Delhi District Court
Judge vs Bses Rajdhani Power Limited Held That on 29 March, 2010
1
IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
PATIALA HOUSE COURTS, NEW DELHI
Complaint Case No. 329/07
PS Ambedkar Nagar, New Delhi
U/s 135 r/w/sec. 150 of Electricity Act, 2003
BSES Rajdhani Power Limited
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi - 110019
Also at :
Corporate, Legal & Enforcement Cell
Near Andrews Ganj Market, Andrews Ganj,
New Delhi 110049
Acting through Mr.Binay Kumar
(Authorised Officer)
...Complainant
Versus
1 Subhash Sharma (User)
F79 A, Khanpur Extension,
New Delhi110062
2 Parveen Sharma (User)
F79 A, Khanpur Extension,
New Delhi110062
3 Smt. Raj Dhingra (Regd. Consumer)
F79 A, Khanpur Extension,
New Delhi110062
...Accused
JUDGEMENT
1 The complainant company filed the present complaint u/sec. 151 r/w/sec. 154 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused have committed an offence punishable u/sec. 135 r/w/sec. 150 of the Act and also to determine the civil liability as provided under the provisions of section 154 (5) of the Act.
22 Cognizance for offence was taken on a complaint filed by the complainant company BSES Rajdhani Power Ltd. through its authorised officer.
3 The accused were summoned to face the complaint case u/sec. 135 r/w/sec. 150 of the Act by Ld. Predecessor Court vide order dt. 17.04.2007 after recording the presummoning evidence and hearing the arguments on summoning. Accused nos.1 to 3 appeared and were granted bail on furnishing PB & SB in the sum of Rs.1,00,000/ each with one surety each of the like amount.
4 Separate notices u/sec. 251 Cr.P.C were framed against the accused by the Ld. Predecessor Court to which the accused pleaded not guilty and claimed trial.
5 The complainant company examined Ashok Kumar - Senior Manager Enforcement as PW1, Prabhat Chand - Senior Manager as PW2, Krishan Kumar - Trainee Engineer Enforcement as PW3 & Binay Kumar - Authorised Representative as PW4. The statement of the accused were recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against them. The accused wanted to lead evidence in defence, therefore, the accused were given an opportunity to lead evidence in defence. The application u/sec. 315 Cr.P.C. to produce the accused as a witness were filed and the same were allowed by the court. The accused, in their defence evidence, examined Smt.Raj Dhingra W/o Sh.O.P.Dhingra R/o E 3/5, Malviya Nagar, New Delhi as DW1, Praveen Sharma S/o Hari Shanker Sharma R/o 20BPocket 10A, Kalkaji Extension, New Delhi as DW2 and 3 Subhash Sharma S/o Khazan Singh R/o F53, Khanpur Extension, New Delhi as DW3.
6 I have heard the Ld. counsel for accused represented by Sh.O.S.Soran & Sh.S.Satya Narayana and prosecution represented by Sh.Sunil Fernandez, Ld. counsel/ deemed P.P and have perused the entire records.
7 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:
''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:4
''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. 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.''
8 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 sub section (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 :5
Provided that where in the course of a summary trial under this sub section, 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 re hear 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.'' 9 Let us examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. Sh.Binay Kumar, Legal Officer being an authorized representative (hereinafter referred to as 'AR') of the complainant company filed the present complaint case. The AR entered into witness box and examined himself as PW4. PW4 deposed that he has been authorised by the complainant to file and pursue the cases on behalf of the complainant 6 company in the special court including the present court. He has been authorised to do so by letter of authority dated 23.10.2006 by Lalit Jalan, CEO of the complainant company in the capacity of Manager U/sec. 2 (24) of the Companies Act. PW4 proved the copy of the said authority letter dated 23.10.2006 as already exhibited as Ex.CW1/3. PW4 also proved the complaint signed and filed by him as already exhibited as Ex.CW1/4. During cross examination, PW4 deposed that he does not have any personal knowledge of the present complaint case. PW4 denied the suggestion that he has filed the false & fabricated case against the accused. PW4 further denied the suggestion that he is not properly authorised person to file the present complaint and no authority is in his favour. Perusal of Ex.CW1/3 dated 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 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.CW1/3. Whereas, the accused have not led any evidence and failed to prove that the AR has not been authorised by the complainant company to file the present complaint case. Thus, I hold that Sh.Binay Kumar, AR of the complainant company is duly authorised and competent person to file the present complaint case on behalf of the complainant company. 10 Now, let us examine whether members of the inspection team were the authorised officers of the complainant company to carry out 7 inspection at the premises in question. Ashok Kumar & Prabhat Chand - both Senior Managers examined themselves as PW1 & PW2 respectively and deposed that on 16.01.2007 around 12.10 p.m, they along with Manoj Kumar and Krishan Kumar - both Trainee Engineers and also Kuldeep Kumar - GET inspected the premises bearing No.F79 A, Khanpur Extension, New Delhi. The aforesaid team members found the accused nos.1 & 2 indulged in direct theft of electricity and the accused no.3, being the registered consumer, was also found abating the accused nos.1 & 2 for committing direct theft of electricity at the aforesaid premises. 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 sub section (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.U 11030/2/2003/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 (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 discussion, I hold that Ashok Kumar & Prabhat Chand - now Senior Managers (Assistant Managers at the time of inspection) were the 'Authorised Officers' to carry out the inspection of premises in question under the provisions of section 135 r/w/sec. 150 of the Act. 8 11 After taking cognizance of the offence on the complaint, the accused were summoned to face the present complaint case. Accused nos.1 to 3 appeared and were granted bail on furnishing PB & SB in the sum of Rs.1,00,000/ each with one surety each of the like amount. The notices u/sec. 251 Cr.P.C were 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 were 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.'' 12 Admittedly, the accused are now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against them. 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 9 be had upon the judgement passed by the Hon'ble Supreme Court of India in the case reported as AIR 1970 SC 1286 held that:
'' 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.''
13 The issue involved in this criminal complaint case is on the point of detection of theft of electricity. Now, let us finally examine whether the accused have committed the offence u/sec. 135 r/w/sec. 150 of the Act. It is well settled principle that prosecution has to prove its case against the accused beyond reasonable doubt. The complainant has tried to prove the case against the accused that the accused nos.1 & 2 were committing direct theft of electricity and the accused no.3 was abating the accused 10 nos.1 & 2 for committing direct theft of electricity. The complainant, in support of its case, examined the witnesses i.e. Ashok Kumar - Senior Manager Enforcement as PW1, Prabhat Chand - Senior Manager as PW2, Krishan Kumar - Trainee Engineer Enforcement as PW3 & Binay Kumar - Authorised Representative as PW4. PW4 is the legal officer who has been authorised to file and represent the complaint cases on behalf of the complainant company which has already been discussed above. Whereas, the accused, in support of their case, have taken the defence in their statement u/sec. 251 Cr.P.C. that the accused nos.1 & 2 have never stolen the electricity at any point of time and the case has been falsely implicated upon them. Accused no.3 stated that she did not abate the theft of electricity as alleged in the complaint and nor committed theft of electricity in any manner. Therefore, they stated that they are not liable to pay any damage & loss to the complainant company. The accused nos.1 & 2 taken their defence in the statement u/sec. 313 Cr.P.C. that the accused nos.1 & 2 are the tenants at the premises in question. They were not present at site on the date of inspection, therefore, they do not know if the officers namely, Prabhat Chand & Ashok Kumar - both senior Managers, Manoj Kumar GET, Kuldeep GET & Krishan Kumar GET visited the premises in question on 16.01.2007. They were not present at site, therefore, they do not know the reports, i.e. inspection report Ex.CW2/A (colly), load report Ex.CW2/B (colly) & photographs Ex.CW2/C prepared by the team members on the date of inspection. Even, the accused do not know the CD of photographs Ex.CW2/C1 prepared by the complainant. They were not bypassing the meter in question and not committing the theft of electricity. The load mentioned in the load report Ex.CW2/B (colly) is higher and excessive. The accused nos.1 & 2 also 11 stated that they have been regularly paying the bills against the consumption of the electricity. They have been falsely implicated by the complainant in the present complaint case.
14 The accused no.3 also taken her defence in the statement u/sec. 313 Cr.P.C. that she is the owner of the premises in question. Meter in question is installed in her name. She has not been residing at the premises in question and even she was not present at site on the date of inspection, therefore, she does not know if the aforesaid officers visited the premises in question on 16.01.2007. Since she was not present at site, therefore, she does not know the aforesaid reports, photographs, CD prepared by the alleged team members on the date of inspection. The accused no.3 was neither abetting nor using the electricity directly by bypassing the meter in question. The accused no.3 also stated that she has not committed any theft of electricity nor abetted as alleged in the complaint. She has been regularly paying the bills against the consumption of the electricity. Thus, according to the accused no.3, she has been falsely implicated in the present complaint case. The accused, in support of their case, examined themselves as DW1 to DW3. DW1 proved the rent agreement executed between her and Smt.Pushpa Sharma as Ex.DW1/A. DW2 marked the copy of payment receipt No.0000020748 dated 17.11.2006 as MarkDW2/1, copy of the bill along with the bill for the month of January, 2007 as Ex.DW2/A, copy of the meter change report No.227131 dated 13.03.2007 as Ex.DW2/B and copies of the bills from the month of June2007 till the month of May 2009 as Ex.DW2/C to Ex.DW2/N. DW3 relied upon the same documents Ex.DW2/1 to Ex.DW2/N in the statement of DW2.
1215 I have gone through the testimony of PW1 to PW3 and DW1 to DW3, the aforesaid reports including diagram prepared at site and also seen the CD of the inspection prepared by the complainant. Firstly, it has to be examined whether the premises in question is identified. PW1 to PW3 in their examination in chief deposed that they along with Manoj Kumar Trainee Engineer and Kuldeep Kumar - GET inspected the premises bearing No.F79 A, Khanpur Extension, New Delhi. During cross examination, PW1 denied the suggestion that photographs do not pertain to the premises of the accused and are of some other premises. PW3 in his cross examination deposed that he along with team members met with the workers who were working there but he cannot tell their names. PW3 denied the suggestion that the photographs Ex.CW2/CA do not belong to the premises in question. PW3 also deposed that he along with other team members had already received a complaint from Manager Enforcement regarding theft of electricity at the premises in question. The accused nos.1 & 2 admitted in their statement u/sec. 313 Cr.P.C. that they are the tenants at the premises in question. The accused no.3 admitted in her statement u/sec. 313 Cr.P.C. that she is the owner of the premises in question. The meter in question is installed in her name. DW2 & DW3 in their cross examination deposed that their office is the same premises where the alleged raid was conducted. On the date of alleged raid, the property was still used by them. Their landlady Smt.Raj Dhingra never visited the premises in question to enquire whether everything was conducted in the said premises as per law. Meaning thereby, it is an admitted fact that the premises in question was being used by the accused nos.1 & 2 and the accused no.3 was the owner of the 13 premises in question on the date of inspection. Thus, there is no dispute about the identification of the premises in question. 16 Secondly, it has to be examined whether the accused are identified. In the inspection report Ex.CW2/A (colly), the names of the user are mentioned as Subhash and Praveen and the name of the registered consumer as Smt.Raj Dhingra. PW1 in his examination in chief deposed that the meter in question which was found installed at site was in the name of Smt.Raj Dhingra. PW1 along with other team members confirmed who are the users of the premises in question using electricity illegally and on verification, they came to know that Subhash Sharma and Praveen Sharma were using the electricity illegally. During cross examination, PW1 deposed that the accused present at the spot had given the team members the bill of electricity in respect of the premises in question of the meter installed there which was in the name of Smt.Raj Dhingra. The accused present there had refused to sign the documents which is also depicted in the disc when the accused refused to sign the documents. PW1 denied the suggestion that the accused Subhash Sharma and Praveen Sharma were not present at the spot nor they refused to sign the documents in token of receipt nor it is so recorded in the disc. PW1 denied the suggestion that no documents were asked as the accused were not at all present at site. PW1 further denied the suggestion that the accused were not present at the premises in question. PW2 in his cross examination also deposed that he along with the raiding team members offered the load and inspection report to the accused Subhash Sharma and Praveen Sharma but both of them refused to accept the same and further informed the inspection team members that they (Subhash 14 Sharma and Praveen Sharma) already telephoned to Dhingra and the same will be accepted by Dhingra. The team members waited 15 minutes after preparing the inspection and load report since Dhingra did not reach the place, they left the premises in question. During cross examination, PW3 deposed that the users were present at the site at the time of inspection. The team members asked the accused persons to sign the documents but they refused to sign. PW3 further deposed that they have implicated Smt.Raj Dhingra in the present case being the registered consumer. Whereas, the accused nos.1 & 2 stated in their statement u/sec. 313 Cr.P.C. that they were not present at site on the date of inspection. The accused no.2 & accused no.1 examined themselves as witnesses DW2 & DW3 respectively. DW2 & DW3 deposed in their examination in chief that on 16.01.2007, no raid was conducted in their presence. The accused nos.1 & 2 have neither proved any document nor produced any witness except themselves that they were not present at the premises in question on the date of inspection. Whereas, the complainant by its witnesses PW1 to PW3 proved that the accused nos.1 & 2 were present at the premises in question on the date of inspection. Meaning thereby, the accused nos.1 & 2 are identified. 17 Now thirdly, the mode of direct theft of electricity by the accused nos.1 & 2 has to be examined which is the crucial aspect. The complainant's case is that the inspection team found that a three phase electro mechanical meter was installed at the premises in question. The two phase of the said meter was found disconnected and one phase was connected to the meter and neutral of the said meter was found bypassed due to which meter was not recording any consumption of the electricity 15 used at the premises in question. The inspection team members connected the neutral of the wire with the meter and the meter started working. Therefore, electrical energy was consumed directly by the consumers. The connected load of 20.750 KW which was being consumed through the said stolen energy was found for industrial purposes. The inspection team members were unable to seize the material evidence from the spot due to resistance by the accused persons. PW1 to PW3 proved the inspection report Ex.CW2/A (colly), load report Ex.CW2/B (colly), photographs taken by the digital camera Ex.CW2/C and the CD containing the photographs Ex.CW2/C1. The team members tried to hand over the reports to the consumer at the spot but they did not sign and refused to do the same.
18 Whereas, the case of accused nos.1 & 2 is that no raid was conducted at site on the date of inspection. They do not have any knowledge about the aforesaid reports, photographs and CD prepared on the date of inspection. The accused no.3 is the registered consumer and she was not present at site on the date of inspection which is the admitted fact. During cross examination, PW1 denied the suggestion that there was no theft by illegal wire from the pole. PW1 also denied the suggestion that there was no theft of electricity at the premises through the illegal wires as the illegal wires were in fact the service line feeding the premises. PW3 in his cross examination deposed that the team members did not remove the meter from the site. They prepared the documents i.e inspection report, meter report and load report at the site but the same were refused to sign by the accused. The load was recorded from the number plates of the machines. PW3 denied the suggestion that they have not assessed the 16 correct load at the site or that PW3 never visited the site. PW3 also denied the suggestion that no raid was conducted at the premises in question. The persons assembled at site did not allow the team members to seize the illegal wires and meter from the spot.
19 DW2 & DW3 in their cross examination deposed that they do stitch and export cotton bags. DW2 & DW3 admitted that they have been making and exporting cloth bags for the last three years till date at the premises in question. Their office is the same premises where the alleged raid was conducted. On the date of alleged raid, the property was still used by them. They do not have any documents with them to show the number of electrical appliances that were present at the premises in question on the date of alleged raid. DW2 and DW3 further deposed in their cross examination that even in their absence, their office in the said premises can remain open. Even in their absence, people can enter their office for business or commercial purposes and it depends from person to person. There were around 5 to 9 persons employed in the said premises. At the time of alleged raid, there were around 8 to 10 persons working in their office. As on today, most of these employees have left as the nature of their industry is as such that their employees come and go. DW2 & DW3 further deposed that the photographs Ex.CW2/4 (colly) [Ex.CW2/4 colly mistakenly typed instead of Ex.CW2/C colly] do not belong to their premises & their business. However, DW2 & DW3 volunteered that it belongs to carpenter. DW2 & DW3 denied the suggestion that the photographs related to their business. It was also admitted by DW2 & DW3 that sanctioned meter was installed for industrial purpose. DW2 & DW3 denied the suggestion that they were using the electricity illegally by 17 bypassing the meter in question at the time of inspection at the premises in question. DW2 & DW3 further denied the suggestion that the documents, inspection report, load report, etc. were prepared by the officials of the BSES at the spot at the time of inspection. DW2 & DW3 also denied the suggestion that they refused to accept and sign the said documents at the spot. DW2 & DW3 deposed that they submit the IT report since starting of their business at the premises in question but they do not remember as to how much amount they had shown in the income tax return for the financial year 20062007.
20 It is an admitted fact by the accused nos.1 & 2 that they were using the premises in question, doing the business at the premises, 5 to 9 persons were employed, 8 to 10 persons were working and the business of making and exporting of cloth bags was being done by the accused nos.1 & 2 for the last three years till date, meaning thereby, the accused nos.1 & 2 were using the premises for the industrial purposes since sanctioned meter was also installed for industrial purpose. If the photographs Ex.CW2/C (colly) pertains to carpenter as deposed by DW2 & DW3 in their cross examination then no reason has been mentioned by DW2 & DW3 as to on what basis, DW2 & DW3 stated that the photographs belong to carpenter. If it is presumed and the statements of DW2 & DW3 is treated to be correct then why the accused have not summoned, produced and examined the carpenter for proving the photographs Ex.CW2/C (colly) that they belong to carpenter. Meaning thereby, DW2 & DW3 deposed about this fact of carpenter without any basis. The other aspect is also important for consideration which is related to income tax returns filed by the accused nos.1 & 2 before the Income Tax Authority. 18 On the one hand, the accused nos.1 & 2 have been doing the business for industrial purposes and filing the IT returns continuously for showing profit & loss whatever may be for doing the said business. On the other hand, the accused nos.1 & 2 have not bothered to file and prove on record the income tax returns which could have also shown the turn over of the business for three years and on that basis, production of bags & consumption of the electricity could have also been assessed, reasons for non filing of IT returns are best known to the accused nos.1 & 2. 21 DW2 & DW3 proved the aforesaid receipts and electricity bills Ex.DW2/1, Ex.DW2/A to Ex.DW2/N and had a defence that they were using the electricity through meter and were paying the electricity bills in the name of the registered consumer. Perusal of Ex.DW2/A reveals that this electricity bill pertains to the month of January, 2007 - units consumed as 108, Ex.DW2/C is the bill for the month of June,2007 - units consumed as 966, Ex.DW2/E is the bill for the month of May,2007 - units consumed as 434, Ex.DW2/F is the bill for the month of September,2007 - units consumed as 1304, Ex.DW2/G is the bill for the month of October,2007 - units consumed as 542, Ex.DW2/I is the bill for the month of November,2007 - units consumed as 590, Ex.DW2/J is the bill for the month of August, 2007 - units consumed as 816, Ex.DW2/K is the bill for the month of January, 2008 - units consumed as 915, Ex.DW2/L is the bill for the month of February,2008 - units consumed as 1263, Ex.DW2/M is the bill for the month of September, 2008 units consumed as 1673 & Ex.DW2/N is the bill for the month of May, 2009 which shows the units consumed as 838. All the aforesaid bills were issued and the consumption charges against the said bills deposited in the name of Smt.Raj Dhingra 19 registered consumer of the meter installed at the premises in question. The inspection was carried out on 16.01.2007. Ex.DW2/A pertains to the month of January, 2007 - units consumed as 108 i.e. during the month of inspection. Whereas, Ex.DW2/C to Ex.DW2/N shows the minimum units consumed as 434 and maximum units consumed as 1673 which pertains to the months and years after the inspection was carried out. 22 In the month of November 2006, the supply of electricity was disconnected for non payment of electricity charges, however, the charges deposited vide the receipt Ex.DW2/1 on 17.11.2006. On the basis of the complaint of the accused, the meter was changed vide the meter change receipt Ex.DW2/B on 13.03.2007. Here, I take a pause. If the accused nos.1 & 2 have filed and proved the aforesaid bills from January, 2007 to May, 2009 i.e. for more than two years after the inspection was conducted on 16.01.2007 then what prevented the accused nos.1 & 2 for bringing on record and proving the bills for the same period prior to the inspection i.e. for the period of two years prior to the date of inspection. If the bills for the same period i.e. about two years prior to the date of inspection would have been filed, the average consumption of the electricity prior or after the date of inspection could have been assessed but the accused nos.1 & 2 have failed to do so, reasons are best known to the accused nos.1 & 2. Even otherwise, if condition of service line is O.K. as per meter change report Ex.DW2/B, it does not mean that the electricity cannot be bypassed before the electricity meter installed at the premises. I have found from the testimony of PW1 to PW3 and DW2 & DW3 that the testimony of PW1 to PW3 has more credibility than the testimony of DW2 & DW3. The complaint, the aforesaid reports prepared 20 at site and also CD have been corroborated by the testimony of PW1 to PW3. The accused no.1 namely, Subhash Sharma and accused no.2 namely, Praveen Sharma have miserably failed to prove that they were not committing direct theft of electricity at the premises in question. Whereas, the complainant has proved by its cogent evidence i.e. the inspection report, load report, photographs & CD already exhibited as Ex.CW2/A (colly), Ex.CW2/B (colly), Ex.CW2/C & Ex.CW2/C1 respectively that the accused Subhash Sharma and Praveen Sharma were found committing direct theft of electricity at the premises bearing No. F 79A, Khanpur Extension, New Delhi on 16.01.2007.
23 Finally, it is to be seen and examined whether the accused no.3 namely, Smt.Raj Dhingra abated the accused nos.1 &2 for committing the theft of electricity. In the inspection report Ex.CW2/A (colly), the name of the registered consumer has been mentioned as Smt.Raj Dhingra who is the accused no.3. PW1 in his examination in chief deposed that the meter in question installed at the premises was in the name of Smt.Raj Dhingra. During cross examination, PW1 & PW2 deposed that Smt.Raj Dhingra was not present at the spot. PW1 & PW2 are not aware if Smt.Pushpa Sharma W/o H.S.Sharma was let out the premises on rent by Smt.Raj Dhingra. PW1 denied the suggestion that Smt.Raj Dhingra was not having any knowledge about the theft of electricity or the status of wires found by the inspection team at the spot. However, PW1 volunteered that they have booked the accused Smt. Raj Dhingra being the registered consumer of the meter in question. PW1 & PW3 also denied the suggestion that Smt.Raj Dhingra did not abate or aid the crime of theft of electricity in any manner. The accused no.3 namely, Smt.Raj Dhingra stated in her 21 statement u/sec. 313 Cr.P.C. that the meter is installed at the premises in question. She has not been residing at the premises and even she was not present at site on the date of inspection. Smt.Raj Dhingra who appeared as a witness/ DW1 deposed that she let out the premises in question to one Smt.Pushpa Sharma but does not remember the exact date of tenancy. However, DW1 proved rent agreement executed between DW1 and Smt.Pushpa Sharma as Ex.DW1/A and according to DW1, the premises in question was in the occupancy and Smt.Pushpa Sharma was using the electricity. DW1 further deposed that she used to receive the payment of rent through cheque.
24 During cross examination, DW1 deposed that since the time the meter was installed, she has regularly received the electricity bills. The payment of the bills are also made under her name but DW1 does not remember whether the cheque for payment of electricity is issued by her or by her tenants. DW1 further deposed that her tenants were using the premises in question for the purposes of cloth work. She personally never visited the premises to find out who were residing in the said premises and what activity was being carried out. DW1 does not know as to what was the tenure of the rent agreement filed on record as Ex.DW1/A. DW1 admitted that she has not got registered the said rent agreement. DW1 does not remember the names of the witnesses to the aforesaid rent agreement. DW1 also admitted that the inspection was carried out by the BSES officials regarding theft of electricity on the date mentioned in the complaint. However, again said by DW1 that she denies the knowledge of raid. DW1 has no knowledge whether her meter was running or not at the time of inspection. DW1 denied the suggestion that the meter was 22 bypassed and a theft of electricity was being committed at the time of inspection. DW1 also denied the suggestion that there has been dereliction of duty on her part to ensure that the meter in question was used for lawful purposes only. DW1 further denied the suggestion that the rent agreement had expired on the date of the raid. DW2 in his cross examination deposed that the tenant Smt.Pushpa Sharma is his mother and the landlady is Smt.Raj Dhingra. Meaning thereby, it is an admitted fact that the meter was installed in the name of Smt.Raj Dhingra being registered consumer. The premises in question was rented out to Smt.Pushpa Sharma who is the mother of Praveen Sharma/ accused no.2. The accused no.3 used to receive the rent from the accused nos.1 & 2 who were using the premises in question. The accused no.3 was well aware that the accused nos.1 & 2 were using the premises for industrial purposes.
25 It is the legal duty and responsibility of the registered consumer to check and protect the meter installed in his or her name and further to see that the electricity is used in proper manner. If the registered consumer fails to perform such legal duty cast upon him or her as per the provisions of law being the custodian of meter and left it for use of it by other persons in any manner then it shall be presumed that the registered consumer permitted the user of the meter to steal electricity and such omission of duty shall be considered that the registered consumer is abating the person committing direct theft of electricity. In this context, a reliance can be had upon the judgment reported in a case entitled as Hindustan Petroleum Corporation Ltd. Vs BSES Rajdhani Power Ltd. & Anr. 138 (2007) DLT 679, it was held by the Hon'ble High Court that 23 respondent no.2 was merely licensee of petitioner to sell petrol as dealer of petitioner to the petitioner is a principal agent selling petrol on petrol pump and petrol pump belongs to the petitioner. If adulterated petrol or less petrol sold to customers by tampering with pump meter or electricity stolen, it is the responsibility of the petitioner to do regular inspection and keep check on petrol pump. Petitioner cannot wash off its hands saying it has nothing to do with petrol pump once it gave license. Petitioner has not stated of taking any action against respondent no.2 when it discovered theft of electricity to the extent that meter was slow by more than 80%. That shows electricity stolen either with connivance of petitioner or consent of petitioner. Where, theft of electricity done at premises of principal agent by licensee and principal agent is keeping its eyes closed to theft or other similar things done by licensee, charge of abatement of offence prima facie made out. 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. Power U/sec. 482 Cr.P.C to be exercised sparingly and in rarest of rare cases, therefore, complaint not liable to be quashed. The facts & circumstances of the accused no.3 being the registered consumer are squarely covered in the case of Hindustan Petroleum Corporation Ltd. (Supra). Therefore, I hold that the accused no.3 was abating the accused nos.1 & 2 for committing direct theft of electricity at the premises in question on the date of inspection. Thus, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the complainant through its witnesses examined as PW1 to PW4 on the point of direct theft of electricity and abatement for direct theft of electricity. The prosecution has successfully proved its case against all the accused. In BSES Rajdhani Power Ltd. Vs 24 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.'' 26 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 r/w/sec. 150 of the Act. Thus, I convict the accused Subhash Sharma and Praveen Sharma u/sec. 135 and also accused Smt.Raj Dhingra u/sec. 150 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 29.03.2010 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
PATIALA HOUSE COURTS NEW DELHI
25
CC No. 329/07
29.03.2010
Present AR for the complainant
Sh. O.S.Soran, counsel for the accused nos.1 & 2 with
accused nos. 1 & 2 in person
Sh. Vinod Kumar, proxy counsel for
Sh .S.Satya Narayana, counsel for the accused no.3
with accused no.3 in person
Vide separate judgment of the day, the accused are
convicted u/sec. 135 r/w/sec. 150 of the Electricity Act, 2003.
On request, put up for arguments on point of sentence and determination of civil liability with the other connected matter on 03.04.2010.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 29.03.2010