Delhi District Court
State vs . Asha Tripathi Fir No. 598/15 Page No. 1 ... on 31 May, 2019
1
IN THE COURT OF SH. SANJEEV KUMAR SINGH, ADDL. SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
CIS No. : 359/18
SC NO. : 139/18
FIR No. : 598/15, Kalkaji
U/SEC : 135 of Electricity Act, 2003
STATE
Versus
ASHA TRIPATHI
F9, SHRI NIWAS DHARAMSHALA, KALKAJI MANDIR
NEW DELHI110019
...ACCUSED
Case instituted on :13.07.2018
Judgment reserved on :17.05.2019
Judgment pronounced on :31.05.2019
JUDGMENT
1. The case of the prosecution in brief is that a complaint was received at police station Kalkaji on the basis of which above said FIR no.598/15 was registered u/s 135 Electricity Act, 2003 against the accused.
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2. As per contents of the said complaint, the case of the complainant in brief is that on 31.12.2014 at about 02.50 p.m, a raiding team consisted of officials of complainant company i.e. Ms.Priyanka SinghAssistant Manager, Sh.Murari LalEngineer and Sh.Rakesh Kumar PalTechnician conducted inspection at the premises i.e. house no. F9, Shri Niwas Dharamshala, Kalkaji Mandir, New Delhi110019 (hereinafter referred as premises in question).
3. At the time of inspection no electricity meter was installed at site and the supply of electricity was running illegally by directly tapping from BSES service cable with the help of illegal wire and found using total connected load of 5.050 KW for domestic use. Material evidence was seized by the inspection team from the site. Inspection report, load report and seizure memo were prepared at site and necessary videography was also conducted during inspection.
4. It is further mentioned in the said complaint that complainant has assessed the civil liability of Rs.79,923/ against accused and theft bill as per DERC Regulations and tariff order was raised accordingly with due date as 22.01.2015. Hence, complaint was filed before the police station Kalkaji, New Delhi.
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5. Notice u/s. 251 Cr.P.C. against accused Asha Tripathi was framed on 12.10.2018 to which she pleaded not guilty and claimed trial on the ground that false and fabricated case has been made out against her hence, she is not liable to pay any loss or damage to the complainant as alleged.
6. In order to prove the case, prosecution produced five witnesses, which have been discussed below.
7. The statement of accused was recorded u/s. 313 Cr.P.C. on 23.01.2019 separately. Accused pleaded her innocence and denied the evidence and submitted that the illegal wire was planted against her as the same was not connected from any pole or BSES Service cable and even not depicted in the videography being connection with any pole. Accused opted to lead defence however, on 11.04.2019 it was submitted on behalf of the accused that she did not want to lead any evidence.
8. I have heard ld. counsel for the complainant and counsel for the accused.
Besides oral arguments, ld. Counsel for accused has also filed written arguments. I have also perused the record including the CD of videography displayed on the computer screen of the court.
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9. PW1 HC Shailender Kumar, duty officer, who registered the present FIR and proved the same as Ex.PW1/A and the affidavit under Section 65B of the Indian Evidence Act as Ex.PW1/B.
10. In his crossexamination on behalf of accused, PW1 replied that he received a written complaint and the said complaint bears his endorsement at point A. PW1 further replied that he was not a part of inspection team. PW1 further replied that he has no personal knowledge of the present case.
11. PW2 Sh. G. B. BarapatreDGM (Finance) BRPL, who stated that theft bill was prepared by him for direct theft and proved the same as Ex.PW2/A.
12. In his crossexamination on behalf of accused PW2 replied that he was not the member of the inspection team and thus he had no personal knowledge of the present case. PW2 further replied that he did not peruse the CD containing the videography of the inspection at the time of preparing the theft bill. PW2 denied the suggestion that theft bill has not been prepared as per DERC Regulations.
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13. PW3 Sh.Murari LalDiploma Engineer who has deposed that on 31.12.2014 at about 2.50 p.m. he alongwith Ms.Priyanka SinghAssistant Manager, Sh.Rakesh PalLineman and a videographer from M/s Arora Photo Studio visited and inspected the premises i.e. H.No. F9, Shiv Niwas Dharamshala, Kalkaji Mandir, New Delhi. PW3 further deposed that on reaching the premises in question, it was found that there was no electricity meter installed at the premises and accused was indulged in direct theft of electricity by directly tapping from BSES pole with the help of two number of yellow colour multistrand copper wire which was further connected to the connected load of the premises in question. PW3 further deposed that the abovesaid premises was being used by Asha Tripathi during the inspection. PW3 identified the accused, present in the Court, on the day of his deposition. PW3 further deposed that the load of the premises was assessed which was found to be 5.050 KW for domestic purpose.
14. PW3 further deposed that the illegal wire was cut by the lineman during inspection. PW3 identified the videography containing in the CD and also pointed out towards accused as depicted in the CD. PW3 identified the seized material i.e. two number of yellow colour multistrand copper wire of size 2.5 mm sq. and in length 1.5 meter as Ex.P2. He has identified his STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 5 of 16 6 signatures at point A upon the copy of seizure memo as Ex.P1. PW3 further identified his signatures upon documents i.e. Ex.PW3/A, Ex.PW3/B and Ex.PW3/C at point A.
15. In his crossexamination on behalf of accused, PW3 replied that inspection team conducted the raid at House no.F9, Shiv Niwas Dharamshala Kalkaji Mandir, New Delhi. PW3 further replied that his statement u/s 161 Cr.P.C. was recorded by the IO. PW3 further replied that the premises where raid was conducted as F9, Shri Niwas Dharamshal Kalkaji New Delhi. PW3 denied the suggestion that inspection was not carried out at the premises of accused i.e. F9 Shiv Niwas Dharamshala Kalkaji Mandir, New Delhi. PW3 further replied that the user was found indulged in direct theft of electricity by directly tapping from BSES service cable coming from the BSES pole. PW3 denied the suggestion that cable Ex.P2 was being used for the purpose of drying clothes. PW3 admitted that the illegal cable seized by the lineman is of 1.5 meters in length however, the same might be 78 meters in length. PW 3 further replied that no public person was made witness in the present case. PW3 further replied that he prepared the documents at site during inspection except inspection report. PW3 further replied that load report was prepared at site. PW3 denied the suggestion that inspection was carried out at F9, Shiv STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 6 of 16 7 Niwas Puri Kalkaji Mandir. PW3 further denied the suggestion that accused has been falsely implicated in the present case.
16. PW4 SI Sanjeev Kumar is the initial IO who got recorded the FIR in the present case and proved his endorsement upon complaint at point B.
17. In his crossexamination on behalf of accused, PW4 replied that he made enquiry regarding inspection being carried out or not. He further replied that he personally visited the premises in question and made enquiry from the shopkeepers nearby Ram Nath Dharamshala, Kalkaji Mandir. PW4 further replied that he did not record any statement during his enquiry.
18. PW5 SI Subhash Chander who deposed that on 13.07.2015 he received the present FIR from SI Sanjeev Kumar Nagar. PW5 further deposed that he served notice under Section 41A Cr.P.C. to the accused. PW5 further replied that accused told her that she has already made the payment towards the theft bill but on clarification from the officials of complainant company it was revealed that the payment was made against other theft bill by the accused and not against theft bill in question.
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19. It was submitted by ld. Counsel for complainant company that it has been held in catena of cases by Hon'ble Apex Court as well as various Hon'ble High Court of Delhi that in order to bring home the guilt of accused under the cases of direct theft of electricity, following ingredients need to be proved:
(i) the identity of accused;
(ii) the identity of premises in question;
(iii) the connection of the accused with the premises in question;
(iv) that the accused was indulged in direct theft of electricity by illegal means and was using the electricity without paying due charges.
20. It was submitted by ld. Counsel for the complainant company/deemed PP that in order to bring home the guilt of the accused, prosecution has examined five witnesses. It was further submitted that PW1 has proved the present FIR. It was further submitted that PW2 has proved the theft bill prepared in the present case. It was further submitted that the star witness of this case is PW3 who was one of the member of raiding team who conducted inspection at the premises in question and from the deposition of said witness it is revealed out that on 31.12.2014 at about 2.50 p.m. inspection was conducted at the premises of accused. It was further submitted that this witness has duly identified the illegal wires with the aid of which accused was found indulged STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 8 of 16 9 in theft of electricity and identified the same as Ex.P2 i.e. two number of yellow colour multistrand copper wire having size 2.5 mm sq. and in length 1.5 meter approximately. It was further submitted that said witness has proved the documents i.e. inspection report, load report and the seizure memo as Ex.PW3/A, Ex.PW3/B and Ex.PW3/C prepared at site. It was further submitted that CD was also played during his deposition and PW3 has identified the accused depicted in the videography. It was further submitted that PW3 has specifically deposed during his crossexamination that raid was conducted at premises i.e. F9, Shri Niwas Dharamshala and not Shiv Niwas Dharamshala. It was further submitted that PW3 has also further deposed that accused was found indulged in direct theft of electricity by directly tapping from BSES service cable coming from the BSES pole. It is further submitted that PW3 has denied the suggestion that the illegal cable is not an electric wire. He has also specifically denied the suggestion that cable Ex.P2 was being used for the purpose of drying clothes. It was further submitted that PW4 and PW5 were the IOs who conducted investigation in the present case and it has come in the deposition of PW5 that during investigation accused has told him that she has already made a payment towards the theft bill but when he enquired from the officials of complainant company it was revealed that the payment was made against other theft bill by the accused and not STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 9 of 16 10 against the theft bill in question. It was further submitted that deposition of PW5 in this regard unrebbutted on behalf of accused.
21. Lastly, it was submitted by ld. Counsel for complainant that prosecution has proved all the aforesaid ingredients and thus successful in proving its case beyond reasonable doubt.
22. On the other hand, besides oral arguments, written arguments were also filed on behalf of accused wherein it was stated that during inspection no person was made as public witness and thus the testimony of official witnesses of the company did not find any corroboration from any independent source. It was further submitted that in the videography no source has been depicted from where the theft of electricity was said to be committed. It was further submitted that proper and fair investigation was not done in the present case as IO has never called the accused for the purpose of investigation or that no notice u/s 41A Cr.P.C. had ever served upon her which creates doubt upon his investigation. It was further submitted that there is a huge contradiction/inconsistency in the address of accused and the address mentioned in the chargesheet and complaint as well as FIR is F9, Shri Niwas Dharamshala whereas the address of accused is Shiv Niwas Kalkaji Mandir, STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 10 of 16 11 New Delhi. It was further stated that in the present case material witness i.e. Ms. Priyanka Singh (Assistant Manager), Sh.Rakesh Kumar Pal (Technician) and Sh.Amarjeet Singh (Photographer) have not been examined which creates doubt upon the part of prosecution. It was further submitted that in the present case inspection was carried out on 31.12.2014 whereas the complaint was lodged with police station on 24.02.2015 after a gap of almost two months. It was further stated that in the present case videographer has not been examined and thus the same remained unproved and further placed reliance upon judgment of Hon'ble High Court in 2012 (4) JCC 2712 titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors, wherein it was held that non production of the photographer to be fatal to the case of the company. It was further stated that PW4 SI Sanjeev Kumar has stated during his cross examination that he personally visited the premises in question and made enquiry from the neighbour thereafter again he reversed back from his statement by stating that he did not visit the premises and he did not record any statement during the enquiry and thus the same is self contradictory and not reliable.
23. Arguments heard. Record perused carefully and also gone through the CD placed on record.
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24. The main contention raised on behalf of accused that only single witness from the raiding team has been produced in the present case and the material witnesses i.e. Ms.Priyanka Singh (Assistant Manager) and Sh.Rakesh Kumar Pal (Technician) have not been examined. However, the said contention raised on behalf of accused does not hold much water as the law appreciates the quality of the evidence and not the quantity of the evidence and there is no illegality in basing the conviction of an accused on the deposition of a single witness if his deposition is corroborated by other documentary and circumstantial evidence and is reliable and the witness examined as PW3 has duly established the fact that on 31.12.2014 at about 2.50 p.m. he alongwith other raiding team members visited and inspected the premises bearing no.H.No.F9, Shri Niwas Dharamshala, Kalkaji Mandir wherein accused was found indulged in direct theft of electricity and he has correctly identified the wire seized as Ex.P2, proved the documents placed on record, identified the accused present in the Court today and the videography conducted during inspection. Hence, the said contention is rejected being meritless.
25. The next contention raised on behalf of accused that videographer namely Amarjeet Singh has not been examined in this case and thus the videography remained unproved and further placed reliance upon judgment of Hon'ble STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 12 of 16 13 High court in case titled as BSES Rajdhani Power Ltd. Vs. Sunheri & Ors., 2012 (4) JCC 2712 however, the said judgment is of no help as in the said case CD was not prepared at the time of inspection and the seized meter and the wire through which the direct theft was being committed were not produced in the Court. Furthermore, the videography is only the secondary evidence thus, the case of the prosecution cannot be denied merely on the ground that videographer has not been examined.
26. The next contention raised on behalf of accused that there is a huge difference/inconsistency in the address of the accused as the address of the accused is F9, Shiv Niwas Kalkaji, Mandir whereas address mentioned in the chargesheet, complaint and in the FIR is F9, Shri Niwas Dharamshala. The difference in the name of premises in question is to effect that premises of accused is Shiv Niwas Dharamshala whereas the booked premises is mentioned as Shri Niwas Dharamshala however, there is no change in house number i.e. F9 and therefore, there might be possibility of mentioning the premises name as Shri Niwas Dharamshala instead of Shiv Niwas. Moreover, it has come in the deposition of PW5 that during investigation accused told him that she has already made payment towards the theft bill. Even in the videography containing in CD placed on record, the presence of accused Asha STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 13 of 16 14 Tripathi is clearly depicted while arguing with the officials of complainant company in a manner that the premises depicted in the videography is related to her which remained unexplained on her behalf. Thus, the said contention raised on behalf of accused is meritless and hence rejected.
27. Further it has been argued on behalf of accused that in the present case no public witness has been made in the present case and hence the testimony of the witnesses examined on behalf of complainant did not find any corroboration from any independent source. The said argument of ld. Counsel for accused does not bear any weight since PW3 has no axe to grind against the accused and he had no motive to falsely implicate the accused. His respective deposition is further corroborated by the documents placed on record and the videography which further proved the inspection conducted at site as such the said contention raised on behalf of the accused is rejected.
28. As regards next contention of accused that no source has been depicted in the videography from where the theft of electricity was being committed is concerned, it is not necessary that each and every event has to be covered in videography, seizure of Ex.P2 itself proved that accused was found indulged in direct theft of electricity, moreover, the cutting/removal of said illegal cable STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 14 of 16 15 has been duly depicted in the videography. Further, generally, in the cases pertaining to direct theft of electricity, the best remedy available to the accused is to produce the electricity bills for the relevant period, however, no bill pertaining to the premises inspected has ever been produced by the accused in the present case despite opportunity given and as such the said contention on behalf of the accused is rejected.
29. In this regard, reliance can be placed upon judgment passed by Hon'ble High Court of Delhi in Mukesh Rastogi Vs. North Delhi Power Limited, in Criminal Appeal No. 531/2007, the relevant extract of said judgment is reproduced as under: ".........6. The contention of the appellant is that electricity supply was through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through meter. Under Section 106 of the Evidence Act, the onus was on the appellant to STATE Vs. ASHA TRIPATHI FIR No. 598/15 Page no. 15 of 16 16 produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
30. From the above discussion, it is clear that accused Asha Tripathi has miserably failed to show any probable defence in her favour. Hence, I am of the considered opinion that the prosecution has been successful in proving the case against accused Asha Tripathi beyond reasonable doubt and accordingly accused is held guilty under Section 135 of the Electricity Act, 2003, and is convicted. Let the file to come up for quantum of sentence and determination of civil liability on 03.06.2019.
Announced in the open (SANJEEV KUMAR SINGH)
court on this 31st MAY, 2019 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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