Delhi District Court
Bses vs . Shiv Kumar & Anr., Cc No. 177/11 Page 1 Of ... on 30 July, 2013
1
IN THE COURT OF SHRI RAKESH TEWARI,
ADDITIONAL SESSIONS JUDGE, THE SPECIAL COURT UNDER
THE ELECTRICITY ACT 2003, SAKET COURTS, NEW DELHI
Complaint Case No.: 177/11
Police Station : Hazrat Nizamuddin, New Delhi
U/s 135 & 150 of Electricity Act, 2003
Unique ID No. 02406 RO159962011
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Shri Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1. Shiv Kumar
S/o Shri Moti
2. Ashok Bajaj
S/o Shri D.D. Bajaj
Both are R/o
Flat no. 24, First & Second Floor,
Nehru Nagar Market,
New Delhi 110065
...Accused
BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 1 of page 35
2
Appearances : AR with Shri Rishab Raj Jain, counsel for
complainant.
Accused Shiv Kumar present on bail along with
Shri Surender Kumar, Advocate
Accused Ashok Bajaj present on bail along with
Shri Wahaj Ahmed, Advocate
Complaint instituted on : 11.05.2011
Judgment reserved on : 22.07.2013
Judgment pronounced on : 30.07.2013
JUDGMENT
1. The case of the complainant in brief is that on 26.06.2009, the officers of the complainant company namely, Shri Mani B Saroj - Assistant Manager, Shri Deepak Nath - Shift Officer, Shri Mahesh Kumar - Assistant GradeII, Shri Rajnarayan - Lineman and Shri Babloo Singh - Lineman inspected the premises of accused Shiv Kumar and Ashok Bajaj, which was found to be occupied by the said accused persons and a meter was installed in the premises in question but same was connected from BSES cable and no load was found on the meter and supply was bypassed without meter which was connected without meter through illegal wires and that the entire connected load of the said premises was assessed and found to be 8.042 KW for domestic purpose. It is further BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 2 of page 35 3 mentioned in the complaint that a meter number 22906800 FR 1298, one submeter (Bingo) and red, yellow, blue, white coloured wire of length 10 meters single core were seized at the spot. It is further mentioned in the said complaint that the inspection report, load report, meter report, load report and seizure memo were also prepared at site and same were offered to consumer, who refused to receive and sign the same and the sketch depicting the mode of theft was also prepared, thus, accused were causing wrongful loss to the complainant and wrongful gain to themselves and were thus acting dishonestly.
2. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per tariff order was raised by the complainant for Rs.1,02,938/ with due date as 13.07.2009 and same was served upon the accused but they failed to pay the said theft bill.
3. The case was fixed for presummoning evidence and accused were summoned to face the said allegations by my Ld. Predecessor vide his order dated 03.06.2011 and the accused BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 3 of page 35 4 appeared and were supplied with the documents and CD of videography and my Ld. Predecessor vide his order dated 20.10.2011 framed a notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 of the Electricity Act, 2003 against the accused Shiv Kumar and u/s. 135 r/w/s. 150 of the Electricity Act, 2003 against accused Ashok Bajaj, and accused Shiv Kumar pleaded not guilty and claimed trial on the ground that he was occupying only the second floor of the premises in question and that the old meter was replaced on 25.03.2009 and that he used to share the bill with occupant of first floor namely Shri Kamal Arora and that he used to collect the duplicate copy of the electricity bill from the BSES and then deposit the payment and that he made request on 18.06.2009 to DGM Enforcement BRPL for conducting inspection in the said premises as he was suspected of theft by the registered consumer and that he was not committing any theft of electricity in the said premises at the relevant time and that he is not liable to pay any damages and loss to the complainant company. Accused Ashok Bajaj pleaded not guilty and claimed trial on the ground that he was only the registered consumer and not the user of the premises in question nor the actual BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 4 of page 35 5 user of electricity and that he was permanently residing at House no. II, E/64, Lajpat Nagar, Part II, New Delhi and that the second floor of the premises in question was in possession of accused Shiv Kumar and that first floor was in possession of one Shri Kamal Arora till November 2007 and same was lying vacant since then and that he was not committing or abetting theft of electricity and that false and fabricated case has been made out against him and that he is not liable to pay any damages and loss to the complainant company.
4. In order to prove the case of the complainant, four witnesses were produced, which have been discussed below.
5. The separate statements of both the accused were recorded U/sec. 313 Cr.P.C.. Accused Shiv Kumar in his statement pleaded his innocence and denied the evidence as false and answered that he was not present at the premises at the time of inspection and that he was informed by his wife and members of family about the inspection and that he was not committing any theft of electricity and that the load report is false and theft bill has been wrongly raised and none of the BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 5 of page 35 6 documents was prepared in his presence and that he was told by his members of family that some wires and meter were removed at the time of inspection and he was also told about the photography/videography being conducted and that there was no bypass of the meter or illegal tapping and that he was paying the electricity bills as per energy consumption in sub meter, regularly and that at the time of inspection, the first floor of the premises in question was occupied by one Shri Kamal Arora and his family and that he was paying electricity bills to said Kamal Arora, who used to deposit the amount with BSES and that bills for the month of June, 2009 and May 2009 were paid by him to said Kamal Arora, towards his share and that a false case was made out against him. Accused Shiv Kumar opted to lead defence evidence.
6. Accused Ashok Bajaj in his statement u/s. 313 Cr.P.C. pleaded his innocence and denied the evidence as false and he also answered that he was not present at the spot at the time of inspection and that coaccused Shiv Kumar was unauthorisedly occupying the said premises and that a meter was installed in his name and accused Shiv Kumar was the sole BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 6 of page 35 7 occupant of the premises on the second floor and he was responsible for payment of electricity bills and that he did not know if accused Shiv Kumar was committing any theft of electricity and that he was not abetting accused Shiv Kumar for theft of electricity and that load report was not prepared in his presence and that he had no personal knowledge of the entire connected load and that none of the documents was prepared in his presence as he was not residing in the inspected premises and that he was not aware if any meter and wires were removed at the time of inspection and he also not aware of any videography/ photography being conducted at the relevant time. Accused Ashok Bajaj further answered that the wires as shown in the CD, Ex. CW2/D1, was actually a plastic rope rolled over on the angle irons supporting the weight of the airconditioner and not a wire connected to the load and that when he got to know about the said inspection, he submitted a letter to Government of Delhi on 29.06.2009 and one letter to the Vigilance Department BSES on 28.07.2009, that suitable/ proper action be taken against the illegal user and that if any theft was being committed, same was being committed by accused Shiv Kumar without his BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 7 of page 35 8 knowledge and consent and that first floor of the premises in question was lying vacant since November, 2007 and DJB water was also not supplied at the said first floor for the said reason and that meter had been replaced about three months prior to the inspection, therefore, the bill cannot be raised for the entire year. Accused Ashok Bajaj also opted to lead defence evidence.
7. Both the accused produced themselves as defence witnesses vide permission u/s. 315 Cr.P.C., which have been discussed below.
8. I have heard the counsel for the complainant and counsels for the accused Shri Surender Kumar and Wahaj Ahmed, Advocates, and perused the written arguments/ submissions on behalf of accused Ashok Bajaj also and perused the record including the CD of videography displayed on the computer screen of the court.
9. PW1 Shri Babloo Singh, was the lineman in the complainant company deposed that on 26.06.2009 at about BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 8 of page 35 9 12.20 p.m. he along with Shri Mani Bhushan Saroj, Shri Deepak Nath, Shri Mahesh Kumar and Shri Raj Narayan visited and inspected the premises bearing Flat no. 24, Nehru Nagar Market, New Delhi and on reaching the said premises it was found that a meter was installed in the premises, but no load of the premises was connected through the said meter and consumer found indulged in direct theft of electricity by by passing the meter and that there was a submeter found installed which was connected to the connected load of the premises and further connected to the BSES service cable without connecting to the meter installed at the site. He further deposed that total connected load of the premises was found to be approximately 8.24 KW for domestic purpose and he also proved inspection report and load report as Ex. CW2/A and Ex, CW2/B respectively. PW1 further deposed that Shri Raj Narayan had taken the photographs at the time of inspection and he also proved the photographs as Ex. CW2/D and CD containing said photographs as Ex. CW2/D1 and he also proved seizure memo Ex. CW2/C vide which meter installed at site and illegal wires were seized. PW1 further deposed that accused Shiv Kumar was present at the time, and BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 9 of page 35 10 he identified the accused Shiv Kumar, who was present in the court on the day of deposition, and entire inspection was conducted in his presence and documents prepared during the inspection, were offered to accused Shiv Kumar, but he refused to receive and sign the same. PW1 further proved the carbon copy of seizure memo as Ex. PW1/A, one meter bearing no. 22906800 as Ex. PW1/B and a submeter make Bingo as Ex. PW1/C.
10. In his cross examination, on behalf of accused Shiv Kumar, PW1 answered that the distance between the pole and the meter was about 25 meters and he was not aware as to whether the meter and the pole was captured in the photographs or not as the photographs were taken by Shri Raj Narayan and that he removed the wire of 10 meters from the site. PW1 admitted that the seized wire of 10 meters in length was going from submeter to second floor, which was occupied by accused Shiv Kumar. PW1 further replied that inspection was concluded in 2530 minutes and he did not remember as to whether the submeter installed was in the working condition or not and that the inspection report and BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 10 of page 35 11 load report were not prepared by him and the same were prepared by Shri Mani Bhushan Saroj and that he had signed 45 papers at the time of inspection.
11. In his cross examination on behalf of accused Ashok Bajaj, PW1 admitted that as per the inspection report, Ashok Bajaj was the registered consumer and Shiv Kumar Poddar was the user. He further admitted that as per inspection report accused Ashok Bajaj was not shown as user. He could not admit or deny that Ashok Bajaj never instigated the accused Shiv Kumar to commit theft of electricity. He further could not admit or deny that the rent payable did not include the electricity charges. He admitted that there was no measurement tape to measure the length of wires cut at the spot but he measured the wire by length of his arm.
12. PW2 Shri Mani Bhushan Saroj, deposed the facts on the same line in his examinationinchief on which PW1 has deposed. In his cross examination on behalf of accused Shiv Kumar, PW2 replied that the building where the inspection was carried out consisting of three floors and at the first floor, BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 11 of page 35 12 the meter was installed and the ground floor was occupied by M/s. Aggarwal Sweets and they had conducted the raid only at the first floor and second floor. He replied that the place where the inspection team visited and inspected, there were two meters installed at the right side of the first floor and as per record, the meter bearing no. 22906800 was sanctioned for first floor in the name of accused Ashok Bajaj and the electricity feeding for second floor was through the sub meter installed at second floor which was further connected to the BSES service cable by way of illegal wires. But he again said that the sub meter was installed at first floor. He replied that the distance between the sub meter and the main switch board at second floor was approximately 810 meters and accused Shiv Kumar was present at the site at the time of inspection, who was also present in the court. He replied that accused Shiv Kumar was not focused in the photograph Ex. CW2/D. He admitted that the documents were not pasted at site after the inspection. He further replied that inspection document Ex. CW2/A was prepared by the lineman namely Shri Raj Narayan and accused Shiv Kumar had informed that accused Ashok Kumar was the owner of the first floor of the premises in question. He BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 12 of page 35 13 admitted that accused Shiv Kumar had sent a complaint to the BSES regarding the connection at his premises and he also admitted that the inspection was conducted only after the complaint was lodged by accused Shiv Kumar. He further admitted that the sub meter was running, but it was through the illegal wire.
13. In his cross examination on behalf of accused Ashok Kumar, PW2 replied that he had no knowledge as to whether first floor was lying vacant since November 2007. He replied that he had no knowledge about the letter bearing no. 500 being submitted to Vigilance Department on 28.07.2009 regarding theft being done by the user in connivance with the staff of BSES. He admitted that a wire from the submeter was going to second floor and he volunteered that the said wire was an illegal wire. he could not admit or deny that the illegal wire which was further connected to the AC was not put by accused Ashok Kumar. He did not know if any new meter was installed by the BSES at the raided premises three months prior to the raid. He replied that the distance between point of tap and sub meter was about three meters. He admitted that BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 13 of page 35 14 in the load report Ex. CW2/B, only load of AC was recorded for first floor and rest of the load is for the second floor and he volunteered that load of water pump was shared for both the floors.
14. PW3 Shri Raj Narayan was the lineman in the complainant company and deposed in his examination in chief almost on the same lines on which PW1 and PW2 have deposed and he further deposed that he had taken the photographs at the time of inspection and proved the same as Ex. CW2/D. He also identified accused Shiv Kumar, who was present in the court on the day of deposition. In his cross examination on behalf of accused Shiv Kumar, he replied that members of inspection team had gathered at office of BSES at Nizamuddin at about 9.00 a.m. and left the office at about 10.00 a.m. and that they reached the spot at about 12.00 noon. He further replied that the distance between the pole and the meter was about 2025 meters and that the authorised BSES meter was not connected and same was being bypassed and that the readings of the meter were recorded at the time of inspection and that a authorised meter had a reading of BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 14 of page 35 15 roughly 1600 but he did not remember the reading of the sub meter. He further replied that the distance of connected load of second floor from the sub meter was about 1015 meters and the authorised service line was not removed but only disconnected. He further replied that accused Ashok was in occupation of the first floor. He volunteered that the first floor was locked at the time of inspection. He did not remember if accused or the persons present at the premises, were covered in the videography or photography or not. He replied that he signed at six places in the documents but he was confronted with the documents wherein his signatures appeared at eight places. He further replied that all the load mentioned in the load report could not be captured in the photography and videography.
15. In his cross examination on behalf of accused Ashok Kumar, PW3 replied that only accused Shiv Kumar was present and he admitted that accused Ashok Kumar was not present at site but he volunteered that they were told that accused Ashok Kumar was the user of the first floor. He did not know as to who gave the said information to the team BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 15 of page 35 16 leader. He could not admit or deny that the load of the first floor was planted upon accused Ashok Kumar by accused Shiv Kumar. It was observed by the court while CD was displayed in the court that witness had pointed out the picture of the air conditioner, under which a red colour wire was reaching upto the stand, whereon it rolled over. PW3 replied that the wire through the pipe was connected to the air condition and he was confronted by the defence counsel that wire was only rolled over to an angle and not connected to the AC, but the witness had denied the suggestion
16. PW4 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. CW1/B and he also proved complaint Ex. CW1/A. In his cross examination on behalf of both the accused, he admitted that he had no personal knowledge of the present case. PW4 further replied that he did not visit the premises in question, during or after the inspection.
BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 16 of page 35 17
17. DW1 accused Shiv Kumar deposed that he was a tenant in premises in question on the second floor since 1995 at a monthly rent of Rs.600/ per month excluding electricity and water charges and Ashok Bajaj the landlord of the premises and that on 25.03.2009, the meter installed at the premises was replaced with an electronic meter and photocopy of meter change report is Ex. DW1/A. He further testified that he was regularly paying the electricity bills and the photocopies of three bills for the relevant period are collectively Ex. DW1/B and the receipt dated 15.06.2009 is Ex. DW1/C and that he had filed a complaint to DGM Enforcement BSES at Andrews Ganj on 18.06.2009 about tampering of the meter by one Kamal Arora vide complaint Mark A. He further deposed that inspection dated 26.06.2009 was not conducted in his presence and after installation of the electronic meter, his daily average consumption was 1314 units and that he used to pay electricity charges on the basis of the sub meter installed in his premises to the cotenant Kamal Arora. He further deposed that he had filed a suit for permanent injunction from forcible eviction by the landlord Ashok Bajaj.
BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 17 of page 35 18
18. In his cross examination on behalf of complainant, DW1 replied that he knew Ashok Bajaj since the year 1985 and he was residing in the premises since 1995. He answered that no rent agreement was ever executed between him and Ashok Bajaj. He replied that accused Ashok Bajaj was a builder and used to construct the buildings at Lajpat Nagar. He further answered that he was never a caretaker but a tenant in the premises under Ashok Bajaj. He further replied that the electricity charges were usually paid by him and then he used to recover share of Kamal Arora from him or it used to be vice versa. He admitted that complaint Mark A neither bears any stamp of the BSES nor any designation of the person who received it, but he volunteered that one Ramesh Chand had received the same. He further replied that Kamal Arora was residing at the first floor since the year 2000 and he used to share the electricity charges with him. He further replied that after installation of the new meter, a submeter was installed at first floor of the premises to segregate the electricity consumption and that Kamal Arora was paying the electricity charges to the BSES from the main meter, whereas he was paying the electricity charges as per consumption recorded in BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 18 of page 35 19 submeter. On display of the videography in the court, DW1 admitted that the photographs and the videography pertained to his premises. He replied that he continued to reside at the second floor of the premises in question on the day of deposition also. He further replied that prior to the date of inspection, the accused Ashok Bajaj used to visit many times in a month especially in the night to meet Kamal Arora, who was residing at the first floor, but accused Ashok Bajaj never tried to meet him (the witness) during the visits in the premises in question. He admitted that on the date of inspection, the first floor of the premises was locked because Kamal Arora locked the same shortly before the inspection, after the arrival of officials of the inspection team and this was revealed to him by his son, as he was not present at the site and had gone to a doctor.
19. DW2 accused Ashok Bajaj deposed that he was the owner of the inspected premises but he did not occupy the same and that one Kamal Arora and the accused Shiv Kumar were permitted to occupy the premises as caretakers for first and second floor respectively and that accused Shiv Kumar BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 19 of page 35 20 had filed an injunction suit for creating an evidence in his favour so as to give him the status of a tenant and that he was not occupying the premises and was not indulged in theft of electricity. He testified that theft of electricity, if any, was being committed by the occupant accused Shiv Kumar without his knowledge and without any abetment by him. He further deposed that he was not present at the time of inspection in the premises in question and was not served with any document by the complainant but accused Shiv Kumar dispatched a set of documents to him by speed post on the date of inspection. He deposed that on 28.07.2009, he represented to the Vigilance Department, BSES, C.R. Park, New Delhi, praying for taking action against the illegal use of electricity vide representation Ex. DW2/A. He further deposed that all payment to the BSES towards the meter installed were made by accused Shiv Kumar and that meter change report also bears his signature. He further deposed that the complaint made by him regarding tampering of the meter was with the design to get a meter installed in his name and create evidence of possession in his favour. BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 20 of page 35 21
20. In his cross examination on behalf of the complainant, DW2 replied that he had purchased the premises in question in the year 1992 from one Mr. Sharma and that there was a meter already installed at the said premises but he did not remember the name of the registered consumer, but he had also got the meter installed in his name but he did not remember the date, month or the year. He further replied that before the premises was occupied by the said caretakers, he had been paying the electricity bills. He further answered that accused Shiv Kumar was associated in his business as he used to supply seat covers to him which he sold at his spare part shop. He replied that Kamal Arora was employed at his shop and he knew accused Shiv Kumar and Kamal Arora since 1988. He further answered that Shiv Kumar was in possession of the premises since 1996 and Kamal Arora came in possession of the premises in 2001 or 2002 and that he vacated the premises about 2 years later and returned there after about 1 ½ year. He admitted that there was no written agreement or authority to both the aforesaid persons as caretakers. He further replied that the suit filed by Shiv Kumar was ultimately dismissed as withdrawn upon his undertaking that he (accused Shiv Kumar) BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 21 of page 35 22 would not be dispossessed without due process of law. He further answered that during the pendency of the suit, Shiv Kumar started paying Rs. 600/ per month by money order, which he started accepting under protest and then this amount was only towards rent and that electricity bills were never paid by him as this was the responsibility of the caretaker. He further replied that he visited the premises occasionally, only if the caretaker requested for some repairs or whitewash etc. He answered that he never physically verified the existence of the meter or tampering of the meter or whether bills were being paid in time or not. He did not know if any sub meter was installed at the premises. He did not know if the supply to the second floor was routed through the sub meter. He further replied that from the date of filing of the suit for permanent injunction, he had no words with the accused Shiv Kumar. He answered that he had never made a complaint against accused Shiv Kumar in the concerned police station as there was no criminal action maintainable. He admitted that he never filed any civil suit seeking possession from Shiv Kumar. He could not admit or deny that being the landlord it was his responsibility to inspect the premises and BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 22 of page 35 23 ensure that the tenant of the caretaker was not tampering with the meter or committing theft of electricity. He could not admit or deny that the meter installed at the premises had been bypassed or that a sub meter was installed for the second floor. He could not admit or deny that the bills for meter installed in the premises were not being regularly paid.
21. Against the said deposition of PW1, PW2 and PW3, it has been contended that the diagram shown in the inspection report Ex. CW2/A, is not correct, but both the accused failed to explain as to how the said diagram is wrong. Whereas the inspection report Ex. CW2/A is very specific in nature which mentions that at the time of inspection, the supply was being bypassed without meter, which was connected through illegal wire connected from BSES cable and no load was found on the meter at the time of inspection. Even the diagram specifically shows as to from where the BSES cable was going and the illegal wire for the direct theft of energy was connected to the same and the said illegal wire was directly going upward at the first and the second floor and as such, I do not find any force in the said contention raised on behalf of the accused. BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 23 of page 35 24
22. It is further argued that there is a contradiction in the depositions of the witnesses as to who prepared the inspection report Ex. CW2/A. It is pointed out that PW1 in his cross examination on behalf of accused Shiv Kumar claimed that he did not prepare the same but it was prepared by the leader of the team PW2, whereas PW2 answered that Ex. CW2/A was prepared by PW3 Mr. Raj Narayan and at the same time, PW3 in his cross examination replied that none of the documents was prepared in his handwriting.
23. The case pertains to year 2011 and the date of inspection was 26.06.2009, whereas PW1 was examined on 19.12.2011 and PW2 was examined on 09.02.2012 and PW3 was examined on 28.03.2012 and as such the said contradiction by the loss of memory is bound to come in such kind of economic offences, wherein many such inspections are carried out by the same members of the inspection team and it is human nature that all the things cannot be remembered as such so as to depose in a computerized manner. Moreover, the signatures on Ex. CW2/A have nowhere been denied by the BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 24 of page 35 25 said three witnesses and even the accused failed to uproot the inspection report in their cross examination. Thus, I am of the considered opinion that said contradiction does not go to the root of the matter.
24. It has been further contended on behalf of the accused against their said deposition of the witnesses for the complainant that in the load report one bulb has been photographed twice and that there were three tubelights but in the videography only two are visible and that iron heater was not working and fridge has been mentioned of 220 watts, whereas it was 120 watts.
25. I am of the considered opinion that this contention does not come to the help of the accused because it was for the accused to disprove the said load report and merely pointing out a shortcoming in not covering all the connected load or repetition of the same in the videography do not lead us to anywhere because the videography was mere a corroborative piece of evidence which may not cover all the things for various reasons and the connected load of a particular gadget BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 25 of page 35 26 is either taken as mentioned on the gadget itself or with the tongster. Hence, the said contention is also hereby rejected.
26. It has been further contended on behalf of accused Ashok Bajaj only that he was not present at the time of the inspection. I can understand this argument if it would have been raised in a case of theft of a tangible item such as jewellery or other valuables or in case of a pickpocket, where presence of the accused in order to commit the theft may be compulsory in some cases, but the very nature of electricity is that it is consumed at the same time when its theft is committed and since it is not capable of being held as such, it is always to be misappropriated by way of certain devices/appliances and once those devices / appliances are fixed, there is no need of the thief to remain present at the time when the theft of electricity is detected. Thus, the said contention is misconceived and as such the judgment cited in favour of the accused Ashok Bajaj reported as "1997(2) Crimes 464 (Delhi)" is not applicable to the present case because under the Electricity Act, it is a presumption which has been raised against the accused in particular circumstances to be BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 26 of page 35 27 rebutted by the accused and weakness of the defence of the accused cannot be said to have been taken advantage of while requiring from the accused to rebut the presumption, as has been discussed by me below at the appropriate place in this judgment.
27. It has been further contended on behalf of the accused that the illegal wire connected to the first floor has not been proved. I failed to understand as to how this contention has been raised because not only the oral depositions of said three witnesses for the complainant is specific on the point, as reproduced above, but it has been corroborated by the inspection report Ex. CW2/A and the load report Ex. CW2/B and the seizure memo Ex. CW2/C. Thus, the said contention raised, is merit less.
28. It has been vehemently argued on behalf of accused Ashok Bajaj that as per cross examination of PW2, the distance between the BSES cable and the meter in question was about 2025 meters , but the alleged illegal wire which has been seized and produced in the court is about 10 meters only. BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 27 of page 35 28
29. This contention is again misconceived because even if no illegal wire or artificial means would have been seized in the case, still the theft of electricity can very well be established. I am fortified in my view by a judgment of the Hon'ble High of Delhi in case titled Jeetpal and Anr. Vs State reported as 1996 JCC 674, wherein it has been held regarding the non seizure of shunt wire in the said case through which, the abstraction of energy was going on and which was being used as artificial means that it does not affect the credibility of PW1 & PW2, who had no axe to grind against any of the accused persons and thus, the prosecution case cannot be rejected on the ground of non seizure of the shunt wire which appears to be an argument of desperation. Hence, the said contention holds no water at all and same is rejected.
30. From the said depositions of PW1, PW2 and PW3, it has been clearly and specifically established that on 26.06.2009 at the said premises, direct theft of electricity was going on by way of bypassing the meter and illegal wire was connected to abstract the energy from BSES cable. Both the accused failed BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 28 of page 35 29 to substantially rebut or uproot the said testimony of the said three witnesses, which had remained unassailed on the record. In these circumstances, I am of the considered opinion that presumption raised in the 3rd proviso to section 135 of the Electricity Act, 2003, has arisen against the accused in the present case and onus did shift on the accused to rebut the same.
31. Next question arises as to what is the extent required upto which the accused has to rebut the said presumption under the law. The accused is not supposed to prove his defence 'beyond reasonable doubt' under the law and if any economic law shifts the burden on the accused to rebut any presumption, the extent of onus to be discharged by him has been laid down by the Hon'ble Supreme Court in case titled Hiten P. Dalal Vs Bratindranath Banerjee cited as 2001 (6) SCC 16 in para 20 as follows:
".....Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 29 of page 35 30 reasonably probable, the standard or reasonability being that of the 'prudent man'."
32. Judging in the light of the said law laid down by the Hon'ble Supreme Court, let me examine as to whether both the accused have been successful to rebut the presumption by making the court believe the existence of their defence as a probability from the "prudent man's test". I have already reproduced the deposition of both the accused as DW1 and DW2, who have specifically admitted their relationship as accused Ashok Bajaj being the owner of the premises and accused Shiv Kumar, though claiming himself to be tenant which is denied by the other accused, being the user of the premises. It has been specifically admitted by accused Ashok Bajaj as DW2 that all the documents prepared at the spot at the time of inspection were dispatched to him by the accused Shiv Kumar by speed post. DW2 further specifically admitted that he never physically verified the existence of the meter or tampering of the meter or whether bills were being paid in time. He even did not know that there was a submeter installed at the premises, whereas the the very defence of the accused Shiv Kumar is based on the fact that there was a sub BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 30 of page 35 31 meter in the premises and he was paying the electricity charges as per consumption recorded by the same. It is further admitted by the DW2, accused Ashok Bajaj that he never made a complaint against accused Shiv Kumar and he even did not file a suit for possession of the premises, if he was claiming the accused Shiv Kumar to be a mere caretaker.
33. Moreover, both the accused have taken a contradictory defence as accused Shiv Kumar maintained that one Kamal Arora was another tenant in the premises, whereas accused Ashok Bajaj took the defence that the said premises was lying vacant. The said contradictory stands taken by the accused are fatal for their defence in the case.
34. The electricity bill placed on record on behalf of accused Shiv Kumar which are collectively Ex. DW1/B, which are four in number and first bill pertains to the period from 27.03.2009 to 28.05.2009 and date of bill was 04.06.2009, which was due to be paid by 19.06.2009. The remaining three bills are showing the amount as Rs. 00/. As such the said bills do not come to help the accused in defending themselves against the BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 31 of page 35 32 inspection conducting on 26.06.2009.
35. The document Mark A i.e. a complaint allegedly given by accused Shiv Kumar is allegedly signed by one Ramesh Chand but the said Ramesh Chand has not been produced in the witness box to prove the said complaint nor any stamp or any other authority is mentioned below his signatures as to in what capacity he signed the same. Even the word "received" is not written over the signatures of said Ramesh Chand. Similarly, the complaint of accused Ashok Bajaj Ex. DW2/A, was received by Vigilance Department of the complainant on 28.07.2009 and as the date of inspection is 26.06.2009 and as such this complaint also does not come to the help of accused Ashok Bajaj being an afterthought.
36. It has vehemently argued on behalf of accused Ashok Bajaj that there was no overt act on behalf of the said accused so as to say that he was having an intention to abet the offence. In his support he has cited the judgment of the Hon'ble Supreme Court titled "Trilok Chand Vs. State of Delhi, cited as AIR 1977 SC 666" wherein it was held that intentionally aided BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 32 of page 35 33 the commission of the offence is the gist of offence of abetment by aid.
37. There is no dispute about the said proposition of law given by the Hon'ble Apex Court in the said judgment, in this case. The sole question is as to what can be termed as "aided the commission of offence". The said aiding may be by an overt act or may not be by an overt act. Sometimes a person may be silent spectator of a particular offence but if he has duty under the law to prevent or otherwise take action against the said offence and if he omitted to do so, still he can be said having the intention to abet. There are circumstances where policy of non alignment is not applicable in the cases of criminal offences and more particularly in economic offences, where the legislature knowingly shifted the onus on the accused to rebut the alleged offence against him, as discussed by me above.
38. It is admitted case of both the accused that accused Ashok Bajaj was the owner/ landlord / licensor of the premises in question where theft was going on and he cannot shirk of BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 33 of page 35 34 his liability for any offence or illegal act going on in his premises. This is so held by the Hon'ble High Court of Delhi in case titled as "Hindustan Petroleum Corporation Ltd. Vs. BSES Rajdhani Power Ltd. & Anr., 138 (2007) DLT 679" as under:
"......Where theft of electricity done at premises of principal agent by licensee and principal agent is keeping its eye closed to theft or other similar things done by licensee, charge of abatement of offence prima facie made out and that abatement is not only done by positive act but abatement can also be done by omission to do positive act by one who is responsible to act".
39. From my said discussion, there is ample evidence on the record which go to establish that the theft of electricity in the premises in question was very well within the knowledge of both the accused and mere non presence of an accused or that there was no overt act on the part of an accused, do not come to the help of the accused in the circumstances of the present case as proved on record. Thus, both the accused have miserably failed to rebut the presumption raised against them BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 34 of page 35 35 by law from a "prudent man's test".
40. Thus, I am of considered opinion that the complainant has been successful in proving the case against both the accused beyond reasonable doubt and as such accused Shiv Kumar is held guilty and convicted u/s. 135 and accused Ashok Bajaj is held guilty and convicted u/s. 135 r/w/section 150 of the Electricity Act, 2003. The file be consigned to the record room.
Announced in the open (RAKESH TEWARI)
court on 30.07.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Shiv Kumar & Anr., CC No. 177/11 Page 35 of page 35