Delhi District Court
Bses vs . Birender Singh, Cc No. 155/11 Page No. 1 ... on 22 October, 2013
1
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 155/11
Police Station : Vasant Vihar, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406 RO178812011
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
Shri Birender Singh
S/o Shri Surat Singh
R/o 119, B5,
Near Gangnath Temple,
Munirka, New Delhi
...Accused
Appearances : AR with Shri Rajesh Kumar, counsel for complainant.
Accused Birender Singh present on bail along with
Shri S. Satyanarayana, Advocate
Complaint instituted on : 04.05.2011
Judgment reserved on : 10.10.2013
Judgment pronounced on : 22.10.2013
JUDGMENT
1. The case of the complainant in brief is that on 03.01.2011, the officers of the complainant company namely, Shri Sanjay Gangwal - BSES Vs. Birender Singh, CC No. 155/11 Page no. 1 of 17 2 Assistant Manager, Shri Mohd. Amin - Diploma Engineer Trainee, Shri Aforj Ansari - Diploma Engineer Trainee and Shri Kuwar Singh - Lineman, conducted inspection at premises bearing no. 119, B5, Munirka, New Delhi, and it was found by the inspection team that two core wires of BSES incoming from pole was damaged and tapped which was being used for direct theft of electricity and that the total connected load was found to be of 6.586 KW for non domestic purpose. It is further mentioned in the said complaint that the inspection report, load report were also prepared at the site and necessary videography/ photography was also conducted 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 theft bill as per tariff order was raised by the complainant for Rs.2,37,016/ with due date as 20.01.2011 and was served upon the accused but he failed to pay the said theft bill.
3. The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my Ld. Predecessor vide his order dated 18.07.2011. My Ld. Predecessor vide his order dated 28.02.2012 framed notice U/sec. 251 Cr.P.C. for commission of BSES Vs. Birender Singh, CC No. 155/11 Page no. 2 of 17 3 offence punishable u/s. 135 the Electricity Act, 2003 against the accused Birender Singh and accused pleaded not guilty and claimed trial on the ground that he was not committing any theft of electricity and that he was not the owner or user of shop no. 119, B5, Near Ganga Nath, Munirka, New Delhi and that one K.C. Ayyapan and Mange Khan were the users and that a false and fabricated has been made against him and that he is not liable to pay any damages and loss to the complainant company.
4. In order to prove the case of the complainant, four witnesses were produced, which have been discussed below.
5. The statement of accused Birender Singh was recorded U/sec.
313 Cr.P.C. and accused pleaded his innocence and denied the evidence as false and answered that he was not the owner or user of the premises in question and that he was not associated with the inspected premises and that none of the documents were prepared in his presence at the spot and that the theft bill has been wrongly raised and that wire was not removed as per his knowledge at the time of inspection of the premises in question and that he was also not aware of any videography/ photography being conducted at the spot. Accused Birender Singh further answered that he was not BSES Vs. Birender Singh, CC No. 155/11 Page no. 3 of 17 4 committing any direct theft of electricity and that the correct address of the inspected premises was 119B3, Munirka, New Delhi instead of 119, B5. Accused further answered that the premises in question was earlier owned by his brother Bhagat Singh, who had sold the same to one K.C. Ayyappan in year 1996 and that the said premises was occupied by one Mange Ram, who was running a welding shop in the same and that he was present at the welding shop at the time of inspection and that he was falsely implicated in the present case. Accused opted to lead defence evidence, however, he had not produced any defence witness.
6. I have heard the counsel for the complainant and counsel for the accused Shri S. Satyanarayana, Advocate, and perused the record including the CD of videography displayed on the computer screen of the court.
7. PW1 Shri Sanjay Gangwal was the Assistant Manager of the complainant company, who deposed that on 03.01.2011 he along with Shri Mohd. Amin, Shri Afroz and Shri Kunwar Singh visited and inspected the premises bearing no. 119/B5, Village Munirka, New Delhi and on reaching the said spot, they found that there was a shop at ground floor in the premises in question, where electric BSES Vs. Birender Singh, CC No. 155/11 Page no. 4 of 17 5 welding work was being done by labourers and that the BSES service cable was found damaged and that electricity theft was being committed by directly tapping from service cable and that the illegal wires from which direct tapping was being done was removed and seized and that the service cable was replaced with the help of Meter Department. PW1 further deposed that the total connected load of the premises was found to be 6.5 KWs for nondomestic purpose and the total connected load which was running on direct theft included welding transformer, iron cutting machine, drill machine and bulbs etc. PW1 proved the inspection report including meter report, load report and seizure memo as Ex. CW2/1, Ex. CW2/2 and Ex. CW2/4, respectively. PW4 further identified the videography contained in the CD, Ex. CW2/3 as that of the spot. PW1 correctly identified accused, who was present in the court on the date of his deposition and he also pointed out the accused as depicted in the said CD. PW1 also proved the case property i.e. two red colour copper wires as Ex. P1 and Ex. P2.
8. In his cross examination on behalf of the accused, PW1 admitted that they did not obtain any documentary proof showing the number of the premises as bearing no. 119/B5, Munirka, New Delhi and that at the time of inspection, they did find valid meter BSES Vs. Birender Singh, CC No. 155/11 Page no. 5 of 17 6 connection at the said premises. PW1 answered that on inquiry they found that the meter was in the name of accused Birender Singh. PW1 did not remember the month of the bill and number of the meter. PW1 admitted it as correct that the number of the premises i.e. 119/B5, Munirka, New Delhi, was not focused in the videography, Ex. CW2/3. PW1 answered that the accused was present at the site who himself informed that the number of the premises was 119/B5, Munirka, New Delhi. PW1 replied that the distance from the connected load in the premises to the tapping point was around 45 meters. PW1 admitted it as correct that the wires Ex. P1 and P2 did not bear any distinct mark so as to connect the same to the premises in question from where the said wires were seized. PW1 replied that the wires Es. P1 and P2 were about nine inches in length. PW1 admitted that none of the ends of the wires had shape like hook. PW1 volunteered that for tapping, it is not necessary that end of the wire has to be like "hook" shape and that the end can be twisted with the other wires to complete the tapping. PW1 answered that the wires were disconnected by lineman Shri Kanwar Singh and that the distance from ground to the tapping point was about 45 feets and that after seizure of wires Ex. P1 and P2, they had prepared the seizure memo (Ex. CW2/4) in triplicate. PW1 admitted that the said seizure memo did not bear the BSES Vs. Birender Singh, CC No. 155/11 Page no. 6 of 17 7 signature of the accused or report of his refusal. PW1 volunteered that the accused was agitated and was not cooperating with the inspection team. PW1 admitted that the copy of seizure memo was not there in the bag from which the remaining case property was taken out and that on the date of inspection, the meter was also replaced along with the service line in the premises in question and that the new meter which was installed was brought from the MMG department, Division - R.K. Puram. PW1 did not know specifically as to in whose name the new meter was got issued by the MMG Department. PW1 volunteered that in certain exigencies, meters got issued without any specific name. PW1 admitted it as correct that usually in direct theft cases, new meter is not installed and that in the present case, a new meter got installed to avoid any irregularity and possibly because service line had been changed.
9. PW2 Shri Afroz Ansari was the Diploma Engineer in the complainant company, who deposed almost on the same lines on which PW1 has deposed and as mentioned in the complaint. PW2 further deposed that on reaching the spot they found that there was illegal tapping through red colour copper wire of size 4 mm.sq. from BSES cable, which was coming from the BSES pole no. RKPG 832. In his cross examination on behalf of the accused, he admitted it as BSES Vs. Birender Singh, CC No. 155/11 Page no. 7 of 17 8 correct that they did not collect any documentary evidence with regard to the business being conducted at the premises in question and that they also did not collect any document to show the owner of the premises in question and that they did not put any identification mark on the wires to show that the same were removed from the premises in question. PW2 answered that after preparing all the documents at site, they had taken the same to their office at Andrews Ganj and handed over the same. PW2 admitted that the accused, who was present in court on the day of his deposition, was also present outside the premises in question and pointing out something to the inspection team. PW2 answered they did not check the details of the existing meter found installed at the spot.
10. PW3 Shri Rakesh Kumar was the videographer, who conducted the videography at the spot and he also proved the CD of said videography as Ex. CW2/3 and he also identified the videography as contained in the said CD and he deposed that there was no tampering with the data of videography done. In his cross examination on behalf of the accused, he admitted that he was not having any identity card to show that he was the employee of M/s. Arora Photo Studio.
BSES Vs. Birender Singh, CC No. 155/11 Page no. 8 of 17 9
11. PW4 Shri A.S. Menon, the Deputy Finance Officer, who proved the theft bill as Ex. CW2/6, which was prepared by him on the basis of formula given under the Electricity Act. In his cross examination on behalf of the accused, he replied that he did not visit the premises in question personally and that the formula applied for preparing the theft assessment bill is LDHF with the applicable tariff. PW4 did not remember the tariff applicable at the time of raising the present bill. PW4 volunteered that the same has been loaded in the computer software by which he made the calculation.
12. PW5 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. PW1/2 and he also proved the complaint Ex. CW1/1 and he deposed that he has no personal knowledge of the facts of the case and has deposed as per records. In his cross examination on behalf of the accused, he answered that he did not visit the premises in question at point of time.
13. With the deposition of PW1 and PW2, as per their respective examination in chief, it has been well established on the record and to a great extent the same has remained unrebutted on the record BSES Vs. Birender Singh, CC No. 155/11 Page no. 9 of 17 10 that on 03.01.2011 at premises no. 119/B5, village Munirka, New Delhi, the theft of electricity was going on by directly tapping for nondomestic purpose and artificial means to abstract the electric energy were also found and were seized and the accused was also present at the time of the said inspection of the premises.
14. In the said circumstances, the presumption as raised in 3 rd proviso to section 135 of the Electricity Act, 2003, has arisen against the accused and it was for him to rebut the said presumption.
15. The accused is not supposed to prove his defence 'beyond reasonable doubt' under the law and if any economic law shifts the burden on the accused to rebut any presumption, the extent of onus to be discharged by him, has been laid down by the Hon'ble Supreme Court in case 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'."
BSES Vs. Birender Singh, CC No. 155/11 Page no. 10 of 17 11
16. Judging in the light of the said law laid down by the Hon'ble Supreme Court, let me turn to the defence of the accused in the present case.
17. In reply to the notice u/s. 251 Cr.P.C., accused pleaded that he was not the owner or user of shop no. 119/B5 near Ganga Nath, Munirka, New Delhi and one Shri K.C. Ayyapan and Mange Khan were the users, and an inquiry to that effect was also conducted by my Ld. Predecessor.
18. This case was instituted and cognizance was taken on 04.05.2011 and on 25.05.2011, my Ld. Predecessor was on training at Delhi Judicial Academy and on 18.07.2011 the accused was summoned for 19.09.2011, when premises was reportedly found locked and fresh summons were issued for 17.10.2011 on which date it was reported that accused refused to accept the summons stating that the meter mentioned in the case did not pertain to his premises and thereafter, NBWs were issued against the accused for 08.11.2011, which remained unexecuted with the report that accused refused execution of warrants on the ground that his parentage was not mentioned in the warrants, on which the CD prepared at the time of inspection was played in the court and the official who had gone to BSES Vs. Birender Singh, CC No. 155/11 Page no. 11 of 17 12 execute the NBWs identified the accused therein and thereafter, fresh warrants were issued against the accused for 09.11.2011, on which date accused after arrest was produced by ASI Karan Singh and his NBWs were cancelled and the bail application was deferred for 15.11.2011.
19. On 15.11.2011, it was argued during the hearing of the bail application that accused did not reside at the premises in question which was occupied and owned by one K.C. Ayyapan and one Shri Mange Khan who were running a welding shop in the name of JB Steel Works but the said averments were controverted by ASI Karan Singh, who produced the telephone directory with house numbers in which accused Birender Singh was the recorded occupant of the premises no. 119/B5 and thereafter, the accused was granted bail. Thereafter, on 21.01.2012, my Ld. Predecessor came to the conclusion that accused Birender Singh would have to face the trial and it would be within his rights to prove during trial that Shri K.C. Ayyapan and Shri Mange Khan were the actual users. Thereafter, further adjournment, the notice was framed and trial started.
20. From the said summary of judicial record, it is nowhere established that any inquiry was conducted by my Ld. Predecessor BSES Vs. Birender Singh, CC No. 155/11 Page no. 12 of 17 13 as such in order to know that K.C. Ayyapan and Mange Khan were the users.
21. The accused has further failed to produce the said K. C. Ayyapan and Mange Khan in the witness box nor he requested the court to summon the said two persons as witnesses for him and in fact the accused did not lead any defence evidence. Hence, the said defence and contention of the accused is baseless and merely amounts to shooting an arrow in the dark.
22. It has been further contended by way of defence that PW1 and PW2 admitted in their respective cross examination that one meter was existing at the premises in question in the name of accused Birender Singh, but the complainant booked a case for direct theft by holding "no meter at site".
23. I think, the said contention is misconceived because in the inspection report Ex. CW2/1, it is nowhere mentioned "no meter at site", but the officials conducted the raid booked a case of "direct theft of electricity". Even in the respective examination in chief of PW1 and PW2, they have specifically deposed the manner in which the illegal wires were directly connected to the load of energy in the BSES Vs. Birender Singh, CC No. 155/11 Page no. 13 of 17 14 premises. Hence, the said contention also holds not much water and same is hereby rejected.
24. It is further contended that the lineman Shri Kanwar Singh was not produced in the witness box nor any of the wire was hook shaped so as to tap the energy with the same and there was no distinctive mark on the seized wires.
25. The said contention is misconceived and is based upon half truth, which is sometimes more dangerous than the falsity. PW1 has specifically explained in his cross examination that for tapping the electricity , it is not necessary that end of the wire has to be shaped like a hook and that end could be twisted with the other wire to complete the tapping. The manner of tapping was already explained by the said two witnesses in their respective examination in chief and certainly they were not having any axe to grind against the accused. PW1 and PW2 have specifically identified the illegal wires as Ex. P1 and P2 and as such, the nonproduction of the lineman as a witness is not very material to throw the case of the complainant altogether. It is the reliability and quality of the deposition which is to be considered and not the quantity of the witnesses. Even if, no distinctive mark was given to the seized wires Ex. P1 and P2, but BSES Vs. Birender Singh, CC No. 155/11 Page no. 14 of 17 15 the accused has failed to show the motive on behalf of the said witnesses to plant the said seized wires against him in the case.
26. It is further contended that there was a replacement of the service cable on the same day with the help of the meter department and the meter in question at the premises was also replaced on the same day, then how the case of direct theft of electricity was booked.
27. On the other hand, ld. counsel for the complainant has answered to the said contention that the work of replacing the damaged service line was going on and said replacement was nothing to do with the direct theft being committed by the accused.
28. I am in complete agreement with the said explanation given by the counsel for the complainant in this regard and as such the said contention is also hereby rejected.
29. It is further contended on behalf of the accused that another inspection was conducted at the premises bearing no. 119/B3, on 03.01.2013 itself, wherein present accused has been also implicated besides one Bhagat Singh as registered consumer which is pending before this court.
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30. In my considered opinion, as the premises are different, there is no bar in conducting various inspections on the same day and the said cases cannot be taken together for the disposal as the same are depending on their respective facts.
31. Even otherwise, accused has failed to produce any paid bill on the record in order to establish his defence that he was not committing the theft of electricity.
32. It has been further contended that accused just pointed out the premises in question on the asking of the officials of the complainant company who wanted to conduct raid for detection of theft of electricity there and accused was having no concern with the premises in question.
33. If this was so as per the said contention, noone stopped the accused requesting the court to summon the owner/occupier/user of the premises in question in his defence. But, no such step was taken to establish that accused was not concerned with the premises in question. Rather the shoe is on the other leg. I have gone through the CD of the videography and the manner in which the accused BSES Vs. Birender Singh, CC No. 155/11 Page no. 16 of 17 17 conducted himself as covered in the videography, go to establish not only his concern towards the premises in question, but it uproots his story that he had gone there just to point out the premises in question.
34. In view of my said discussion, accused has miserably failed to show any probable defence in his favour or to make believe this court that his defence is highly probable in the circumstances of the case and thus, he miserably failed to rebut the presumption.
35. With the said evidence on record, I am of considered opinion that complainant has proved the case against the accused beyond reasonable doubt and as such, accused Birender Singh is held guilty and convicted u/s. 135 of the Electricity Act, 2003. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 22.10.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Birender Singh, CC No. 155/11 Page no. 17 of 17