Delhi District Court
Relied Upon 33 (1987) Dlr 231 Krishan ... vs State; Rakesh on 22 January, 2011
IN THE COURT OF ANOOP KUMAR MENDIRATTA: ASJ SPECIAL ELECTRICITY COURT, DWARKA, NEW DELHI CC No. 621/06 Unique Case ID No. U/s 135 of Electricity Act, 2003. BSES Rajdhani Power Ltd Having its registered office at: BSES Bhawan Nehru Place, New Delhi 110019 Also at: Corporate, Legal and Enforcement Cell, Near Andrews Ganj Market, New Delhi 110049 ....................... Complainant Versus 1. H G S Pahwa 487/56, Peera Garhi, New Delhi. 2. Narinder Kumar Plot No 45, Peepal wali Gali, Near Pole No 48, Peera Garhi New Delhi ................................ Accused Date of institution: 14.12.2006 Arguments heard on 22.01.2011 Judgment passed on 22.01.2011 JUDGMENT:
1. As per case of complainant, on 16.11.06, joint inspection .. 2 ..
team of the complainant comprising of Sh. Sanjay Kumar, Manager; Prasanjeet Ghatak, AM; Sh Vivek Soni, GET; Sh.Surender Singh, TE; inspected the premises bearing plot No 45, Peepal Wali Gali, Near Pole No 48, Peeragarhi, New Delhi. During inspection the entrance collapsible gate of the premises was found in locked position but the work was going on inside the factory. Further there was a steel gate behind the collapsible gate which was also locked. The person found standing infront of the premises was reluctant to open the door and only after 2 ½ hours delay he finally opened the lock. After entering the premises, it was found that a worker was hiding behind the furnace under suspicious circumstances and three number illegal multi strand teflon wires with pointed tip was found lying beside him which was picked up by the enforcement staff. One of the consumer representative then snatched the illegal wires from enforcement officials and ran away. The said worker also ran from the premises under consumer protection. It is further the case of complainant that some unidentified persons present at the spot did not allow the inspection team to take the videography of the illegal wires and the suspicious work. The said illegal wires could not be seized as material evidence since the worker had already run away with the wires. After further checking of the premises it was observed that .. 3 ..
three electronic furnaces were in red hot condition and one diesel operated furnace was found in idle condition. It was also observed that there was a deliberately created hole by cutting the bottom portion of the meter box through which any illegal wires could be inserted for direct theft of electricity and cracks were also clearly visible on the incoming terminal of the three phase hole current meter body. Later on, the inspection team managed to take the videography of the connected load and meter at site. CMRI data was also downloaded from the meter and after analyzing the data at site it was observed that in load summary/ survey graph, meter was not recording any load since 12 hours from 10th November, 2006 although inside the premises all the three electronic furnaces were found in red hot condition thereby proving that the illegal wires having pointed tip at one end and mettalic hook at the other end were being used by the accused for bypassing the meter by just inserting the pointed portion inside the meter incoming terminal and connecting the hook end on the load side of the main switch. Further, all the three illegal wires were of teflon insulation which could draw heavy load without getting melted. The three phase meter along with the service line could not be removed due to heavy resistance from the consumer. A rough sketch plan was also prepared to show as to how the accused were .. 4 ..
indulging in direct theft of electricity. The total connected load was assessed as 80.020 KW for industrial purpose. Raiding team members further prepared the inspection report Ex CW2/A, inspection report (meter details) Ex. CW2/B and load report Ex CW2/C. It is also the case of complainant that subsequently accused No. 1 H G S Pahwa vide a letter written to him admitted to be the user while accused No. 2 (Narender Kumar) was the registered consumer of the electricity connection in the premises. Theft assessment bill in the sum of Rs. 29,94,758/ was raised against the accused on the basis of aforesaid inspection.
2. Accused were summoned U/s 135 of the Electricity Act, 2003 on a complaint case filed by the complainant . Notice was framed against the accused U/s 135 of the Electricity Act,2003 to which they pleaded not guilty and claimed trial.
3. In support of its case, complainant company examined three witness namely PW1 Sh Prasanjeet Ghatak (raiding team member), PW2 Sh. Pankaj Tandon (Authorized representative) and PW3 Sh Vijay (photographer).
PW2 Sh Pankaj Tandon (authorized representative) stated that he was authorized to file the complaint vide letter of authorization Ex CW1/1.
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PW3 Sh Vijay (photographer) stated that he had conducted the videography in the inspected premises on 16.11.2006 as per directions of the raiding team members. He further identified the videography contained in CD Ex. CW2/E recorded at spot with the aid of mini DVD camera.
PW1 Sh Prasanjeet Ghatak (raiding team member) deposed on the lines of the complaint.
4. In his statement U/s 313 Cr.P.C accused H G S Pahwa denied the case of complainant. He further stated that the factory was closed on said date due to fear of sealing in the area and he was not present at site. However, he admitted that he was the user of the factory. He further stated that he was not aware if any person was present outside the premises since he was not present at spot and was also not aware of the conduct of proceedings alleged by the complainant. He denied that any work was being carried in the factory and also stated that connected load was much less. However, he did not prefer to lead any evidence in defence.
Accused Narender took a stand that the premises was rented to Sh. Pahwa though he admitted that he was the registered consumer. It may be appropriate to mention that this accused was produced in a wheel chair as he appeared to be afflicted with some .. 6 ..
medical ailment. He further denied any knowledge about the inspection and stated that he was on bed since last 15 years.
5. I have heard ld. counsel for the complainant (deemed APP), counsel for the accused and perused the record carefully.
Counsel for the accused assailed the case of complainant on the ground that meter box along with the meter was neither seized, nor produced before the court. It was also urged that the CMRI data alleged to have been taken at the spot had not been proved in accordance with law and the prosecution case rests only on the testimony of the solitary raiding team member PW1 Sh Prasanjeet Ghatak, which is improbable. It was further contended that alleged videography recorded at spot had not been proved in accordance with law since the mini DVD cassette on which the videography had been recorded was not produced. Case was further challenged on the ground that the illegal teflon wires alleged to have been used for purpose of direct theft had neither been seized by the raiding team members, nor any independent witness was joined. It was also contended that the factory could not be presumed to be under operation since no workers were present at the site and the version given by complainant is improbable . Counsel for the accused also relied upon 33 (1987) DLR 231 Krishan Kumar Vs State; Rakesh .. 7 ..
Kumar & Ors Vs State, 163 (2009) DLT 658. Chand Khan Vs State, 2000 Crl. L G 2645; Emma Charlotte Eve Vs Narcotic Control Bureau 200 (4) Recent Cr 386; Sudhir Engineering Company Vs Nitco Roadways Ltd, 1995 (34) DRJ; Krishan Kumar Vs State, 33 (1987) DLT 231, in support of the contentions.
6. On the other hand, counsel for the complainant relied upon the testimony of witnesses along with the videography recorded during the course of inspection. It was also urged that the user of the premises is not disputed in view of letter written by the accused H G S Pahwa dated 2.12.06 wherein the factum of inspection was admitted but the allegations of theft were denied. It was also submitted that even the registered consumer could not escape the liability, since no rent agreement had been filed on record and it cannot be assumed that the accused was bed ridden on the date of inspection and was not aware as to the means adopted for theft of electricity by the user SH H G S Pahwa. The contentions raised on behalf of accused that the CMRI data had not been tendered in evidence were also refuted and it was submitted that the case of complainant right from inception is based on the analysis of CMRI data which was downloaded at the spot and which supported the factum of theft, since heavy load of three furnaces was primafacie being used as the furnaces were in hot .. 8 ..
condition. It is submitted that the CMRI data was downloaded at spot in a different machine and result was merely analysed with the help of laptop which revealed that the meter was not recording any load since 12 hours of 10.11.2006 and was even duly referred in inspection report. It has been also pointed out that a small minuscule projection of consumption reflected in the data for 16.11.06 from 11 hour to 12 noon points out that there was some work being carried in the premises but demand units showing the consumption (below two units) on Y axis is completely disproportionate to the load of 72 KW comprising of three furnaces which were found in red hot condition and as such the furnance could not have been run except for the theft of electricity with help of teflon wires as detailed in the inspection report. Reliance is further placed upon Jasrath Vs Union of India, 130 (2006) DLT 700; Motor and General Finance Ltd Vs Milap Bus Service 94 (2001) DLT 171; Mukesh Rastogi Vs NDPL, Crl. Appeal No 531/07 decided on 23.10.07 by the Hon'ble High Court of Delhi in support of contentions.
7. In order to prove the case against the accused, complainant is required to establish that the theft of electricity was being committed at the premises inspected by the raiding party. Complainant is further required to link the accused to the premises .. 9 ..
and prove that the accused was responsible for commission of theft of electricity.
8. The theft of electricity by the consumer is supported by the complainant on the following facts:
i. The factory work was on but the premises was found locked. The consumer was standing infront of the premises but opened the door reluctantly after about 22 ½ hours delay. Finally, when the door was opened a worker was found hiding behind the furnace under suspicion circumstances carrying cutter and three number of multi strand teflon wire with pointed annealed tip were found lying beside him. One of the consumer representative is further stated to have snatched the illegal wires from enforcement officials and fled from the spot. The said suspicious worker also escaped from the premises when inspection team tried to inquire his presence. As such the wires could not be seized.
ii. Apart from above, three number of electric furnaces (approx 72 KW) were found in red hot condition and one diesel operated furnace was found in idle condition.
iii. The three phase meter was in stop condition and no load was running through the meter. The grip of the cut outs of the .. 10 ..
meter at the outgoing were found deattached.
iv. On inspection of the meter, the hole was found on the bottom phase of the meter box through which an illegal wire could be inserted to bypass the meter. It was also observed in the inspection report Ex CW2/A that the cracks were clearly visible on the incoming terminal of the three phase whole current meter (body). Further, the meter along with service line could not be removed due to heavy resistance from the consumer. v. The meter data was downloaded and the manager of the team analysed the data at the spot and even referred the same in inspection report which corroborated the allegations of theft, The said data has been duly referred by PW1 Sh. Prasanjeet Ghatak in his testimony and the copy of print out which were subsequently taken by the complainant were also placed on record. However, it may also be observed that the print out of the CMRI data has not been exhibited on record. It was also observed in the inspection report that on analysing the data on site it had been observed that meter is not recording any load since 12 hours of 10.11.2006 but inside the premises it was observed that all the three electronic furnaces are in .. 11 ..
red hot condition proving that the illegal wires having pointed tip at one end and metallic hook on the other end were used for bypassing the meter by just inserting the pointed portion inside the meter incoming terminal and connecting the hooked end on the load side of the main switch.
9. The case of the complainant is supported by testimony of PW1 Sh. Prasanjeet Ghatak (raiding team member) along with photographer PW3 (Vijay). The remaining witnesses were informed by the complainant to have left the services of the company and their present whereabout were not known. The testimony of PW1 Sh Prasanjeet Ghatak is categorical to the effect that the premises was locked but the work was going on inside the premises. He further stated that the persons present outside the premises on inquiry told that he was the user of the factory. Further, the person refused to open and remove the lock of the entry gate and after 2 2 ½ hours and when the raiding team members were about to remove the lock themselves the person opened the lock . While taking up the proceedings 34 unknown persons had tried to put up resistance. There was no light inside and was little dark. The electronic furnaces .. 12 ..
were visible red and hot. In all there were four furnaces, three out of which were on electric supply and 4th on energy of diesel. The boy/worker was sitting by side of furnace behind some material as he was hiding and was holding a plier. Further, three number of teflon wires were lying near him and as the raiding team members inquired from him, 34 persons arrived and started threatening and prevented from taking photographs at site. The said unknown persons prevented from taking wires which had pointed tips. However, before the inquiry could be taken up with the boy holding the plyer, the said 34 unknown persons managed the boy to go out of the factory. He further stated that three phase electronic meter was totally in stop condition and no load was there . The said meter and grip of the cut outs of the meter were found deattached. The meter data was downloaded and manager of the team analysed the data. The videography of the meter and load focusing the red hot furnace was taken but the persons present did not allow to remove and seize the meter. He further stated that the hole was found on the bottom base of the meter box through which any illegal wire could be inserted to bypass the meter. Further, crack marks were noticed on the incoming holes on the meter. He also clarified that work being carried in the .. 13 ..
factory was annealing i.e hardening of iron material/objects.
During cross examination PW1 Sh Prasanjeet Ghatak explained that the person present outside the premises prevented them from taking the photographs. He further denied the suggestion that no work was being carried in the premises and also volunteered that they heard the sounds that factory was working and someone was executing the work. He also clarified that one furnace is appearing red and hot in the videography. His testimony on the point of conduct of inspection and various irregularities detected could not be dented during cross examination.
In my considered view, the factum that three furnaces were found hot, point out to the only inference that the factory was in operation. The fact that the gate of the factory was not opened for about 22 ½ hours also points out that there was some illegality at the behest of accused. The same would have also ensured that the furnaces get cooled down with passage of time. The fact that three teflon wires were found at the spot and the boy aged 2830 years was found hiding behind the furnace with a plier points out that there was a cover up operation of the theft of electricity. The fact that the unknown persons present in the factory created resistance and ensured that the said worker who was hiding behind furnace is able to escape and the illegal teflon wires are also removed to avoid .. 14 ..
seizure, clearly points out to the illegalities resorted at the behest of accused. The nonseizure of the wires and the meter due to resistance stands duly explained and the benefit for the same cannot be extended to accused. Since the complainant cannot be held responsible for non seizure of the material in the facts and circumstances, the reliance placed by counsel for accused on 2000 Crl L J 2645 Chand Khan Vs State appears to be misplaced. Reliance in this regard may also be placed upon Mukesh Rastogi Vs NDPL Crl Appeal No 531/07 decided on 18.09.07 (as referred by complainant) . Also contention the raised on behalf of accused that testimony of witnesses is not reliable since no independent witness was joined is without any merit. There was resistance at the spot and in the circumstances it does not appear to be reasonable that anyone would have come forward for joining as witness to such proceedings. The way in which the theft of electricity was being done by the teflon wires has also been explained in the inspection report Ex. CW2/A prepared at the spot which is quite exhaustive. It may also be observed that to corroborate the factum of theft, the raiding team members further took the CMRI data on the laptop which was analysed to confirm the theft. On analysing the same, the data confirmed that in load summary/survey graph, the meter is not recording any load since 12 hours on 10.11.2006 but inside the premises it was observed that .. 15 ..
three electronic furnaces were in red and hot condition which proved the observation that illegal teflon wires pointed at the tip and metallic hook at the other end were used for bypassing the meter by inserting pointed portion inside the meter incoming terminals as fully recorded in the inspection report Ex. CW2/A. The said observation based on analysis of the CMRI data downloaded at the spot cannot be doubted. I am of the opinion that merely because the said print outs of the CMRI data had been subsequently taken and have not been proved by the person who took the print outs, the same does not to nullity the observations of theft of electricity made by the raiding team members on down loading the CMRI data to confirm the usage of electricity by accused and duly referred in the inspection report Ex. CW2/A to which PW1 Sh. Prasanjeet Ghatak is also a signatory. There is absolutely no explanation by accused to show as to why the load of the three furnaces of about 72 KW would not have been recorded in the CMRI data in proportion of consumption of units. It is rather pertinent to point out that even after about 2 ½ hours of waiting outside the premises, one of the furnaces was still in red hot condition as clearly viewed in videography though the other two furnaces were also found hot and may have lost some heat when the raiding team members finally managed to enter the premises.
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It may also be observed that the downloading of CMRI data by a different instrument and thereafter analysis on laptop is just analogous to checking the meter by an accu check instrument to assess if the meter was slow. The only difference is that the out put of CMRI data is simply analyzed with aid of computer. The circumstances at spot clearly proved theft of electricity and the observation through CMRI data corroborated the same.
Merely because the print outs of CMRI data were subsequently taken cannot discredit the observations recorded on analysis at spot which clearly points to the theft of electricity. The stand of accused that no work was being carried in the premises due to fear of sealing is palpably false.
The same may also be looked from another perspective that accused has failed to prove the usage of units commensurate to running load which stands duly proved on record on date of inspection. The proposition of law relied by counsel for accused, in the authorities referred is not disputed. However, the facts and circumstances of the present case, irrespective of the fact that print outs of CMRI data which were subsequently taken and have not been exhibited but referred in testimony of PW1, prove the theft of electricity beyond reasonable doubt.
10. It may be noticed that testimony of PW1 Sh. Prasanjeet Ghatak has also been corroborated by PW3 who was deputed by M/s .. 17 ..
Aroro Photo Studio to record the videography/photographs. The said witness was to merely proved the recording of videography conducted at site during inspection but was cross examined on behalf of accused to elicit the factual information regarding conduct of inspection. The said witness during cross examination clarified that he had seen from the side of closed gate of the premises that the work was being carried in the premises.
11. It may also be appropriate to refer to letter dated 2.12.06 written by the accused H G S Pahwa to CEO of the complainant alleging harassment by the officials of the complainant with reference to inspection conducted on 16.11.06. It was submitted that only a labour was on lunch break looking the factory behind him and there was no work/ order due to sealing in Delhi for last one month. Further, the factory was claimed to be unoperational and was opened when the labour returned from lunch break. It was further submitted that no finished/unfinished product was found in the premises and even lights were switched off. The allegations of theft were denied and prayer was made for looking into the matter.
It may be observed that the letter dated 2.12.06 bearing the receipt of the office dated 4.12.06 was a well deliberated and considered submissions made by accused H G S Pahwa, about a .. 18 ..
fortnight after the inspection. The letter admits that accused H G S Pahwa was the user of the premises. The same is even otherwise admitted by the accused in his statement U/s 313 Cr.P.C and is not disputed . The accused has further given his own version that the labour was on lunch break and there was no work or order due to sealing and the factory was opened when the labour returned from lunch break. This defence taken by the accused appears to be an effort to dispute the factum of inspection but none of the labourers present at spot was examined to corroborate the same. On the contrary, the testimony of raiding team members is fully reliable and had no animosity against the accused. The inspection was merely conducted in course of their duty. Though the accused was aware as to the conduct of inspection but the complaint was only filed after about a fortnight, which obviously is after deliberations to create a defence. If there had been any oblique reasons for the raiding team members during the conduct of inspection, there is no reason as to why the steps would not have been taken by the accused for reporting the matter to the police or any other authority immediately. Further if the factory was not operational there could not have been any reason for the furnaces to be hot and even one furnace is clearly reflected as red hot in the videography. The fact cannot be lost site off that the raiding .. 19 ..
team members had reached the spot about 12 noon as clarified by PW1 during cross examination and were made to wait for about 22 ½ hours before the factory was opened. There does not appear to be any reason that in case the factory was closed for lunch hours the person would remain hiding inside the factory by keeping the lights switched off and thereafter when the raiding team members enter the factory the fuse grips are found loose and the meter is not recording any consumption. No one else, except persons at behest of user could have entered the factory premises and created resistance and ensured that the worker found hiding with the plier at site escapes and also raiding team members are unable to seize the teflon wires used for theft. The best evidence to confirm theft which the complainant/raiding team members could have collected was confirmation by the CMRI data which was immediately downloaded and output compared on the laptop. The same clearly establishes the direct theft of electricity and the observation was even reflected in the inspection report.
12. The counsel for accused has also challenged the videography as contained on CD on the ground that original cassette on which videography was recorded has not been produced and the possibility of interpolation could not be ruled out as only the copies .. 20 ..
prepared from original have been produced.
It may be pointed out that videography clipping recorded at spot has been duly identified to be the same as contained in CD and the videography cannot be discredited as there is no reason to presume any interpolation. The same even matches the version given by the witnesses. It may be observed that even if the CD is presumed to have not been strictly proved in accordance with rules of evidence, the factum of theft still stands duly proved by the testimony of PW1 and PW3 which is fully reliable and trustworthy.
For the foregoing reasons, complainant has brought home the charge against the accused H G S Pahwa beyond reasonable doubt. Accused H G S Pahwa is accordingly convicted U/s 135 of the Electricity Act, 2003.
13. So far as accused Narender is concerned, he has been impleaded as the registered consumer of the electricity meter installed in the premises . Admittedly, he was not present at spot. The accused has claimed that premises was rented to HG S Pahwa and the same is also admitted by accused who admits to be the user in the premises. The accused Narender cannot be held to be responsible for theft .. 21 ..
merely because it is contended by complainant that neither any rent agreement has been produced on record, nor any other evidence has been led to show that premises was rented. At the same time, there is no conclusive evidence led by the complainant to show that the registered consumer was aware as of the fact that the unit was being run by the user H G S Pahwa by way of illegal theft. Particularly, seeing the physical condition of accused Narender who was produced in a wheel chair, I am of the opinion that it may be difficult to impute him with the knowledge of theft of electricity by the user of premises (i.e H G S Pahwa). For the foregoing reasons, accused Narender is acquitted.
Announced in the open Court on dated 22.01.11 (Anoop Kumar Mendiratta) ASJ: Special Electricity Court Dwarka: New Delhi IN THE COURT OF ANOOP KUMAR MENDIRATTA: ASJ SPECIAL ELECTRICITY COURT, DWARKA, NEW DELHI CC No. 621/06 Unique Case ID No. U/s 135 of Electricity Act, 2003.
BSES Rajdhani Power Ltd Having its registered office at:
BSES Bhawan Nehru Place, New Delhi 110019 Also at:
Corporate, Legal and Enforcement Cell, Near Andrews Ganj Market, New Delhi 110049 ....................... Complainant Versus H G S Pahwa 487/56, Peera Garhi, New Delhi.
................................ Convict ORDER ON POINT OF SENTENCE:
1. Accused H G S Pahwa has been convicted under Section 135 of the Electricity Act, 2003. Counsel for complainant contends that having regard to the nature of offence which has socio economic impact, a stringent view be taken. It is also urged that the case involves heavy industrial use and resistance had been created during .. 2 ..
the course of inspection to cover up the illegality.
2. On the other hand, defence counsel submits that a lenient view be taken as the accused is not a previous convict and has family liabilities. It is also submitted that during pendency of trial accused has also reached the age of 68 years and be released on probation. Further, load has been disputed and brief synopsis has been filed for determination of civil liability. It is firstly urged that since the load was not being recorded since 12 hours on 10.11.2006 , the exact period of theft be quantified only for 6 days. In the alternate it is submitted that since the present meter was changed on 23.08.06, the theft assessment bill be quantified w.e.f. 23.08.06 to 16.11.2006 (i.e date of inspection) for a period of 85 days. The connected load is also disputed and it is urged that the connected load of one furnace is to be treated as only 8 KW . Reliance has also been placed upon 2004 (3) AD Delhi 419 Virender Singh Vs State; JT 2003 (7) SC 215 M/s Bhilai Rerollers etc Vs M P Electricity Board & Ors . It is further contended that the load factor has been wrongly considered as 100 %, instead of 60 % and benefit be given for the amount already deposited by the accused as per actual consumption after change of meter from 23.08.2006 till 16.11.2006 (i.e date of inspection).
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3. I have given considered thought to the contentions raised. In the present case, the accused resorted to theft of electricity for heavy industrial use and resistance was also created to the raiding team members to ensure that they are unable to seize the illegal wires used for theft of electricity. In 2004 (III) AD (Delhi) 419 relied by accused, the petitioner had already remained in custody for 15 days. It is not reflected therein if the accused was involved in heavy industrial theft. The punishment under present Act of 2003, is stringent, since the electricity is a national asset and a deterrent view needs to be taken in cases involving heavy industrial theft . For the fore going reasons, I am of the opinion that the case is not fit to extend benefit of probation to the accused.
4. So far as the connected load is concerned, the same stands duly proved on record. Witness PW1 Sh Prasanjeet Ghatak denied the suggestion given by accused that the furnace was not of 24 KW. He further specified during cross examination that there were 8 heaters in the furnace each of 3 KW. The observations of this witness could not be dented during cross examination and it does not appear that the load has been calculated on notional basis. All the three furnaces were found hot during the course of inspection; and the same constitutes the substantive load of 72 KW. The remaining load of .. 4 ..
blower and the exhaust fan and bulbs also appears to be as observed during the course of inspection. The connected load as such cannot be doubted. It may also be observed that during the course of arguments on the point of sentence counsel for accused has relied upon the meter change report for claiming the assessment from the date of change of meter i.e 23.08.06 and also relied upon bill dated 7.12.06 for claiming the deduction of the amount paid for consumption of electricity through the meter. A bare perusal of the bill dated 7.12.06 reflects units for the past months of July 2005, August, 2005 and September, 2005 are assessed as 25,000/ units each. However units for August 06, September, 06 and October, 06 after change of meter are merely reflected as 2431, 2431 and 1335 units respectively. The difference in the proportion of units consumed/ assessed appears to be substantive and reinforces the conclusion of direct theft of electricity. In the aforesaid background, it may be difficult to accept the contention raised on behalf of accused that the load be assessed on the basis of maximum/ peak load reflected in the CMRI data. CMRI data would only reflect the load which was being run through the meter and in case of direct theft as adopted by the convict, the peak load actually used would never be reflected. There is no dispute as to the proposition of law referred in JT 2003 (7) SC 2005 relied by accused .. 5 ..
but the principle cannot be invoked for calculation of bill for direct theft of electricity on basis of peak load in CMRI data in the facts and circumstances of present case.
Further, the contention raised on behalf of accused that the load factor be considered as 60 % instead of 100 % does not find any merit. Counsel for complainant has rightly pointed out that in cases of DAE the load factor is considered as 60 % and in direct theft cases, the entire load is required to be considered. In the present case even otherwise, it may be observed that 90 % of the direct load of 72 KW (three furnaces) was on direct theft, while the CMRI data only reflects the mini scule consumption under 2 KW through the meter.
Another contention raised on behalf of accused that the billed units be deducted from the total bill amount does not find any support from the Regulations as contended by counsel for complainant. It may be pointed out that Bimla Gupta Vs NDPL W.P. No 6104/2006 and WP 8463/06 decided on 16.10.2006 by Hon'ble High Court of Delhi relied by accused only deals with calculation of bill involving cases of dishonest abstraction of electricity. However, no provision requiring the deduction of the billed units in cases of direct theft of electricity has been brought to my notice. Even otherwise, the bill has been assessed for the connected load for 10 .. 6 ..
hours, while the use of electricity by direct theft for a further period during the day cannot be ruled out.
5. However, it may be observed that it has been candidly admitted on behalf of complainant BSES that since the meter was changed on 23.08.06 , the bill may be assessed w.e.f 23.08.06 to 16.11.2006 (i.e the date of inspection). Since the meter itself was changed on 23.08.06 and no theft of electricity was detected on the aforesaid date, the theft assessment bill can be quantified from 23.08.06 to 16.11.2006.
In the present case, on the basis of connected load the bill amount has been assessed as 29,94,758/ . The final figure in the theft bill is by way of 6 months consumption of electricity multiplied by 5 times of penalty. If we remove 5 times penalty in theft assessment bill then the amount would indicate 6 months charges on the applicable tariff i.e 5,98,951/ . The bill for a period of 85 days would proportionately come to Rs. 2,78,963/ . The load is more than 10 KW and the fine imposed shall not be less than three times the financial gain on account of theft of electricity i.e 2,78,963 x 3 = Rs. 8,36,891/ . Keeping in view the facts and circumstances of the case, I am of the opinion that convict be sentenced to fine of Rs. 8,36,891/ and SI for a period of one month U/s 135 of the Electricity Act, 2003. In default of payment of fine convict shall further undergo SI for .. 7 ..
three months. Since the convict is also liable to pay the civil liability as determined U/s 154 (5) of the Electricity Act, 2003, I deem it appropriate that out of amount of fine of Rs 8,36,891/ if realized amount of Rs. 5,57,926/; be paid to the complainant towards satisfaction of civil liability which has been determined at Rs. 5,57,926/.
ORDER ON POINT OF CIVIL LIABILITY:
Section 154 (5) provides for determination of civil liability against a person in terms of money for theft of energy and this liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of theft of energy or exact period of theft, if determined whichever is less. This civil liability when determined is to be recovered as a decree of civil court. Explanation to this provision further lays down that civil liability means loss or damage incurred by the Board or licensee due to commission of an offence under section 135 of the Electricity Act,2003.
Convict has already been found guilty of an offence of theft of electricity under section 135 of the Act. The connected load has been duly proved on record.
In the present case, on the basis of connected load and .. 8 ..
applicable tariff, theft bill has been assessed at Rs 29,94,758/. The final figure in the theft bill is by way of 6 months consumption of electricity multiplied by five times by way of penalty.
If we remove 5 times penalty in the theft assessment bill then the amount would indicate 6 months charges on the applicable tariff (i.e Rs 5,98,951/). The amount is to be calculated for a period of 85 days and multiplied with two for determination of civil liability in terms of section 154 (5) of the Act. The total amount for 85 days multiplied by 2 shall come to Rs. 5,57,926/ (i.e Rs 2,78,963x2) . Civil liability is accordingly determined at Rs. 5,57,926/ (Rupees five lacs fifty seven thousand nine hundred twenty six only) against the convict.
Copy of this order be provided to convict free of cost. File be consigned to record room.
Announced in the open Court on dated 31.1.2011 (Anoop Kumar Mendiratta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 621/06 BSES RPL Vs H G SPahwa 31.01.2011 Present: Counsel for the complainant, deemed APP along with AR Sh. Pankaj Tandon.
Convict with Sh Fanish Jain, Adv.
Arguments heard on point of sentence and civil liability. Separate order passed on point of sentence and civil liability. Copy of judgment and order on point of sentence and civil liability be supplied to accused free of cost.
At this stage, an application has been filed for suspension of sentence and seeking further time to deposit the fine amount.
Considering the facts and circumstances, sentence against the accused is suspended for a period of 30 days in order to enable him to file an appeal subject to furnishing of personal bond in the sum of Rs 30,000/ with one surety in the like amount. Accused is further granted time to deposit the fine amount in terms of order on sentence before the next date of hearing.
Put up on 3.3.2011. Proceedings have been conducted till after 5:00 pm to supply copies to convict.
(Anoop Kumar Mendiratta) ASJ: Special Electricity Court Dwarka: New Delhi 31.1.2011