Delhi District Court
Complainant vs Karambir on 18 March, 2014
Page 1 of 13
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 876/10
ID No. 02405R0358412010
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
Karambir
RZ263 A,
Dharampura Colony,
Near Dabas Medical Store,
Najafgarh, New Delhi.
......................... Accused
Date of institution: ........................ 16.11.2010
Arguments heard on: ........................ 26.02.2014
Judgment passed on : ........................ 11.03.2014
Final Order: ........................ Convicted
CC No. 876/10
Page 2 of 13
JUDGMENT:
1. The brief facts of the case are like this. On 29.01.2008 at 3.15 pm a joint inspection team headed by Sh. Raju SaklaniAsstt Manager of the complainant company inspected the premises bearing No. RZ263 A, Dharampura Colony, Near Dabas Medical Store, Najafgarh, New Delhi (hereinafter referred to as inspected premises). The accused is user of the inspected premises where no electricity meter was installed. The accused was indulging in the direct theft of electricity by tapping electricity from L V mains of the complainant with the help of two core black colour wires which were further connected to the inspected premises. A connected load of 7.203 KW was found for domestic purposes. The photographs were taken. The video of the inspected premises was also taken. The wires were not removed due to resistance by the mob gathered at the spot. Inspection report and load report were prepared and offered to the accused who refused to receive and sign the same. An assessment bill for theft of electricity was raised against the accused which remained unpaid. Hence, this complaint.
2. Accused was summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were CC No. 876/10 Page 3 of 13 supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused to which he pleaded not guilty and claimed trial.
3. The complainant examined two witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein he has taken the defence that there was electricity meter in the premises. There was no theft of electricity. He has examined four witnesses in defence evidence.
4. PW1 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the complainant.
5. PW2 Raju Saklani stated that on 29.01.2008 at 3.15 p.m he along with other officials has inspected the inspected premises. There was no electricity meter in the inspected premises. There was direct tapping of electricity from L V mains of the complainant with the help of two core black colour cable. There was a total connected load of 7.203 KW for domestic purposes. The premises is used by the accused who was present at the time of inspection. The accused is identified by him. The photographs Ex.CW2/4 were clicked by them during the course of inspection and duly identified by him. He has CC No. 876/10 Page 4 of 13 identified the photographs in CD Ex.CW2/5 which were clicked at the inspected site. Inspection report, meter details report and load report Ex.CW2/13 were prepared which bear his signatures at point A. The documents were offered to the accused who refused to receive the same.
6. During cross examination, he stated that he did not click the photographs but it were clicked by Roshan Lal i.e. one of the raiding team member. The alleged illegal tapping is not clear in photographs. Karambir himself told that he is Karambir that is why he can say that Karambir is present in the court. He did not inquire from the neighbours about the owner or user of the property as accused himself told that he is user of the property. He does not know that Mewa Devi wife of Karambir has given any complaint dated 17.09.2013 to rectify the bill of K number 2620J3200146 of premises no. 263 A, Dharampura, Najafgarh, New Delhi. He does not know that wife of the accused has deposited upto date charges with the complainant. He did not check from the record whether any electricity meter is installed in the premises in question or not. User is made as an accused in the cases of direct theft of electricity. The suggestion is denied that there was no theft of electricity or meter was installed in CC No. 876/10 Page 5 of 13 the premises in question or accused was not present on the spot as premises was found locked or there is a trend on the part of complainant to file the false complaint.
7. The accused has led defence evidence. DW1 Harkesh stated that he has been residing with the accused since 2006. He admitted that premises was inspected by BSES. There was electricity meter on the first floor of the premises on the day of inspection. There was use of electricity through meter. He has been paying rent to accused.
8. During cross examination, he admitted that on 29.01.2008 the premises was inspected. He was not present at the time of inspection. No rent agreement was executed. He is not having any rent receipt. The photographs were taken on that day. The suggestion is denied that there was theft of electricity from L V mains.
9. DW2 Smt Mewa Devi is wife of accused. She stated that on 11.02.2000 the meter was installed in her premises. The meter has been regularly in use. Harkesh has been her tenant for the past several years. Ex.DW2/116 (exhibited as Ex DW116) are the receipts dated 11.02.2000, paid bills and complaints. The meter was on the terrace on the date of inspection. The meter is installed at a single room on CC No. 876/10 Page 6 of 13 the terrace wherein water tanks are kept. The photographs show two doors which are of her premises.
10. During cross examination, she admitted that there is no paid electricity bill for the year 2007 and January, 2008. One room is constructed on the first floor. The suggestion is denied that there was direct theft of electricity on the date of inspection as there was no electricity meter.
11. DW3 Saurav Saxena, JE, Division Najafgarh, BSES RPL stated that he has brought the summoned record. Ex.DW3/A is the receipt dated 11.02.2000 of Rs. 3,945/. On 17.02.2000 the meter no. 22024030 was installed at 263 A, Dharampura Colony, Najafgarh, New Delhi in the name of Smt Mewa Devi. The meter remained in the premises in question till 09.11.2004 and disconnected on 10.11.2004. Ex DW3/B is the complaint dated 21.07.2003 of Smt Mewa Devi. He has not brought any receipt that meter of the accused was taken into possession on a particular day. No cross examination was done though opportunity was given.
12. DW4 Jeet Ram, AGI, Najafgarh Division, BSES RPL stated that he has brought the record. He stated that one meter no. 22024030 was installed at RZ263 A, Dharampura Colony, Najafgarh, CC No. 876/10 Page 7 of 13 New Delhi in the name of Smt Mewa Devi wife of Karambir and meter has not been removed so far.
13. During cross examination, he stated that meter in question was disconnected on 27.02.2004. The meter was reconnected on 19.12.2008.
14. Ld counsel for the complainant submitted that accused is user of the inspected premises where no electricity meter was found installed on the day of inspection. He further submitted that there was direct theft of electricity from L V mains of the complainant and this is apparent from the testimony of PW2. Ld counsel for the accused contended that accused was not present at the time of inspection. He further submitted that an electricity meter was installed in the premises on the day of inspection and electricity was consumed through meter. He further submitted that the testimony of PW2 is contrary to the admitted fact as such his testimony cannot be relied upon.
15. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for committing CC No. 876/10 Page 8 of 13 theft of electricity in the inspected premises.
16. The complainant has examined two witnesses whereas accused has examined four witnesses in order to advance his defence. The testimony of PW2 is material as he is head of joint inspection team. I have perused the testimony of PW2, DWs and statement u/s 313 Cr.PC of the accused. It is admitted fact that on 29.01.2008 an inspection was carried out in the inspected premises by the officials of BSES. It is admitted by the accused that he is user of the inspected premises. The accused has taken the defence that he was not present at the time of inspection. His defence does not inspire confidence as accused has nowhere deposed that he has gone to a particular place on the day of inspection. DW2 is wife of accused. She could have deposed that inspection was not carried out in the presence of the accused. The wife of the accused has nowhere deposed that accused was not present at the time of inspection. It shows that accused has taken a bald plea without any merits. Moreover, PW2 has duly identified the accused. The identification is possible only if accused is seen by the witness at the time of inspection. All these show that accused was present at the time of inspection.
17. The defence of the accused is that an electricity meter no. CC No. 876/10 Page 9 of 13 22024030 was installed in the inspected premises at the time of inspection. There was use of electricity through electricity meter. The accused has led defence evidence to this effect. The documents Ex.DW2/116 (exhibited as Ex.DW116), Ex.DW3/A and B are placed on record by the accused. Ex.DW3/A and Ex DW2/1 are the receipts dated 11.02.2000 issued by DVB which show that payment of Rs. 3,945/ has been made by Smt Mewa Devi wife of accused for installation of meter. On 17.02.2000 the meter was installed in the name of Smt Mewa Devi at premises no. RZ 263 A, Dharampura Colony, Najafgarh, New Delhi. Ex.DW2/24 are the bills for the month of June, 2000, August 2000 and December 2000. Ex.DW2/5 is the complaint dated 17.09.2003 regarding correction of the bill of Rs. 13,704/. Ex.DW2/6 is another complaint for the rectification of bill of Rs. 8,130/. Ex DW2/7 is the complaint dated 07.09.2000 for the replacement of the meter. Ex.DW3/B is the complaint dated 21.07.2013 for revising the bill. Ex DW2/916 are the bills for the months of June 09, August 09, October 09, February, June and December 2010.
18. All these documents coupled with the testimony of DW3 show that on 17.02.2000 the meter no.22024030 was installed in the CC No. 876/10 Page 10 of 13 inspected premises in the name of the wife of accused. The testimony of DW3 shows that the meter in question was disconnected on 10.11.2004 though DW4 stated that it was disconnected on 27.02.2004. There is discrepancy regarding the date of disconnection of meter but accused has not led any evidence to show that it was never disconnected so this discrepancy does not put any dent in the case of the complainant.
19. The testimony of PW2 shows that no electricity meter was found in the inspected premises at the time of inspection. There is no document on record to show that meter was removed from the inspected premises after its disconnection. The testimony of PW2 is contrary to the document on record. The accused cannot draw any support from this contradiction as the testimony of DW4 shows that meter was reconnected on 19.12.2008. The accused has himself placed Ex.DW2/8 (though exhibited as Ex DW8). This is meter change report dated 19.12.2008 which shows that old meter no. 22024030 was replaced with new meter no.22825462. The bills Ex.DW2/916 (though exhibited as DW916) pertains to new meter number. Mere existence of meter is not enough as there is nothing on record that it was in use for the consumption of electricity on the date CC No. 876/10 Page 11 of 13 of inspection so the contradiction in the testimony of PW2 is of no help to the accused.
20. The testimony of PW2 shows that there was direct theft of electricity from L V mains of the complainant. The wires were connected to the connected load of the premises. The accused has not placed any paid electricity bill on record on or before the date of inspection. There is no paid electricity bill on record from February, 2004 or November, 2004 onwards till 29.01.2008 i.e day of inspection. The accused has placed the paid electricity bills after the date of inspection or of the period much before the date of inspection. The accused could have easily placed the paid electricity bills in case he was using the electricity through electricity meter on the date of inspection. There is no other source available with the accused to use the electricity. The only source was to tap the electricity from the L V mains of the complainant. There was no use of electricity through meter which clearly shows that there was direct theft of electricity by tapping L V mains of the complainant.
21. The appliances found at the time of inspection in the inspected premises are recorded in the load report Ex.CW2/3. The number of appliances shown in the load report are nowhere disputed CC No. 876/10 Page 12 of 13 during the course of cross examination of PW2 meaning thereby that appliances shown in the load report are correctly recorded.
22. The wires were not allegedly taken into possession on the ground that mob had gathered at the spot. The reason given by PW2 is convincing as this fact also finds reflection in inspection report Ex.CW2/1.
23. The complainant has placed CD Ex. CW2/5 and photographs Ex.CW2/4 on record in order to show that it pertains to the inspected premises. The complainant cannot draw any support out of the CD and photographs as they are not proved in accordance with law. The photographs in the CD are downloaded by some other person. The person who has downloaded the photographs in CD is not examined by the complainant. The original chip is not placed on record. The CD is not proved in accordance with section 65B of Indian Evidence Act. The digital printouts of the photographs are placed on record. The printouts are taken from the chip. The chip is not placed on record. The photographs cannot be relied upon in the absence of chip. The photographs and CD are not proved in accordance with law as such same are not relied upon.
24. Section 135 of the Act puts an onus on the complainant to prove that there was abstraction of electricity by the means not CC No. 876/10 Page 13 of 13 authorized by the complainant. The complainant has discharged its onus of proving the abstraction of electricity by examining the member of joint inspection team. The complainant has successfully discharged the onus. The onus shifted to the accused to show that there was no abstraction of electricity through illegal means. The accused has failed to show that electricity was used through electricity meter or any other alternative source. The accused has failed to discharge the onus.
25. The testimony of PW 2 is consistent. The accused has failed to shatter him during the course of cross examination. There is no evidence of enmity on record. PW2 has no axe to grind against the accused. In these circumstances, the testimony of PW2 is relied upon.
26. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused beyond shadow of reasonable doubt. Hence, accused is held guilty U/s 135 of Electricity Act, 2003 and is convicted. Let the file to come up for arguments on quantum of sentence on 18.03.2014.
Announced in the open Court on dated 11.03.2014 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 876/10 Page 1 of 3 IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTRICT COURT DWARKA, NEW DELHI CC No. 876/10 ID No. 02405R0358412010 Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd ........................ Complainant Versus Karambir ........................ Convict ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that convict was indulging in the direct theft of electricity in the inspected premises for domestic purposes and no leniency should be shown to such kind of convict.
2. Ld counsel for the convict submitted that convict is a first offender. Ld counsel further submitted that convict has four children and entire family is dependent upon him. He further submitted that convict is a driver of RTV so keeping in view these facts a lenient view be taken in his favour.
CC No. 876/10 Page 2 of 3
3. Heard and perused the record. The convict is a first offender as there is nothing on the record to suggest that he has been previously convicted for the same offence. The convict has large family to support and any substantive sentence will affect his family especially the children. The load is less than 10 KW and fine imposed should not be less than three times of the financial gain on account of theft of electricity. The bill was raised for a sum of Rs.
1,22,045/. To my mind, interest of justice shall be met if sentence of fine is imposed. Hence, convict is sentenced to pay fine of Rs. 1,85,000/ and in default of payment of fine to undergo SI for 5 months. The convict is also liable to pay civil liability U/s 154 (5) of the Act so amount of civil liability shall be paid to the complainant towards satisfaction of the civil liability, out of fine, if realized. ORDER ON CIVIL LIABILITY:
4. Section 154 (5) of the Act says that civil 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 CC No. 876/10 Page 3 of 3 the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
5. The convict has been held guilty U/s 135 of the Act. The connected load was 7.203 KW for domestic purposes. The bill is raised for a sum of Rs. 1,22,045/. The bill is raised on the basis of consumption for a period of 12 months multiplied by two times of the applicable tariff rate. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 1,22,045/. The amount, if any, already paid by the convict shall be adjusted towards civil liability. Copy of the order be given to the convict free of cost. File on completion be consigned to record room.
Announced in the open Court on dated 18.03.2014 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 876/10