Delhi District Court
Bses Rpl vs Padam Singh 1 Of 6 on 28 April, 2011
IN THE COURT OF SH. UMED SINGH GREWAL,
ADDITIONAL SESSIONS JUDGE,
SPECI AL ELECTRICITY COURT
DWARKA COURTS, NEW DELHI
CC.No.133/08
U/s 135 of Electricity Act, 2003.
BSES Rajdhani Power Ltd
Having its registered office at:
BSES Bhawan Nehru Place,
New Delhi 110019
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049 ...........Complainant
Versus
Padam Singh,
Flat no. 327, First Floor,
Pocket - 7, Phase - 1,
DDA Naseerpur Flats,
Dwarka, New Delhi. ..................Accused
Date of institution: 23.1.2008
Arguments heard on: 27.4.2011
Judgment passed on: 28.4.2011
BSES RPL v/s Padam Singh 1 Of 6
CC NO. 133/08
JUDGMENT:
1. Flat no. 327, first floor, pocket no. 7, phase - 1, DDA, Nasir Pur flats, Dwarka, New Delhi was inspected by a raiding team member of the complainant company on 9.3.2007 and accused was found using that flat. There was no electricity meter installed but he was still using the electricity by tapping from Busbar with the aid of illegal wires which were further connected to the load of the premises. Total load was found 3.505 KWs. The premises was photographed with Digital camera. Yellow and red coloured wires were seized. Inspection report Ex.CW2/1, metre details report Ex.PW1/A, load report CW2/2 and seizure memo Ex.CW2/3 were prepared and thereafter a penalty of Rs.85,924/ was imposed upon the accused vide assessment bill Ex.CW2/6.
2. Notice of accusation u/s 135 of Electricity Act, 2003 was framed to which he claimed trial.
3. In order to bring home the guilt of the accused the prosecution examined Sh.Rajesh Kumar, Manager as PW1 and Sh. Pankaj Tandon as PW2. Sh. Pankaj Tandon is a formal witness who filed complaint Ex.CW1/A and he has been authorized to do so by authority letter Ex.CW1/B. Accused also appeared in the witness box as DW1.
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4. PW1 deposed that he alongwith other employees of the complainant company inspected the flat of the accused on 9.3.2007. There was no electricity meter found installed and the energy was being consumed directly from the busbar. The flat in question was in physical occupation of the accused. This witness further deposed that one heater, one Refrigerator, one TV, ceiling fan etc. were found functional. Inspection report, load report, meter detailed report were prepared at the site. Wires were also taken into possession vide seizure memo Ex.CW2/3. The premises was photographed vide photographs Ex.CW2/4. He further deposed that a lady with some children was present in the flat who disclosed that the flat was owned by Padam Singh/accused.
5. The accused admitted as DW1 that the flat in question is owned by him but he was residing with his brother employed in Delhi Police, at police quarters in PS Kalkaji. His wife and children were residing in Adarsh Nagar, Ballabgarh, Haryana. He also relied upon the progress reports and the fee receipts showing that they were studying in Ballabgarh. He further deposed that he was not aware as to who was residing in the said flat when it was raided by the complainant on 9.3.2007.
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6. From the deposition of PW1, photographs, inspection report, load report, seizure memo it is established that the theft was being committed in the said premises. It has been admitted by PW1 that flat is owned by him but his defence is that nobody was residing there. Though it is proved by Ex.DW1/1 (collectively) i.e. the progress reports and the fee receipts of the two children of the accused that they were residing in Adarsh Nagar, Ballabgarh, Faridabad, Haryana. About his own accommodation, the accused stated that he was residing with his brother in Greater Kailash in an official accommodation. His brother did not appear in the witness box. When a public servant resides with another public servant, HRA is deducted from the salary of both public servants. Accused did not file his salary certificate showing deduction of HRA in his salary for staying in official accommodation with his brother.
7. It is the admitted case of the accused that he purchased the said flat in Dwarka in 2002 and that it was raided in 2007. His contention is that it was vacant for these 5 years. Nobody will keep his flat vacant when rent was skyrocketing in Dwarka, New Delhi. The fact which is in the exclusive knowledge of a party is to be proved by that party as per section 106 of Indian Evidence Act. Accused is presumed to know BSES RPL v/s Padam Singh 4 Of 6 CC NO. 133/08 as to who was residing in his flat. He deposed in crossexamination that lock of his house was found broken sometime whenever he went to see the flat. By saying so, he tried to develop the story that his flat was trespassed and that trespasser was residing there. But he did not place on record any FIR etc. for trespassing. Moreover, photographs Ex.CW2/4 show that there were clothes, curtains, TV, heater and Gas stove etc. in the house suggesting that it was in inhabitated condition.
8. The next contention of the counsel for the accused is that the complainant did not mention in any of the reports prepared by it, the name of the lady who was found in the flat. The flat is owned by accused and this fact is presumed to be in his exclusive knowledge. Despite being so, the accused did not disclose the name of that lady. The other contention of the counsel is that all the photographs produced on the file by the complainant did not pertain to the flat of the accused. He stated that some photographs are of the other premises. But the counsel failed to explain how the accused was prejudiced by the production of photographs of the other premises not belonging to the accused because the Court is not taking into account those very photographs.
9. Ld. Counsel for accused next argued that yellow and red wires BSES RPL v/s Padam Singh 5 Of 6 CC NO. 133/08 allegedly seized at the time of inspection were not produced in the Court. On this point, the counsel for complainant company relied upon Mukesh Rastogi v/s NDPL 2007, (99) DRJ, 108. In this case, the Hon'ble High Court held that nonproduction of wires in the Court cannot fail the case if it is sufficiently proved by other evidence that electricity was being stolen. It covers the facts of the present case squarely.
10. The accused has admitted ownership of the flat and that no metre was installed in that flat on 7.3.2007. He did not attribute any animosity of the raiding team members with him. Taking into account all these facts commutatively, it can be held without any hesitation that the prosecution has proved its case beyond the shadow of reasonable doubt. So, the accused is convicted u/s 135 of the Electricity Act, 2003.
Announced in the open court (UMED SINGH GREWAL)
on 28.4.2011. ASJ, Spl. Electricity Court,
Dwarka Courts, Delhi
BSES RPL v/s Padam Singh 6 Of 6
CC NO. 133/08
IN THE COURT OF UMED SINGH GREWAL: ASJ SPECIAL ELECTRICITY COURT, DWARKA, NEW DELHI CC No. 133/08 Unique Case ID No. U/s 135 of Electricity Act, 2003.
BSES Rajdhani Power Ltd Having its registered office at:
BSES Bhawan Nehru Place, New Delhi 110019 Also at:
Corporate, Legal and Enforcement Cell, Near Andrews Ganj Market, New Delhi 110049 Versus Padam Singh Flat no.327, First Floor, Pocket7, Phase1, DDA Naseerpur Flats, Dwarka, New Delhi .................................... Convict ORDER ON POINT OF SENTENCE:
1. Sh.Padam Singh has been convicted under Section 135 of BSES RPL v/s Padam Singh 7 Of 6 CC NO. 133/08 the Electricity Act, 2003. Counsel for complainant contends that having regard to the nature of offence which has socio economic impact a stringent view be taken.
2. On the other hand, defence counsel submits that a lenient view be taken as the accused is a Delhi Police constable having family liabilities and he is the only bread earner in the family and is not a previous convict.
3. Sentence provided for offence of theft of electricity U/s 135 of the Electricity Act, 2003 is imprisonment for a term which may extend to three years or with fine or both. The sentence of fine prescribed in the provision is that if the load abstracted or consumed does not exceeds 10 KW, fine on first conviction shall not be less than three times the financial gain on account of such theft of electricity.
Besides sentence for conviction against accused, the court is to take up civil liability of accused and the amount of civil liability is the loss or damage incurred by the licencee (i.e the complainant company) due to commission of offence.
4. The accused/convict was found indulging in direct theft of electricity for domestic use.
While considering the sentence object should be to protect BSES RPL v/s Padam Singh 8 Of 6 CC NO. 133/08 the society and to deter the criminal in achieving the avowed object by imposing appropriate sentence.
Keeping in view all the facts and circumstances into consideration, I am of the considered view that sentence of fine shall be appropriate and meet the ends of justice. Connected load in the present case was found to be 3.505 KW and theft assessment bill was raised for a sum of Rs 85,924/ (calculating the assessment for a period of 6 months and imposing 5 times the penalty amount).
This bill was prepared in March,2007 by imposing penalty five times. But those norms were changed in May,2007 and bills were calculated on the basis of consumption of one year by imposing the penalty two times. So, the change is in the penalty. Counsel for complainant also admitted that that DERC norms issued in May,2007 are applicable retrospectively. Hence, the bill of Rs. 85,924/ includes the five times penalty. If, the penalty is deducted from that bill, the bill for 6 months comes out to Rs. 85,924/5=17,184/. As per new norms the bill has to be calculated for one year i.e. for 12 months i.e. it should be Rs. 17,184/ X 2 times = Rs.34,369/. In this case the connected load includes and an immersion rod of 1.5 KW and that can not run through out the year. So, the load is taken as 2 KW and the bill BSES RPL v/s Padam Singh 9 Of 6 CC NO. 133/08 for 2 KW load comes out to Rs. 34,369 X 2/3.5 = Rs. 19,639/ . The load is less than 10 KW and the fine imposed shall not be less than three times the financial gain on account of the said theft of electricity (i.e. 19,639X3=58,917/).
In view of above, fine of Rs 58,917/ is imposed upon the convict U/s 135 of the Electricity Act, 2003. In default of payment of fine convict shall undergo SI for two months. Since the convict is also liable to pay the civil liability as determined U/s 154 (5) of the Electricity Act, 2003, it shall be appropriate that out of the fine amount, if realized; amount of Rs 39,278/ shall be paid to the complainant towards satisfaction of civil liability. ORDER ON POINT OF CIVIL LIABILITY:
Section 154 (5) provides for determination of civil liability against a person in terms of money for theft of energy and this 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 theft of energy or exact period of theft, if determined whichever is less. This civil liability when determined is to be recovered as a decree of civil court. Explanation to this provision further lays down that civil liability means loss or damage incurred by BSES RPL v/s Padam Singh 10 Of 6 CC NO. 133/08 the Board or licensee due to commission of an offence under section 135 of the Electricity Act,2003.
Convict has already been found guilty of an offence of theft of electricity under section 135 of the Act. The connected load has been duly proved on record.
In the present case, the connected load of 3.505 KW was in consumption. On the basis of applicable tariff theft bill has been assessed at Rs 19,639/. The final figure in the theft bill is by way of 12 months consumption of electricity multiplied by two times by way of penalty.
Accordingly, the civil liability is determined on the basis of connected load of 3.505 KW in consumption and the applicable tariff rate as calculated in the theft assessment bill. Civil liability is accordingly determined at Rs 39,278/. (Thirty Nine Thousand Two Hundred and Seventy Eight only).
Copy of this order be provided to accused free of cost. File be consigned to recordroom.
Announced in the open
Court on dated 05.05.11 (Umed Singh Grewal)
ASJ: Special Electricity Court
Dwarka: New Delhi
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CC NO. 133/08