Delhi District Court
Bses vs . Vijay Singh & Ors., Cc No.486/13 Page ... on 3 September, 2016
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IN THE COURT OF MS. NEELAM SINGH, ADDL. SESSIONS JUDGE, THE
SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 486/13
Police Station : Vasant Kunj
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406 RO247702013
BSES Rajdhani Power Ltd.
A company duly incorporated under the
Companies Act, 1956 having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell
Near Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1.Vijay Singh (User) Plot No. 129, Ground Floor, Ward No. 9, Kishangarh, New Delhi.
2. Rekha Rani (user) Plot No. 129, Ground Floor, Ward No. 9, Kishangarh, New Delhi.
3. Santosh Kumar (R/C) Plot No. 129, Ground Floor, Ward No. 9, Kishangarh, New Delhi ...Accused BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 1 of 12 2 Complaint instituted on : 10.09.2013 Judgment reserved on : 24.08.2016 Judgment pronounced on : 03.09.2016 JUDGMENT
1. The case of the complainant in brief is that on 12.05.2011 at about 12.35 p.m., the officers of the complainant company namely, Shri P. C. PathakSenior Manager, Shri Dharmender KumarS.O., Shri Mahender Prasad, DH, Shri NeerajLineman and Sh. HarishVideographer conducted inspection at the premises i.e. Plot No. 129, Ground Floor, Ward No.9, Kishangarh, New Delhi wherein accused namely Vijay Singh and Rekha Rani were found as users and accused Santosh Kumar as registered consumer of the electricity supplied at the premises in question. It is further mentioned in the complaint that at the time of inspection, there was no meter found installed at site and accused persons were found indulged in direct theft of electricity from BSES Service Cable with the help of illegal wire. It is further mentioned that due to resistance created by the accused, service cable and illegal wire could not be removed. It is further mentioned that videography was also not conducted due to the resistance at site as the accused did not allow the inspection team to enter the premises to take necessary photographs/videography.
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2. It is further mentioned in the complaint that connected load could also not assessed due to the resistance at site by the accused. It is further mentioned in the complaint that earlier also the case was booked against the premises in question on 25.02.2011 vide case ID No. RJ250211C0071 titled as BSES Vs. Rekha Rani (which was settled by the accused on 22.12.2011), wherein the connected load was found to be 8.639 KW for domestic purpose and hence the same has also been taken in the present case.
3. It is further mentioned in the complaint that inspection report including meter detail report, load report as well as seizure memo were prepared at site
4. 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.2,13,600/ with due date as 24.01.2012.
5. Cognizance of the complaint was taken by my Ld. Predecessor and pre summoning evidence was recorded. On the basis of presummoning evidence, all three accused persons were summoned to face trial. Accused Rekha Rani entered appearance alongwith her advocate. However, accused Vijay singh BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 3 of 12 4 was reported to be in judicial cusotdy in FIR 127/11, U/Sec. 365, 302 IPC PS. Vasant Kunj (N), New Delhi since June2011 till date and hence he produced before the Court on production warrants. As regards accused Santosh Kumar, it was reported that no person by the said name ever resided in the premises in question hence the process U/Sec. 82 Cr.P.C. was issued against the said accused but despite that he did not turn up and hence declared proclaimed absconder by ld. Predecessor of this Court vide order dated 14.11.2014.
6. On 09.03.2015, a notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 the Electricity Act, 2003 was framed separately against both the accused namely Vijay Singh and Rekha Rani to which they pleaded not guilty and claimed trial on the same ground that false and fabricated case has been made out against them as the premises in question does not belong to them and further answered that their premises is 129A/9, RZ Block, Kishangarh Village, Delhi110070 and the Plot no. 129, Ward 9 belonged to one Sh. Mahender Singh in whose name connection vide CA No. 150190606 and another connection vide CA No. 102329459 were energised and in support of the same, both accused placed on record photocopy of their aadhar card as well as passport. Hence they are not liable to pay any loss or damage to the complainant company.
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7. I have heard the counsel for the complainant and counsel for the accused and also gone through the record.
8. In order to prove the case, complainant examined four witnesses. Shri Dharmender Kumar (PW1) was a member of the inspection team who deposed that on 12.05.2011 at about 12.35 p.m. he alongwith Shri P. C. PathakSenior Manager, Shri Mahender PrasadDiploma Engineer and Shri Neeraj Videographer conducted the inspection at premises i.e. Plot no. 129, Ward 9, Kishangargh, New Delhi and on reaching the spot, they found that accused were indulged in direct theft of electricy by illegally tapping from BSES service cable. PW1 further deposed that there was no meter found installed at site. He further deposed that he could not assessed the connnected load due to resistance created by consumer at site. He further deposed that illegal wire could also not seized due to the resistance at site. He further deposed that inspection report, meter details, load report and seizure memo were prepared at site which he proved as Ex.CW2/A to Ex.CW2/D. He further deposed that they offered the documents to the accused to receive and sign but they refused to do so. BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 5 of 12 6
9. During his crossexamination he replied that they could not get the videography conducted at site due to resistance and as such, the videography for altercation/tiff at site could not be recorded in video. He further replied that the load report in the instant case was prepared on the basis of load assessed on a previous inspection at site since there was resistance at site and this fact was duly mentioned in the inspection report at point X in Ex.CW2/C. He further replied that he had not placed on record the videography, if any, conducted in the previous raid. He further replied that they generally fill up details in seizure memo form even if matierial is not seized at site.
10. PW2 Sh. Neeraj Kumar was the lineman of the complainant company who deposed on the same lines as deposed by PW1 as regards that the inspection team could not assessed the connected load due to resistance created by consumer at site and also could not seized the illegal wire used by the accused for committing theft of electricity due to resistance by consumer at site. During his crossexamination, he could not tell if any police complaint for resistance created by the accused was lodged at the time of inspection. He further could not tell the date of previous inspection at the inspected premises. He further replied that the reports were prepared at site in his presence but not in his handwriting and volunteered that Mahender prasad had prepared the same. BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 6 of 12 7 He further replied that load report in the instant case was prepared on the basis of load assessed on a previous inspection at site since there was resistance at site and this fact was duly mentioned in the inspection report at point X in Ex.CW 2/C. He further replied that they have not placed on record any videography if any conducted in the previous raid. He was also not aware about the details etc of previous case. He further replied that they generally fill up details in seizure memo form even if material is not seized at site. He further could not admit or deny if the accused in this case are not the owners of the inspected premises.
11. PW3 Sh. Mahender Prasad who was Diploma Engineer of the complainant company who also deposed on the same lines as PW1 and PW2.
12. PW4 Shri Pankaj Tandon, A.R. of the complainant company is a formal witness who proved his GPA Ex.PW4/A (OSR) and he further proved the GPA of previous AR, Shri Ashutosh Kumar as Ex.CW1/B and the complaint as Ex.CW1/A and also identified the signatures of Sh. Ashutosh on the said complaint at point A.
13. Accused examined only one witness in his defence namely Sh. Staender Singh as DW1, commercial officer of complainant company from Vasant Kunj BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 7 of 12 8 Division who was a summoned witness. He appeared before the Court on 07.12.2015 and proved the summoned record i.e. EBS record of CRN No. 2520114004 as Ex.DW1/A. He further deposed that as per the record, the electricity meter is installed in the name of Sh. Mohinder Singh at House No. 129/9, Kishan Garh, New Delhi and further deposed that the date of energisation is 02.07.2002.
14. In order to establish the case of direct theft of electricity, the complainat company is required to establish the identity of the accused and the premises, his connection with the premises and that theft was being committed in the premises in question. The case of the complainant company is that on 12.05.2011, at about 12.35 p.m, the raiding team visited and inspected the premises i.e. Plot No. 129, Ward No.9, Kishangarh, New Delhi and they found that accused were indulged in the direct theft of electricity by illegally tapping from BSES service cable. It is the case of the complainant company that no meter was found installed at the site. It is the case of the complainant company that due to resistance created by consumer at the site the videography could not be conducted in this case, the point of direct theft could not be depicted, the connected load could not be assessed at the site and the illegal wires could not be seized. It is the case of the complainant company that the documents i.e. BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 8 of 12 9 inspection report, meter details, load report and seizure memo were prepared at the site and the same were given to the accused to sign the same but they refused to receive and sign the same. Unfortunately, the complainant company is utter failure in establishing the averments as per their complaint. The accused has led evidence in this case that he is residing at H. No. 129A Ward No.9, Kishangarh, New Delhi and to this effect the documents are placed on record by the accused. The complainant company filed the present case on the basis of documents prepared in some other case against the accused bearing complaint case no. 173/11 titled as BSES Vs. Rekha Rani, by submitting that due to resistance the proceedings of inspection could not be conducted in this case.
15. I am unable to appreciate the stand taken by the complainant company that if due to resistance they could not inspect the premises in question, could not assessed the load in question, could not seized the illegal wire in question then why they have not even videographed this fact of resistance caused by the accused. It is surprising that if such a resistance was caused by the accused then how can PW1 and PW2 deposed in their deposition that all the documents were prepared at site and the same were offered to the accused person who refused to receive and sign the same. Even these averments/facts were not videographed by the complainant company. It is rightly pointed out by the BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 9 of 12 10 counsel for accused that complaint company is a big establishment and if such kind of resistance was being created for hindering their official work then why the police was not called for.
16. It is coming in the deposition of all the witnesses of the complainant company that when the resistance was being caused by the accused then the head of the inspection team called the Senior Manager of the complainant company and informed about the development but admittedly, no action was taken by the Senior Manager at their end on the date of inspection and even subsequent to that.
17. The complainant company is great failure in prosecuting this case even to the effect that they even did not bother to summon the file of the earlier complaint case bearing no. 173/2011 from where they took the assessed load and all other documents. The complainant company is an utter failure in establishing the identity of the accused, the premises of the accused and their connection with the theft in question.
18. Accordingly, this Court is of the considered opinion that whatever mentioned in the complaint by the complainant company are the mere averments BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 10 of 12 11 and nothing have been substantiated by the documentary evidence. During the entire proceedings of the case, the complainant company took a very casual approach towards this case. Henceforth, they could not establish their case and the accused are entitled for acquittal.
19. While announcing the accquital of accused, I further mentioned that this Court cannot ignore to mention the fact that although the number of documents i.e. election I card of accused Rekha as Ex.D1 and her bank account as Ex.D2, telephone bill of MTNL dated 16.07.1997 as Mark D3, Driving licence of son Keshav Singh as Ex.D6, Adhar Card of Keshav Singh as Ex.D9, gas connection of Indane in the name of son Kehsav Singh as Ex.D10 and a electricity bill as Ex. D11 are placed on record by the accused but I am aware of the fact that no electricity bill for the premises in question as disclosed by the accused is placed on record which creates a doubt before the Court that how the ordinary life of the accused is being lived by the accused and their family members in the premises without the use of electricity. But, it is the cardinal principal of criminal law, even though in the economic offences that the onus lies upon the prosecution/complainant to bring home the guilt of accused and if the complainant is able to discharge its primary onus then the burden shifts to the accused to prove his defence but in the present case, the complainant BSES Vs. Vijay Singh & Ors., CC No.486/13 Page no. 11 of 12 12 company is totally failed to discharge its primary onus to establish the connection of the accused with the premises in question and the theft committed therein as well as the other documents placed on record i.e. inspection report, load report and seizure memo etc. Accordingly, it is a case of weak prosecution by the complainant company.
20. In view of my said discussion, I am of considered opinion that the accused has been successful in creating a doubt and dent towards the story of the complainant and thus, accused is entitled to the benefit of doubt. Accordingly both accused Vijay Singh and Smt. Rekha are acquitted of the offence charged against them under Section 135 of the Electricity Act, 2003. The file be consigned to the record room.
Announced in the open ( NEELAM SINGH)
court on 03.09.2016 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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