Delhi District Court
The Hon'Ble High Court Of Delhi In Case ... vs State on 3 April, 2013
1
IN THE COURT OF SH. RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. 318/08
PS Munirka, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
Unique ID No.02403RO946092008
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at,
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative) ...Complainant
Versus
1 Suraj Bhan
2 Deepak Kumar
3 Rakesh
4 Mukesh Kumar
All r/o 352/E/1, Munirka, New Delhi ...Accused
Appearances : AR with Sh. S.K.Alok, proxy counsel for
Sh. Rishab Raj Jain, counsel for complainant
All accused on bail with Sh.S.Satya Narayana, Adv.
Complaint instituted on : 29.03.2008
Judgment reserved on : 23.03.2013
Judgment pronounced on : 03.04.2013
JUDGMENT
1 The case of the complainant in brief is that on 10.01.2008, the officers of the complainant company namey, Sh.Dheeraj Mehta - Assistant Manager (Enforcement) and Sh.Ashok Sharma - Engineer Page 1 of page 19 2 (Enforcement) under supervision of Manager Enforcement, along with other team members and the CISF and police, inspected the premises of the accused at Suraj Niwas, 352/E/I, Munirka, New Delhi and it was found that the premises was being used by the said four accused and one electronic meter bearing No.23571745 and another L&T meter bearing No.22018275 were installed at the said premises for supply of electricity but it was found that all the accused were not using the electricity through the said meters but were illegally using the same by directly tapping from the service line of the complainant, with the aid of illegal tapping/ wires, which were further connected to a three pin top, which was connected with a socket and through that to the entire connected load of the said premises and that the meter no.23571745 was lying in idle condition and outgoings of the meter No.22018275 were connected to a double pole MCB and the same was in off position and thus, the accused were committing direct theft of electricity by way of bypassing the meters and that a connected load of 12.708 KWs energy was found stolen for domestic purpose and a connected load of energy of 4.860 KWs was being used by way of theft by accused Rakesh and Deepak for commercial purpose i.e. the Skyborn Tour & Travels and there was also a connected load of energy of 0.171 KWs used by way of theft by accused Deepak and Mukesh for commercial purpose i.e. a TV repair shop and the connected load was mentioned in the load report prepared at the spot and that the videography of the said theft Page 2 of page 19 3 was got conducted and the illegal tappings/ wires of black and red colour connected with top and the said two meters were seized vide seizure memo and an inspection report was also prepared at the spot including the sketch of the manner of theft and the said reports and memos were refused to be signed by the accused at the spot and thus, accused were causing wrongful loss to the complainant and wrongful gain to themselves and were thus acting dishonestly. 2 It is further mentioned in the complaint that it was a case of direct theft of electricity and three theft bills, as per the DERC regulations and Tariff order was raised by the complainant for Rs.1,40,006/, Rs.1,33,917/ & Rs.7,133/ with a due date as 24.01.2008 and were served upon the accused persons but they failed to pay the said theft bills.
3 The case was fixed for presummoning evidence and accused were summoned to face the said allegations by my ld. predecessor vide his order dt. 08.09.2008 and the accused appeared and were supplied with the copies of the documents and my ld. predecessor vide his order dt. 22.05.2009 framed a notice U/sec. 135 of the Electricity Act, 2003 against all the said accused and accused pleaded not guilty and they alleged that they were not misappropriating the electric energy by way of directly tapping from service line of the BSES with illegal wires and Page 3 of page 19 4 were not committing theft to the extent indicated in the load report for the purposes mentioned in the same nor caused damage or loss to the extent of the theft bill as alleged and they claimed trial. 4 In order to prove the case of the complainant, three witnesses were produced, which have been discussed below.
5 The statement of the accused were recorded U/sec. 313 Cr.P.C., wherein they pleaded their innocence and denied the evidence as false and accused no.1 Suraj Bhan, under permission vide section 315 Cr.P.C. appeared as DW1, which has been discussed below.
6 I have heard the counsel for the complainant and counsel for the accused Sh.S.Satya Narayana and perused the record including the videography displayed on the computer screen of the court. 7 PW1 Sh.Dheeraj Mehta was produced in the witness box who deposed the facts in his examination in chief as mentioned above in the said complaint and he further desposed that the theft was being committed with aid of two illegal wires out of which one was of the red colour which was used as phase and other was of blue colour which was used as a neutral and which were further connected to 16 ampere top which was further connected to socket and thus entire load of the Page 4 of page 19 5 premises in question was running through direct theft of electricity and he proved the load report as exhibit CW2/2, the inspection report as exhibit CW2/1 and seizure memo of the said wires with top and two meters as exhibit CW2/3 and the videography as exhibit CW2/7 and he indentified the energy meters as exhibit P2 and P3 and black colour cable as exhibit P4 and red and blue colour wires connected with three pin top as exhibit P5.
8 In his cross examination on behalf of accused, PW1 replied that he did not remember as to which one of the said two meters exhibit P2 and P3 was found idle. He admitted that no MCB was removed and seized. He did not remember if any photographs of MCB in the said condition was taken. He replied that the MCB was installed between the connected load and the output of the meter. He admitted that the function of the MCB is to automatically disconnect the load in case of high voltage supply. He replied that the socket of three pin top was not removed and seized. He did not remember if any photographs were taken of the red and blue colour wire hooked to the service cable and the three pin top connected with socket further connected to the load. He replied that the blue and red colour wire could bear load upto 10 KW approximately. He admitted if load of more than 10 KW is continuously run on these wires for 5 or 6 hours, the wire shall melt. He admitted that the wire and three pin top proved as exhibit P5 are easily Page 5 of page 19 6 available in the market and that no identification mark was put on exhibit P5 at the time of seizure. He could not explain as to how meter number 22018275 or 22018279 were alternatively mentioned in the inspection report, meter detail report, load report and the seizure memo and he volunteered that the correct number of the meter was 222018279, as noted on the meter, which has been produced in the court as exhibit P3 and that the meter reading as existed in the meter exhibit P3 were noted by him in the inspection report at page 2 and the same was 13034. He admitted that the reading of the meter as reflected on the day of deposition was 13037.5 and he volunteered that possibly it has been moved upto 3.5 units because of shock during transportation. He did not remember as to the load of which gadget was measured by clamp meter and that they were not carrying any calibration certificate of the clamp meter. He further answered that there was always margin of error in the clamp meter. He admitted that accused was not concerned with meter bearing number 22018275. He further answered that they have not tested the idle meter by putting the load at the time of inspection.
9 PW2 is the authorised representative of the compalinant who proved his letter of authority as exhibit CW1/1, copy of resolution of the board of the directors of the compalinant as exhibit CW1/2 and he further proved the complaint as exhibit CW1/3 and deposed that he Page 6 of page 19 7 had no personal knowledge of the facts of the case and has deposed as per records provided to him by the compalinant company. 10 PW3 Sh. Ashok Kumar Sharma deposed regarding the facts in his examination in chief on the same line on which PW1 deposed and he also proved said documents and CD of the videography was also exhibited by him after playing the same on the computer screen in the court as exhibit PW2/7 and he further deposed that accused Suraj Bhan was present at the spot but he did not remember about the other accused as to whether they were present at the spot or not. He further testified that after preparing all the documents, they offered the same to receive and sign by the persons present at the spot but they refused the same and he identified the carbon copy of the seizure memo found in the bag in which the case property was sealed as exhibit P1, the electricity meter number 23571745 as exhibit P2 which was in idle condition and one L & T meter bearing number 2201879 as exhibit P3 and black colour aluminium cable as exhibit P4, red and blue colour copper wires connected with three pin socket as exhibit P5. 11 In his cross examination on behalf of the accused, PW3 replied that he did not remember the number of the meter which was lying idle but it was mentioned in the inspection report. He replied that he had no idea about the tapping of the service line but it was before the Page 7 of page 19 8 meter. He replied that three pin produced in the court could bear the load of 17 KW. He answered that he had no idea as to whether the wires and the plug produced in the court were videographed while removing at the spot. He admitted that the wires and plug did not bear any identification mark to show that the same were removed from the spot. He admitted that he did not posses any document showing that on 10.01.2008 he was in the compalinant company. He replied that the accused Suraj Bhan was found present at the site and was depicted in the videography also. He also admitted that meter number mentioned in the complaint as 22018275 and meter produced in the court number 22018279 is of a different meter. He did not remeber if the information regarding passed consumption of the meters was collected. He did not remember the reading of the alleged idle meter. He could not say if the meter in perfect condition can record the consumption only and if it is lying idle it could not record any consumption. He replied that he physically verified the load of the appliances and that the load of the geyser, iron press, room heater and window AC was measured through tounge tester and he did not remember the calibration certificate of the said tounge tester if shown to the consumer at the site. He replied that the calibration certificate always remains with the tounge tester only. He admitted that in the CD of the videography, the measurement of the load of the appliances has not been covered. He further admitted that as per documents exhibit CW2/3 the meter inspected at the site was Page 8 of page 19 9 22018275 but the same has not been produced in the case property. He admitted that MCB shown in the videography was not removed from the spot. He admitted that documents offered to said Suraj Bhan and his refusal to accept the same has not been covered in the videography. 12 Thereafter, the accused Suraj Bhan appeared as DW1, who deposed that he was the owner of the premises bearing No.352/E/1, Munirka, New Delhi and that two electricity meters were got installed at the aforesaid premises out of which, one was for domestic and another was for nondomestic purposes and that officials of BSES had inadvertently mentioned the H.No.352E1 instead of 351E1 in the electricity bill, which are collectively exhibited as Ex.DW1/A being eight bills and the electricity bills pertaining to the other meters are collectively exhibited as Ex.DW1/B being 10 bills. He further testified that the electricity to the premises in question was feeding through aforesaid two connections, even on the date of alleged inspection and that there was no theft of electricity at any point of time in the aforesaid premises and that the officials of the complainant company have falsely prepared the present case against him, his son and his two tenants.
13 In his cross examination on behalf of the complainant, the DW1 admitted that he did not place any bill pertaining to the month of Page 9 of page 19 10 January2008 and that he could produce the same if the time is granted. (Cross examination was deferred on this ground on 17.04.2012 for producing the electricity bill of January2008 and DW1 was further cross examined on 24.05.2012). He further answered that he had not brought the bill for the month of January2008 as the same was not available but he had brought the bills for the months of October2009, June2010 and August2010. He further answered that the premises bearing No.352E/1 consisted of four floors and he was the owner of all the four floors and that there was a TV shop at ground floor which was let out to one Mukesh and he had also let out third floor to one Rakesh, the proprietor of M/s Skyborn Tour & Travel. He replied that he was residing with his family at the second floor of the premises in question and that the first floor of the premises was lying vacant. He admitted that no rent agreement had been executed between him and Mukesh, the owner of the TV shop and said Rakesh. He further replied that he was not present at the time of inspection and that there were 01 washing machine, 01 geyser, 01 iron, 01 AC, 01 bulb, 01 tube which were lying at second floor of the premises in question. He replied that he did not remember the correct numbers of the meters and that both the meters were installed on the ground floor but the same catered to the entire building consisting of four floors. One of the meters was for nondomestic use and the other was for domestic use. He replied that the ground floor had been rented out to one Mukesh, who was engaged Page 10 of page 19 11 in the business of repairing TV and his monthly rent was Rs.1500/ excluding the electricity charges and that the third floor was rented out to said Rakesh at a monthly rent of Rs.2500/ excluding the electricity charges. He further answered that both the tenants were provided with distinct sub meters and were charged for the consumption recorded in sub meters.
14 With this evidence on the record, it has been vehemently argued on behalf of the accused that the meter number has been wrongly mentioned and the concerned meter was never produced and that no MCB was taken into possession and as per cross examination of PW1, the MCB was installed between the connected load and the output of the meter, whose function was to automatically disconnect the load in case of high voltage supply and that PW1 has admitted that if the load of more than 10 KWs was continuously run on the wires seized in the case for 56 hours, the wire shall melt and that such wire and three pin plug Ex.P5 are easily available in the market and that Ex.P3 is not the same meter, which was installed at the premises in question and he has further admitted that accused is not concerned with meter bearing No. 22018275. It has been further argued on behalf of the accused that PW3 in his cross examination, has admitted that he had no idea about the tapping of the service line but it was before the meter and he has further admitted that according to the document Ex.CW2/3, the meter Page 11 of page 19 12 inspected at the site was bearing No.22018275 but the said meter was not produced as the case property before the court. 15 On the other hand, it has been argued on behalf of the complainant that deposition of PW1 & PW3 are constant and are corroborating each other which are further finding support from the inspection report, load report, seizure memo and the videography and the onus was shifted on the accused and it was for the accused to prove that he was consuming the electric energy by legal means and that accused has miserably failed in discharging his onus. 16 Section 135 of the Electricity Act, 2003 defines the theft of electricity as dishonestly tapping so as to abstract or consume or use electricity and in the proviso to Sub Clause (e) (ii), it is mentioned that if it is proved that any artificial means or means not authorised by the Board or licencee 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.
17 It is the above said proviso that shifts the burden on the accused to prove contrary to the said presumption of dishonesty as has been Page 12 of page 19 13 drawn in the said proviso. PW1 and PW3 have categorically deposed that there were two electricity meters in the premises in question, out of which one was in idle condition and second L&T meter was disconnected with the help of MCB from load and the accused were committing direct theft of electricity by directly tapping from the BRPL service line with the aid of two illegal wires which were further connected to 15 amperes top, which was further connected to socket and entire load of premises in question was running through direct theft of electricity and connected load of 12.70 KWs was found for domestic purpose and 4.860 KWs for non domestic purpose with M/s Skyborn Tours & Travel and 0.171 KWs for TV repair shop and their said deposition is fully corroborated by the inspection report Ex.CW2/1, the connected load report Ex.CW2/2, the videography Ex.CW2/7 and the seizure memo Ex.CW2/3 whereby the said illegal wires and the said two meters installed in the premises were seized.
18 The contentions that MCB in off position was not seized or that PW1 & PW3 did not remember so many things such as which of the meter was idle, though PW3 has identified the idle meter specifically and that there were some discrepancies with regard to number of one seized meter, are of no avail for the accused in view of the judgment of the Hon'ble High Court of Delhi in case titled Jeetpal and Anr. Vs State reported as 1996 JCC 674, wherein it was held that such kind of Page 13 of page 19 14 discrepancies are minor, insignificant, natural and not material and that the said discrepancies are due to normal errors of memory, due to lapse of time and they also do not relate to main substratum of the prosecution case. Regarding the non seizure of shunt wire in the said case through which, the abstraction of energy was going on and which was being used as artificial means, the Hon'ble High Court held non seizure of the shunt wire does not affect the credibility of PW1 & PW2, who had no axe to grind against any of the accused persons and thus, the prosecution case cannot be rejected on the ground of non seizure of the shunt wire which appears to be an argument in desperation. 19 In view of the said holding of the Hon'ble High Court, in the present case also, even if I take that a wrong number of the meter was mentioned in the inspection report and the meter removed with wrong number coded, was not produced in the court, it does not affect the merits of the deposition of PW1 & PW3, who were constantly deposing that both the meters were bypassed and were not recording consumption of electricity at the time of inspection and direct theft of energy was going on through tapping. Merely PW1 could not remember as to which of the meter was idle, is no ground to reject the overall testimony of PW1 & PW3 with regard to said theft.
Page 14 of page 19 15 20 In view of the said circumstances, I am of the considered opinion that PW1 & PW3 coupled with the said inspection report and seizure memo have been successful in showing that artificial means were being deployed by the accused for dishonestly abstracting the electric energy by way of direct tapping. As such, I am of further considered opinion that onus was shifted upon the accused persons to rebut the said presumption as provided under the said proviso in Section 135 of the Act as mentioned above.
21 The issue arises as to what extent, the accused has to discharge his burden and the said issue was answered by the Supreme Court in the judgment titled Hiten P. Dalal Vs Bratindranath Banerjee 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 reasonability being that of the 'prudent man'."
22 Judging in the said law laid down by the Hon'ble Supreme Court, let me examine as to whether the accused has discharged his burden of rebutting the presumption by any cogent and reliable evidence so as to appeal to the common sense and make this court believe that the Page 15 of page 19 16 defence stated by the accused really existed. The accused can bring forth his defence and rebuttal evidence at various stages. When, he is replying to the show cause notice U/sec. 251 Cr.P.C., he may put his defence at that stage and thereafter, he may put his defence by way of cross examination of the prosecution witnesses even to the extent of confronting the complainant's witnesses by way of documentary evidence and thereafter, he may explain his defence and rebuttal evidence in his statement U/sec. 313 Cr.P.C. and thereafter, he may prove his defence by leading defence evidence in the case. 23 The claim of the accused that they were not committing any theft of energy and were consuming the same through the meters installed in the premises, has not been established at all because admittedly, they have failed to produce any bill of electric charges paid or received by them of January2008, when the inspection was carried out, despite sufficient time and opportunity given to them. Even otherwise if the accused were so sure that they had paid the bill of January 2008 or for the period immediately thereafter and they could not trace out the bills of the same or they misplaced the said bills, what stopped the accused from requesting the court to summon the concerned officials of the complainant company to prove the said bills, if at all the accused had made the payment of the bill pertaining to January 2008, but no such step was taken.
Page 16 of page 19 17 24 In reply to the notice under section 251 Cr.P.C., the accused merely denied any theft being committed by them and there was no plea on behalf of accused Suraj Bhan that he being the admitted owner of the premises, supplied the electic energy to his two tenants namely accused Rakesh and accused Mukesh through submeters at that time. This defence of supply of energy to the said two accused by accused Suraj Bhan was not put either to PW1 or to PW3 while cross examining them nor any suggestion was thrown to the said PW1 and PW3 to that effect. This defence of supply of electricity through sub meters to the said two accused being the tenants was not put forth by accused Suraj Bhan or the same was not taken by accused Mukesh Kumar in their respective statements u/s. 313 Cr.P.C. but the said defence for the first time was taken by accused Rajesh in his statement u/s. 313 Cr.P.C. in answer to last but one question wherein the said accused claimed to have a submeter in his tenanted portion of the premises and the said defence was even not taken by accused Suraj Bhan in his examination in chief when he appeared as DW1 but it was taken for the first time by him in his cross examination on behalf of the complainant company. Even no photograph of the said alleged sub meters were placed on record nor accused Mukesh and Rakesh were produced in the witness box to depose to that effect.
Page 17 of page 19 18 25 The said shifting of defences and different stands taken by the accused go to establish that the accused had miserably failed to establish that they were not committing any theft of eletricity by directly tapping the same dishonestly. Rather the accused Suraj Bhan not only in his statement u/s. 313 Cr.P.C. but in his cross examination as DW1 has substantially supported the deposition of PW1 and PW3, by categorically admitting that he could not produce the bill for the month of January 2008 and admittedly the bills which he has produced as Ex. DW1/A and Ex. DW1/B are pertaining to the period either much prior to the January 2008 or much after January 2008. He has further admitted that the ground floor was let out to accused Mukesh and third floor of the premises was let out to accused Rakesh for commercial purposes and that he himself was residing at the second floor of the premises.
26 All the accused further miserably failed to uproot or shake the testimony of PW1 and PW3 in their respective cross examination qua the theft of electricity by directly tapping.
27 The plea of accused Suraj Bhan that he was not present at the time of inspection is belied by the CD Ex. CW2/7 which depicts accused Suraj Bhan present at the spot and it has been further so deposed by PW3 also.
Page 18 of page 19 19 28 From the said discussion, it is quite evident on the record that the accused miserably failed even to put a dent on the evidence adduced by the complainant, what to talk of rebutting the presumption raised under the said law. I find that the facts of this case are very near and close to the facts of the case titled "Mukesh Rastogi Vs. NDPL" decided by the Hon'ble High Court in criminal appeal number 531/2007 decided on 23.10.2007, wherein all said contentions raised on behalf of the accused in the present case have been rejected by the Hon'ble High Court.
29 In view of my said discussion, I am of the considered opinion that the complainant has brought home the guilt of the accused beyond reasonable doubt and thus, all the accused are held guilty and convicted u/s. 135 of the Electricity Act, 2003.
Announced in the open ( RAKESH TEWARI )
court on 03.04.2013 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
Page 19 of page 19