Delhi District Court
Bses Rpl vs Raj Memorial Hospital 1 Of 10 on 21 May, 2011
IN THE COURT OF SH. UMED SINGH GREWAL,
ADDITIONAL SESSIONS JUDGE,
SPECI AL ELECTRICITY COURT
DWARKA COURTS, NEW DELHI
CC.No.279/06
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
1. Raj Memorial Hospital (User)
Through its proprietor
Dr. V.K.Singh
RZF 905/22, Raj Nagar Part II,
Palam, New Delhi - 110045.
2. Anita Kumar Raj (R/c)
RZF 905/22, Raj Nagar Part II,
Palam, New Delhi - 110045.
..................Accused
BSES RPL v/s Raj Memorial Hospital 1 Of 10
CC NO. 279/06
Date of institution: 20.7.2006
Arguments heard on: 16.5.2011
Judgment passed on: 21.5.2011
Present: Sh. Pankaj Tandon, AR of the complainant company
alongwith Sh. M.K.Padhee, adv.
Sh. Shakal Bhushan, counsel for both accused.
JUDGMENT:
1. Raj Memorial Hospital bearing premises no. RZF905/22, Raj Nagar, Part II, Palam New Delhi45 was inspected on 9.5.2006 by the raiding team members of the complainant company. Electricity was being tapped directly by hooking the LV Mains with the help of two 2 core black coloured aluminum wires. These were buried under the ground and were leading to a distribution box in the hospital. The hospital was being run by Dr. V.K.Singh and accused no.2 Anita Kumari Raj, i.e. w/o Sh. V.K.Singh was the owner of the premises. Connected load was found 17.803 KW for commercial purpose. The site was videographed, reports were prepared and cables were seized and ultimately a penalty of Rs.16,32,248/ was imposed upon the accused vide theft assessment bill Ex.CW2/F.
2. Notice of accusation against both accused u/s 135 of Electricity BSES RPL v/s Raj Memorial Hospital 2 Of 10 CC NO. 279/06 Act, 2003 was framed to which they claimed trial.
3. In order to establish the case, the complainant company examined Sh. Pankaj Tandon as PW1 who has been authorized on the strength of authority letter Ex.CW1/B to file the complaint Ex.CW1/A. PW2 Rajesh Kumar, PW3 Sh. V.P.Jain and Sh. V.D.Paul/PW4 are the raiding team members. The accused examined Sh. Vivek Kumar Singh as DW1 who is the brother of accused no.1 Dr. V.K.Singh.
4. The star witness is PW4/Sh. V.D.Paul. He deposed that he alongwith Sh.V.P.Jain/PW3 and two electrician, namely Sh.Satender and Sh. Sajjan Kumar, inspected the said premises on 9.5.2006 at about 1.05 pm. There was a direct theft of electricity from the BSES LV Mains in that premises being used by Dr. V.K.Singh. No meter was found at the site. Dr. V.K.Singh himself informed the raiding team members that a meter was installed earlier in the name of his wife Anita Kumari Raj. On checking, connected load was found 17 KW roughly for commercial purpose. Inspection report Ex.PW2/A, Meter details report Ex. CW2/B, connected load report Ex.CW2/C were prepared at the site bearing the signatures of PW2, PW3 & PW4 at point A, B & C respectively. PW4 further deposed that two black BSES RPL v/s Raj Memorial Hospital 3 Of 10 CC NO. 279/06 coloured aluminum cables of 4.5 meters were taken into position vide seizure memo Ex.CW2/D. He also identified the photographs Ex.CW2/E having been clicked at the time of inspection. He also identified photographs contained in the CD Ex.CW2/F. In the examinationinchief, he pointed towards accused Dr. V.K.Singh that that man was present at the site.
5. On the same line are the testimonies of PW2 and PW3. PW3 also stated that Dr.V.K.Singh was present in the cabin at the time of inspection. The accused has been identified by this witness in the Court also.
6. DW1 Sh. Vivek Kumar Singh appeared in the witness box just to say that matrimonial relations between his brother/accused no.1 and accused no.2 were strained and that's why his brother had gone to Buxar, Bihar in December 2005 and hence the premises was closed down. He further deposed that premises was being looked after by a care taker. But in crossexamination he admitted that the photograph Mark P was of the Raj Memorial hospital.
7. Ld. Counsel for both accused argued that photographs and CDs have not been proved because memory card was not taken into possession and produced in the Court. But this argument is without BSES RPL v/s Raj Memorial Hospital 4 Of 10 CC NO. 279/06 any basis because the printout of the computer is very much admissible u/s 65 B of Indian Evidence Act. It is true that no certificate was filed by the computer operator that the computer was functioning property at the time of printout. The defence should have taken the objection at the time of evidence that such certificate has not been filed. No such objection was taken. They cannot be allowed to agitate/take such objection at this stage.
8. The defence counsel next argued that as per the deposition of PW4, 1011 persons were present in the hospital at the time of inspection but no independent has been joined. Joining of independent witnesses is directory and it is mandatory only when there is some doubt in the version of the complainant. Moreover, the plea of this capital city are so apathetic that they do not help a person dying on the road. They cannot be expected to help the police or the raiding team of the electricity company. So, nonjoinder of independent witness is not fatal.
9. The counsel assailed the seizure of wires saying that the seizure cannot be believed because no mark/cut etc. was applied on it before seizing it. PW2, PW3 & PW4 have unanimously stated that wire Ex.PX was sealed in a plastic bag bearing the seal of Manager BSES RPL v/s Raj Memorial Hospital 5 Of 10 CC NO. 279/06 Enforcement. When the case property has been put in a bag and the bag has been sealed with the seal and is produced in the Court in sealed condition, there is no requirement to put a symbol/sign or mark on the case property. So, this argument also goes.
10. Ld. Counsel for Dr. V.K.Singh stated that his client was not present in the said premises at the time of inspection and that is why he is not appearing in any photograph or videography. Also his cabin has not been videographed. But when this argument is juxtaposed with the testimony of PW4 and PW3, the net result goes in favour of the fact that Sh. V.K.Singh was present there. PW4 stated in so many words that Dr.V.K.Singh was very much present in the cabin. This witness met him in that cabin and accused himself told that he was running the hospital. Also PW3 saw him sitting in the cabin.
11. Ld. Defence Counsel vehemently argued that there is a contradiction in the examinationinchief and crossexamination of PW2 because in examinationinchief he stated that Dr. V.K.Singh refused to sign the reports when these were offered to him. But in the crossexamination he stated that the refusal was by a representative of the hospital. The counsel further stated that PW1 did not try to know the name of that representative and such refusal was also not BSES RPL v/s Raj Memorial Hospital 6 Of 10 CC NO. 279/06 videographed. It is correct that there is some discrepancy in the evidence of PW1 but such discrepancy is bound to crop up with the passage of time. About the name of the representative, PW1 stated crystal clearly that he had asked the name of the representative but he refused to disclose.
12. The Defence Counsel next argued that there is no document on the file suggestive of the fact that Sh. V.K.Singh was the user or the proprietor of the hospital. He stated that his client has been impleaded merely on the basis of his name appearing on the sign board affixed on the hospital wall and on the statement of a person who assisted the raiding team at the time of inspection. He further stated that the name of that assistant has not been mentioned and he was not produced in the Court and hence that portion of testimonies of the witnesses is not admissible being hearsay. It is true that PW3 admitted in cross examination that Sh. V.K.Singh has been termed as the proprietor of the hospital on the statement of a person assisting the team in inspection. But there is some other evidence also on this point. Accused V.K.Singh stated u/s 313 of Cr.P.C. that he was running the said hospital till December 2005 and then he went to Buxar, Bihar in the same month because of strained relations with his wife/accused no.
BSES RPL v/s Raj Memorial Hospital 7 Of 10 CC NO. 279/06
2. Accused no. 2 also stated that her husband was in Bihar due to matrimonial discordant relations and the hospital was closed down and was being take care of by a care taker. On this point, they are fully supported by DW1. But their version is dented by the nonproduction of the care taker in the witness box. Travel tickets from Delhi to Buxar have also not placed on the record. On this issue, PW4 deposed that he met Dr. V.K.Singh on that day in the Cabin and he himself disclosed to PW4 that he was running the hospital. He was also seen by PW3. Photographs are exhibiting following facts:
1) Shutters of the hospitals are open.
2) Chemists shop is open where two persons are standing.
3) A Maruti Van and motorcycle have been parked.
4) Name Plate of Dr. V.K.Singh is appearing.
DW1 stated in crossexamination that medical appliances were purchased 34 months before time of inspection. If the hospital was closed in December 2005 why these instruments were purchased after its closure and why the shutters are not down and why the chemist shop is open and why two vehicles have been parked.
13. Ld. Defence counsel stated that PW3 & PW4 admitted in crossexamination that 9 Amp current was running in the cables. They BSES RPL v/s Raj Memorial Hospital 8 Of 10 CC NO. 279/06 tested it with a tongtester. 9 amp current means connected load was 2 KW. He further stated that electricity connection of the premises was reconnected in 2008 showing a sanctioned load of 3 KW. He means to say that load report has been prepared wrongly wherein connected load has been shown as 17 KW. He also stated that calibration report of the tongtester has not been filed. All these arguments hold good for the purpose of civil liability and not for the purpose of determining the guilt of the accused. Lastly he stated that tongtester has not been seized. This plea has no force because only the case property has to be seized and the tongtester is not the case property.
14. Now let us examine the evidence against accused no.2/Anita Raj. All the witnesses of the prosecution stated that she was not present on the spot. Admittedly she is the owner of the premises. But the premises was being taken care of by her husband/accused no.1. There is no evidence on the file that she used to visit the premises frequently and thus was aware of the theft. No knowledge of the theft can be attributed to her. She is merely the owner. She is facing charge u/s 135 and not u/s 150 of Electricity Act. Simply being the owner cannot fasten a criminal liability against her.
15. For foregoing reasons, complainant has brought home the BSES RPL v/s Raj Memorial Hospital 9 Of 10 CC NO. 279/06 charge against the accused no.1 beyond reasonable doubt. The accused no.1/Dr.V.K.Singh is accordingly convicted u/s 135 of the Electricity Act, 2003.
16. Accused no.2/Anita Kumar Raj is acquitted of the charge u/s 135 of Electricity Act 2003. Bail bond is discharged.
Announced in the open court (UMED SINGH GREWAL)
on 21.5.2011 ASJ, Spl. Electricity Court,
Dwarka Courts, Delhi
BSES RPL v/s Raj Memorial Hospital 10 Of 10
CC NO. 279/06
IN THE COURT OF SH. UMED SINGH GREWAL,
ADDITIONAL SESSIONS JUDGE,
SPECI AL ELECTRICITY COURT
DWARKA COURTS, NEW DELHI
CC.No.279/06
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
1. Raj Memorial Hospital (User)
Through its proprietor
Dr. V.K.Singh
RZF 905/22, Raj Nagar Part II,
Palam, New Delhi - 110045. .............Convict ORDER ON POINT OF SENTENCE:
1. Dr.V K Singh has been convicted under Section 135 of BSES RPL v/s Raj Memorial Hospital 11 Of 10 CC NO. 279/06 .. 2 ..
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 not a previous convict and has family liabilities.
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. The total connected load was found to be 17 KW for industrial purpose .
While considering the sentence object should be to protect the society and to deter the criminal in achieving the avowed object by imposing BSES RPL v/s Raj Memorial Hospital 12 Of 10 CC NO. 279/06 .. 3 ..
appropriate sentence.
Keeping in view all the facts and circumstances, this court is of the considered view that convict be sentenced to fine.
The complainant company did not prove since when the theft in this case was going on directly. There is a notice dated 17.04.2006 by the complainant company to the accused no.2 in whose name meter existed in the said premises that she would have to deposit Rs. 38,976/- within 15 days failing which there was a theft of disconnection of electricity supply. The 15 days expired on 02.05.06 and the inspection was conducted on 09.05.06. It means that disconnection, if any, was at the most on 02.05.06. So, the convict consumed the electricity directly without meter from 03.05.06 to 09.05.06 i.e. for 7 days. Theft assessment bill of Rs. 16,32,248/- was raised. It includes 5 times penalty and electricity consumption for 6 months. If the penalty is removed from it, the bill for 6 months comes out to Rs. 16,32,248/5= Rs. 3,26,449/-. For 12 months it comes out to Rs. 3,26,449X2= Rs. 6,52,899/-. This bill is for 12 months i.e. 365 days and for 7 days it comes out to Rs. 6,52,899/365X7= Rs. 12,521/-
The load is more than 10 KW and the fine imposed shall not be less than 3 times the financial gain on account of said theft of electricity (i.e. BSES RPL v/s Raj Memorial Hospital 13 Of 10 CC NO. 279/06 .. 4 ..
12,521 X 3= Rs. 37,563/- ) .
In view of above, fine of Rs 37,563/- is imposed upon the convict U/s 135 of the Electricity Act, 2003. In default of payment of fine convict shall undergo SI for three months. Since the convict is also liable to pay the civil liability as determined U/s 154 (5) of the Electricity Act, 2003, this court deems it appropriate that amount of Rs 25,042/-, if realized; 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 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 BSES RPL v/s Raj Memorial Hospital 14 Of 10 CC NO. 279/06 ..5..
proved on record.
In the present case, the connected load of 17 KW was in consumption. On the basis of applicable tariff theft bill has been assessed at Rs 16,32,248/-. The final figure in the theft bill is by way of 6 months consumption of electricity multiplied by five times by way of penalty.
Accordingly, the civil liability is to be determined on the basis of connected load and the applicable tariff rate. If we remove 5 times penalty in the theft assessment bill for Rs. 16,32,248/- then the amount would indicate 6 months charges on the applicable tariff (i.e Rs 3,26,449/-). The amount is to be calculated for the period quantified for 7 days as already observed above and multiplied with two for determination of civil liability in terms of section 154 (5) of the Act. When divided by five to exclude the penalty, the amount comes to Rs 3,26,449/(approximately). The total amount for 7 days shall be 12,521/- and two times of this amount comes to 25,042/-. Civil liability is accordingly determined at Rs. 25,042/- (Rupees Twenty Five Thousand and Forty two only) against the accused .
The order sheet dated 17.12.07 shows that accused no. 1/convict/Dr. V K Singh deposited Rs. 1 lac with the complainant company as per the bail order modified by the Hon'ble High court of Delhi. Out of BSES RPL v/s Raj Memorial Hospital 15 Of 10 CC NO. 279/06 ..6..
that amount, the complainant company shall retain Rs. 25,042/- as civil liability and shall return the remaining amount of Rs. 1,00,000- 25,042/-=Rs.74,598/- to the convict/accused no.1 within 60 days.
Copy of this order be provided to convict free of cost. File be consigned to record room.
Announced in the open
Court on dated 25.05.2011 (Umed Singh Grewal)
ASJ: Special Electricity Court
Dwarka: New Delhi
BSES RPL v/s Raj Memorial Hospital 16 Of 10
CC NO. 279/06