Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power on 30 July, 2010
1
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.731/07
PS Ambedkar Nagar, New Delhi
U/s 135 of Electricity Act, 2003
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi - 110019
Also at :
Corporate, Legal & Enforcement Cell
Near Andrews Ganj Market, New Delhi-49
Acting through Mr. Binay Kumar
(Authorised Officer)
...Complainant
Versus
Prabh Saran Singh (User)
Farm H.No. 24, Lane No.5,
Adjacent to Tulsi 28,
Anupam Garden, Sainik Farm,
Saket, New Delhi
...Accused
JUDGEMENT
1 The complainant company filed the present complaint u/sec. 151 r/w/sec. 154 of the Electricity Act, 2003 (hereinafter referred to as the 'Act') for offences inter alia U/sec. 135 of 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.
23 The accused was summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 04.12.2007 after recording the pre-summoning evidence and hearing the arguments on summoning. Accused appeared and was granted bail on furnishing personal bond of Rs.10,000/- 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 Sh.K.K.Sharma - Trainee Engineer Enforcement as PW1. V.D.Pal - DGM (Enforcement) examined as PW1 (Vide order dated 11.12.2009, it was clarified that due to typographical mistake, the witness no. PW1 was given to V.D.Pal at the time of recording evidence, therefore, it was made clear that V.D.Pal examined as PW1 shall be read in evidence as PW2). Binay Kumar - Authorised Representative was examined as PW3. 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 examined himself as DW1.
6 I have heard the Ld. counsel for accused represented by Sh.S.Satya Narayana and prosecution represented by Sh.Sunil Fernandez, counsel/ deemed P.P and have perused the entire records. 3 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 :4
''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.'' 5 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 non-obstante 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 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. He has been authorised to do so by letter of authority dated 23.10.2006 by Lalit Jalan, CEO of the complainant company in the capacity of Manager U/sec. 2 (24) of the Companies Act. PW3 proved the copy of the said 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 6 case. He did not visit the site before filing the present complaint. PW3 denied the suggestion that he has filed the false & fabricated case against the accused. Lalit Jalan, CEO of the complainant company was having the powers on behalf of the complainant company to authorise him for filing and pursuing this case for the complainant company. PW3 also denied the suggestion that false case of theft of electricity has been filed against the accused being officer of the complainant company. 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 Now, let us also examine whether members of the inspection team were the authorised officers of the complainant company to carry out inspection at the premises in question. V.D.Pal - DGM examined himself as PW2 (PW2 mentioned as PW1 due to typographical mistake, therefore, evidence of V.D.Pal shall be read as PW2). PW2 deposed that on 15.05.2007, he along with K.K.Sharma & Sailesh Gupta - both Trainee 7 Engineers & Amit Kumar - Assistant Manager inspected the premises in question bearing Farm House No.24, Lane no.5, Anupam Garden, Sainik Farm adjacent to Farm House No.28 i.e. Tulis, New Delhi and they found the user indulged in direct theft of electricity. Copy of the notification no.F-11(93)/2003/ power/1566 dt. 17.05.2005 filed by the complainant reveals that in exercise of the powers conferred by sub-section (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.U- 11030/2/2003/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 V.D.Pal, DGM 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. Accused appeared and was granted bail on furnishing personal bond of Rs.10,000/- 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 8 Sanghi Brothers (Indore) P. Ltd. Vs Sanjay Chaudhary-I (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 Prabh Saran Singh 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 pre-determined 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.'' 9 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 further 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 Prabh Saran Singh that the accused was indulged in direct theft of electricity. The complainant, in support of its case, examined the witnesses i.e. K.K.Sharma - Trainee Engineer Enforcement as PW1, V.D.Pal - DGM Enforcement as PW2 and Binay Kumar - Authorised Representative as PW3. 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 K. K. Sharma deposed in his examination in chief that on inspection, they found that there was no electricity meter installed in the premises in question and the accused was indulged in direct theft of electricity while tapping the BSES LV Mains. The wire through which the accused was 10 committing direct theft was connected to the change over switch and there was one more wire connected to the change over switch and throw that wire consumer was also drawing the electricity from the generator set through which the accused can also draw the electricity. PW1 further deposed that the accused made a provision through the said change over that he can use the electricity from the direct supply and from the generator set but at the time of inspection, the accused was using the electricity directly from BSES LV Mains. The inspection team met with one lady at the premises in question who need not allow the inspection to assess the connected load of the premises and the connected load was assessed by PW1 along with the other team members on the basis of version told by the said lady. The raiding team members seized the illegal PVC aluminium black colour wire 10 mm sq. in length 10 mts. through which the accused was committing theft of electricity. Meter report was prepared by PW1. The inspection report, load report, seizure memo and also CD through photographer prepared at site. PW1 proved meter report, inspection report, load report, seizure memo and CD already exhibited as Ex.CW2/A to Ex.CW2/C respectively. PW1 further proved the aforesaid illegal wire produced in sealed parcel and opened in the Court as P-1 and also carbon copy of seizure memo as P-2. PW2 V. D. Pal deposed in his examination in chief that at the time of inspection on 15.05.2007, he along with the other team members, i.e., K. K. Sharma- trainee engineer, Sarvesh Gupta-trainee engineer and Amit Kumar- assistant manager found that there was direct theft at site by 10 mm sq. aluminium black colour wire coming from distant LV Mains and the premises load was running on direct theft. The consumer made an arrangement that phase wire has been taken from LV Mains and neutral 11 wire/earth wire taken from submercible pump. The said team members including PW2 covered this direct theft by videography done by person hired from M/S Arora Photographer. PW2 further deposed that consumer i.e. lady did not allow to assess the connected load by physically entering inside the room and the load was taken as she narrated to jointly in front of videographer. There was provision by change over switch that entire load can be run either on generator or on direct theft but at the time of inspection, entire load was running on direct theft. The illegal wire was seized from the spot. Local police also accompanied at the time of raid. PW2 proved meter report, inspection report, load report, seizure memo and CD already exhibited as Ex.CW2/A to Ex.CW2/C respectively. PW2 also proved the said illegal wire again produced in sealed parcel with the seal of the Court & opened in the Court already exhibited as P-1.
14 Whereas, the accused, in support of his case, has taken the defence in his statement u/sec. 251 Cr.P.C. that he is using the electricity through Anupam Garden Friends Association w.e.f. April 2005 till date. The said association is supplying electricity in the area and he has been paying the consumption charges as per the recorded consumption and he has been paying the bills to the said association from time to time. In addition to that, a generator set was also installed at his premises to tide any additional demand of electricity and had not committed the theft of electricity as alleged in the inspection report as well as in the complaint. The connected load shown in the load report is not in accordance with the appliances used by him. The accused further taken his defence in the statement u/sec. 313 Cr.P.C. that the premises in question is in the name 12 of his wife. He was not present when the inspection was carried out by some officers/officials of the complainant company on 15/5/2007. The fact of visit by some officials at the premises was informed to him by his wife after the raid was conducted on the same day. The correct name is Tuli's instead of Tulsi's as stated above.
15 The accused also stated in the statement u/sec. 313 Cr.P.C. that he was not committing any direct theft of electricity as stated above. He was using electricity through the private supplier of electricity and the meters of the consumers through the private supplier are installed at the generator house of the private supplier and on the way where the cable is installed by the private supplier. The connected load of 64.73 KW as allegedly to have been found by the officials of the complainant company on the date of inspection is absolutely incorrect. The sanctioned load through the private supplier to the premises in question is 10-15 KW. The change over system was installed between his generator and the generating system of the private supplier. No reports i.e. inspection report, load report, seizure memo and compact disc were prepared by the officials of the complainant on the date of inspection as informed to the accused by his wife. However, videography was partly made inside and outside the premises by the officials of the complainant on the date of inspection. The cable which has been mentioned in the seizure memo Ex.CW2/B1 was not recovered from his premises which is in question. PWs are the interested witnesses for the complainant company and they must have deposed against him for wrongful gain in favour of the complainant. It was further stated by the accused in the statement u/sec. 313 Cr.P.C. that he is innocent person. On the date of inspection, the 13 officials of the complainant company along with police officials came at site and cut the alleged black colour wire outside the premises to know if the ACs installed at the premises would be 'On' or not and it was found that the ACs were still 'On'. Thereafter, the police officials did not allow the raiding team members to enter the premises in question since lady with children was inside the premises. The consumption charges raised by the private supplier before and after the raid are almost more or less similar. Therefore, the accused stated that he has not committed any offence as alleged by the complainant in the complaint, therefore, he is not liable to pay anything against the alleged theft bill raised by the complainant aganst him. The accused, in support of his case, examined himself as DW1. DW1, in his examination in chief, exhibited the receipts of the payments made to Anupam Garden Friends Association for consumption of the electricity as Ex.X-1 to Ex.X-11 and also letter dated 01.07.2007 issued by Anupam Garden Friends Association Ex.X-12. DW1 further exhibited copy of consumption bill for the month of November 2009 which shows the units from April 2009 till October 2009 as Ex.DW1/A (OSR).
16 I have gone through the testimony of PW1, PW2 and DW1. Firstly, it has to be examined whether the premises in question and the accused are identified. It emerges from the testimony of PW1 & PW2 that they along with Shailesh Gupta - GET, Amit Kumar - Assistant Manager, Baini Ram - photographer, Daya Kishan - Electrician & Police personnel visited the premises bearing Farm House No.24, Lane no.5, Anupam Garden, Sainik Farm adjacent to Farm House No.28 i.e. Tulis, New Delhi. Whereas, it emerges from the testimony of DW1 that the house is in the 14 name of his wife named Madhur Bain Singh. He is living along with his family in the aforesaid house, meaning thereby, it is an admitted fact that the premises in question was being used by the accused with his family members on the date of inspection. Thus, there is no dispute about the identification of the premises in question and the accused. 17 Now, the mode of direct theft of electricity has to be examined which is the crucial aspect. The complainant's case is that the accused was found using the electricity directly from the LV Mains through the illegal wire. Whereas, the case of accused is that he was using the electricity from a cooperative called Anupam Garden Friends Association. During cross examination, PW1 deposed that they had taken videography of the tapping point from the LV mains of the BSES. The change over switch was not taken into possession. However, PW1 volunteered that its possession was resisted by the madam present there. This event of non seizure of change over switch was also videographed. PW1 denied the suggestion that change over switch was between the wire of electricity supplied by Anupam Garden Friends Association and the generator of the owner of the premises. PW1 admitted that no electricity can be consumed from the single wire but PW1 volunteered that the accused had made arrangement for earth wire from the submersible pump. No identification mark as such of the wire was given as it was also videographed. PW1 denied the suggestion that the accused was taking the electricity from Anupam Garden Friends Association. There was no connection from the BSES to the premises during the period preceding to the date of inspection. PW1 further deposed in his cross examination that the bearing load of 10 mm sq. of aluminium wire could be 50 KW 15 approximately and it also depends on the material of lamination of the wire and make of the wire. PW1 admitted that wire of 10 mm sq. would burst in case, load more than 50 KW is passed through it. There was no blast or crack in the wire seized by the team members. PW1 also deposed that the electrician had put off the wire and the wire was deposited in the office after seizure. V.D.Pal - Manager deposited the seized wire in the office. The wire was deposited with sealed condition. The seal remained with V.D.Pal Manager who keep the same all the time. The consumer had refused to sign any document including seizure of wire. The distance from the premises to the alleged tapping point of LV mains was 150-200 mtrs.
18 PW2/V.D.Pal in his cross examination deposed that the distance between the alleged tapping point of LV mains to the premises in question is about 150 mtrs. It is not possible to show the continuity of the wire from the tapping point to the premises in question in the videography. PW2 with other team members did not seize the change over from the site because consumer resisted for the same. They made videography coverage of resistance made by the consumer at the time of taking steps for seizing the change over from the site. PW2 admitted that there was a provision for supply from generator but at the time of inspection, supply was continued through illegal wire. PW2 denied the suggestion that the change over was between the wire of the electricity supplied by Anupam Garden Friends Association and the generator of the owner of the premises. PW2 further denied the suggestion that no illegal wire removed from the spot. Except the wire of black produced before the court, no other wire was recovered from the spot. Even on a 16 single wire, electricity can be passed through as a phase. PW2 volunteered that neutral can be taken from submersible pump as it was done in the present case. No one from the inspection team was allowed to enter inside the premises in question. As far as PW2 remembered during his cross examination, the details with respect to the number of appliances and their wattage was disclosed by the lady which has been covered in the videography. The wire produced in the court was of 10 mm sq. aluminium and the load bearing capacity of the wire produced in the court is of 20 KW. If the consumer uses/ consumes the electricity more than 20 KW on the wire produced in the court, certainly there would be a mark of melting down or burst on the wire. PW2 deposed that the seals always remains with him at the time of inspection. The seal used to remain with him in his official drawer after the inspection and locked properly. The keys of the drawer even after working hours remains with PW2. The handing over and taking over the seal will take place only when the new person comes in his place. There is no procedure of depositing and taking the seal from the office before conducting any inspection. PW2 also deposed in his cross examination that the sketch in the inspection report was drawn by Amit Kumar in his presence. PW2 signed the document Ex.CW2/A1 (inspection report and the observations made therein) after seeing the contents and the sketch drawn by Amit Kumar. The distance between point A1 to A2 (in the sketch) consists of 150 mtrs. which also shows the position of illegal wires. The sketch clearly shows the position of illegal wires consists of part of black colour and part of red colour. PW2 admitted that the wire produced in the court is of only black colour. PW2 denied the suggestion that the wire produced as case property in the present case is planted one 17 or that the wire produced in the court cannot bear the load mentioned in the load report or that accused did not commit the theft of electricity or refused to sign the documents allegedly prepared at site or that no documents were prepared by the inspection team at site or that the accused was using the electricity through Anupam Garden Friends Association generator system and in case of any failure of the electricity from the said generator system, accused used to use the own generator for meeting the electricity requirements or that false case of theft of electricity had been prepared against the accused in order to extort illegal demand.
19 It is also an admitted fact that Ms. Madhur Bain Singh, wife of the accused was present at site on the date of inspection. It is further admitted fact that there was no BSES electricity meter installed at site. DW1 in his examination in chief also admitted that there was no BSES wire going through his premises on the date of inspection. The electricity meter was installed in the April 2009. The inspection of premises was conducted on 15.05.2007, meaning thereby, the consumption bill for the month of November, 2009 proved by DW1 as Ex.DW1/A is of approx. 2 ½ years from the date of inspection, therefore, the said consumption bill cannot be considered for assessing the connected load when the inspection was carried out at the premises in question. DW1 deposed in his cross examination that since he was not present on the date of inspection, wife of the accused present at site told him that when the main line was cut, the electricity to the house did not get disconnected and the ACs and all the other fixtures of the house were still running. Here, I take a pause. If the accused was not present at site and his wife 18 told him about the aforesaid facts that the electricity was continuing even after cutting the main line then why the accused has not examined his wife to prove the above said facts, reasons are best known to the accused. Even otherwise, there is an indirect admission by the accused that the main line was there which was cut by the raiding team members on the date of inspection.
20 DW1 proved the receipts Ex.X-1 to X-11, letter Ex.X-12. Ex.X-1 to Ex.X-11 are the receipts issued from Anupam Garden Friends Association which shows that the accused paid the amount mentioned in the aforesaid Ex.X-1 to Ex.X-11 towards cost through DDs drawn on UTI Bank. There is a settled proposition of law that marking of exhibits over the documents does not mean that they are proved. The accused has not proved on record the aforesaid receipts Ex.X-1 to X-11 either by filing the receipts of DDs issued from UTI Bank or summoning the records of the DDs from UTI Bank in favour of Anupam Garden Friends Association. DW1 in his cross examination deposed that Anupam Garden Friends Association is already closed. The accused has not brought on record as to when the said Association was closed and what step taken by him to know as to whether the association after its closing shifted somewhere else or summoning the records or examining a person from the Association, if the said Association was having any license for supply the electricity to the accused at the premises in question. Moreover, the accused has not filed or proved on record any bill or document of the generator set.
1921 I have seen and examined the videography contained in the CD exhibit CW2/C and found one wire coming from the LV Mains to the premises in question. Videography shows that the wife of the accused was discussing with someone on phone about the inspection and was not only allowing the inspection team to enter inside the house/ premises in question but also resisted to the team members for conducting inspection in the presence of police officials. If the accused was not coming any theft of electricity then why the family members and wife of the accused did not cooperate to the inspection team in performing their statutory function, reasons are again best known to the accused. Since there was a resistance by the wife of the accused at site, it can be presumed that due to resistance, change over switch and other remaining wires including red wire shown in the videography and also mentioned in the sketch Ex.CW2/A1 could not be recovered from the site and the wife of the accused present at site might have also resisted for receiving and signing the documents prepared at site. I have found from the testimony of PW1 to PW3 & DW1 that the testimony of PW1 to PW3 has more credibility than the testimony of DW1. The complaint also corroborated by the testimony of PW1 to PW3. The accused Prabh Saran Singh has miserably failed to prove that he was not committing direct theft of electricity at the premises in question. Whereas, the complainant has proved by its cogent evidence i.e. the meter report, inspection report, load report, seizure memo and videography contained in CD already exhibited as Ex.CW2/A to Ex.CW2/C respectively and also Ex.P-1 & Ex.P-2 that the accused Prabh Saran Singh was found committing direct theft of electricity at the premises bearing Farm House No.24, Lane no.5, Anupam Garden, Sainik Farm adjacent to Farm House No.28 i.e. Tulis, 20 New Delhi on 15.05.2007. 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 PW3 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.'' 22 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 Prabh Saran Singh u/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 30.07.2010 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
PATIALA HOUSE COURTS NEW DELHI
21
CC No. 731/07
30.07.2010
Present - AR for the complainant
Sh.D.K.Bhardwaj, proxy counsel for
Sh. S.Satya Narayana, counsel for the accused with
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 12.08.2010.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 30.07.2010