Delhi District Court
The Complainant Company I.E. Bses ... vs Lakhan 14/ 16 on 4 September, 2018
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE,
SPECIAL COURT (ELECTRICITY), EAST DISTT.,
KARKARDOOMA COURTS, DELHI
CC NO : 164/17
P.S. PREET VIHAR, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003
B.S.E.S. YAMUNA POWER LIMITED,
SHAKTI KIRAN BUILDING,KARKARDOOMA,
DELHI110032
ACTING THROUGH ITS AUTHORISED OFFICER,
SH. MUKESH SHARMA, MANAGER (LEGAL)
......... Complainant.
VERSUS
LAKHAN
R/O ADJACENT H. NO.114,
NEW RAJDHANI ENCLAVE,
DELHI 110 092.
......Accused
DATE OF INSTITUTION OF THE CASE : 13.10.2016
DATE ON WHICH JUDGMENT WAS RESERVED : 01.09.2018
DATE OF JUDGMENT : 04.09.2018
FINAL ORDER : ACQUITTED
CC No : 164/17 BSES YPL VS. LAKHAN 1/ 16
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') against the accused person namely Lakhan (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 03.06.2014 at about 16 : 30 hours, an inspection team of Complainant Company headed by Sh. Mukesh Kumar (Asstt.
Manager) had conducted an inspection at the premises adjacent to H. No.114, New Rajdhani Enclave, Delhi 110092 (hereinafter referred to as 'inspected premises') where accused was found indulged in direct theft of electricity through illegal wire/cable from BSES LV mains and was found using that direct electricity for commercial purposes. It has been further alleged that accused was using the said illegal supply of electricity for commercial purpose without any meter.
CC No : 164/17 BSES YPL VS. LAKHAN 2/ 16
3. It has been further alleged in the Complaint that a total connected load of 1.352KW/NX/DT(in short KW) was checked & assessed during the course of said inspection which was illegally being 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 videography of the inspected premises showing irregularities were also taken and the 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 him 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, accused was summoned to face trial for the offence punishable u/s 135 of the Act and notice of accusation as per the provisions of section 251 of Cr.P.C. was framed against the accused by this Court on 03.08.2018 for the offence punishable u/s 135 of the Electricity Act to which he pleaded not guilty and claimed trial.
CC No : 164/17 BSES YPL VS. LAKHAN 3/ 16 (C) COMPLAINT'S EVIDENCE :
5. In support of its case, the Complainant Company has examined two witnesses namely CW1 Sh. Mukesh Sharma (Manager) and CW2 Sh. Mukesh Kumar, DGM(O&M) of BSES YPL and thereafter evidence of the Complainant Company was closed as per their oral submission made on 14.08.2018.
6. CW1 Mukesh Sharma, Manager, BSES YPL has tendered his affidavit in examinationinchief as Ex.CW1/A and has relied upon documents i.e. General Power of Attorney dt.05.07.2013 alongwih Board Resolution as Ex.CW1/1(Colly) and Compliant filed by him in the present case as Ex.CW1/2. He has been crossexamined by Ld. counsel for the accused.
7. The next witness examined in this case on behalf of the Complainant Company is CW2 Sh. Mukesh Kumar, DGM, BSES YPL, who has tendered his affidavit as Ex.CW2/A inlieu of his examinationinchief and had relied upon documents i.e. Inspection report as Ex.CW2/1 (Colly), Load Report as Ex.CW2/2, Seizure memo As Ex.CW2/3, theft bill as Ex.CW 2/4, CD containing videography of the inspected premises as Ex.CW2/5 and Complaint dt.08.07.2014 lodged at P.S. Preet Vihar as Ex.CW2/6 respectively.
CC No : 164/17 BSES YPL VS. LAKHAN 4/ 16
8. PW2 also identified the CD Ex.CW2/5 before the Court as the videography done at the spot at the time of inspection. He has also identified the case property i.e. two pieces of single core blue colour copper wire having size of 2.5mmsq, having length of 6 meters each approx as Ex.P1. He was cross examined by Ld. Defence counsel.
9. Thereafter, the Complainant's evidence after notice stage was closed on 14.08.2018 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 :
10. On 24.08.2018, statement of the accused Lakhan 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 he has been falsely implicated and the witnesses have deposed against him in the present case at the behest of the Complainant Company being their employee. He has further asserted that he is neither Owner/Occupier nor user of the inspected premises. Infact, he has no concern with the inspected premises. Accused does not prefer to lead defence evidence. Hence, case was fixed for final arguments.
CC No : 164/17 BSES YPL VS. LAKHAN 5/ 16 (F) FINAL ARGUMENTS & RELEVANT PROVISION OF LAW :
11. I have heard final arguments advanced on behalf of the parties. I have also gone through the record, written submissions filed on behalf of the Complainant Company as well as contents of CD which was played during final arguments.
12. 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, CC No : 164/17 BSES YPL VS. LAKHAN 6/ 16 so as to abstract or consume or use electricity shall be punishable 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;...............................................
CC No : 164/17 BSES YPL VS. LAKHAN 7/ 16
13. Thus, from the aforesaid provision of law, it is clear 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.
14. 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 :
15. 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 i.e. adjacent to H. No.114, New Rajdhani CC No : 164/17 BSES YPL VS. LAKHAN 8/ 16 Enclave, Delhi 110 092 there was direct theft of electricity by using the illegal wire/cable, which was connected from BSES LV Mains and this electricity was being used directly for the commercial purposes and no meter was found installed at the inspected premises.
16. The defence of the accused is that he has no concern with the inspected premises in any manner. Infact, he was never involved in any kind of theft of electricity. He has further stated that he has been falsely implicated in the present case by the officials of the complainant company though he was not found present at the inspected premises at the time of inspection. Hence, he should not be made liable for any illegal activity found at the premises and accused can not be fastened with the criminal liability.
17. In his crossexamination witness CW2 has admitted that upon instruction of his Company's officers, he had conducted raid at the inspected premises. He has further testified that at the time of inspection, one person was found at the site who disclosed himself to be employee of the accused Lakhan, however, he does not remember the name of said employee of the accused. He has further testified that no one joined the inspection proceedings despite having presence of 3/4 public CC No : 164/17 BSES YPL VS. LAKHAN 9/ 16 persons at the inspected premises at the time of inspection. Though it has been deposed that representative of the accused was present at the time of inspection, but witness CW2 has failed to disclose the name of said representative in his cross examination. In his entire affidavit Ex.CW2/A, the name of said representative has not been disclosed by the CW2.
18. The perusal of the inspection report Ex.CW2/1 shows that the name of the accused has been mentioned with the remarks "As stated". However, from the record it is clear that no enquiry or investigation was made to ascertain the real user/consumer. It has been mentioned upon seizure memo Ex.CW2/3 that one Sadiq has refused to sign in the seizure memo, but his status has not been disclosed whether he was consumer or he was representative of the accused, or he was the user of illegal electricity at the inspected premises.
19. Moreover in the CD one person has been shown found present at the inspected premises at the time of inspection, who has not been arrayed as a witness or accused in the present case for the reasons best known to the complainant company. On the basis of mere hearsay evidence regarding the disclosure of name of the accused Lakhan, he cannot held guilty for the theft of electricity being the consumer/Occupier or user.
CC No : 164/17 BSES YPL VS. LAKHAN 10/ 16
20. Moreover, there is no document on record to connect the accused Lakhan with the inspected premises as Owner/Landlord or Occupier of the inspected premises. CW2 has even failed to disclose the identity and other details of the person found present at the spot. Moreover, it is the admitted case of the complainant that the accused was not present at the site at the time of inspection. It is the duty of the complainant company to inquiry/investigate about the real user of the illegal consumption of electricity before filing the Complaint. Even the accused is not appearing in the CD of the videography prepared at the time of inspection.
21. The law on the point of rebuttal is well settled. Rebuttal of presumption is to be established from a "prudent men's test"
making the court to belief 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 22/29 20 as follows : CC No : 164/17 BSES YPL VS. LAKHAN 11/ 16 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".
22. It is well settled principle of law that the onus to prove the false implication is on the person/accused who pleads false implication. In the present case, from the crossexamination of the witnesses of the complainant company, it is proved on record that accused has been no way connected with the inspected premises either as Owner as per allegations leveled against him by the complainant company nor he was the user of the inspected premises. Otherwise also, it has not been proved on record that the inspected premises was in possession of the accused.
23. Moreover, it has been categorically held in judgment titled as "Punjab State Electricity Board & Anr. Vs. Ashwani Kumar" in Civil Appeal No.3505/07 alongwith Civil Appeal No.,3506/07, decided on 08.07.2010, reported in 2010(7) SCC 569, which is reproduced for ready reference : CC No : 164/17 BSES YPL VS. LAKHAN 12/ 16 "The report prepared by the Officer of the Electricity Board is an act done in discharge of their duties and could not be straight away reflected or disbelieve unless and until there was definite and cogent material on record to arrive at such a finding. It has been further observed in the said judgement that the inspection report is a document prepared in exercise of its official duty by the officers of the corporation. Once an act is done in accordance with law, the presumption is in favour of such act or document and not against the same. Thus, there was specific onus upon the consumer to rebut by leading proper and cogent evidence that the report prepared by the officers was not correct"
24. Though, there is nothing on record to suggest that there was any enmity between accused and officials of Complainant Company. However, it has been come on record that accused Lakhan was in no way connected with the inspected premises. Therefore, he has been able to rebutt the presumption arising against him that he was the person who was committing the electricity theft at the inspected premises from the cross examination of CW2.
25. The Hon'ble Supreme Court has held in "AIR 1974
344. Harchand Singh and Another vs State of Haryana" as under: CC No : 164/17 BSES YPL VS. LAKHAN 13/ 16 "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".
26. It is relevant to mention at this stage that it is necessary for the prosecution 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 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."
CC No : 164/17 BSES YPL VS. LAKHAN 14/ 16
27. From the aforesaid discussion, it clearly appears that accused Lakhan is 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 no document to prove ownership/occupier was produced/filed on behalf of the complainant company. Thus, the accused Lakhan has been able to prove that he was no way involved in direct theft of electricity theft at the inspected premises at the relevant time and accused has been able to prove his defence that he was neither the owner nor user of inspected premises or in any was related to the inspected premises.
(E ) CONCLUSION :
28. In the light of the aforesaid discussion, it can be safely held that the Complainant Company has failed to prove that accused Lakhan being landlord/owner of the inspected premises i.e. adjacent to H. No.114, New Rajdhani Enclave, Delhi 110 092 committed the direct theft of electricity at the inspected premises with the help of illegal wires/cable directly connected from BSES LV Mains without any meter. Hence, I am of the considered opinion that the complainant company has not been able to prove the guilt of the accused Lakhan beyond reasonable doubt. Initial burden to establish the case is always on CC No : 164/17 BSES YPL VS. LAKHAN 15/ 16 Complainant and same has not been discharged. In view of the same, accused Lakhan is acquitted of notice framed against him u/s 135 of Electricity Act. Consequently Civil Liability, if any of accused stands waived off.
29. His bail bond stand cancelled. Surety bonds stand discharged. The case property of this matter is confiscated in favour of complainant company to be dealt with / disposed off by the complainant company as per law / rules.
30. At this stage, the accused is directed to file his fresh bail bonds in a sum of Rs.10,000/ and a surety of like amount in terms of Section 437A of Cr.P.C. Fresh Bail Bond is furnished on his behalf and is 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 4th September, 2018 (DEVENDRA KUMAR SHARMA) ASJ/ SPECIAL ELECTRICITY COURT EAST DISTT./ KKD COURTS/DELHI (Total 16 no. of pages) Digitally signed (One Spare copy is attached) DEVENDRA by DEVENDRA KUMAR KUMAR SHARMA Date: 2018.09.04 SHARMA 16:13:56 +0530 CC No : 164/17 BSES YPL VS. LAKHAN 16/ 16