Delhi District Court
Performance Standards Regulations vs Rajinder Dwivedi/Babla @ Bablu on 24 August, 2012
Page 1 of 15
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 808/10
ID No. 02405R0648622008
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
Rajinder Dwivedi
Babla @ Bablu
R/o B168, Mohan Garden,
Uttam Nagar, New Delhi.
......................... Accused
Date of institution: ........................ 24.07.2008
Arguments heard on: ........................ 26.07.2012
Judgment passed on : ........................ 18.08.2012
Final Order: ........................ Conviction
CC No. 808/10
Page 2 of 15
JUDGMENT:
1. The facts of the case are like this. On 15.04.08 at 1;35 pm a joint inspection team headed by Sh. Amit Kumar, Asstt Manager (Enforcement) of the complainant company inspected the premises bearing No. B168, Mohan Garden, Uttam Nagar, New Delhi (hereinafter referred to as inspected premises). The accused are users of the inspected premises. No electricity meter was found installed in the inspected premises. The accused were indulging in the direct theft of electricity by tapping HVDS pole of the complainant with the help of wires. A connected load of 1.072 KW and 5.968 KW was found running for domestic and commercial purposes. The photographs were taken which were downloaded in CD. Inspection report and load report prepared and offered to the consumer who refused to receive and sign the same. A theft bill was raised against the accused which remained unpaid. Hence, this complaint.
2. The complainant examined two witnesses in pre summoning evidence. Accused were summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act). Copy of complaint and documents were supplied to the accused. Ld counsel for the accused submitted that accused Rajinder Dwivedi is also known by the name of Babla @ Bablu and there is no other accused in the present complaint. This is apparent from ordersheet dated CC No. 808/10 Page 3 of 15 25.11.2010 passed by my ld Predecessor. 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 three witnesses. Complainant evidence was closed. Accused was examined under section 313 Cr.P.C. His defence is of denial simplicitor. However, he has examined two witnesses in defence evidence including himself as DW1.
4. PW1 Amit Kumar, Manager, BSES stated that on 15.4.2008 at 1 30 pm he along with PW2 Sanjeev Kumar and Er. Priyesh Harrison; inspected the inspected premises where no electricity meter was installed. There was direct theft of electricity by tapping HVDS pole of the complainant through wires which were connected to the connected load of the premises. The premises is used by the accused who was present at the spot and disclosed the names of users as Rajinder Dwivedi and Bablu. There was connected load of 1 KW and 6 KW for domestic and commercial purposes. They could not seize the wires due to resistance created by the accused. The photographs Ex. CW2/3 were taken by them which were downloaded in CD Ex. CW2/4. The photographs and CD are identified by him. Inspection report and load report Ex. CW2/1 and 2 were prepared which bears his signature at point B. Likewise, is the CC No. 808/10 Page 4 of 15 testimony of PW2 Sanjeev Kumar in his examination in chief.
5. During crossexamination, he stated that he has not placed any authority letter on record. He is not aware if accused had applied for three electricity meters about 8 months prior to the raid. The building material was found at the spot but same is not shown in photographs. Babla and Rajinder is one and the same person. Photograph mark X of Ex. CW2/3 is stone cutting machine. The suggestion is denied that machine was in wrapped condition or it was not a stone cutting machine. The floor grinding work was going on in the premises at the time of inspection but same is not covered in photographs. Photograph mark X1 of Ex. CW2/3 shows the starter box. The specific pole from which illegal tapping was done is not covered in the photograph. The illegal tapping is connected to the premises of the accused. The connections in the premises were in the running condition though no photograph was taken to this effect. The complete connected load was not photographed. There were two floors but floorwise connected load was not taken. The distance between the premises and HVDS Pole is around 30 metres. HVDS Pole is on the right side of the premises. They had asked the accused at the time of inspection whether he has applied for the electricity connection but details were not provided. The photocopy of the CC No. 808/10 Page 5 of 15 application for fresh connection was not affixed on the main gate. No local person was present at the spot. The accused is not focused in the photographs. The suggestion is denied that accused is not focused in the photographs as he was not present at the spot. They did not verify from their computer system whether accused has applied for a fresh connection.
6. He is not aware if consumer had lodged a complaint on 3.10.2007 in the office which was entered in ledger No. N265. It is correct that carbon copy Ex. D/A dated 7.8.08 bears the stamp of their office. He is not aware if meters No. 14003654, 646 and 641 were changed on 11.08.2008 and meter change reports mark DF were issued. He is not aware if Mr. Singh had sent any email on 3.10.2007 for expediting the installation of meter to the Power Supply Department. He cannot admit or deny bills Mark GI were raised for July, 2008 without installation of meter. The tentative time for installation of meter is 6 months in single point delivery area subject to the completion of commercial formalities. The area of accused comes under SPD area. He is not aware when the connection in the inspected premises of accused was installed. The suggestion is denied that complainant did not deliberately provide the electricity connection for 9 months to the accused from the date of application or CC No. 808/10 Page 6 of 15 there was any negligence on the part of complainant or a raid was conducted in order to cover up the negligence. No independent witness was associated though they were asked to join. He cannot tell their names and addresses as same were not disclosed to them.
7. During cross examination, PW2 stated that Priyesh Harrison and Amit Kumar were the other members of raiding team. The lights were on at the time of inspection. The construction work was going on at the time of inspection where 23 persons were working. It is correct that 23 persons are not covered in the photographs. They could not take the complete photographs and cover the entire load due to resistance at site. They had verified about the ownership of the premises from the neighbours who told that work is being carried out on behalf of accused. They had asked the names and addresses from those persons but they refused to disclose. They had asked those persons to become witnesses but they refused to become a witness. They could not seize the wires due to resistance created at site. The distance between LV mains and premises is around 2530 metre. Grinding machine, floor shaping machine and some tools were in function at that time. The load was measured with the help of clip on meter and tong tester. It is correct that accused is not covered in the photographs or photograph of floor CC No. 808/10 Page 7 of 15 shaping machine was not taken or photographs do not show that wires were coming from pole to the premises.
8. PW3 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.
9. The accused has led defence evidence. DW1 Rajinder Dwivedi @ Babla is the accused. He stated that on 24.7.2007 he had applied for three meters for the premises and inspection was carried out on the same day. He deposited a sum of Rs. 1200/, 1200/ and 600/ for ground, first and second floor as per demand. The meters were not installed despite the completion of formalities. On 3.10.2007, he met Branch Manager and handed over the documents to him who instructed his PA to send mail to concerned department for the installation of meter. His complaint dated 3.10.07 was recorded in a register bearing No. N265. BSES officials, in pursuant to his complaint, visited his premises and demanded bribe for not lodging a complaint against him. He did not receive any notice for theft of electricity rather a theft bill Ex. CW2/5 was received by him upon which he went to Andrews Ganj office of the complainant. He met Sh Anubhav Aggarwal who agreed to settle the bill for Rs. 57,321/ CC No. 808/10 Page 8 of 15 but he did not agree to settle the matter. He did not commit any theft of electricity. He used to run the electricity through generator set. The meter change reports are mark DF. He has paid the electricity charges vide bills mark GI for the period when no meter was installed. On 7.8.2008 a second complaint mark DA was given to Vikas Puri office of the complainant. He was advised by Mr Anubhav Aggarwal to lodge a complaint to higher officials in case of demand of bribe by officials . The meter was installed after a period of one year.
10. During crossexamination, he admitted that there was no meter in the inspected premises on the date of inspection though he had applied for the meter one year prior to the date of inspection. The suggestion is denied that there was theft of electricity on 15.4.2008 when his premises was inspected by the officials of the complainant or he was present at the time of inspection. He has not placed the photographs of the generator or receipts of fuel bill on record.
11. DW2 Praveen stated that he knows the accused for the last 1012 years as he has carried out some wiring work in B Block, Mohan Garden. He used generator at the time of wiring work. He does not know the make and model of generator. The electricity pole is at a distance of 45 feet from the inspected premises. No inspection CC No. 808/10 Page 9 of 15 was ever carried out in the inspected premises. The accused had applied for the meter which was installed after one year of moving the application as some persons used to demand "kharchapani'.
12. During crossexamination, he stated that he has come to depose at the instance of accused. He admitted that there was no meter in the inspected premises on 15.4.2008 and construction work was going on in the inspected premises. The suggestion is denied that generator was not in use.
13. 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 theft of electricity in the inspected premises.
14. The complainant has examined three witnesses in order to prove its case whereas accused has examined two witnesses in order to further his defence. The complainant has placed heavy reliance on the testimony of PW1 and 2 as both of them are the members of joint inspection team.
15. The entire evidence on the file shows that inspected premises belongs to the accused. The testimony of PW1 and 2 clearly shows that on 15.4.2008 at 1:30 pm they had carried out an CC No. 808/10 Page 10 of 15 inspection in the inspected premises though accused has taken a plea that no inspection was carried out. Both the PWs are consistent about the fact construction work was going on at the time of inspection. This fact finds corroboration from the testimony of DW2. The cross examination of DW2 shows that construction work was going on in the inspected premises on 15.4.2008 so the plea of the accused that no inspection was carried out is without any merits.
16. The defence of the accused is that on 24.08.2007 he had applied for the three meters for three floors of the inspected premises and payment in terms of demand notes i.e mark A was deposited. The meters were not installed for the obvious reasons. The electricity bills mark GI were raised for the period for which meters were not installed in the inspected premises. The meter change reports mark D F were issued by the complainant. A written complaint Ex DA dated 7.8.08 was given to the Branch Manager, Vikas Puri, New Delhi for the early installation of meter but in vain. He used the electricity through generator. The defence of the accused has to be considered in the light of entire evidence on record coupled with Regulations framed under Delhi Electricity Supply Code and Performance Standards Regulations, 2007.
17. Regulation 16 of Delhi Electricity Supply Code and CC No. 808/10 Page 11 of 15 Performance Standards Regulations, 2007 says that about the installation of Electricity connection in the electrified colonies/areas. Clause V of Regulation 16 says that licencee shall be under an obligation to energize the connection once a demand note is raised. Clause VII of Regulation 16 says that applicant shall make the payment within 7 days from the date of receipt of demand note. Clause VIII of Regulation 16 says that licencee shall energize the connection within 12 days from the date of receipt of payment, through a correct meter as notified by the authority under section 55 of the Act if such connection is to be provided from the existing network. Clause IX of Regulation 16 says that if the licencee fails to provide connection to the applicant within the specified period then licence shal be liable to pay compensation as per Schedule III of these Regulations after necessary hearing by appropriate authorities and such compensation shall be adjusted in the first bill and, if required, in the subsequent bill.
18. It is correct that on 24.08.2007 accused had applied for the three connections for the three floors of the inspected premises and amount as per tentative demand note was deposited. The meters were not installed even after the deposit of amount. The accused was having remedy against the complainant for noninstallation of meters. CC No. 808/10 Page 12 of 15 The accused could have claimed compensation in terms of clause IX of Regulation 16 and Schedule III of Delhi Electricity Supply Code and Performance Regulations Act, 2007 in case he had fulfilled the commercial formalities. The remedy available with the accused was not availed by him for the reasons best known to him.
19. The defence that meters were not installed as he did not pay the bribe demanded by the officials of the complainant . This fact does not find support even from the documents placed on record by the accused. Ex DA is the complaint dated 7.8.07 to Branch Manager, District Vikas Puri, BSES New Delhi. No such allegation is leveled by the accused against any of the officials of the complainant company. The accused has failed to explain why the factum of bribe was not incorporated in Ex. DA when the same was allegedly demanded from him by officials of complainant company. To my mind, the theory of bribe is coined later on by the accused otherwise it would have been consistent with the documentary evidence i.e Ex. DA adduced by him. There is nothing on record that meters were not deliberately installed.
20. The accused could have raised his grievance against the bills raised against him by the complainant at the appropriate forum. The accused did not raise this grievance at the appropriate forum. CC No. 808/10 Page 13 of 15 Even otherwise, this fact has nothing to do with the merits of the case. The defence adduced by the accused in no way put a dent in the case of complainant.
21. The testimony of PW 1 and 2 shows that there was no meter at site and accused was indulging in the direct theft of electricity by tapping HVDS Pole of the complainant. The testimony of PW1 and 2 finds corroboration from the defence adduced by the accused. The testimony of DW1 and 2 clearly shows that there was no meter in the inspected premises on the date of inspection. The defence that accused was drawing electricity through generator does not inspire confidence. This defence is an after thought as no question or suggestion is put to PW1 or 2 that he was using the electricity through generator set. No such plea was taken during the examination of accused U/s 313 Cr.P.C. The defence that he was using electricity through generator is without any legs to stand.
22. Ld counsel for the accused submitted that photographs and CD are not proved in accordance with law as such no reliance can be placed on the same. Heard and perused the record. Digital print outs of the photographs are placed on record. The chip is not placed on record. The data in the CD was downloaded by some other person. The person who has downloaded the data in CD is not CC No. 808/10 Page 14 of 15 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 photographs and CD cannot be relied upon.
23. Ld counsel for the accused submitted that the presence of accused at the spot, wires are coming from the pole to the inspected premises and all the appliances shown in the load report are not covered in the photographs Ex. CW2/C or CD Ex. CW2/4 as such there is no convincing evidence to show that there was theft of electricity. Heard and perused the record. It is correct that accused is nowhere covered in the photographs or the photographs nowhere show that wires are connected from pole to the inspected premises or all the appliances found at the spot are not covered in the photographs but that by itself does not mean that there was no theft of electricity. PW1 and 2 have categorically deposed that accused is user of the inspected premises. The construction work was going on in the premises and even this fact is admitted by DW2. The accused was indulging in the direct theft of electricity from nearby HVDS Pole as there was no meter at site. There is direct oral evidence to this effect as such the argument advanced by ld defence counsel does not hold water.
24. The testimony of PWs is consistent, convincing and CC No. 808/10 Page 15 of 15 trustworthy. There is no evidence of enmity on record. The question of false implication is out of question. The defence evidence has failed to put any dent on the case of complainant. The testimony of PWs is relied upon.
25. 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 Electricity Act, 2003 and is convicted. Let the file to come up for quantum of sentence on 24.08.2012.
Announced in the open Court on dated 18.08.2012 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 808/10 Page 1 of 3 IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTRICT COURT DWARKA, NEW DELHI CC No. 808/10 ID No. 02405R0648622008 Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd ........................ Complainant Versus Rajinder Dwivedi/Babla @ Bablu ........................ Convict ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that there was direct theft of electricity on the part of the convict and such kind of convict should not be shown any kind of leniency.
2. Ld counsel for the convict submitted that convict is the first offender. He further submitted that convict has two small school going children. He further submitted that convict is the sole bread earner of his family and entire family including his mother is dependent upon him. Ld counsel further submitted that keeping in view these facts a lenient view be taken in favour of the convict.
3. Heard and perused the record. The convict is the first CC No. 808/10 Page 2 of 3 offender. There is nothing on the record to show that he has been previously convicted for the same offence. The convict has to support his family as he is sole bread earner of his family. I am of the view that any substantive sentence will affect his family and interest of justice shall be met if sentence of fine is imposed. The load is around 7 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. 2,29,281/. To my mind, interest of justice shall be met if sentence of fine is imposed. Hence, convict is sentenced to pay fine of Rs. 3,43,921/ and in default of payment of fine to undergo SI for 6 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. The amount already paid shall be adjusted towards civil liability.
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 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. CC No. 808/10 Page 3 of 3
5. The convict has been held guilty U/s 135 of the Act. The connected load was around 7 KW. The bill was raised for a sum of Rs 2,29,281/. 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. 2,29,281/ which is payable with interest @ 6% per annum from the due date of bill till its realization. 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 24.08.2012 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 808/10