Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power Ltd. on 12 August, 2011
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IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. 1196/07
PS Okhla Industrial Area, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Ltd.
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019
Also at :
Corporate, Legal & Enforcement Cell
Near Andrews Ganj Market, Andrews Ganj,
New Delhi110049
Acting through Mr. Binay Kumar
(Authorised Officer)
...Complainant
Versus
M/s Sabita Electro Plating
through its Proprietor Mr. Mahesh (User)
G145, Harkesh Nagar, (Block Z62),
Adjacent to Sr. Secondary Govt. School,
Okhla Industrial Area, Phase II, New Delhi20
...Accused
JUDGMENT
1 The complainant company filed the present complaint u/s 135 r/w/sec. 151 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused committed an offence punishable u/sec. 135 (1) of the Act and also to determine the civil liability as provided under the provisions of section 154 (5) of the Act.
2 Cognizance for offence was taken on a complaint filed by the complainant company BSES Rajdhani Power Ltd. through its authorised officer. 2 3 The accused was summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 12.05.2008 after recording the presummoning evidence and hearing the arguments on summoning. Accused appeared and was granted bail in the sum of Rs.10,000/ with one surety of like amount. Separate notice u/sec. 251 Cr.P.C was framed against the accused by the Ld. Predecessor Court to which the accused pleaded not guilty and claimed trial.
4 The complainant company examined Sachin Gupta - Manager as PW1, Maneesh Arora - DGM as PW2 & Ashutosh Kumar - Assistant Manager & AR as PW3. The statement of the accused was recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against him. The accused was given opportunity to lead evidence in his defence. The accused in his defence examined Rati Ram S/o Sh.Chander Singh R/o G166, Harkesh Nagar, New Delhi as DW1 and Sh.Rakesh Kumar S/o Sh.Hukum Singh R/o G146, Harkesh Nagar, New Delhi as DW2.
5 I have heard the Ld. counsel for accused represented by Sh. Yogender Sharma and prosecution represented by Sh.Rajesh Kumar, counsel/ deemed P.P and have perused the entire records.
6 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and circumstances of this complaint case, it has to be seen and considered whether this court, being the special court under the Act, can take cognizance of the offence punishable u/sec. 135 of the Act. Section 151 of the Act reads as under:
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''Cognizance of offences - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.'' In the case of Vardhman Properties Ltd. Vs BSES Rajdhani Power Ltd.
157 (2009)DLT 636, it was held by the Hon'ble High Court that:
''The special electricity court can take cognizance of the offence u/sec. 135 of the Act without awaiting committal of the case to it by the Magistrate. Therefore, in the instant case when by the order dt. 07.04.2006, the Ld.ASJ took cognizance of the offence and summoned the petitioner for offence u/sec. 135 of the Act, the Ld.ASJ was exercising the powers u/sec. 151 of the Act.'' The Hon'ble High Court of Delhi in its order dated 06.02.2009 passed in Crl. MC 2059/2008 & Crl. MA 7669/2008 entitled Dalbir Singh Vs BSES Rajdhani Power Limited held that :
''Section 154 (1) mandates that every offence punishable under sections 135 to 140 & section 150 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. Considering the fact that Section 154 (3) the Special Courts are expected to proceed with the trial of the complaints under sections 135 to 140 & Section 150 in a summary way, it is inconceivable that the Parliament intended that the cognizance of the offence should first be taken by the learned MM and thereafter the case committed to the Special Court. Further Section 155 begins with the words ''Save as otherwise provided in this Act'' when it talks of the applicability of the Cr.PC.4
Therefore, on a collective reading of Section 135, 151, 154 (3) and 155 it is plain that as regards the trial of the complaint case under the Act, the intention of the Parliament is that it is the Special Court will take cognizance of the offences and proceed to try the case, to begin with, in a summary way.' 7 Further, it is to be considered whether the special electricity court is required to give reasons for proceeding with the trial in a summary way. Section 154 (3) reads as under :
''The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 in a summary way in accordance with the procedure prescribed in the said code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this subsection, it appears to the Special court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to rehear the case in the manner provided by the provisions of the said code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.'' In this regard, the Hon'ble High Court of Delhi in the case Dalbir Singh (Supra) further held that :
''A plain reading of the above provision reveals that the intention of the Parliament was that cases concerning theft or illegal abstraction of electricity, attracting the offence under section 135 to 140 and section 150 of the Act, should be tried, to start with, in a summary way. Since the substantive portion of the above provision itself empowers the Special Court in this regard, it is unnecessary for the Special Court to give reasons for trying the case in a summary way. The procedure under section 154 (3) is indeed a departure from the procedure of trial of warrant cases under the Cr.PC Section 154 (3) contains a nonobstante clause which indicates that it is a departure from the normal procedure. Even Section 155 of the Act which otherwise makes the entire Cr.PC applicable, begins with the words ''save as otherwise provided in this Act.'' 5
8 After taking cognizance of the offence on the complaint, the accused was summoned to face the present complaint case. Accused appeared and was granted bail in the sum of Rs.10,000/ with one surety of like amount. The notice u/sec. 251 Cr.P.C. was framed against the accused, however, the accused pleaded not guilty and claimed trial. In this regard, I would refer the case of Sanghi Brothers (Indore) P. Ltd. Vs Sanjay ChaudharyI (2009) SLT 144, it was held by the Hon'ble Supreme Court of India that ''strong suspicion about commission of offence and involvement of accused is sufficient to frame charge.'' The statement of the accused was recorded u/sec. 313 Cr.P.C. In this context, I would refer the judgment delivered in the case of Chander Dev Rai Vs State (NCT of Delhi) 156 (2009) DLT 229 (DB), it was held by the Hon'ble High Court of Delhi that ''Examination of accused u/sec. 313 Cr.P.C is not a mere formality. Answers given by him have practical utility for criminal courts. Apart from affording an opportunity to the accused to examine incriminating circumstances against him also help the court in appreciating the entire evidence adduced in the court during the trial.'' 9 Admittedly, the accused is now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against him. A criminal charge could be proved on the basis of circumstantial evidence and the requirement is that circumstances incriminating in nature must be proved by cogent evidence and then circumstances so proved must form the complete chain so as to be not consistent with the innocence of accused. In this context, a reliance can be had upon the judgment passed by the Hon'ble Supreme Court of India in the case reported as AIR 1970 SC 1286 held that:
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'' There is no predetermined way of proving any fact. The fact is said to have been proved where after considering the matter before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the specification that it exists.'' In the case of Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay AIR 1961 Supreme Court 1316, it was held that :
''...The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact....'' In the case of M/s Sodhi Transport Co. and another Vs. State of U.P. and another reported as AIR 1986 Supreme Court 1099, it was held by the Hon'ble Supreme Court of India that :
''A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.''
10 Let us firstly examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. Sh.Ashutosh Kumar, Assistant Manager (Legal) being an authorized representative (hereinafter referred to as 'AR') of the complainant company entered into witness box and examined himself as PW3. PW3, during examination in chief, deposed that he is working with the complainant company i.e. BSES Rajdhani Power Ltd. as Assistant Manager Legal. He has been authorised by the complainant to file and pursue the cases on behalf of the complainant company in the special court including the present case. He has been authorised to do so by GPA dt. 18.08.2009 by Sh.Arun Kanchan, Chief Executive Officer of the complainant company in the capacity of Manager 7 U/sec. 2 (24) of the company's Act. PW3 proved the GPA and exhibited it as Ex.PW3/1 (OSR). PW3 further deposed that the present complaint has been filed by the previous AR of the complainant company Sh.Binay Kumar which bears his signature at point A already exhibited as Ex.CW1/1. PW3 proved the letter of authority of Sh.Binay Kumar already exhibited as Ex.CW1/2. PW3 also deposed that he has been working with the previous AR Sh.Binay Kumar since last three years and he identified his signature on the present complaint. PW3 further deposed that he has no personal knowledge of the facts of the case and he has deposed as per record provided to him by the complainant company. During cross examination, PW3 deposed that Sh.Arun Kanchan, CEO of the complainant company was having the powers on behalf of the complainant company to authorise him to appear in this case for pursuing this case for the complainant company before the Court. PW3 further deposed that he does not have any personal knowledge of the present complaint case. He has not visited the site. PW3 denied the suggestion that a false & fabricated case against the accused has been filed. Perusal of Ex.CW1/2 dt. 23.10.2006 reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorized Sh.Binay Kumar, legal officer with the complainant company respectively to institute and/or defend legal proceedings of whatsoever nature before the Special Courts and to sign & verify plaints, affidavits, written statements, petitions of claims, objections, memorandum of appeal & petition and application of all kinds and to file them in any such courts or office apart from other authorisation as mentioned in the said document Ex.CW1/2. Perusal of G.P.A. Ex.PW3/1 also reveals that Sh. Arun Kanchan - CEO also authorized Sh. Ashutosh Kumar working as Assistant Manager (Legal) with the complainant company to act, appear and plead on 8 behalf of the complainant company in all courts in India, to sign vakalatnama and appoint advocates, to execute, sign, draft all types of pleadings, application, affidavits, legal documents, to do all other lawful acts & deeds which may be necessary to be done for the progress and in the course of proceedings and the other prosecutions of all the cases, suits and proceedings, etc. PW3 has also identified the signatures of Sh. Binay Kumar in the complaint at point A in Ex.CW1/1. The complainant is rendering services for distribution of electricity to the public and all the complaint cases by the company are being filed through the authorised representatives on its behalf. Whereas, the accused has not led any evidence and failed to prove that the ARs have not been authorised by the complainant company to file and represent the present complaint case. Thus, I hold that Sh.Binay Kumar, AR and Sh.Ashutosh Kumar, Assistant Manager legal of the complainant company are duly authorised and competent to file and represent the present complaint case on behalf of the complainant company.
11 Now, let us secondly examine whether members of the inspection team were the authorised officers of the complainant company to carry out inspection at the premises in question. Sh.Sachin Gupta - Manager examined himself as PW1 and deposed that on 19.06.2007, he along with Alok Kumar - GET, Manish Arora - Manager & Sumer - Videographer along with electrician inspected the premises bearing at G145, Harkesh Nagar, (Block Z62), New Delhi, adjacent to Sr. Sec. Govt. School, Okhla Industrial Area, PhaseII, New Delhi. PW2 also deposed in his examination in chief that on 19.06.2007, he along with Sh. Sachin Gupta - Assistant Manager, Sh. Alok Kumar - GET, photographer from M/s. Arora Photo Studio and Local Delhi Police with CISF 9 inspected the premises of the accused i.e. G145, Harkesh Nagar, near Govt. Senior Secondary School, New Delhi. Copy of the notification No.F11(93)/2003/ power/1566 dt. 17.05.2005 filed by the complainant reveals that in exercise of the powers conferred by subsection (2) of section 135 of the Electricity Act, 2003 (36 of 2003) read with Govt. of India, Ministry of Home Affairs, Notification No. F.No.U11030/ 2/2003/UTL dt. 20.02.2004, the Lt. Governor of National Capital Territory of Delhi has authorised the technical officers, not below the rank of Assistant Engineer/Assistant Manager and above, in the departments dealing with distribution (District/ Zones) commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited and North Delhi Power Limited who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of section 135 of the said Act in respective areas of the said companies in the National Capital Territory of Delhi. In view of the above notification and foregoing discussions, I hold that Sh.Sachin Gupta - the then Assistant Manager was the 'Authorised Officer' to carry out the inspection of premises in question under the provisions of section 135 of the Act on 19.06.2007. 12 What aspects and evidence have to be considered and examined for ascertaining mode of theft of electricity. Here, I would place a reliance upon the judgment dated 23.10.2007 passed by the Hon'ble High Court of Delhi in Crl. Appeal No.531/2007 entitled Mukesh Rastogi Vs North Delhi Power Limited, it was held that even if the inspection was not a valid inspection, complainant had a right to prove theft of electricity done by the appellant irrespective of the status of the inspection. The invalid inspection does not make theft of electricity as a noncrime. Theft of electricity remains the crime 10 irrespective of fact that the inspection is valid or not. Supreme Court in State & ors. Vs. N.M.T.Joy Immaculate 2004 (5) SSC 729 observed that admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. Neither Evidence Act nor Cr.P.C. or any other law excludes relevant evidence on the ground that it was obtained under an illegal search of seizure. Even if the inspection was not conducted by an officer as designated under the notification dated 31st March, 2004, the members of the inspection team, who had visited the site and found the electricity being stolen are competent witnesses to depose in the court about the theft of electricity and the manner in which electricity was being stolen. It was further held that tapping of electricity could be seen standing outside the buildings since wires going on LT main to the building through a window could be seen. The photographs of the spot were taken by the photographer showing wires going from LT main to the window, from window to meter place then to cut out and from cut out to the house and business place of the appellant. The visit of the enforcement staff proved by the defence witnesses themselves who stated that persons from electricity department did come on that day and the appellant was at the spot at that time. It is his own case that members of NDPL visited the house on that day, thus, the inspection of the premises by enforcement staff of the NDPL and the photographs showing his premises cannot be doubted.
13 It was also held by the Hon'ble High court in the aforesaid case that in all cases of theft of electricity, the stolen material is simultaneously consumed by the person involved in theft. Electricity is not such a material which can be kept stored for future use. In normal cases, theft of articles case property is 11 understood by the stolen material. In excise cases, the case property is liquor seized, in case of NDPS the case property is the narcotics drugs seized. In that sence, in case of theft of electricity there can be no case property as such, since the stolen property i.e. electricity is simultaneously consumed. The enforcement staff therefore seizes the material through which the theft is committed. Mere non production on the wires cannot fail the prosecution, if the theft of electricity is proved by cogent evidence otherwise. It must be kept in mind that complaint is filed by NDPL which is basically a distribution company. The officials working in enforcement department are not trained in investigation and since this is new job for them, it may take some time for them to learn the technicalities of investigation. Merely because there is lapse on the part of the complainant company not to retain or not to produce the wires in the court through which the electricity was being stolen cannot fail the case if it is sufficiently proved by other evidences that electricity was being stolen by hooking wires directly to LT main. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through meter. Under section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. Inspection of the premises is merely a mean to detect the theft of electricity and to find the means by which the electricity was being stolen. Inspection report is merely a piece of evidence and 12 inspection report is not considered as a conclusive proof of the theft of electricity. The theft of electricity has to be proved by the complainant in the court by cogent evidence, therefore, the validity of the inspection report cannot be attached too much of importance. Similarly, non production of the single core PVC wires through which electricity was being stolen is not a serious infirmity in this case since there is sufficient oral testimony supported by photographs showing the theft of electricity.
14 The issue involved in the present criminal complaint case is on the point of detection of theft of electricity which is the crucial aspect. Let us finally examine whether the accused has committed the offence u/sec. 135 of the Act. It is well settled principle that prosecution has to prove its case against the accused beyond reasonable doubt. The accused at the time of statement u/sec. 251 Cr.P.C. stated that he is not concerned with Sabita Electro Plating and he has no concern with the premises no. Block Z62. His premises is being used as a residential purpose and there is not any commercial use in his premises because this is the totally residential colony and he is using this premises as residential purpose from ancesters. At the time of statement u/sec. 313 Cr.P.C., the accused stated that he was the user of the premises in question on the date of inspection. Even, he was present at site on 19.06.2007. No inspection was carried out at the premises in question on 19.06.2007. The accused also stated above that there was no main line of electricity in the vicinity of the area where the premises in question was situated. Therefore, he was not using any electricity at the premises in question on 19.06.2007. The meter of the electricity was installed at the premises in question in the year 2008 i.e. after the alleged date, month and year of the inspection. The accused further stated 13 that false and fabricated load report has been prepared against him by the complainant. According to the accused, he was not committing any theft of electricity at the premises in question on 19.06.2007. No such reports/ photographs or CD as aforesaid were prepared at site on the alleged date of inspection. The reports, photographs and CD are not concerned at all with his premises in question. The accused in his defence examined Rati Ram S/o Sh.Chander Singh R/o G166, Harkesh Nagar, New Delhi as DW1. DW1 deposed in his examination in chief that the address of the premises in question is G145, Harkesh Nagar, New Delhi. No theft of electricity was going on at the premises of the accused. The accused has been falsely implicated and a false and fabricated case has been booked against the accused. The accused in his defence also examined Sh.Rakesh Kumar S/o Sh.Hukum Singh R/o G146, Harkesh Nagar, New Delhi as DW2. DW2 deposed in his examination in chief that he is appearing as a defence witness in the case of Mahesh Kumar. No raid was conducted in the premises of Mahesh Kumar. No raid was conducted at the premises in his presence but the accused Mahesh Kumar has been falsely implicated in the present case by the officials of the BSES. DW2 further deposed that a false and fabricated case has been booked against the accused. 15 In the present case, the inspection in the premises in question was carried on 19.06.2007. In inspection report Ex. PW1/1, the name of the user is mentioned as M/s. Sabita Electro Plating( Prop. Sh. Mahesh). Supply address is mentioned as G145, Harkesh Nagar, adjacent to Sr. Secondary Govt. School, New Delhi. The names of the inspection team members are mentioned as Sh. Sachin Gupta - Assistant Manager, Sh. Amit Kumar - GET. Sh. Sachin Gupta - Assistant Manager is stated to be the inspection team leader and trade 14 description (nature of works) found at site mentioned as electroplating. It is stated in the inspection report Ex.PW1/1 that at the time of inspection abovesaid consumer found indulged in direct theft of electricity by illegally tapping BSES service line of other consumer using Aluminium Black Colour Jointed wire of size 6 mm sq. and 10 mm sq. No meter found at site at the time of inspection. These illegal tappings are distributed to the connected load of the premises. All the connected load is running through these illegal tapping as no meter is found at site connected load has been assessed and prepared on load report No.4119. A part of illegal wire has been removed and seized as material evidence. Remaining part could not be removed due to height. Necessary photographs and videography taken at site. The diagram was also prepared by the team members on page no.3 of the aforesaid inspection report Ex.PW1/1 to show the mode of theft of electricity at the premises in question on 19.06.2007. As per the inspection report (meter details) Ex.CW2/1 (colly), no meter was found at site. Load report Ex.CW2/2(colly) reveals the details of the appliances and items used at site on the date of inspection. Ex.CW2/3 is the seizure memo which reveals the details of the two illegal wires seized from the site on the date of inspection. Ex. CW2/4 is the CD pertaining to the inspection prepared at site. Ex.CW2/5 is the assessment bill for theft of electricity. Upon filing of this complaint, cognizance of the offence punishable u/sec135 of the Act was taken and complainant was allowed to lead presummoning evidence. The complainant led presummoning evidence by way of affidavits. CW1 is the authorised representative who proved his complaint as Ex.CW1/1 and CW2 is the member of raiding team who proved the inspection report (meter details) Ex.CW2/1 (colly), load report Ex.CW2/2 (colly), seizure memo Ex.CW2/3, CD Ex.CW2/4 and assessment bill Ex.CW2/5. After presummoning evidence and 15 presummoning order, summons issued to the accused and the summons served upon the accused M/s. Sabita Electroplating through its Proprieter Mahesh (user) before the first date of hearing after issuance of summons. Accused Mahesh with his counsel appeared and filed the application for grant of bail to him. The accused was released on bail upon furnishing personal Bond in the sum of Rs. 10,000/ with one surety in the like amount. In the statement u/sec. 251 Cr.P.C., the accused stated that his premises was being used as a residential purpose from ancesters. The statement u/sec. 313 Cr.P.C., the accused further stated that he was the user of the premises in question on the date of inspection and even he was also present at site on 19.06.2007. Moreover, the summons issued to the accused served upon him for his appearance in the proceedings of this complaint case in the court for 17.07.2008. The accused appeared on the very first date fixed on 17.07.2008 and was released on bail. Meaning thereby, there is no dispute of the identification of the premises in question nor the accused at the time of alleged inspection on 19.06.2007. 16 It is an admitted case of the accused that he was the user of the premises bearing No.G145, Harkesh Nagar adjacent to Sr. Secondary Govt. School, Okhla Industrial Area, PhaseII, New Delhi110020 for residential purposes on the date of inspection. However, he has no concerned with the premises No. Block Z62. There is no commercial use in the said premises used by him. It has to be evaluated from the complainant's evidence and the defence evidence whether the accused was really found using the premises in question for industrial purposes and also committing direct theft of electricity at the premises in question on 19.06.2007. In the statement u/sec. 313 Cr.P.C., the accused stated that there was no main line of electricity in the vicinity of the 16 area where the premises in question was situated, therefore, he was not using any electricity at the premises in question on 19.06.2007. The meter of the electricity installed at the premises in question in the year 2008. DW1 residing at G166, Harkesh Nagar, New Delhi i.e. Near to the premises of the accused bearing No.G145, Harkesh Nagar, New Delhi deposed in his cross examination that as he remembers, the accused Mahesh has been residing at the premises in question since last 10 years. DW1 further deposed that he does not know how the accused was using the electricity at the premises in question on 19.06.2007. DW2 residing at G146, Harkesh Nagar, New Delhi which is adjacent to the premises in question i.e. G145, Harkesh Nagar, New Delhi also deposed in his crossexamination that his house and the premises in question are adjacent. The accused Mahesh has been residing at the premises in question for the last 78 years as he knows. DW2 further deposed that how the accused was using the electricity at the premises in question on 19.06.2007. It is strange that DW1 and DW2 are the witnesses examined in defence evidence are residing near and adjacent respectively to the premises in question and well aware that the accused Mahesh has been residing for the last 710 years at G145, Harkesh Nagar, New Delhi but they are not aware as to how, the accused Mahesh was using the electricity at the premises in question, reasons are best known to them. During arguments, the Ld. Counsel for the accused filed the photocopies of the two electricity bills (OSR) which reveals that they have been issued in the name of Sh. Dhanpal as stated to be the father of the accused for the address G145, G/F, Harkesh Nagar, New Delhi. One bill is for the bill month of December2007, therein the past consumption shown for October2007 and the other bill is for the bill period February2011 and argued that there was an electricity meter installed at the premises in question on the date of inspection 17 and the regular bills were being paid. It is pertinant to mention here that the inspection of the premises in question was carried out on 19.06.2007 and one of the aforesaid bills dates back for December2007 and also the previous consumption for October2007, meaning thereby, the aforesaid bills are not for the relevant period i.e. June2007, when the inspection of the premises was carried out by the complainant. Moreover, the aforesaid stand taken by the counsel for the accused is also contradictory to the earlier stand and defence taken by the accused that he was not using any electricity at the premises in question on 19.06.2007 since no main line of the electricity in the vicinity of the area where the premises in question was situated. Therefore, the aforesaid electricity bills do not support the case of the accused on the aspect that there was the electricity meter installed at the premises in question and the electricity was being used through the meter at site on 19.06.2007. 17 The accused has also taken stand in the statement u/sec. 251 Cr.P.C. that he has no concern with M/s. Sabita electroplating. DW1 in his cross examination deposed that he does not know anything whether the accused was running M/s. Sabita Electroplating at the premises in question on 19.06.2007. It is again strange which aspect is to be noticed that DW1 is residing near to the premises in question but he does not know if accused was running M/s. Sabita Electroplating at the premises in question, reasons are best known to him. PW1 was partly examined. PW2 deposed in his examination in chief that on 19.06.2007, he along with Sachin Gupta - Assistant Manager, Sh. Alok Kumar - GET, photographer from M/s. Arora Photo Studio and Local Delhi Police with CISF inspected the premises of the accused i.e. G145, Harkesh Nagar, near Govt. Senior Secondary School, New Delhi. On reaching the premises, the 18 inspection team including PW2 found that there was no electricity meter installed and the whole load of the premises was running through direct theft by tapping the service line of consumer. There was electroplating job work going on in the premises. PW2 further deposed that they recorded the connected load and the illegal wires feeding the connected load. The whole inspection was recorded by photographer of M/s. Arora Photo Studio exhibited as Ex.CW2/4. The team members including PW2 prepared the meter report, inspection report, load report and the seizure memo already exhibited as Ex.CW2/1 (colly), Ex.PW1/1, Ex.CW2/2 (colly) and Ex.CW2/3 respectively at the site and offered to the persons present there for receiving but they refused. The workers present there disclosed the name of the accused as Mahesh. The team members also videographed the job order of M/s. Superex Industries, F89/23/24 Okhla Industrial Area, PhaseI in favour of M/s. Sabita Electroplating works. PW2 also deposed that they removed the part of illegal wires and seized vide seizure memo exhibited as Ex.CW2/3 bearing his signature at point X. The connected load running on direct theft was found out to be 22 KW approximately for industrial purpose (IX). A sealed bag containing the seal of court was opened which contained 2 numbers of aluminium wire of size 6 sq. mm. and 10 sq. mm. of 7 meters each black and brownish white colour.
18 PW2 categorically deposed in his cross examination that the team leader was also present in the raid on 19.06.2007. They were five persons in the inspection team i.e. Alok Kumar - GET, Sunil Kumar - lineman, Sumer from Arora Photo Studio, Sachin Gupta - AM and Manish Arora/ PW2. One beat constable and twothree other official from Delhi Police were accompanying at 19 the time of inspection. The premises was being used for industrial purpose. PW2 denied the suggestion that there was meter at site for domestic purpose or the accused was regularly paying electricity bills before the date of raid. Videographer from M/s Arora photo studio had conducted the videography at the time of inspection. PW2 also denied the suggestion that the videography was not conducted at the premises in question. PW2 deposed that the team members confirmed the name of the accused from the labourers and the Beat Constable also diclosed name of the accused. PW2 volunteered that the beat constable called up the accused from his Mobile Phone and made him to speak to the accused who also disclosed his name as Mahesh during conversation. The illegal wire was focused in the videography done at site. PW2 further denied the suggestion that the premises of the accused was being used for domestic purpose or the accused have no concern with the premises. PW2 also deposed that they prepared the seizure memo at site. The seizure memo was signed by PW2 and Sachin gupta. I have also seen the CD Ex.CW2/4 in the court's computer and found that the photographs revealing the machines and items. In the videography of CD Ex.CW2/4, the machines found installed and the illegal wires are coming to the premises in question. PW2 himself signed the seizure memo Ex.CW2/3 at site. Therefore, I have found from the testimony of the witnesses of the complainant which has the credibility and the complaint also corroborated by the testimony of PWs. The accused has miserably failed to prove that he was not committing direct theft of electricity at the premises in question i.e. G145, Harkesh Nagar, near Govt. Senior Secondary School, New Delhi on 19.06.2007. Thus, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the complainant through its witnesses on the point of direct theft of electricity. In BSES Rajdhani Power 20 Ltd. Vs Saurashtra Color Tones Pvt. Ltd. and Anr. 161 (2009) DLT 28 (FB), it was held by the Hon'ble High Court of Delhi that ''Electricity is a public property. Law in its majesty benignly protects public property and behoves everyone to respect public property.'' 19 For the foregoing reasons discussed above in details, to my considered opinion, the circumstances and evidence proved by the complainant company established the involvement of the accused in the offence of direct theft of electricity. The complainant has proved its case against the accused beyond reasonable doubt. The present complaint case is squarely covered within the provisions of section 135 of the Act and also the aforesaid judgment in the case of Mukesh Rastogi (Supra). Thus, I convict the accused u/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 12.08.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
21
CC No.1196/07
12.08.2011
Present AR for the complainant
Sh. Rajesh Kumar, counsel for the complainant
Sh. Yogender Kumar, counsel for the accused with
accused in person
Heard.
Vide separate judgment of the day, the accused is convicted u/sec. 135 of the Electricity Act, 2003. The copy of the judgment be made available to the complainant and the convict immediately.
Upon request, to come up for arguments on the point of the sentence and determination of civil liability on 24.08.2011.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 12.08.2011