of the complainant company as stated by the accused. But witness PW1 who inspected the premises in question/seized the case property has admitted in his cross examination that there is correction /overwriting at point X upon the inspection report Ex. PW1/1. He has further admitted in his crossexamination that there is correction at point Y in the site PAGE 10/18 plan forming part of inspection report Ex. PW1/1. Perusal of the meter detail report (Ex. CW2/C as marked in the presummoning evidence) and seizure memo Ex. PW1/3 also show that there is correction in address. If the correction in address upon all these documents are taken together, it appears that previously the address of inspected premises appears to have been written as adjoining to the premises no. D446, Left side, Mazar Road, Near Buland Masjid, Shastri Park, Delhi. Thus, clarification was required regarding the change of address as same is appearing on all the documents prepared at the time of inspection including seizure memo. However witness PW1 in his crossexamination has testified that he cannot say as to why the correction was made in the address or that what was the necessity to do the correction. He has further testified that it was done by the team leader Sh. Shivender Kumar. However it is to be noted here that the said Shivender Kumar never appeared in the witness box to clarify the same. Thus, the address pertaining to inspected premises remains doubtful in absence of cogent clarification by the competent witness.
19. It has been argued on behalf of the complainant that witness DW1 was examined and CD was played wherein it is clearly established that she was naming the accused as the person who was running the factory in the inspected premises and thus, it is proved beyond any doubt that this accused was the user in PAGE 11/18 the inspected premises and was running the factory. However this arguments is having no merit as there is Court observation to the effect that said witness is seen in the CD stating the name of the accused on asking who was running the factory at the inspected premises. However it is to be noted that DW1 was never examined by the team members regarding the address and other particulars. Mere recital of the name by a person present in the factory without any further verification cannot be a ground to hold the present accused guilty. This DW1 was not made a witness to the entire proceedings nor she has been cited as a witness in the present case. Moreover if her testimony is taken as a whole, she cannot be said to be a trustworthy witness when she herself has denied of her appearance in the CD Ex. PW1/4. Thus, her single statement made in the CD cannot be treated as gospal truth nor much reliance can be placed upon her testimony.
20. In the present case a site plan has been prepared and three properties have been shown adjacent to each other. First is shown as D443 and thereafter inspected premises and lastly premises no. D447B. Two meters have been shown installed at premises no. D443 and D447B respectively. The house number of the inspected premises could have been easily ascertained when there were two meters installed towards left and right side. If the site plan is treated to be correct, the inspected premises is stated to be the left hand side of the property no. 443. However if PAGE 12/18 the numbering is treated to be correct there was no question of having property no. 447B after the inspected premises. It could have been either 445 or 442 and not the property no. 447. Thus, this site plan also appears to be doubtful.
21. There is no document filed on record to show that it is the accused who was user and in occupation of the inspected premises. Even the person present on the spot at the time of inspection and appearing in the CD have not been arrayed as a witness nor any of them has been examined to corroborate the version of the complainant case. Admitted position of fact is that two police officials namely Rajesh and Pramod were also accompanying the inspection team but they had not been arrayed as a witness nor they have been joined the investigation.
22. As per inspection report Ex. PW1/1, the name of user is mentioned as Saleem at premises no. adjoining D443, (left side), Mazar Road, Near Buland Masjid, Shastri Park, Delhi However there is nothing on record to suggest in the testimony of any witnesses that what was the house number of the inspected premises. It is to be noted here that when the address is given in such a manner, the person /occupier of house no. 443 or 447B becomes a natural witness so as to prove that accused was in occupation of the inspected premises.
23. In his statement recorded u/s 281 read with section PAGE 13/18 313 of Cr.P.C. it has been the defence of accused that he has no concern with the inspected premises. No documentary proof has been placed on record to show or to connect the accused with the inspected premises as owner /tenant or occupier. Even no photographs has been placed on record to show that it was the accused who was in occupation of the inspected premises. In CD Ex. PW1/4 despite being the case of the complainant, the accused herein is not appearing in the CD.
24. Even if it is assumed for sake of arguments that the accused was present at the time of inspection, there is nothing on record to prove him consumer exclusively dehorse those persons who were appearing in the photographs who appears to be in actual physical possession of the inspected premises.
25. In the documents of inspection, it has been mentioned that the present accused was the consumer of electricity unauthorizedly at the time of inspection as stated. However it has not been made clear that as to who have stated himself to be the consumer at inspected premises. In the entire examination in chief, none of the witnesses have explained who have disclosed this fact that it was the accused who was using the electricity supply illegally. Though it has been claimed that it was the accused who himself disclosed to be the occupier of the inspected premises by PW1 in his crossexamination but admittedly he did PAGE 14/18 not verify the factum of ownership/occupancy of the inspected premises from any of the authority/independent person.
26. The Hon'ble Supreme Court has held in "AIR 1974 page 344 in case titled as "Harchand Singh and Another vs State of Haryana" in paragraph 11 as under: "11. The function of the court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the Court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradict and strikes at the other and shows it to be unreliable, the result would necessarily be that the court wold be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such situation".
27. It is relevant to mention at this stage that it is necessary for the prosecution/complainant to prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the PAGE 15/18 prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
28. From the aforesaid discussion, it clearly appears that accused was in no way related to the inspected premises at the alleged time of inspection or that he was found indulged in the direct theft of electricity as there is nothing on record to suggest that accused was actually in physical possession of the inspected premises as owner or tenant or in any other capacity. Thus, the accused has been able to prove on probability from the cross examination of the complainant witnesses that he was no way involved in direct theft of electricity at the inspected premises at the relevant time and accused has been able to prove his defence that he was neither the owner nor the landlord of inspected premises nor he was the occupier of the inspected premises. His defence that the inspected premises was not occupied by him appears to be probable and his defence that he was falsely implicated at the behest of one Mr. Jalal to whom he refused to let out his premises no. D446 on rent also appears to be probable.
29. The law on the point of rebuttal is well settled.
PAGE 16/18Rebuttal of presumption is to be established from a "prudent men's test" making the court to believe the existence of defence of the accused. In other words, the accused is not supposed to prove his defence beyond reasonable doubt under the law and if any law shift the burden on the accused to rebut the presumption, the extent of onus to be discharged by him, which has been answered by the Hon'ble Supreme Court in case titled as "Hiten P. Dalal Vs. Bratindranath Banjerjee" cited as 2001(6) SCC 16 in Para 20 as follows : "Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reason ability being that of the "prudent man".
(E ) CONCLUSION :
30. In the light of the aforesaid discussion, it can be safely concluded that the Complainant Company has failed to prove that accused Salam being occupier of the inspected premises i.e. Adjoining of D443, Left side, Mazar Road, Near Buland Masjid, Shastri Park, Delhi was found indulged in direct theft of electricity at the inspected premises by tapping BSES LV main PAGE 17/18 line through illegal wire and there was no meter. Hence, I am of the considered opinion that the complainant company has not been able to prove the guilt of the accused Salam herein beyond reasonable doubt. Initial burden to establish the case is always on Complainant and same has not been discharged. In view of the same, accused is acquitted of notice framed against him u/s 135 of Electricity Act. Consequently Civil Liability, if any, of accused stands waived off. Case property, if any be returned to the Complainant company to be dealt with/kept in safe custody as per rules.
At this stage accused is directed to furnish fresh bail bonds in terms of section 437A of Cr.P.C. in a sum of Rs. 10,000/ with surety of like amount. Fresh Bail bond is furnished and accepted for a period of six months.
File be consigned to record room after due compliance as per rules.
ANNOUNCED IN THE OPEN COURT TODAY ON 11th MAY, 2018 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 18 no. of pages) (One Spare copy is attached) Digitally signed by DEVENDRA DEVENDRA KUMAR SHARMA Location: KUMAR Karkardooma SHARMA Court Date: 2018.05.14 16:36:55 +0530 PAGE 18/18 PAGE 19/18