Delhi District Court
Complainant vs Harbhajan Singh on 4 December, 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. 223/11
ID No. 02405R0847762007
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
1. Harbhajan Singh
2. M/s Sunautographs Pvt. Ltd.
through its Director Sh. Shanker Lal
3. Anita Garg W/o Sh Deep Chand
All at:
Khasra No. 503, Sai Park,
Near Khurana Farm House,
Muksudabad, Najafgarh,
New Delhi 110043
......................... Accused.
Date of institution: ........................ 17.01.2007.
Arguments heard on: ........................ 21.11.2012.
Judgment passed on : ........................ 04.12.2012.
Final Order: ........................ Conviction.
CC No. 223/11
Page 2 of 15
JUDGMENT:
1. The facts of the case are like this. On 31.03.2006 at 1.00 pm a joint inspection team headed by Sh. Abdul Salam, Dy. Manager (Enforcement) of the complainant company inspected the premises bearing Khasra no.503, Sai Park, Near Khurana Farm House, Muksudabad, Najafgarh, New Delhi (hereinafter referred to as inspected premises). The inspected premises is used by accused no.1 and 2. Accused no.3 is the registered consumer of the electricity meter no.22108219 bearing K number 2620J0900731 installed in the inspected premises. The meter was found tampered. The meter box, meter terminal and half seals were found tampered. The meter was segregated in the presence of accused. CT wires were manually resoldered. The marks of flux used in the manual soldering were present on the PCB circuit of the meter for suppressing the recording of consumption by the meter. A connected load of 39.192 KW (the load was initially recorded as 53.442 KW and it was corrected later on) was found running for non domestic purposes against a sanctioned load of 1 KW under domestic category. The photographs of the premises were taken. The video of the premises was also prepared. Inspection report, meter details report, load report and show cause notice were prepared and offered to the accused who refused to receive and sign the same. IRs nos.70519 and 20 dated 31.03.2006 CC No. 223/11 Page 3 of 15 were pasted on the meter in order to maintain the status quo with the request of MMG to restore the supply through new meter. On 24.05.06 the show cause notice was again issued to the accused. On 08.06.06, the personal hearing was attended by accused Harbhajan Singh. On 23.09.06, the assessing officer passed the speaking order. An assessment bill for theft of electricity 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. NOA U/s 251 Cr.P.C was put to the accused to which they pleaded not guilty and claimed trial.
3. The complainant examined five witnesses. Complainant evidence was closed. Accused were examined u/s 313 Cr.PC. Accused Anita Garg has taken the defence that on 18.01.06 she has sold the premises to Mr. Panikar through an agreement. The electricity meter was installed in her name. Accused Harbhajan Singh has taken the defence that he was employed as a foreman by Sh.Shankar who is proprietor of M/s Sun Autographs Pvt Ltd. He was present at the time of inspection. The meter was segregated in his presence. A welding set and compressor were lying at the spot. On CC No. 223/11 Page 4 of 15 13.03.06, he had moved an application to BSES to energize the meter already existing at the spot. Accused Shankar Lal has taken the defence that on 25.01.06 he had taken the premises in question on rent from Sh. Gopal Kishan Panikar who told that electricity meter is in the name of Anita Garg which is lying disconnected. He has employed Harbhajan Singh as a foreman. He was not present at the spot. The load was not of 39 KW. On 20.3.2006 he had started the workshop. However, one witness is examined in defence evidence by the accused.
4. The complainant examined five witnesses in order to prove its case. PW1 Nishikant Gupta is an assessing officer. He has passed the speaking order Ex.CW2/J. During cross examination by accused Harbhajan Singh and Shankar Lal, he stated that he cannot tell when the meter was energized. He is not aware that meter was energized on 20.03.06.
5. During cross examination by accused Anita Garg, he stated that registered consumer remains responsible for the meter until he writes to the department for the removal of the meter. The registered consumer did not appear for personal hearing. The suggestion is denied that accused is in no way connected with the tampering of the meter.
6. PW3 Abdul Salam stated that on 31.03.06 at 1.00 p.m. CC No. 223/11 Page 5 of 15 he along with PW2 Abhishek Kumar and other officials of the complainant company has carried out an inspection in the inspected premises where one electricity meter was found installed in the name of accused Anita Garg. The half seals of the meter were tampered and refixed. The whole body of the meter was refixed. The meter was segregated in the presence of consumer. The manual and external soldering marks were found on the PCB of the meter. The accused were present at the time of inspection. A load of 40 KW was found for industrial purposes i.e. for manufacturing of truck body and other machinery work. The meter was not seized as it was a case of DAE. The photographs Ex.CW2/D of the premises were taken. The video of the premises was taken which is Ex. CW2/D1. The photographs and CD are identified by him. Inspection report including meter details report, load report and show cause notice Ex.CW2/B, C and E were prepared at the spot and offered to the consumer who refused to receive and sign the same. IR was pasted on the meter with the request to MMG to change the meter by keeping old meter at site. Likewise is the testimony of PW2 Abhishek Kumar who further stated that he cannot identify the accused due to lapse of time.
7. During cross examination by accused Harbhajan Singh and Shankar Lal, PW3 stated that he cannot tell the date of installation of meter or if meter had been lying disconnected permanently for the CC No. 223/11 Page 6 of 15 past two years from the date of inspection or any application for re energisation of the meter was given by accused Manju Gupta. The suggestion is denied that raiding team members have put the soldering marks on the meter at the time of segregation or accused are not users of the electricity meter or meter cannot bear the load of 53 KW or the reports were not prepared at site or seals were intact at the time of inspection or no show cause notice was given to the accused or meter was not segregated at site. He is not aware that application dated 13.03.06 was shown by the accused to the raiding team members. The accu check can not be conducted on the tampered meter. He cannot admit or deny if Harbhajan was foreman at the inspected premises at the time of inspection. The flux, soldering marks and soldering residue were found in the meter. The PCB was found cut.
8. During crossexamination by accused Anita Garg, he stated that accused Harbhajan was present at site where work of body manufacturing of truck was going on. Accused Anita was not present at the spot who is a registered consumer of the meter.
9. During crossexamination by accused Harbhajan and Shankar Lal, PW2 stated that he cannot confirm whether meter has been lying in disconnected condition since 2004. It is admitted that the meter was segregated in the presence of consumer. He cannot say that on 13.03.06 an application for restoration of the connection has been CC No. 223/11 Page 7 of 15 moved by the consumer or supply was restored on 20.03.06. The accuracy check was not done. The meter was not seized from the site. It is correct that factum of preparation of documents is not covered in the video.
10. During cross examination by accused Anita Garg, he stated that Harbhajan Singh was present at the time of inspection. It is correct that premises was not used for residential purposes. It is correct that accused Anita was not present at site who is a registered consumer of meter in question. He does not know if Anita had sold the premises on 18.01.06.
11. PW4 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.
12. PW5 Vivek Arora is proprietor of M/s Arora Photo Studio. He stated that on 31.03.06 he had sent his employee Narender with the raiding team to conduct the video in the area of Sai Park, Muksudabad, Najafgarh, New Delhi. Narender had handed over him one camera after conducting the videography on the same day. He has downloaded the data in his computer office and prepared the CD Ex.CW2/D1. Photographs Ex.CW2/D (collectively 41 in number) were taken by Narender during the inspection. He has identified the CC No. 223/11 Page 8 of 15 CD and photographs.
13. During cross examination by accused Harbhajan and Shankar Lal, he admitted that he has not visited the site in question. He admitted that original cassette is not placed on record. He has not filed any document to show that Narender was his employee. No cross examination was done by accused Anita Garg though opportunity was given.
14. The accused have led defence evidence. DW1 Saurabh Saxena is JE from the office of complainant. He stated that he has brought the summoned record. Ex. DW1/1 is the application form for connection. Ex. DW1/2 is the declaration form. Ex. DW1/3 is the examination report. Ex. DW1/4 is the department report of BSES YPL. He cannot tell when the meter in question was disconnected or energized. During cross examination by accused, he stated that electricity connection was a temporary connection for 10 KW for non domestic purposes. It is correct that application was for temporary connection. It is correct that signatures of Anita at point A and B on Ex.DW1/1 and DW1/4 are different. .
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 were dishonestly using the CC No. 223/11 Page 9 of 15 electricity through tampered meter.
16. The complainant has examined five witnesses in order to prove its case whereas accused have examined one witness in order to advance their defence. The complainant has placed heavy reliance on the testimony of PW13. PW2 and 3 are the members of joint inspection team as such their testimony is material to determine the guilt of the accused. It is clear from their testimony and statements u/s 313 Cr.PC of accused Harbhajan and Shankar Lal that on 31.03.06 an inspection was carried out in the inspected premises. The inspection of the inspected premises is nowhere in dispute. Accused Harbhajan and Shankar Lal were found users of the inspected premises which is used for running a workshop. Accused Harbhajan was present at the spot. Accused Shankar Lal has even admitted in his statement u/s 313 Cr.PC that he has taken the premises on rent from its owner but he has not placed any rent agreement on record or even alleged owner has not been examined to show that he is a tenant in the inspected premises. Accused Shankar Lal has admitted that he has been running a workshop in the inspected premises. Accused Harbhajan has claimed himself as foreman/worker of accused Shankar Lal but no documentary evidence to this effect is placed on record by him. No evidence is led by the accused that he has been in the services of accused Shankar Lal from a particular date or month. No evidence CC No. 223/11 Page 10 of 15 is led by the accused that he was getting a particular salary from accused Shankar Lal. The plea of the accused Harbhajan that he was foreman/worker of accused Shankar Lal does not inspire confidence.
17. The plea of the accused Anita Garg is that on 18.01.06 she had sold the inspected premises for a sum of Rs. 7.35 lac. The accused has failed to advance her plea as she has not placed on record the alleged sale deed of the inspected premises. She has not examined the alleged purchaser. There is no evidence on record to show that she has sold the inspected premises prior to the date of inspection.
18. A meter was installed in the name of accused Anita Garg in the inspected premises and this fact is even admitted by her at the time of her examination u/s 313 Cr.P.C. The accused Anita Garg has not written any letter to the complainant to remove the meter as she has sold the inspected premises. The accused is held responsible in case any tampering is found in the meter unless plausible explanation comes on record.
19. The testimony of PW2 and 3 categorically shows a meter was installed in the premises. The meter was checked. Half seals of the meter were found tampered and refixed. The whole body of the meter was found refixed. The meter was segregated in the presence of the consumer. Accused Harbhajan Singh has admitted that meter was segregated in his presence. The manual and external soldering CC No. 223/11 Page 11 of 15 marks on PCB of the meter were found. Both the PWs have denied the suggestions that there was no tampering in the meter or the meter was tampered during its segregation. The installation of meter is an admitted fact. The accused have failed to explain how the soldering marks appeared on the PCB of the meter. It is not the case of the accused that some employee from the office of the complainant had come to remove some defects in the meter or the soldering marks were existing on the meter on the date of its installation or soldering marks were in existence when some officials had allegedly come for the examination of the premises on their application for the re energization of the meter. The existence of soldering marks is an indicator that accused have done tampering in the meter with a view to suppress the consumption of the meter. Accused no.1 and 2 are the users. Accused no.3 is the registered consumer of the electricity connection. All of them have failed to keep the meter in proper condition in which it was installed.
20. The plea of the accused is that meter has been lying disconnected since long. They had moved an application on 13.03.06 for reenergization of the meter which was energized on 20.03.06. The accused have led defence evidence to show that an application Ex. DW1/1 along with declaration Ex. DW1/2 was given by the accused Anita Garg for the reenergization of the meter to the CC No. 223/11 Page 12 of 15 complainant. The premises was inspected and examination report Ex. DW1/3 was given. Accused Anita Garg has filed an application cum agreement Ex. DW1/4 which bears some endorsement dated 03.01.06 of some official to sanction meter with a load of 1 KW for six months. All these documents are proved by DW1. The complainant has filed the consumer details which were exhibited as Ex. CW2/A during pre summoning evidence. The said document was not put again to the witness. The complainant has failed to prove this during post summoning evidence as such it can be read against the complainant. It shows that meter with K number 2620J0900731 was installed in the inspected premises in the name of accused Anita Garg which has been disconnected on 06.05.04. It is clear that meter in question has been lying disconnected since 6.5.2004. Accused Anita Garg has filed an application Ex. DW1/A for reenergization of the meter in question. It is not the case of accused Anita Garg that she had never filed an application for the reenergization of the meter. She has not disputed her signatures on the application meaning thereby that she has moved an application for reenergisation of the meter. The application was received in the office of the complainant on 13.03.06. No evidence come on record that it was actually re energized on 20.03.06. On 31.03.06 an inspection was carried out and meter was found tampered. Accused Anita Garg is registered CC No. 223/11 Page 13 of 15 consumer of electricity connection and she is supposed to maintain the meter in the perfect condition. Accused Harbhajan and Shanker Lal are users of the inspected premises. Accused have failed to explain how the meter was tampered. There is nothing on the record that meter was lying in the tampered condition on the date of moving the application by the accused. There is no explanation on the record from accused about the tampering in the meter. The entire evidence shows that the meter was found tampered and accused were drawing electricity through tampered meter.
21. A show cause notice Ex. CW2/E was issued to Anita Garg as well as to Harbhajan Singh to file the reply and to attend the personal hearing. A second show cause notice dated 24.05.06 Ex. CW2/H was given to both of them upon which Harbhajan Singh attended the personal hearing on 08.06.06. On 23.09.06, PW1 Nishikant Gupta, assessing officer has passed the speaking order Ex. CW2/J on the basis of record. The consumption pattern from 29.1.2005 till 31.3.2006 shows the erratic reading and negligible consumption. The consumption pattern was also taken into consideration by PW1 at the time of passing the order. The meter has been lying disconnected since 6.5.2004. This fact was not taken into consideration by him. The consumption becomes negligible if the meter has been lying disconnected. The application for re CC No. 223/11 Page 14 of 15 energization was received in the office on 13.03.2006 and inspection was also carried out. It is not the case of the complainant that accused have reconnected the meter of their own as such there is a ring of truth in the defence of the accused that it was reenergized after 13.3.2006. The assessing officer should have considered these facts which were not at all considered. To my mind, DAE stands established from the evidence on record from 13.3.2006.
22. The complainant has placed photographs Ex.CW2/D and CD Ex. CW2/D1 on record in order to show that alleged tampered meter and appliances were found at the spot. The photographs and CD are inadmissible in evidence. The photographs are digital print out. The original chip is not placed on record from which digital print outs were taken. Further, the person who has conducted the video is not examined by the complainant. The original cassette is not placed on record from which data was downloaded into computer. The CD is not proved in accordance with section 65B of Indian Evidence Act. The photographs and CD are inadmissible in evidence.
23. The accused Harbhajan Singh and Shankar Lal have disputed the load at the time of their examination u/s 313 Cr.PC. Both of them have taken the plea that one welding set of 200 watts and one compressor of motor of 1 HP were lying at the spot. The defence does not inspire confidence. The defence should have been consistent from CC No. 223/11 Page 15 of 15 the start of the trial. No such question was put to the PW2 and 3 at the time of their examination for the reasons best known to the accused. No defence evidence to this effect is led by the accused. Mere raising a plea in the statement u/s 313 Cr.PC is not enough unless it is substantiated by leading some evidence. There is no evidence to show that load was recorded on the higher side by the complainant. To my mind, the load is righly recorded by the members of the joint inspection team and there is nothing to view the same with the aid of spectacle.
24. The testimony of PWs is consistent which clearly proves that accused were dishonestly drawing the electricity through a tampered meter. The accused have failed to shatter the testimony of PWs during the course of their cross examination. PWs have no axe to grind against the accused so the question of false implication does not arise. 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 are held guilty U/s 135 Electricity Act, 2003 and are convicted. Let the file to come up for quantum of sentence on 10.12.2012.
Announced in the open
Court on dated 04.12.12 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 223/11
Page 1 of 15
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 223/11
ID No. 02405R0847762007
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
........................ Complainant
Versus
Harbhajan Singh
M/s Sunautographs Pvt. Ltd.
through its Director Sh. Shanker Lal
Anita Garg W/o Sh Deep Chand
......................... Accused.
CC No. 223/11