Delhi District Court
Bses vs . Raj Choudhary & Ors., Cc No. 125/09 Page ... on 23 April, 2014
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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. : 125/09
Police Station : Sangam Vihar, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02403RO098332010
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. Shri Raj Choudhary (since deceased)
2. Shri Sanjay (proclaimed offender)
3. Shri Subhash
All are R/o K11283,
Sangam Vihar, Division Khanpur,
New Delhi
...Accused
Appearances : AR with Shri S.K. Alok, counsel for the complainant.
Accused Subhash is present on bail along with Shri A.A.
Khan, Advocate.
BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 1 of 12
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Complaint instituted on : 21.03.2009
Judgment reserved on : 16.04.2014
Judgment pronounced on : 23.04.2014
JUDGMENT
1. The case of the complainant in brief is that on 18.11.2008, the officers of the complainant company namely, Shri Kashmir Singh - Assistant Manager Power Supply, Shri Sunil - Electrician, Shri Vipin - Electrician and Shri Vijay - Filed Executive along with other team members conducted inspection at premises of the accused i.e. K II283, Sangam Vihar, Division Khanpur, New Delhi and it was found by the inspection team that the said premises was being used by accused Raj Choudhary, Sanjay and Subhash and that no electricity meter was found installed at the said premises for supply of electricity. It is further mentioned in the said complaint that accused were found using, consuming and abstracting the electricity illegally by directly tapping from the service line of the complainant and committing direct theft of electricity and accused were found using total connected load of 16.305 KW for commercial purpose and 1.470 KW for domestic purpose. It is further mentioned in the complaint that inspection team had seized the part illegal tappings/wires. It is further mentioned in the complaint that inspection report along with sketch of manner of theft, load report and seizure memo were also BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 2 of 12 3 prepared at the site and necessary photography was also conducted at the spot.
2. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per DERC Regulations and tariff order was raised by the complainant for Rs.6,33,917/ with due date as 17.12.2008 and was served upon the accused but they failed to pay the said theft bill.
3. The case was fixed for presummoning evidence and my Ld. Predecessor vide order dated 24.07.2009 issued summons to all the accused and Raj Chaudhary and Subhash appeared. My Ld. Predecessor vide his order dated 01.11.2011 declared accused Sanjay as proclaimed offender.
4. The accused Raj Chaudhary expired on 03.08.2013 and proceedings against him stood abated by my order dated 07.09.2013.
5. Notice u/s. 251 Cr.P.C. for the offence punishable u/s. 135 of the Electricity Act, 2003 was framed against Subhash to which he pleaded not guilty and claimed trial on the ground that he was not committing any theft of electricity and he was one of the five tenants BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 3 of 12 4 of accused Raj Choudhary and as per rent agreement, electricity charges along with monthly rent were paid by him and other tenants to one Rama Kant Sharma, who was the agent of the landlord and for each of the tenanted shop, a sub meter was installed and according to which share of each tenant in the electricity bill as per his individual consumption is recorded and paid by them to said Rama Kant Sharma and accused answered that he is not liable to pay any loss or damage to the complainant company.
6. In order to prove the case of the complainant, two witnesses were produced, which have been discussed below.
7. The statements of the accused Raj Choudhary and Subhash were recorded u/s. 313 Cr.P.C. Accused Subhash pleaded his innocence and denied the evidence as false and answered that he was not present at the time of inspection as he was away to a construction site for job work and he had carried all his machines to said site an that he was a tenant in the inspected premises i.e. KII283, Sangam Vihar, New Delhi and that he was not committing theft of electricity and that he was paying electricity charges to the landlord as per consumption recorded in submeter, which was installed at his portion of the premises and that one Rama Kant Sharma, who was BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 4 of 12 5 another tenant and was agent of the landlord collected rent and electricity charges from him, which he further paid to the landlord. Accused further answered that the load report was not prepared in his presence and that only one handdrill machine and handgrinding machine along with lighting were available at the premises at the time of inspection and that other machines owned by him, were carried to the construction site and same were not connected to the load at the time of inspection. Accused Subhash further answered that none of the documents were prepared in his presence and that wire was not removed in his presence, however, he was aware of videography/photography being taken at the spot. Accused further answered that a meter was installed at his premises which was removed on 17.11.2008 on account of nonpayment of electricity charges and that at the time of removal of the meter, electricity supply was restored by officials of complainant company for a general store running in the premises in question and the wire which was used for restoring of the supply was of size 1.5 mm.sq, which was insufficient to support the load of welding machine set etc. Accused further answered that false and fabricated case was made out against him and that he is not liable to pay any amount to the complainant company as alleged. However, the accused opted to lead defence evidence and deceased accused Raj Choudhary appeared as DW1 BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 5 of 12 6 vide permission under section 315 Cr.P.C., which has been discussed below.
8. I have heard the counsel for the complainant and counsel for the accused, Shri A.A. Khan, Advocate. I have also perused the record including the CD of videography/photography displayed on the computer screen of the court.
9. PW1 Shri Kashmir Singh was the Manager of the complainant company, who deposed that on 11.08.2008, again said 18.11.2008, at about 12:30 p.m. he along with Sh.Y. S. Verma and Sh.Sunil, Vipin visited & inspected the premises bearing no.283, KII, Sangam Vihar, New Delhi and that on reaching the said premises, there was no meter found installed and that the consumer was using direct supply by connecting illegal wire in service line for domestic & commercial purpose. PW1 further deposed that the workers, who were present at the spot at the time of inspection had disclosed that Raj Chaudhary, Sanjay & Subhash were the users of the premises in question. PW1 deposed that they assessed the total connected load of the premises and same was found to be 17.5 KW approximately. PW1 further proved the inspection report, load report and seizure memo as Ex.CW2/1, Ex.CW2/2 and Ex. CW2/3. PW1 further deposed that BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 6 of 12 7 they had seized the illegal wire of two meters vide seizure memo Ex. CW2/3. PW1 further proved the photographs clicked at the spot & compact disc containing said photographs as Ex.CW2/5 & Ex.CW2/6 respectively. PW1 further proved the seized wire of blue colour of length one meter approx. as Ex. P2.
10. In his cross examination on behalf of the accused, PW1 answered that there was no prior information regarding theft of electricity and that one of the raiding team member namely Sh.Sunil took the photographs at the spot at the time of inspection. PW1 further failed to identify the accused persons in the court. PW1 admitted it as correct that no other witness had signed over the seizure memo and that the column for MD History in the bill Mark A is blank. PW1 volunteered that the meter in question was of make 'Secure' and there was no practise of recording MD history, at the relevant time. PW1 answered that he did not know the name of the worker, who had disclosed the name of user as Raj Chaudhary. PW1 further answered that the inspection report mentions the name of accused Raj Chaudhary in column bearing No.2.2 and that he did not know as to whether on 17.11.2008, the meter was removed on account of nonpayment or that the accused was admitted in hospital at the relevant time because of heart attack. PW1 replied that the BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 7 of 12 8 photographs had not covered the entire connected load, however, the major connected load was covered. PW1 further replied that the documents were offered to the workers present at the spot for their signatures and for retaining a copy, but they refused to sign by saying that employer was not present, therefore, the copies were not given to them and that the copies were not pasted on the premises but same were subsequently sent by speed post. PW1 did not know as to whether any proof of dispatch by speed post was placed on judicial record. PW1 answered that the machines lying at the premises were in use at the time of inspection and same were not merely stored in the premises. PW1 answered that there was only one welding machine and that there was no major resistance by the persons present at site and that other raids were also conducted on the said date, after the raid in question.
11. PW2 Shri Ashutosh Kumar is the Authorised Representative of the complainant company, who proved his General Power of Attorney on behalf of the complainant company as Ex. PW2/1 and he also proved the complaint Ex. CW1/3 and he further proved letter of authority of the previous A.R. as Ex. CW1/1. In his cross examination, he replied that he had no personal knowledge of the present case.
BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 8 of 12 9
12. Deceased accused Raj Choudhary had appeared as DW1, who deposed that he was resident of premises i.e. J7B, Block N, Army Camp, Sainik Farm, Delhi. DW1 brought the photocopy of his voter Icard and mark the same as Mark A and he proved the photo copy of his driving licence mentioning the above said address as Ex.DW1/1. DW1 further deposed that he is a heart patient and that during the period of inspection, he was visiting hospital regularly for dialysis and he proved the final report of Fortis hospital as Ex.DW1/2. DW1 further deposed that on 17.11.2008, meterreading was recorded by the meter reader and he brought the copy of the electricity bill, which is Mark B. DW1 further deposed that the pending bill, which was not deposited by him due to illness, was subsequently deposited on 27.07.2009 and the photocopy of the same is Mark C. DW1 further deposed that the premises in question was rented out for domestic purpose to accused Sanjay and Subhash, through one agent Mr. Ramakant Sharma.
13. In his cross examination on behalf of the complainant, DW1 replied that his wife was the owner of the premises bearing no.KII, 283, Sangam Vihar, Division Khanpur, New Delhi and that the aforesaid premises consisted of one floor i.e. ground floor and the BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 9 of 12 10 same was admeasuring 100 sq. yards. DW1 further answered that there were five shops constructed in 100 sq. yards and that the aforesaid five shops were let out to different persons, but, he did not know the names of his tenants and that one of the tenants of his wife was known as Sharmaji. DW1 answered that the nature of work being done in aforesaid five shops were different and that the meter, which was installed for catering the electricity to the aforesaid shop was a domestic meter. DW1 admitted it as correct that there was no commercial meter installed in the aforesaid shops. DW1 replied that no rent agreement was executed between his wife & the tenants of the aforesaid premises and that he came to know about the raid in the aforesaid premises, 45 days after the date of inspection and that there was one meter, which was feeding the electricity in all the shops through a submeter installed in each of the floors. DW1 admitted it as correct that in all the shops the electricity was feeding through the domestic/ main meter installed at the site. DW1 answered that he used to visit the aforesaid shop sometimes in a month & sometimes after two months and he further answered that one of his tenant namely Sharma used to collect electricity charges including the rent from all the tenants and gave to him.
14. With this evidence on record, let met put the things, first, in a BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 10 of 12 11 negative manner. The deposition of DW1, the deceased accused Raj Choudhary, which has been reproduced above, go to establish that he has given a clean chit to accused Subhash and other tenants also by admitting that electric charges were being paid by the tenants including the accused along with the rent to him and it was for him to deposit electricity charges. He has categorically stated that there was one meter which was feeding the electricity in all the shops through a sub meter installed at each floor. Though, he failed to prove the existence of the sub meter on record, but considering the defence of the accused Subhash, who was required to prove the same by making believe this court the existence of his defence from a "prudent man's test" as has been held by the Hon'ble Supreme Court in Hiten P. Dalal Vs Bratindranath Banerjee cited as 2001 (6) SCC 16, in my considered opinion, the accused Subhash has successfully shown by the deposition of DW1 that he was paying the electricity charges of the shop in question in his tenancy to accused Raj Choudhary.
15. Now putting the things positively, in the inspection report Ex. CW2/1, admittedly, the name of the registered consumer was Smt. Saroj Bala, but she is not an accused in the case nor a witness in the case. Moreover, as per seizure memo Ex. CW2/3, the artificial means i.e. illegal wire which was allegedly used for tapping the electricity, BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 11 of 12 12 was seized, which was half meter in length, but when the electric wire was produced before the court during the deposition of PW1, it was of one meter in length, whereas in the examination in chief of PW1, he categorically deposed that the inspection team seized the illegal wire of 2 meters in length from the spot. Thus, the length of the wire continued increasing stage wise, which has not been explained by the counsel for the complainant as to in what circumstances, the length of the wire increased. Further, the PW1 failed to identify the accused persons during his deposition.
16. In view of my said discussion, I am of considered opinion that the complainant has miserably failed to bring its case within the ambit of 3rd proviso to section 135 of the Electricity Act, 2003, so as to say that onus shifted on the accused to prove his innocence or defence. Hence, the benefit of doubt is extended to the accused and he is acquitted of the offence charged against him u/s. 135 of the Electricity Act, 2003. His PB and SB are cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 23.04.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Raj Choudhary & Ors., CC No. 125/09 Page no. 12 of 12