Delhi District Court
Bses vs . Amar Singh & Anr., Cc No. 68/12 Page No. 1 ... on 18 March, 2015
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IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 68/12
Police Station : Jaitpur, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02403 RO080592012
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1. Shri Amar Singh (User )
S/o Shri Sunder Singh
2. Shri Baldev (User)
S/o Shri Amar Singh
Both are R/o House no. A87, Ground Floor,
Peer Baba Basti, Santosh Colony,
Jaitpur, New Delhi.
(Also at: House No. 144,
Jaitpur Village, New Delhi.)
...Accused
Appearances AR with Sh. Rajesh Kumar, counsel for
complainant
Accused Amar Singh and Baldev are present
on bail along with Sh. N.K. Naagar, Advocate
BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 1 of 14
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Complaint instituted on : 29.02.2012
Judgment reserved on : 09.03.2015
Judgment pronounced on : 18.03.2015
JUDGMENT
1. The case of the complainant in brief is that on 20.10.2011, the officers of the complainant company namely, Shri Vishal Prabhakar, Shri Sameer Suhu and Shri Krishan Kumar, conducted inspection at the premises i.e. A87, Ground Floor, Peer Baba Basti, Santosh Colony, Jaitpur, New Delhi and that inspection team found that no meter was installed at the site and accused were using the electric supply directly by tapping directly from BSES distribution box by using illegal wires for domestic as well as nondomestic purpose. It is further mentioned in the complaint that inspection team prepared the inspection report and diagram of manner of theft, load report at site and necessary videography was also done at the site. It is further mentioned in the complaint that inspection team assessed the total connected load of the premises and same was found to be 9.950 KWs for domestic purpose as well as non domestic purpose.
BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 2 of 14 3
2. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per DERC Regulations and tariff order was raised by the complainant for Rs.2,38,339/ with due date as 09.11.2011 and same was served upon the accused but they failed to pay the said theft bill.
3. The accused were summoned to face the trial U/sec. 135 Electricity Act by my ld. Predecessor vide order dt. 09.05.2012 and accordingly, notices U/sec. 251 Cr.P.C. were framed against both the accused to which, they pleaded not guilty and claimed trial.
4. The complainant, in order to prove its case, examined four witnesses, out of which, PW2 was the formal witness and the AR of the complainant, who proved the complaint Ex.CW1/1 and his power of attorney as Ex.CW1/2. PW3 was the videographer who proved the videography contained in the CD as Ex.CW2/3. PW4 was from the Finance Department of the complainant company, who prepared the theft bill which is Ex.CW2/5. BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 3 of 14 4
5. PW1 Shri Vishal Prabhakar was the member of raid party who deposed that on 20.10.2011 at around 12.45 p.m., he along with Shri Sameer Sonu, Shri Krishan Kumar and Shri Inderjeet visited and inspected the premises i.e. house number A87, Ground Floor, Peer Baba Basti, Santosh Colony, Jaitpur, New Delhi and that on reaching the said premises, they found that there was no electricity meter installed in the said premises. PW1 further deposed that the said premises was being used by Amar Singh and Baldev at the time of inspection and that the accused persons were committing direct theft of electricity by directly tapping from distribution box situated on BSES pole number SVRN 593 with the help of illegal wire i.e, black colour two core aluminium wire, which was further connected to connected load of premises for commercial as well as domestic purposes. PW1 further deposed that they assessed the connected load of the three shops and domestic loads and same was found to be approximately 10 KW for domestic as well as commercial purposes. PW1 further proved the inspection report including meter details, load report and seizure memo as Ex. CW2/1, CW2/2 and Ex. CW2/4 and he deposed that they offered the same to the persons present at the spot to sign and BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 4 of 14 5 receive but they refused the same. PW1 also identified the the videography of inspection and connected load as contained in the CD Ex. CW2/3. PW1 further proved the said seized wire as Ex. P2.
6. In his cross examination on behalf of both the accused, PW1 answered that there was an information regarding theft of electricity in the premises in question from their Vigilance Department. PW1 admitted it as correct that the copy of complaint of the Vigilance Department in writing was not on the judicial file. PW1 volunteered that in the videography, one document was being shown of the address. PW1 further admitted it as correct that the accused persons were not depicted in the CD. PW1 did not remember as to whether address of the premises was mentioned on the paper shown in the videography. PW1 answered that the distance between the pole and premises in question was approximately 30 meters and that they removed and seized the said illegal wire in length approximately 2024 meters. PW1 further answered that there was no resistance and that there was no identification mark on the seized wire. BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 5 of 14 6
7. The statements of both the accused were recorded u/s. 313 Cr.P.C. and both the accused denied the evidence as false and answered that they were not committing any direct theft of electricity at the premises in question on the date of inspection and that they had applied for two fresh connections on 24.05.2011 vide application no. 1000598603 in the name of Amar Singh at E87, Ground Floor, Peer Baba Basti, Santosh Colony, Jaitpur, Badarpur, New Delhi. Both the accused opted to lead defence evidence and produced DW1 in their defence.
8. DW1 Mohd. Afeer Asee was the official of the complainant company and was summoned on behalf of the accused, who brought the summoned record pertaining to case of accused Amar Singh i.e. computer generated electricity bill in the name of Shri Amar Singh, meter no. 24429790 with due date as 26.08.2014, payment details from 19.01.2012 to 27.08.2014, customer interaction report, meter reading for the period 03.02.2012 to 06.08.2014, inspection report for new connection, which are Ex. DW1/A, Ex. DW1/B, Ex. DW1/C, Ex. DW1/D and Ex. DW1/E, respectively. He also brought the summoned record pertaining to Sher Singh i.e. computer generated electricity bill in the name of Shri Sher Singh, meter no. 24428609 with due date as BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 6 of 14 7 26.08.2014, payment details from 27.01.2012 to 27.08.2014, customer interaction report, meter reading for the period 08.02.2012 to 05.08.2014, inspection report for new connection and commercial feasibility report, which are Ex. DW1/F, Ex. DW1/G, Ex. DW1/H, Ex. DW1/J, Ex. DW1/K and Ex. DW1/L, respectively. In his further examination in chief, he brought the summoned record pertaining to accused Amar Singh, i.e. computer generated copy of rejection letter, demand note, payment details of demand note and field service request execution job slip, which are Ex. DW1/M, Ex. DW1/N, Ex. DW1/O and Ex. DW1/P, respectively. DW1 brought the summoned record pertaining to the case of accused Sher Singh i.e. computer generated copy of demand note, payment details of demand note, field service request execution job slip, which are Ex. DW1/Q, Ex. DW1/R and Ex. DW1/S, respectively.
9. In his cross examination on behalf of the complainant, he deposed that he deposed on the basis of documents provided and that he had no personal knowledge of the case.
10. I have heard the counsel for the complainant Shri Rajesh Kumar, Advocate and counsel for the accused, Shri N.K. Naagar, BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 7 of 14 8 Advocate. I have also perused the written arguments submitted on behalf of the accused, record including the CD of videograpy displayed on the computer screen of the court.
11. From the said deposition of the PW1, it has been established on the record corroborated by said documentary evidence on the record that on 20.10.2011, a direct theft of electricity was being committed by the accused in the said premises in question and the accused failed to show in the cross examination of the said PW1 that he was having any axe to grind against the accused or he was having any motive to depose falsely. Moreover, even a suggestion was not thrown to any of the said witnesses that accused have applied for a fresh meter to be installed in the premises in question. Even the suggestion that the accused were not present at the premises at the relevant time or that they were not the users of the premises or were having no connection with the same, was not given to PW1. The artificial means i.e. the shunt wire with the help of which the theft was being committed, Ex. P2, has also been seized in the present case and merely on the ground that there was no identification mark on the same, the case of the complainant cannot be thrown away on this account.
BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 8 of 14 9
12. In view of my said discussion, I am of considered opinion that the presumption against the accused has arisen as provided under proviso 3rd of the section 135 of the Electricity Act, 2003, which is required to be rebutted by the accused.
13. The law laid down with regard to the extent of rebuttal of the said presumption by the accused in case titled as Hiten P. Dalal Vs Bratindranath Banerjee cited as 2001 (6) SCC 16 in para 20 is as follows:
".....Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
14. Judging in the light of the said law laid down by the Hon'ble Supreme Court, let me turn to the defence of the accused in the present case.
15. The defence taken by the accused in their statements u/s.
313 Cr.P.C. is that they applied for two fresh connections on 24.05.2011 vide application no. 1000598603 in the name of BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 9 of 14 10 accused Amar Singh at premises no. A87, Ground Floor, Peer Baba Basti, Santosh Colony, Jaitpur, Badarpur, New Delhi, which was never installed by the complainant company and the accused have produced DW1, an official from the complainant company to prove the record as mentioned above in the deposition of DW1.
16. Let me examine the documents with regard to alleged new connection for the electricity applied by the accused.
17. The document Ex. DW1/E, which is an inspection report for new connection mentions the request number as 8000031915 dated 02.05.2011 and not the said application number as given by the accused mentioned above. It has been argued on behalf of the accused that one engineer namely Sharat Gautam inspected the premises on 20.05.2011 and he found the feasibility to install the meter as OK . The said argument is not supported by the document Ex. DW1/E, wherein in para D given below in the document, it is mentioned "OSM approval required", which go to show that it was not a green signal given to the accused for installation of the new meter.
BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 10 of 14 11
18. The said request of the accused was rejected by the complainant company vide Ex. DW1/M, in which application number is mentioned as 1000598603 (as given by the accused above) on the ground that system was overloaded as per O&M and the accused were directed to complete the commercial formalities after visiting the office within seven days from the receipt of the said letter Ex. DW1/M.
19. There is yet another document Ex. DW1/N, which is a demand note for new connection in which application number is 1000598603 and date of application is mentioned as 24.05.2011, but there is no document to support that against the said application number 1000598603 any meter was ultimately installed because in the document Ex. DW1/P, the application number is 1001965850, whereby allegedly a new meter was installed.
20. There is one Field Service Request Execution Job Slip Ex.
DW1/P, whereby the new meter was installed at the said premises but date of application for the same is mentioned as 25.01.2012 and order finish date is mentioned as 06.02.2012 and BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 11 of 14 12 application number for the said meter is mentioned as 1001965850.
21. On the basis of the said documents it has been vehemently argued on behalf of the accused that non supply of the meter is against Regulation 16 of DERC, 2007 and also against section 43 of the Electricity Act, 2003, which provides that if the licensee company failed to supply the meter or reject the request of the same within the prescribed time, then the complainant company is liable to pay a fine of Rs. 1000/ per day on each day's default.
22. If I take that date of application for alleged fresh connection was 02.05.2011, as per document Ex. DW1/M, it was rejected vide Ex. DW1/M on 25.05.2011 which is the print date of the said rejection letter, which means the request was rejected within the time.
23. Even if I assume for the sake of argument that the request was neither rejected nor accepted within the prescribed time, the forum to punish the complainant company for the said act, has been separately provided under the Electricity Act, 2003 and this court cannot take cognizance of the same and as such, section 43 BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 12 of 14 13 of the Electricity Act is not attracted so far as this case is concerned for the reason that the small issue before this court is that as to whether on date of inspection i.e. 20.10.2011, the theft of electricity was being committed in the premises in question or not.
24. Mere applying for a new connection for electricity does not entitle a person to use the electricity without the meter being installed. The accused have miserably failed to show from a prudent man's test that on 20.10.2011, the date of inspection, there was a duly installed electric connection and they were consuming the electricity through the validly installed meter.
25. Hence, the above said contentions, raised on behalf of the accused hold not much water and same are hereby rejected.
26. The remaining arguments that despite feasibility report to install a meter being positive, the complainant company failed to install the meter or that there was a misrepresentation of the fact that system was overloaded or that even till today there are five connections already given from the concerned pole no. 595 or that 1250 connections may be given from one transformer for BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 13 of 14 14 use of electricity for domestic purpose or that the premises was being used by the tenants, are nothing but shooting the arrow in the dark because the said contentions have not been supported or proved by the accused by way of evidence on the record nor were put to the PW1 in his cross examination.
27. In view of my said discussion, I am of considered opinion that complainant has been successful in bringing home the guilt of the accused beyond reasonable doubt and the accused are hereby convicted and held guilty for the offence punishable u/s. 135 of the Electricity Act, 2003. Their PB and SB, if any, are cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 18.03.2015 ADDITIONAL SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Amar Singh & Anr., CC No. 68/12 Page no. 14 of 14