Delhi District Court
Complainant vs Santosh Devi on 10 September, 2013
Page 1 of 10
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 168/11
ID No. 02405R0633972008
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. Santosh Devi
2. Mahabir Singh
......................... Accused
both at:
RZ34, DharampuraI
Najafgarh, New Delhi.
Date of institution: ........................ 24.03.2008
Arguments heard on: ........................ 08.08.2013
Judgment passed on : ........................ 26.08.2013
Final Order: ........................ Convicted
CC No. 168/11
Page 2 of 10
JUDGMENT:
1. The brief facts of the case are like this. On 16.07.2007 at 11.45 am a joint inspection team headed by Sh.Manish MittalAsstt Manager (Enforcement) of the complainant company inspected the premises bearing No. RZ34, DharampuraI, Najafgarh, New Delhi (hereinafter referred to as inspected premises). The accused are users of the inspected premises. There was no electricity meter in the inspected premises. The accused were indulging in the direct theft of electricity by tapping electricity from L V mains of the complainant with the help of wires which were further connected to the connected load of the inspected premises. A connected load of 10.204 KW was found for domestic purposes. The video of the premises was taken. The photographs of the inspected premises were also clicked. Inspection report, meter details report and load report were prepared and offered to the accused who refused to receive and sign the same. An assessment bill for theft of electricity was raised against the accused which remained unpaid. Hence, this complaint.
2. Accused were summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act) on the basis of pre summoning evidence. Copy of complaint and documents were supplied to the accused. NOA U/s 251 Cr.P.C was put to the accused CC No. 168/11 Page 3 of 10 to which they pleaded not guilty and claimed trial.
3. The complainant examined three witnesses. Complainant evidence was closed. Accused were examined U/s 313 Cr.P.C. They have taken the defence that they used to pay the electricity bills on average basis to BSES. There was no theft of electricity. However, accused Mahabir has examined himself in defence evidence as DW1.
4. PW1 Manish Mittal stated that on 16.07.2007 at 11.45 am he along with other officials of the complainant company inspected the inspected premises. The accused are users of the inspected premises who were present at site and duly identified by him. There was no electricity meter in the inspected premises. The accused were indulging in the direct theft of electricity by tapping electricity from L V mains of the complainant with the help of wires which were further connected to the inspected premises. A connected load of 10 KW was found for domestic purposes. The video of the premises was taken by Amitvideographer. The video in CD Ex.CW2/C is duly identified by him as it was recorded at site. Inspection report, meter details report and load report Ex.CW2/A, PW1/A and Ex.CW2/B were prepared and offered to the accused who refused to receive and sign the same. They could not remove the wires due to resistance created by the accused at site. Likewise is the testimony of PW2 CC No. 168/11 Page 4 of 10 Mahender Prasad in his examination in chief.
5. During cross examination PW1 admitted that some bills were shown to him but he does not recollect whether they belong to premises in question or not. They could not remove the illegal wires due to resistance at site. He is not aware if accused are regularly paying the bills to the department that is why meter was installed. Most of the load is focused in the video. They did not paste the reports at site.
6. During cross examination PW2 admitted that both the accused were present at the time of inspection. The suggestion is denied that accused had shown the bills to them at the time of inspection. He is not aware if development charges for the installation of the meter were paid by the accused on 19.12.1997. He is not aware that complainant used to send average bills to the accused. He admitted that the documents were not pasted at site. No police official was with them at the time of inspection. He admitted that accused have cooperated with them at the time of inspection and wires were not disconnected. They did not call the police.
7. PW3 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/B on the basis of authority Ex. CW1/A given to him by the CC No. 168/11 Page 5 of 10 complainant.
8. The accused have led defene evidence. The accused Mahabir has examined himself in defence evidence as DW1. He stated that they used to pay electricity bills. They had paid the development charges on 19.12.1997 and average bills for the connection Ex.DW1/A (Collectively). No electricity meter was installed at site by BSES due to the reason that they used to pay average electricity bills for the premises in question. The meter was installed in 2008 after the inspection dated 16.07.2007.
9. During cross examination he admitted that there was no electricity meter at site at the time of inspection. He admitted that he along with Smt. Santosh was present at the time of inspection. The suggestion is denied that they were indulging in the theft of electricity from L V mains of the complainant or any resistance created by them at the time of inspection or he was not authorized to use 10 KW of electricity.
10. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to show that the accused are owners or users of the inspected premises and responsible for committing theft of electricity from licensee's distribution network.
CC No. 168/11 Page 6 of 10
11. The complainant has examined three witnesses in order to prove its case whereas accused Mahabir has examined himself in defence evidence in order to advance the defence. PW1 and 2 are the members of joint inspection team so their testimony is material in nature. I have perused the entire evidence on record. There are certain admitted facts. It is admitted fact that accused are users of the inspected premises. The inspection of the inspected premises is nowhere disputed by the accused. The accused have admitted their presence at the time of inspection.
12. The question that needs consideration is whether accused were indulging in the theft of electricity or not. The testimony of PW1 and 2 shows that there was no electricity meter at site and accused were indulging in direct theft of electricity from L V mains of the complainant through wires which were connected to the inspected premises. The defence of the accused is that they were using the electricity through meter and they used to pay the electricity charges. The accused have placed reliance on bills Ex.DW1/A (collectively). I have considered the oral as well as documentary evidence on record. It is clear from the electricity bills that installation charges for the installation of meter were paid by one Mahatma Dashrath on 19.03.2007. One temporary meter no. tmp43666 was installed in the CC No. 168/11 Page 7 of 10 inspected premises. The bills Ex.DW1/A (collectively) show that the complainant used to raise the bills on the actual consumption of electricity. The bill for the month of May,07 shows that the last payment was received on 14.02.2007 and bill with arrears was issued in the month May,07. The accused have paid the electricity charges upto 14.02.2007. No paid electricity bill after 14.02.2007 has been placed on record by the accused.
13. The temporary meter was installed in the inspected premises. The testimony of PWs shows that no electricity meter was found in the inspected premises at the time of inspection. DW1 has admitted in cross examination that there was no electricity meter at the time of inspection. The testimony of DW1 corroborates the testimony of PW1 and 2. There was no electricity meter at site at the time of inspection. The accused have failed to explain how they were using the electricity in the absence of electricity meter. It is not the case of the accused that they were having any alternative arrangement for the use of electricity. The absence of alternative means of arrangement shows that there was theft of electricity for the use of inspected premises.
14. The illegal wires were not removed for the reason that there was resistance at site from the accused. The reason given by CC No. 168/11 Page 8 of 10 PWs is not convincing as they were duly accompanied by the Police personnel. It is not possible to create resistance in the presence of police personnel. There is no explanation why the illegal wires were not removed from the inspected premises. However, this fact alone is not sufficient to view the testimony of PWs with the aid of spectacles.
15. The sanctioned load of the temporary meter was 1 KW. The appliances found at the time of inspection were recorded in the load report Ex.CW2/B. The connected load is 10 KW. The accused have failed to explain how they were using the appliances having a connected load of 10 KW when the sanctioned load of temporary meter was 1 KW. Further, the accused have not put any question or suggestion to PWs that particular appliance was not found at the time of inspection. The existence of appliances at the time of inspection is nowhere questioned meaning thereby that load is correctly recorded.
16. Ld counsel for the accused contended that no reliance can be placed on the CD as CD is not proved in accordance with law. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The complainant has placed CD Ex. CW2/C on record in order to show the manner of theft in the inspected premises. Amit videographer has taken the video. He has not been examined by the complainant. His examination was essential to show that he has CC No. 168/11 Page 9 of 10 rightly taken the video showing the manner of theft in the inspected premises. The person who has downloaded the data in the computer and thereafter prepared the CD is not examined by the complainant. There is no evidence on record that the data was correctly downloaded by that person. There is no certificate on record to show that computer through which data was downloaded was working in the perfect condition. The CD is not proved in accordance with section 65B of Indian Evidence Act as such complainant cannot draw any support out of it. I find force in the argument advanced by ld counsel for the accused.
17. The entire evidence on record shows that accused are the users of the inspected premises who were present at the time of inspection. There was no electricity meter in the inspected premises at the time of inspection. Accused were indulging in direct theft of electricity from LV mains of the complainant through illegal wires. The testimony of PW1 and 2 is consistent on the material aspects of the case. The accused have failed to further their defence. There is no evidence of enmity on record so the question of false implication does not arise at all. Mere nonassociation of public persons is of no infirmity. The testimony of PWs is relied upon.
18. In the light of my aforesaid discussion, I have no hesitation CC No. 168/11 Page 10 of 10 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 convicted. Let the file to come up for arguments on quantum of sentence on 30.08.2013.
Announced in the open
Court on dated 26.08.2013 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 168/11
Page 1 of 3
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 168/11
ID No. 02405R0633972008
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
........................ Complainant
Versus
Santosh Devi
Mahabir Singh
......................... Convict
ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that convict were indulging in direct theft of electricity and such kind of convict should not be shown any kind of leniency.
2. Ld counsel for the convict submitted that convict are the first offenders. He further submitted that convict Mahabir Singh is 60 years old. He further submitted that convict have 2 children. He further submitted that convict are ready to pay the civil liability. He further submitted that entire family is dependent upon convict so a lenient view be taken in their favour.
CC No. 168/11 Page 2 of 3
3. Heard and perused the record. The convict are the first offenders. There is nothing on the record to show that they have been previously convicted for the same offence. The convict have family to support including their children and any substantive sentence will affect their family. The load is 10 KW and fine imposed should not be less than three times of the financial gain on account of theft of electricity. The bill was raised for a sum of Rs. 1,72,199/. The convict have already paid the electricity charges upto 14.02.2007. The date of inspection is 16.07.2007. The complainant has to raise the bill for a period of 5 months and 2 days. The bill amount comes to Rs. 74,000/. The convict are ready to pay the entire civil liability. To my mind, interest of justice shall be met if lenient view of taken. Hence, convict are sentenced to undergo imprisonment till the rising of the court.
ORDER ON CIVIL LIABILITY:
4. Section 154 (5) of the Act says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court. CC No. 168/11 Page 3 of 3
5. The convict have been held guilty U/s 135 of the Act. The bill was raised for a sum of Rs. 1,72,199/. The convict have already paid the electricity charges upto 14.02.2007. The date of inspection is 16.07.2007. The complainant has to raise the bill for a period of 5 months and two days. The bill amount comes to Rs. 74,000/.
Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 74,000/. The convict have paid the entire civil liability in the court to the AR of the complainant. Copy of the order be given to the convict free of cost.
File on completion be consigned to record room.
Announced in the open
Court on dated 10.09.2013 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 168/11