Delhi District Court
Bses Rpl vs Virender 1 Of 8 on 8 July, 2011
IN THE COURT OF SH. UMED SINGH GREWAL,
ADDITIONAL SESSIONS JUDGE,
SPECIAL ELECTRICITY COURT
DWARKA COURTS, NEW DELHI
SC.No.3/2006
U/s 135 of Electricity Act, 2003.
BSES Rajdhani Power Ltd.
Having its registered office at:
BSES Bhawan Nehru Place,
New Delhi 110019
Also at: Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049 ...........Complainant
Versus
Sh. Virender Singh
S/o Sh. Chhattar Singh
R/o RZ81, Old Roshan Pura,
Najafgarh, New Delhi ..................Accused
Date of institution: 16.9.2003
Arguments heard on: 31.5.2011
Judgment passed on: 8.7.2011
Present: Sh. Girish Giri, Ld. APP for the State.
Sh. Pankaj Tandon, AR of the complainant company
alongwith Sh.M.K.Padhee, Adv.
Sh. M.S.Godara, counsel for accused.
BSES RPL v/s Virender 1 Of 8
SC NO. 3/2006
JUDGMENT:
1. In the intervening night of 3031 August 2003 at about 12.30 am, a raiding team comprising of the employees of the complainant company inspected the premises bearing no. RZ36, Paprawat Road, near graveyard, Najafgarh, New Delhi. One Virender Kumar was running the ice factory in the name and style of M/s Virender Ice Factory. There was a temple opposite the said factory. After crossing the road, there was an electricity pole no.4. From the said pole three teflon wires of black colour were hooked and were leading to the said ice factory and were further connected to the load of said factory. There was no electricity meter. In this way the accused was stealing electricity directly. All three teflon wires taken into possession, joint inspection report consisting of 3 pages was prepared.
2. On the above facts FIR no. 492 u/s 379 IPC and 135 of Electricity Act 2003 was registered against the accused on 16.9.2003 in PS Najafgarh, New Delhi. After investigating the case the police submitted its report u/s 173 (2) of Cr.P.C. On the same facts Sh. Pankaj Tandon/PW2 filed a complaint. Cases arising from FIR and complaint were tried together and are being disposed off by this common judgment.
BSES RPL v/s Virender 2 Of 8 SC NO. 3/2006
3. Notice of accusation u/s 135 of Electricity Act, 2003 was framed against the accused on 11.5.2007 to which he claimed trial.
4. In order to establish the case, the complainant and the State examined as many as 14 witnesses. Accused examined only three witnesses.
5. PW1 SI Chinta Ram registered FIR Ex.PW1/A. PW2 Sh. Pankaj Tandon has filed the complaint. Sh. Dinesh Gaur/PW3 clicked 58 photographs and exhibited them as Ex.P3/A1 to 37 and their negatives as Ex.P3/B1 to 37. IO Vishram deposed as PW7 and he proved seizure memo of case property as Ex.PW7/A and site plan as Ex.PW7/B. Constable Shashi Kapoor/PW9 stated that accused was arrested in his presence vide arrest memo Ex.PW8/A and was also personally searched vide memo Ex.PW9/1. PW13 HC Meer Singh is the subsequent IO to whom investigation was entrusted on 30.6.2004 and he arrested accused on 6.4.2005. Sh. Suresh Kumar and Sh. Subhash are public witnesses and they appeared as PW8 and PW12 but turned hostile. PW4, PW5, PW6, PW10, PW11 & PW14 are the raiding team members.
6. All raiding team members deposed in one voice that they formed a raiding team which inspected M/s Virender Ice Factory on BSES RPL v/s Virender 3 Of 8 SC NO. 3/2006 Paprawat road, near Graveyard, Najafgarh, in the intervening night of 3031 August 2003. Accused Virender Kumar was found running the Ice Factory there. No meter was installed and he was drawing energy from pole no.4 by hooking 3 teflon wires with the LV Mains passing through pole no. 4. The connected load was assessed as 42.997 KW comprising of machinery for running the ice factory. The accused was present there and was photographed also. Not only he, 45 workers were also present.
7. The accused admitted u/s 313 of Cr.P.C. that premises no. RZ36, belongs to him but denied the existence of any Ice Factory on the date of the inspection. He came out with the case that a raid was conducted in that premises about 23 months prior to the date of the inspection. Thereafter he purchased a generator for running the factory but it was sealed by the govt. just before inspection.
8. DW1 Swaroop Singh is the diesel filling man employed at the petrol pump M/s Hardayal Service Station formerly known as M/s Yash Filling Station. He placed on record some receipts from Ex. DW1/1 to Ex.DW1/13 saying that diesel was sold to the accused vide these receipts from 20032004 and the accused used that diesel for running the generator in order to operate Ice Factory. On this very BSES RPL v/s Virender 4 Of 8 SC NO. 3/2006 point Sh. Naresh Chander Rishi stated as DW2 that he knew accused being a neighborer and that he was running Ice Factory with the help of generator.
9. Let us examine first the defence of the accused. The purchase receipt of the generator is on the file but the accused did not prove it by summoning a competent witness. DW2 did not state his source of knowledge that accused was running factory with the help of a generator. Even DW1 is of no help to him because the receipts Ex.DW1/1 to Ex.DW1/13 do not pertain to the month and year of the inspection but are of the year 2000. After failing in the first defence the accused tried to establish that his premises was sealed before the date of the inspection and on this point he examined Sh.Rishipal Meena, JE, MCD, Najafgarh as DW3 but that witness deposed that record the property bearing no. RZ36, Paprawat Road, Najafgarh was not available in his office and in the absence of any record he was not in the position to say that the inspected premises was sealed before the date of inspection.
10. The accused admitted u/s 313 of Cr.P.C. that premises belonged to him but no Ice Factory was running there. He has been identified by the raiding team members in the Court. His presence at the site is duly BSES RPL v/s Virender 5 Of 8 SC NO. 3/2006 reflected in the photographs. Case property has been produced and identified by the witnesses. Still the complainant and the State fell short of its target i.e. of the conviction of the accused due to following reasons: A) The incident of theft of electricity occured in the night intervening 3031 August 2003. The complaint was sent to the police on 5.9.2003 for registration of FIR and finally it was registered on 16.9.2003. Delay in registration of FIR was tried to be explained by PW5 i.e. informant that bill of theft of electricity was given to the accused through JE Kewal Krishan on 2.9.2005 which he refused to sign and then it was sent to him through courier. After this, his department directed him to get registered an FIR against him. The said Kewal Krishan has not been examined and proof of delivery of bill to the accused has also not been placed on record to corroborate explanation.
B) It is the admitted case that after taking into possession the case property it was not sealed and it was handed over to IO/PW7 in unsealed condition. As per the statement of PW5, it was handed over to PW7 on 5.9.203 but PW7 deposed that it was given to him on 23.9.2003 in unsealed condition and was produced in the Court in the BSES RPL v/s Virender 6 Of 8 SC NO. 3/2006 same condition. Letter Ex.PW5/D dated 5.9.2003 was handed over by PW5 to SHO, Najafgarh stating that he was depositing the case property with the police but the IO/PW7/Vish Ram deposed that it was handed over to him by PW5 on 23.9.2003. He is not aware in whose custody the case property was from 5.9.2003 to 23.9.2003. The deposition of PW7 that it was handed over to him on 23.9.2003 is corroborated by seizure memo Ex.PW7/A dated 23.9.2003 and bearing the signatures of PW5 and PW7.
C) Investigation was entrusted to IO Vish Ram on 16.9.2003 but he prepared rough site plan Ex. CW7/E only on 5.10.2003 on the pointing of PW5 Jagdish. PW5 did not state that it was prepared on his instruction. Prosecution version is that illegal cable was passing through trees but not a single tree has been shown in that rough site plan. Distance between premises and pole has not been stated. D) PW8 Suresh Kumar and PW12 Subhash did not support the prosecution case. As per PW14, 1012 police officials were also with the raiding team at the time of inspection. None of them was cited as witness by the police in its report u/s 173 (2) Cr.P.C. E) There are various contradictions in the deposition of PW14. He improved his version substantially. PW5 deposed that he handed over BSES RPL v/s Virender 7 Of 8 SC NO. 3/2006 photographs, negatives and case property to IO on 5.9.2003 but as per seizure memo Ex.CW7/E these were handed over on 23.9.2003. F) Sh. Dinesh Gaur PW3 proved 58 photographs alongwith even number of negatives stating that he clicked those photographs but PW14 stated that photographer's name was Chikku. The said Chikku has been cited as a witness in the police report at serial no. 10. There is no evidence that PW3 Dinesh and Chikku is one and the same person.
11. For the foregoing reasons, accused is acquitted of the charge u/s 135 of Electricity Act 2003. Bail bond is discharged. Amount, if any, deposited by the accused with the complainant company for this case, be returned to him alongwith interest at the rate at which he realizes for arrear of bills, after the lapse of period of preferring the appeal. File be consigned to record room.
Announced in the open court (UMED SINGH GREWAL)
on 08.07.2011. ASJ, Spl. Electricity Court,
Dwarka Courts, Delhi
BSES RPL v/s Virender 8 Of 8
SC NO. 3/2006
SC No. 3/2006
BSES RPL Vs Virender
8.7.2011
Present: Sh. Pankaj Tandon, AR of the complainant company
alongwith Sh. M.K.Padhee, counsel for the complainant company.
Sh. M.S.Godara, counsel for the accused.
Vide judgment even dated accused is acquitted of offence u/s 135 of Electricity Act, 2003. Bail bond is discharged. Amount, if any, alongwith interest at the rate at which it realizes for the arrears of bills, paid by the accused, be returned after elapse of period of preferring the appeal. File be consigned to record room.
(Umed Singh Grewal)
ASJ: Special Electricity Court
Dwarka: New Delhi
8.7.2011
BSES RPL v/s Virender 9 Of 8
SC NO. 3/2006