Delhi District Court
Judge vs Bses Rajdhani Power Limited Held That on 24 July, 2010
IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
PATIALA HOUSE COURTS, NEW DELHI
Complaint Case No. 1003/07
PS Mehrauli, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Limited
A company duly incorporated under the Companies Act, 1956
having its registered office at BSES Bhawan, Nehru Place,
New Delhi - 110019 and
Corporate, Legal & Enforcement Cell at Andrews Ganj,
Next to Andrews Ganj Market, New Delhi 110049
Through Sh. Binay Kumar, its authorised Officer
...Complainant
Versus
Sh. Rambir (User)
Adjacent to H.No. 106, (CHVL 939),
Opp. Ghodewali Gali, village - Chhatarpur,
New Delhi
...Accused
COMPLAINT INSTITUTION ON : 16.10.2007
JUDGMENT RESERVED ON : 23.07.2010
JUDGMENT PRONOUNCED ON : 24.07.2010
JUDGMENT
1 The complainant company filed the present complaint u/sec. 135 r/w/sec. 151 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused has committed an offence punishable u/sec. 135 of the Act and also to determine the civil liability as provided under the provisions of section 154 (5) of the Act. 2 Cognizance for offence was taken on a complaint filed by the complainant company BSES Rajdhani Power Ltd. through its authorised officer.
3 The accused was summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 19.11.2007 after recording the presummoning evidence and hearing the arguments on summoning. The accused was granted bail on furnishing personal bond in the sum of Rs.25,000/ with one surety of the like amount. 4 Separate notice u/sec. 251 Cr.P.C was framed against the accused by the Ld. Predecessor Court to which the accused pleaded not guilty and claimed trial.
5 The complainant company examined R.K.Garg - Assistant Manager as PW1, Sumit Kumar - DGM Business as PW2, Binay Kumar - Legal Officer as PW3 and J.S.Bist - lineman as PW4. The statement of the accused was recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against him. The accused wanted to lead evidence in defence, therefore, the accused was given an opportunity to lead evidence in defence. The application u/sec. 315 Cr.P.C. to produce the accused as a witness was filed and the same was allowed by this court. The accused Rambir examined himself as DW1.
6 I have heard the Ld. counsel for accused represented by Sh.O.S.Soran and prosecution represented by Sh.S.S.Mittal, Ld. counsel/ deemed P.P and have perused the entire records.
7 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and circumstances of this complaint case, it has to be seen and considered whether this court, being the special court under the Act, can take cognizance of the offence punishable u/sec. 135 of the Act. Section 151 of the Act reads as under:
''Cognizance of offences - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.'' In the case of Vardhman Properties Ltd. Vs BSES Rajdhani Power Ltd. 157 (2009)DLT 636, it was held by the Hon'ble High Court that:
''The special electricity court can take cognizance of the offence u/sec. 135 of the Act without awaiting committal of the case to it by the Magistrate. Therefore, in the instant case when by the order dt. 07.04.2006, the Ld.ASJ took cognizance of the offence and summoned the petitioner for offence u/sec. 135 of the Act, the Ld.ASJ was exercising the powers u/sec. 151 of the Act.'' The Hon'ble High Court of Delhi in its order dated 06.02.2009 passed in Crl. MC 2059/2008 & Crl. MA 7669/2008 entitled Dalbir Singh Vs BSES Rajdhani Power Limited held that :
''Section 154 (1) mandates that every offence punishable under sections 135 to 140 & section 150 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. Considering the fact that Section 154 (3) the Special Courts are expected to proceed with the trial of the complaints under sections 135 to 140 & Section 150 in a summary way, it is inconceivable that the Parliament intended that the cognizance of the offence should first be taken by the learned MM and thereafter the case committed to the Special Court. Further Section 155 begins with the words ''Save as otherwise provided in this Act'' when it talks of the applicability of the Cr.PC. Therefore, on a collective reading of Section 135, 151, 154 (3) and 155 it is plain that as regards the trial of the complaint case under the Act, the intention of the Parliament is that it is the Special Court will take cognizance of the offences and proceed to try the case, to begin with, in a summary way.''
8 Further, it is to be considered whether the special electricity court is required to give reasons for proceeding with the trial in a summary way. Section 154 (3) reads as under :
''The Special Court may, notwithstanding anything contained in sub section (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 in a summary way in accordance with the procedure prescribed in the said code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this sub section, it appears to the Special court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re hear the case in the manner provided by the provisions of the said code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.'' In this regard, the Hon'ble High Court of Delhi in the case Dalbir Singh (Supra) further held that :
''A plain reading of the above provision reveals that the intention of the Parliament was that cases concerning theft or illegal abstraction of electricity, attracting the offence under section 135 to 140 and section 150 of the Act, should be tried, to start with, in a summary way. Since the substantive portion of the above provision itself empowers the Special Court in this regard, it is unnecessary for the Special Court to give reasons for trying the case in a summary way. The procedure under section 154 (3) is indeed a departure from the procedure of trial of warrant cases under the Cr.PC Section 154 (3) contains a nonobstante clause which indicates that it is a departure from the normal procedure. Even Section 155 of the Act which otherwise makes the entire Cr.PC applicable, begins with the words ''save as otherwise provided in this Act.''
9 Let us firstly examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. Sh.Binay Kumar, Legal Officer being an authorized representative (hereinafter referred to as 'AR') of the complainant company filed the present complaint case. The AR entered into witness box and examined himself as PW3. PW3 deposed that he has been authorised by the complainant to file and pursue the cases on behalf of the complainant company in the special court including the present case. PW3 proved the copy of the authority letter dated 23.10.2006 as already exhibited as Ex.CW1/B. PW3 also proved the complaint signed and filed by him as already exhibited as Ex.CW1/A. During cross examination, PW3 deposed that he does not have any personal knowledge of the present complaint case. PW3 denied the suggestion that he is not properly authorised person to file the present complaint and no authority is in his favour. Perusal of Ex.CW1/B dated 23.10.2006 reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorized Sh.Binay Kumar, legal officer to institute and/or defend legal proceedings of whatsoever nature before the Special Courts and to sign & verify plaints, affidavits, written statements, petitions of claims, objections, memorandum of appeal & petition and application of all kinds and to file them in any such courts or office apart from other authorisation as mentioned in the said document Ex.CW1/B. Whereas, the accused has not led any evidence and failed to prove that the AR has not been authorised by the complainant company to file the present complaint case. Thus, I hold that Sh.Binay Kumar, AR of the complainant company is duly authorised and competent person to file the present complaint case on behalf of the complainant company. 10 Let us secondly examine whether members of the inspection team were the authorised officers of the complainant company to carry out inspection at the premises in question. R.K.Garg, Assistant Manager examined himself as PW1 and deposed that on 05.07.2007, he along with Sumit Kumar AMPS, Vedant Sethi - Trainee Engineer & J.S.Bist - ATI visited the premises adjacent to H.No.106, Sequence No. 939, village Chattarpur, New Delhi and they found that there was no meter at the spot and electricity was being illegally used by directly tapping from the BSES LV mains of the complainant. Copy of the notification no.F11(93)/ 2003/power/ 1566 dt. 17.05.2005 filed by the complainant reveals that in exercise of the powers conferred by subsection (2) of section 135 of the Electricity Act, 2003 (36 of 2003) read with Govt. of India, Ministry of Home Affairs, Notification No. F.No.U11030/2/2003/UTL dt. 20.02.2004, the Lt. Governor of National Capital Territory of Delhi has authorised the technical officers, not below the rank of Assistant Engineer/Assistant Manager and above, in the departments dealing with distribution (District/ Zones) commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited and North Delhi Power Limited who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of Section (2) of section 135 of the said Act in respective areas of the said companies in the National Capital Territory of Delhi. In view of the above notification and foregoing discussion, I hold that R.K.Garg, Assistant Manager was the 'Authorised Officer' to carry out the inspection of premises in question under the provisions of section 135 of the Act.
11 After taking cognizance of the offence on the complaint, the accused was summoned to face the present complaint case. The accused was granted bail on furnishing personal bond in the sum of Rs.25,000/ with one surety of the like amount. The notice u/sec. 251 Cr.P.C was framed against the accused, however, the accused pleaded not guilty and claimed trial. In this regard, I would refer the case of Sanghi Brothers (Indore) P. Ltd. Vs Sanjay ChaudharyI (2009) SLT 144, it was held by the Hon'ble Supreme Court of India that ''strong suspicion about commission of offence and involvement of accused is sufficient to frame charge.'' The statement of the accused was recorded u/sec. 313 Cr.P.C. In this context, I would refer the judgment delivered in the case of Chander Dev Rai Vs State (NCT of Delhi) 156 (2009) DLT 229 (DB), it was held by the Hon'ble High Court of Delhi that ''Examination of accused u/sec. 313 Cr.P.C is not a mere formality. Answers given by him have practical utility for criminal courts. Apart from affording an opportunity to the accused to examine incriminating circumstances against him also help the court in appreciating the entire evidence adduced in the court during the trial.'' 12 Admittedly, the accused Rambir is now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against him. A criminal charge could be proved on the basis of circumstantial evidence and the requirement is that circumstances incriminating in nature must be proved by cogent evidence and then circumstances so proved must form the complete chain so as to be not consistent with the innocence of accused. In this context, a reliance can be had upon the judgement passed by the Hon'ble Supreme Court of India in the case reported as AIR 1970 SC 1286 held that:
'' There is no predetermined way of proving any fact. The fact is said to have been proved where after considering the matter before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the specification that it exists.'' In the case of Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay AIR 1961 Supreme Court 1316, it was held that :
''...The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact....'' In the case of M/s Sodhi Transport Co. and another Vs. State of U.P. and another reported as AIR 1986 Supreme Court 1099, it was held by the Hon'ble Supreme Court of India that :
''A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.''
13 The issue involved in this criminal complaint case is on the point of detection of theft of electricity. Now, let us finally examine whether the accused has committed the offence u/sec. 135 of the Act. It is well settled principle that prosecution has to prove its case against the accused beyond reasonable doubt. The complainant has tried to prove the case against the accused Rambir that the accused was illegally using the electricity by directly tapping from the BSES LV mains of the complainant. The complainant, in support of its case, examined the witnesses i.e. R.K.Garg - Assistant Manager as PW1, Sumit Kumar - DGM Business as PW2, Binay Kumar - Legal Officer as PW3 and J.S.Bist - lineman as PW4. PW3 is the legal officer who has been authorised to file and represent the complaint cases on behalf of the complainant company which has already been discussed above. PW1 proved the inspection report, meter report, load report, photographs & CD as Ex.CW2/A to Ex.CW2/E respectively. PW2 proved the inspection report, meter report, load report & photographs as Ex.CW2/A to Ex.CW2/D respectively. PW4 also proved the inspection report, load report & photographs as Ex.CW2/A, Ex.CW2/C & Ex.CW2/D respectively. Whereas, the accused, in support of his case, has taken the defence that he is neither owner nor user of the premises in question. Therefore, he has never committed theft of electricity at the premises in question. The accused, at the time of framing of notice u/sec. 251 Cr.P.C., stated that all the allegations made against him are false and that his house is away more than 300 yards from the premises mentioned in the complaint and the photographs belong to some other house of some other person and not of his house and no raid was conducted at his premises. In his statement u/sec. 313 Cr.P.C., the accused stated that he is neither the owner nor the user of the premises in question. Therefore, he has no knowledge about the inspection carried out by the officials of the complainant company namely, R.K.Garg, Sumit Kumar, Vedant & J.S.Bist at the premises in question on 05/07/2007. The accused further stated that he does not have any concern with the premises in question, therefore, he has no knowledge as to what was found by the officials of the complainant company at the premises in question on the date of inspection. He has no knowledge about the reports and photographs, if any made and taken at the premises in question since he is not at all concerned with the premises in question. The accused, in support of his case, examined himself as DW1. DW1 proved the election identity card issued by Election Commission of India as Ex.DW1/A and ration card issued by the concerned department as Ex.DW1/B (OSR). 14 I have carefully perused the inspection report Ex.CW2/A, meter report Ex.CW2/B, load report Ex.CW2/C, photographs Ex.CW2/D & also seen the CD Ex.CW2/E. I have also gone through the testimony of PW1, PW2, PW4 and DW1. It emerges from the testimony of PW1, PW2 & PW4 that they along with Vedant Sethi - Trainee Engineer inspected the premises bearing adjacent to H.No.106, Sequence No. 939, village Chattarpur, New Delhi and found that there was no electricity meter installed at the premises. The electricity supply of the said premises was being illegally used by directly tapping from the BSES LV mains of the complainant with the aid of illegal wire which was further connected to the fitting point of the inspected premises and then entire load was running on direct theft of electricity. The premises in question was being used by Rambir but he was not present at the time of inspection. However, the persons at the spot disclosed that the said premises/ house belongs to Rambir. Details of inspection were recorded in the inspection report prepared at the spot already exhibited as Ex.CW2/A. Total connected load of 10.630 KW for domestic purposes through the illegal tapping was found and details of the same was mentioned by them in the load report prepared at the site already exhibited as Ex.CW2/C. Photographs with the help of digital camera were also clicked which are already exhibited as Ex.CW2/D and CD containing the photographs already exhibited as Ex.CW2/E. The illegal wire could not be seized due to resistance by the consumer at the spot. The team members offered the reports to the consumer at site but the same was refused by the consumer. However, PW4 deposed that he is not aware if the documents prepared at the spot were offered to the accused at the spot or not. PW4 further deposed that the same would have been offered by their senior officers. PW4 specifically deposed in his examination in chief that he clicked photographs at the spot with the help of digital camera. At the time of deposition, PW4 identified the 07 photographs filed on judicial record which are the same clicked by him at the spot already exhibited as Ex.CW2/D. Whereas, it emerges from the testimony of DW1 that he is the resident of D23 (D23 mentioned due to typographical mistake whereas the correct number is B23), village Bari, Bhatti village, New Delhi and residing at the address since long. Election identity card of the accused for the premises bearing No.B23, village Bari, Bhatti village, New Delhi proved by DW1 as Ex.DW1/A and the ration card as Ex.DW1/B. DW1 also deposed that he is residing at the above said premises along with his family members which is at the distance of 810 kms from the premises in question and he has no concern with the premises in question at all. To my considered opinion, it is an admitted fact that the accused was not present at site but it does not mean if user or consumer was not present at the time of inspection, the theft of electricity was not being committed at the premises.
15 The accused has taken the main defence in support of his case that he is not at all concerned with the premises in question. Let us examine whether the accused was having any concern or not with the premises in question. During cross examination, PW1 deposed that the person present over there told his name as Suresh who disclosed that the premises belongs to the accused. Raiding team members did not make Suresh as a witness as he refused to do so. PW1 also deposed in his cross examination that they tried to remove the case property/ wires but were not allowed to do so by the persons present at the spot. Even, Suresh present at the spot also refused to sign the proceedings. PW1 denied the suggestion that there is no person by the name of Suresh in the family of the accused. PW1 further denied the suggestion that no raid was conducted at the premises of the accused. PW2, during cross examination, deposed that the team members verified about ownership of the premises in question from the neighbours who informed them that the premises in question pertains to Rambir who is the owner of the premises. However, they did not ask the name of the neighbourer who informed about Rambir. PW2 also denied the suggestion that no raid was conducted at site and no reports were prepared by them on the alleged date of inspection. During cross examination, PW2 stated that written note was placed in the file which was seen by him. The testimony of PW2 during cross examination against the accused can be doubted to some extent but cannot be discarded in totality while considering the testimony of other witnesses of the complainant. PW4, during his cross examination, deposed that the address of the inspected premises is not reflected in any of the photographs in Ex.CW2/D. PW4 denied the suggestion that no inspection was conducted at the premises of the accused or that the accused has no concern with the inspected premises. PW4 also deposed that he cannot admit or deny if the accused is residing at H.No.23, Bhatti Kala, New Delhi. During cross examination, DW1 deposed that he is residing at B23, Bhati Kalan, New Delhi. However, DW1 volunteered that there is no khasra number in the village hence, it is not mentioned in the ration card and for the purpose of election card, the address is given B23 both are same. DW1 came to know only when he received the summons from this court, it was received by some member of the family, however, DW1 cannot tell the name of the person who had handed over the summons. DW1 denied the suggestion that the alleged raid was conducted at his premises. DW1 denied the suggestion that he has not filed any bill on the record. DW1 volunteered that the electric meter is installed in the name of his elder brother Braham Singh @ Bose Ram. DW1 further deposed that he can produce the same if required. DW1 also denied the suggestion that there was no meter at the premises in question. DW1 also denied the suggestion that he has not mentioned the name of his brother in his chief. DW1 further denied the suggestion that his residence is 8 to 10 km from the premises in question. Perusal of copies of election card Ex.DW1/A (OSR) reveals the Elector's name as Rambir and the address as B23, Bari Bhatti Gaon, New Delhi which was issued on 17.05.1995. Copy of the ration card Ex.DW1/B (OSR) reveals the name of accused Rambir as head of the family and the address as Bhati Kala, New Delhi74 which was issued on 01.11.2004. Whereas, the inspection of the premises in question was carried out on 05.07.2007.
16 On the one hand, the accused proved the election card Ex.DW1/A and the ration card Ex.DW1/B that he is not concerned with the premises in question. On the other hand, the accused did not prove any document on record i.e. the property documents, electricity bills, etc., either in his name or in the name of his family members for the H.No. B23, Bari, Bhatti village, New Delhi prior or till the date of inspection. However, DW1 volunteered that the said documents can be produced if required but the accused neither proved the aforesaid documents in his evidence nor taken any steps for filing of the said documents till the final stage of this case. Moreover, the accused neither summoned the revenue, DDA, MCD or Sub Registrar records to prove that he was residing and either he or his family members were the owner of the premises bearing H.No. B23, Bari, Bhatti village, New Delhi prior or on the date of inspection. Even, the accused neither produced nor examined his elder brother namely, Brahm Singh @ Bose Ram in whose name the electricity meter was installed at the H.No.B23, Bari Bhatti village, New Delhi and he was paying the electricity bills. The bills, if any, in the name of said Brahm Singh @ Bose Ram were neither proved nor filed till final stage of the case. If other documents i.e. property documents, electricity bills, gas connection, etc. of the H.No.B 23, Bari Bhatti village, New Delhi for the relevant period not proved then neither any family member of the accused nor any neighbourer of the accused produced and examined by the accused to prove that the accused was residing at H.No.B23, Bari Bhatti village, New Delhi prior or on the date of inspection, reasons are best known to the accused. 17 In the statement u/sec. 251 Cr.P.C., the accused stated that his house is away more than 300 yards from the premises mentioned in the complaint. Whereas, the accused deposed in his examination in chief as DW1 that he is residing at H.No.B23, Bari Bhatti village, New Delhi along with his family members which is at a distance of 810 Kms from the premises in question. It reveals from the aforesaid statement and deposition of the accused that there is a contradiction in the statement of accused U/sec. 251 Cr.P.C. and in the examination in chief of the accused as DW1 recorded in the court. Further, the complaint was filed on 16.10.2007, the summons issued to the accused was served upon the accused and the accused appeared & filed an application for grant of bail on the very first date of hearing. Here, I take a pause. If the accused is residing at a distance of 8 10 Kms from the premises in question which is also the stand taken at the time of final arguments then how the summons issued to the premises in question was served upon the accused. Moreover, the accused mentioned in para no.2 of his bail application that he was using the electricity through meter only and the entire amount of consumption of electricity was being paid to the landlord along with the rent, meaning thereby, the accused admitted in the said application that he was residing at the premises in question. I have found from the testimony of PW1 to PW4 & DW1 that the testimony of PW1 to PW4 has more credibility than the testimony of DW1. The complaint also corroborated by the testimony of PW1 to PW4. Meaning thereby, the accused Rambir has miserably failed to prove that he was neither residing nor using the premises in question on the date of inspection. Whereas, the complainant has proved by its cogent evidence i.e. inspection report Ex.CW2/A, inspection report (meter details) Ex.CW2/B, load report Ex.CW2/C, photographs Ex.CW2/D & CD containing photographs Ex.CW2/E that the accused Rambir was found committing direct theft of electricity at the premises bearing adjacent to H.No.106 (CHVL 939), opp. Ghode Wali Gali, village - Chhattarpur, New Delhi on 05.07.2007. Therefore, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the complainant through its witnesses examined as PW1 to PW4 on the point of direct theft of electricity. In BSES Rajdhani Power Ltd. Vs Saurashtra Color Tones Pvt. Ltd. and Anr. 161 (2009) DLT 28 (FB), it was held by the Hon'ble High Court of Delhi that ''Electricity is a public property. Law in its majesty benignly protects public property and behoves everyone to respect public property.'' 18 For the foregoing reasons discussed above in details, to my considered opinion, the circumstances and evidence proved by the complainant company established the involvement of the accused in the offence of direct theft of electricity. The complainant has proved its case against the accused beyond reasonable doubt. The present complaint case is squarely covered within the provisions of section 135 of the Act. Thus, I convict the accused Rambir u/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 24.07.2010 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
PATIALA HOUSE COURTS NEW DELHI
CC No. 1003/07
24.07.2010
Present AR for the complainant
Accused in person
Vide separate judgment of the day, the accused is convicted u/sec. 135 of the Electricity Act, 2003. The copy of the judgment be made available to the complainant and the convict immediately.
Upon request, to come up for arguments on the point of the sentence and determination of civil liability on 30.07.2010.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 24.07.2010