Delhi District Court
Bses vs . Rajender, Cc No. 287/12 Page No. 1 Of 17 on 22 November, 2014
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. : 287/12
Police Station : Saket, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406 RO256852012
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
Rajender (User)
S/o Shri Nathu Singh
R/o B99/A, Ground Floor,
Village Bari Bhati, New Delhi74
...Accused
Appearances : AR with Sh.Rajesh Kumar, counsel for complainant.
Accused Rajender is present on bail along with
Ms. Jyoti Gupta, Advocate
Complaint instituted on : 09.10.2012
Judgement reserved on : 13.11.2014
Judgement pronounced on : 22.11.2014
JUDGMENT
1. The case of the complainant in brief is that on 24.11.2011, the officers of the complainant company namely, Shri BSES Vs. Rajender, CC No. 287/12 Page no. 1 of 17 2 Ravindhra Kumar - Senior Manager, Shri K.R. Shakya - Diploma Engineer and Shri Alok Kumar - Diploma Engineer conducted inspection at premises near pole no. SKT D 586, Village Bhati (Bas), New Delhi - 74 and accused was found to be the user of the electricity and they further found that accused was indulging in direct theft of electricity by directly illegally tapping from the distribution box with the help of illegal wire. It is further mentioned in the complaint that illegal wire used by the accused for committing theft of electricity was also seized by the inspection team and that accused was found using total connected load of 3.516 KWs for nondomestic purpose. It is further mentioned in the complaint that inspection report along with meter details, load report and seizure memo were 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.1,28,532/ with due date as 13.12.2011 and was served upon the accused but he failed to pay the said theft bill. BSES Vs. Rajender, CC No. 287/12 Page no. 2 of 17 3
3. The case was fixed for presummoning evidence and my Ld. Predecessor vide order dated 09.11.2012 issued summons to the accused and accused Rajender was produced before this court and he was subsequently granted bail.
4. Vide order dated 21.09.2013 notice u/s. 251 for the offence punishable u/s. 135 of the Electricity Act was framed against the accused to which he pleaded not guilty and claimed trial on the ground that he was residing at B99, Seq. No. BH717, village Bhati (Bas), Near Pole No. SKTD 586, New Delhi - 110 074 and that inspection was carried out on 24.11.2011 and bill of theft amounting to Rs.41,307/ was raised in the name of his wife namely Smt. Sundari against the said inspection. Accused further answered that a complaint vide no.288/12 was filed in the Special Court and a judicial settlement was done on 07.02.2013 and that the payment of Rs.20,000/ against the total consideration amounting to Rs.41,307/ was made and NOC was issued on 12.02.2013 and the said complaint was withdrawn on 19.02.2013. Accused further answered that the present complaint is against the provision 52 VII of the DERC Regulation and he is not liable to pay any amount of theft bill BSES Vs. Rajender, CC No. 287/12 Page no. 3 of 17 4 and any damages. Accused further answered that he was not committing any theft of electricity and that false and fabricated case has been made out against him by the complainant company.
5. In order to prove the case of the complainant, six witnesses were produced, which have been discussed below.
6. The statement of the accused Rajender was recorded u/s.
313 Cr.P.C. and accused pleaded his innocence and denied the evidence as false and answered that he was not indulging in any theft of electricity and accused further answered that on 24.11.2011, a raid was conducted on two premises by the officials of BSES and out of one was having premises no. B99 in the name of his wife Smt. Sundari and another was B99A in the name of Harinder, which was under construction at the relevant time. Accused further answered that his wife Smt. Sundari was booked in the said case in CC no. 288/12 and that they made payment against the entire amount of the theft bill and settled the same. Accused further answered that the present complaint pertained to the premises belonging to Shri Harinder, who is BSES Vs. Rajender, CC No. 287/12 Page no. 4 of 17 5 owner of the premises no. B99A and that accused did not have any concern with the said premises. Accused further answered that he was wrongly booked in the present case despite being innocent and that he was not committing any theft of electricity at the premises in question on the date of inspection and that he is not liable to pay any amount as allegedly claimed by the complainant. However, accused opted to lead defence evidence and produced one defence witness, which has been discussed below.
7. I have heard the counsel for the complainant Shri Rajesh Kumar and Ms. Jyoti Gupta, counsel for the accused and perused the written arguments filed on behalf of the accused. I have also perused the record including the CD of videography/ photography displayed on the computer screen of the court.
8. PW1 Shri Ravindhra Kumar, Senior Manager deposed that on 24.11.2011 at 1.45 p.m. he alongwith Sh. Alok Kumar, K.R. Shakya, Sh. Manoj Kumar and Sh. Vicky, visited and inspected the premises near the pole no.SKTD 586, of accused Rajender groundfloor village Bhatti (BAS) New Delhi. PW1 BSES Vs. Rajender, CC No. 287/12 Page no. 5 of 17 6 further deposed that the family members of accused were present at the spot at the time of inspection, who disclosed that the premises belonged to accused Rajender and that at the time of inspection, there was no meter found installed at the site and that accused found indulged in direct theft of electricity by directly taping from BSES distribution box through illegal wire. PW1 further deposed that the construction work was going on in the premises in question at the relevant time. It is further mentioned in the complaint that they assessed the total connected load of the premises and same was found to be 3.516 KW for non domestic purpose. PW1 further proved the inspection report, meter details, load report and seizure memo as Ex.CW2/1, Ex.CW2/2, Ex.CW2/3 and Ex.CW2/4 respectively. PW1 also identified two pieces of red colour copper wire of size 3/22 SWG and length approximately half meter each as collectively Ex. P1. PW1 further identified the videography contained in the CD. PW1 further deposed that the documents were offered to the persons present at the site but they refused to receive and sign the same and that after their refusal, he submitted the aforesaid reports to the Enforcement Department of the complainant company. BSES Vs. Rajender, CC No. 287/12 Page no. 6 of 17 7
9. In his cross examination on behalf of the accused, PW1 replied that he did not remember as to how many inspections were carried out on 24.11.2012. PW1 answered that two inspections were carried out on 24.11.2011, one in the name of accused Rajender and second inspection was in the name of his wife. PW1 further answered that the said two inspections were same because there was no house number mentioned in house of the accused and that the distance between the premises in question and the pole no. SKTD586 was approximately 25 meters.
10. PW2 Shri Keshram Shakya deposed on the same lines on which PW1 has deposed and as mentioned in the complaint, in his examination in chief.
11. In his cross examination on behalf of accused PW2 answered that the premises in question was under construction and that was why the number of the premises was not mentioned on the same. PW2 admitted it as correct that the total connected load as mentioned in the load report, was not depicted in the videography. PW2 answered that the water BSES Vs. Rajender, CC No. 287/12 Page no. 7 of 17 8 motor was installed inside the wall of the premises in question and that the distance between the pole and the premises in question was approximately 25 meters. PW2 admitted it as correct that the illegal wires Ex. P1 was not depicted in the videography. He volunteered that the illegal wire Ex. P1 was removed and seized from the premises in question from above the water motor. PW2 further admitted it as correct that illegal wires Ex. P1 were easily available in the open market and that in the videography, the preparation of documents was not depicted and that no refusal was shown in the videography. PW2 further admitted it as correct that accused Rajender was not depicted in the videography nor he was present at the spot at the time of inspection. PW2 had no knowledge with regard to the another inspection relating to complaint no. 288/12.
12. PW3 Shri Alok Kumar deposed on the same lines on which PW1 and PW2 have already deposed and as mentioned in the complaint, in his examination in chief.
13. In his cross examination on behalf of the accused, PW3 answered that the premises in question was being constructed BSES Vs. Rajender, CC No. 287/12 Page no. 8 of 17 9 and construction work was going on there and that there was no proper structure. PW3 did not remember the number of the adjacent premises. PW3 further answered that the labours present at the spot had disclosed the name of the accused Rajender as user only and no other details were given by them. PW3 replied that the accused Rajender was not present at the spot at the time of inspection. PW3 did not know about the address mentioned in the amended memo of the parties. PW3 could not confirm as to who prepared the site plan on inspection report Ex. CW2/1 at page no. 2. PW3 did not know as to whether any inspection was carried out at property bearing no. B99, Sequence No. BH717, village Bhati (Bas), near pole no. SKTB 586, New Delhi, wherein wife of the accused Rajender namely Smt. Sundari was implicated in CC No. 288/12.
14. PW4 Shri Vicky, videographer deposed that he conducted the videography of the inspection and connected load on the direction of Shri Ravindhra Kumar, Senior Manager. PW4 further identified the said videography and proved the CD of videography as Ex. CW2/6. In his cross examination on behalf BSES Vs. Rajender, CC No. 287/12 Page no. 9 of 17 10 of the accused, PW4 admitted it as correct that neither the accused nor his members of family were depicted in the videography. PW4 answered that the BSES pole number was depicted in the videography, however, the number of the premises was not depicted in the same because the number was not written on the premises in question. PW4 did not remember as to in how many premises he conducted videography except the present inspection. PW4 also did not remember as to whether he conducted the videography of house no. B99, Bari Bhati or not. PW4 replied that the premises in question was occupied at the time of inspection. PW4 did not remember the distance between the pole and the premises in question.
15. PW5 Shri Amit Kumar, Senior Manager in the complainant company deposed that he prepared the theft bill on the basis of documents provided to him and as per DERC regulations and he also proved the said bill as collectively Ex. CW2/5. PW5 admitted it as correct that he was not the member of the inspection team. He answered that he had no personal knowledge of the connected load. PW4 could not BSES Vs. Rajender, CC No. 287/12 Page no. 10 of 17 11 admit or deny as to whether the premises in question belong to accused or not because he was not the member of the inspection team.
16. PW6 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. CW1/2 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 both the the accused, he replied that he did not visit the premises in question and that he deposed on the basis of documents on record.
17. DW1 Smt. Sundari W/o accused Rajender deposed that she was residing at B99, Village Bhatti Bas, New Delhi with her husband Rajender and she also brought her ID proof, which is Ex. DW1/A. DW1 further deposed that on 24.11.2011, the raid was conducted by the BSES in her house and adjoining house B99A, which belonged to Harender. DW1 further deposed that neither she nor her husband had any concern with B99A and BSES Vs. Rajender, CC No. 287/12 Page no. 11 of 17 12 that she had settled her own case with the complainant company against the theft bill issued with regard to her premises and she also proved the certified copy of the said order as Ex. DW1/B and her statement in this regard as Ex. DW1/C. She further proved the receipt of payment of the said theft bill as Ex. DW1/D and NOC in this regard as Ex. DW1/E. DW1 further deposed that her husband, accused Rajender has been implicated falsely in the present case.
18. In her cross examination on behalf of the complainant company, DW1 was confronted with CD of videography Ex. CW2/6 and after going through the said videography, she replied that the premises as depicted in the videography was not her house. DW1 brought one electricity bill pertaining to premises no. B99A, which was in the name of one Smt. Kiran Lata, who was the wife of said Harender and said bill is Ex. DW1/F. DW1 admitted it as correct that construction work was going on in the premises of Harender on the date of inspection, however, she had nothing to do with the same. DW1 further admitted it as correct that on the day of inspection, two cases with regard to the theft of electricity were BSES Vs. Rajender, CC No. 287/12 Page no. 12 of 17 13 registered, out of which, one was against her, which she got settled and the another case was registered against her husband, who was falsely implicated in the said circumstances because the premises in question belonged to said Harender. DW1 had no knowledge as to whether any electric meter was installed in the premises bearing no. B99A or not.
19. As per documents and deposition of PW1, PW2 and PW3, the premises in question was situated near SKTD 586 village Bhati (Bas), New Delhi. It is further claimed by PW1 in his examination in chief that the family members of the accused Rajender were present at the spot at the time of inspection, who disclosed that premises belonged to accused Rajender. The other two witness namely PW2 and PW3 are silent about the presence of family members of the accused as claimed by PW1. PW1 in his examination in chief and PW2 and PW3 in their respective cross examinations claimed that premises in question was under construction and that was why there was no proper municipal number of the premises mentioned on the same. PW1 admitted in his cross examination that two inspections were carried out on 24.11.2011 in the same premises and one was against accused BSES Vs. Rajender, CC No. 287/12 Page no. 13 of 17 14 Rajender and another was against his wife. But PW2 and PW3 in their respective cross examinations showed their ignorance regarding the said two inspections on the said date in the same premises against the said two persons. As per examination in chief of PW1, these were the family members who disclosed the name of the accused, but as per cross examination of PW3, these were the labours present at the spot, who disclosed the name of the accused as user.
20. In view of the said material contradictions, which go to the root of the matter, it becomes doubtful as to whether the premises really belonged to accused Rajender.
21. It is admitted case of the said three witnesses that accused was not present at the spot nor he was covered in the videography. This fact coupled with the said contradictions further gives a jolt to the story of the complainant.
22. On the other hand, wife of the accused namely Smt. Sundari has appeared as DW1, who disclosed her address as B99, Village Bhatti Bas, New Delhi and she deposed that on BSES Vs. Rajender, CC No. 287/12 Page no. 14 of 17 15 24.11.2011 the raid was conducted by officials of the complainant company in her house and the adjoining house bearing no. B99A, which belonged to one Harender with which neither she nor her husband / accused had any concern. She further deposed that she settled the case with the complainant company against the theft bill issued with regard to her premises vide order of the court Ex. DW1/B and receipt of payment as Ex. DW1/D against which NOC was issued to her, which is Ex. DW1/E. This fact has not been denied on behalf of the complainant.
23. In her cross examination, when she was confronted with the CD of videography Ex. CW2/6, she clearly denied that premises depicted in the videography belonged to her or her husband and she further proved an electricity bill of one Smt. Kiran Lata at the address B99A, as Ex. DW1/F and deposed that said Smt. Kiran Lata is the wife of said Shri Harender and in her premises the construction was going on, but neither she nor her husband had any concern with the said construction. BSES Vs. Rajender, CC No. 287/12 Page no. 15 of 17 16
24. The said denial of the DW1 with regard to premises depicted in the videography as her own, remained unrebutted on the record because the complainant miserably failed to produce any cogent evidence linking the accused with the premises in question.
25. Although, it has been contended on behalf of the complainant that neither said Smt. Kiran Lata nor her husband Shri Harender has been produced in the witness box on behalf of the accused, but the said contention is meritless in view of the fact that defence of the accused may be weak or defective but it does not mean that the complainant or the prosecution may derive benefit from the same, for the simple reason that it is for the complainant to stand on its own legs in order to bring home the guilt of the accused beyond reasonable doubt. No doubt, as per 3rd proviso to section 135 of the Electricity Act, 2003, a presumption has been drawn against the accused, which is required to be rebutted by him, but needless to repeat the law that the said presumption is not in contradiction or contrary to presumption of innocence of the accused. What accused is required to rebut the presumption is from a prudent BSES Vs. Rajender, CC No. 287/12 Page no. 16 of 17 17 man's test and not to prove his defence "beyond reasonable doubt".
26. In view of my said discussion, in the said circumstances, it cannot be said by any stretch of imagination that the presumption has arisen against the accused and the complainant has miserably failed to bring home the guilt of the accused beyond reasonable doubt. Hence, the accused 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 22.11.2014 ADDITIONAL SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Rajender, CC No. 287/12 Page no. 17 of 17