Delhi District Court
Complainant vs Ram Khiladi ... on 18 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. 12/2012
ID No. 02405R0003922012
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
Ram Khiladi ......................... Accused
House no. 119,
Y Block, Talan General Store,
New Roshanpura Extension,
Near Pole no. NJFF555
Najafgarh, New Delhi.
Date of institution: ........................ 07.01.2012
Arguments heard on: ........................ 04.09.2013
Judgment passed on : ........................ 11.09.2013
Final Order: ........................ Convicted
CC No. 12/2012
Page 2 of 10
JUDGMENT:
1. The brief facts of the case are like this. On 04.08.2011 at 1.45 pm a joint inspection team headed by Sh.Saurav SharmaAsstt Manager (Enforcement) of the complainant company inspected the premises bearing No.119, Y Block, New Roshanpura Extension, Near Pole no. NJFF555, Najafgarh, New Delhi (hereinafter referred to as inspected premises). The accused is user of the inspected premises where no electricity meter was installed. The accused was indulging in the direct theft of electricity by tapping electricity from the pole of the complainant with the help of wires which were further connected to the inspected premises. A connected load of 5.909 KW and 1.444 KW was found for domestic and nondomestic purposes. The photographs of direct theft of electricity from the pole were taken by Sh Vicky but the photographs of running load are not taken due to resistance created by the consumer. The wires were removed and taken into possession. Inspection report, meter details report, load report and seizure memo 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 was summoned for the offence U/s 135 of CC No. 12/2012 Page 3 of 10 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 to which he pleaded not guilty and claimed trial.
3. The complainant examined four witnesses. Complainant evidence was closed. Accused was examined U/s 313 Cr.P.C wherein he has taken the defence that no inspection was carried out. There is one electricity meter in the shop. There was no theft of electricity. However, no defence evidence has been led.
4. PW1 Saurav Sharma stated that on 04.08.2011 he along with other officials of the complainant and Vickyphotographer from M/s Arora Photo Studio has inspected the inspected premises being used by the accused. The accused was present at the time of inspection who is duly identified by him. There was no electricity meter at site. The accused was indulging in direct theft of electricity from pole no. NJFF555. A connected load of 5.909 KW and 1.444 KW for domestic and non domestic purposes was found at the spot. The video of the premises was taken by Vicky. CD Ex.CW1/E was prepared. He has identified the contents of CD as same were recorded at the spot. The black colour two core aluminum wire Ex.P1 was CC No. 12/2012 Page 4 of 10 removed and taken into possession vide separate seizure memo, the carbon copy of which is Ex.P2. Inspection report, meter details report, load report and seizure memo Ex.CW1/AD were prepared and offered to the accused who refused to receive and sign the same.
5. During cross examination, he stated that black colour two core aluminum wire measuring about 3.5 metre in length was seized. There was a connected load of 5.909 KW for domestic and 1.444 KW for non domestic purposes.
6. PW2 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 complainant.
7. PW3 Manoj Kumar has corroborated the version of PW1 in his examination in chief and stated in the cross examination that wire going to the premises in question from the pole was removed. The complete wire was not removed. It is correct that proper video of the spot was not taken. They went inside the premises but accused did not allow them to note down the appliances. The load is recorded on the basis of standardized pattern. The suggestion is denied that there was no domestic or commercial use. The suggestion CC No. 12/2012 Page 5 of 10 is denied that load report has been prepared arbitrarily on the higher side.
8. PW4 Vicky is a videographer. He stated that on 04.08.2011 he has accompanied the officials of the complainant to the inspected premises where video was taken as per the directions of raiding team members. He has handed over the camera and cassette in Arora Photo Studio where Mr. Vivek Arora downloaded the data in the computer in his presence and prepared the CD Ex.CW1/E. He has identified the contents of CD which were recorded at site at the time of inspection.
9. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for committing theft of electricity in the inspected premises.
10. The complainant has examined four witnesses in order to prove its case. The testimony of PW1 and 3 is material in nature as both of them are members of joint inspection team. Their testimony clearly shows that on 04.08.2011 at 1.45 p.m they were the members of joint inspection team. They have carried out an inspection in the CC No. 12/2012 Page 6 of 10 inspected premises. Their testimony to this effect has gone unrebutted meaning thereby that factum of inspection and their presence stand admitted.
11. Their testimony further shows that accused is user of the inspected premises. The accused has also admitted in his statement u/s 313 Cr.PC that he is user of the inspected premises. It is clear from the evidence on record that accused is user of the inspected premises.
12. Their testimony further shows that there was no electricity meter at site. The accused was indulging in direct theft of electricity by tapping electricity from pole no. NJFF555. Their testimony to this effect has also gone unrebutted meaning thereby that this part of their testimony has been admitted by the accused. The accused has taken the defence in his statement u/s 313 Cr.PC that one electricity meter is installed in the shop and there was no theft of electricity. The defence is without any merits. The accused has not disclosed the meter number or K number. The accused has not placed any paid electricity bills on record to show that he was consuming electricity through meter. There is nothing on record that there was any alternative arrangement with the accused for the supply of electricity in the inspected premises. The defence is taken just for the sake of defence CC No. 12/2012 Page 7 of 10 otherwise it is devoid of merits. The only means to use the electricity for the inspected premises is to tap the same from the pole no. NJFF555 of the complainant. It is clear that accused was indulging in the direct theft of electricity for the inspected premises.
13. Ld counsel for the accused submitted that load of the appliances was recorded arbitrarily without seeing the appliances. Ld counsel for the complainant urged to the contrary. Heard and perused the record. The appliances found at the spot were recorded in the load report Ex.CW1/C. The load of each appliance is shown against the appliances in the load report. The cross examination of PW3 shows that load is recorded on the basis of standardized pattern. The load of appliances like iron (.750 KW), refrigerator (.180 KW), split AC (2.950 KW), room cooler (.180 KW), 3 ceiling fans (.180 KW), TV (. 110 KW) and submersible pump (1.119 KW) etc. is shown in the load report. The load of these appliances is recorded on the basis of standardized rating. There is no evidence on the record from the accused that standardized rating of these appliances is lower than what is recorded in the load report. The load on the basis of standardized rating has been correctly recorded. There is nothing on record that a particular appliance was not found at the time of CC No. 12/2012 Page 8 of 10 inspection. To my mind, the load report has been correctly prepared and there is nothing to view it with the aid of spectacle.
14. A part of wires Ex.P1 used to tap the electricity by the accused was removed and taken into possession. The non seizure of complete wire used to tap the electricity does not affect the case of the complainant because the court is concerned whether wire was used to tap the electricity or not. The part of the wire Ex.P1 used to tap the electricity from the pole of the complainant is seized. The complainant has produced the means through which electricity was tapped.
15. The testimony of PW1 and 3 shows that inspected premises was used for domestic as well as non domestic purposes. Their testimony that inspected premises was also used for non domestic purposes does not inspire confidence. The nature of non domestic activity is not reflected at page 3 of the inspection report Ex.CW1/A. The omission to incorporate the kind of non domestic activity at page 3 of inspection report amounts to contradiction which goes to the root of the case of the complainant. Moreover, the kind of non domestic activity is not deposed by PW1 and 3 during the course of their examination. It is the duty of the complainant to bring on CC No. 12/2012 Page 9 of 10 record the nature of non domestic activity. The complainant has failed to bring any evidence on record about the kind of non domestic activity. To my mind, the entire connected load was for the residential purposes.
16. Ld counsel for the accused contended that no reliance can be placed on the CD Ex.CW1/E as it 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. CW1/E on record in order to show that it pertains to inspected premises. PW4 has taken the video but he has not prepared the CD. The person who has downloaded the data in the computer from the cassette 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. The original cassette is not placed on record. 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 testimony of PW1 and 3 is consistent on the material CC No. 12/2012 Page 10 of 10 aspects of the case. The witnesses have no axe to grind against the accused so the question of false implication does not arise at all. Mere nonassociation of public persons is of no infirmity in the case. The testimony of PWs is cogent, convincing and trustworthy so the same is relied upon.
18. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused beyond shadow of reasonable doubt. Hence, accused is held guilty U/s 135 Electricity Act, 2003 and convicted. Let the file to come up for arguments on quantum of sentence on 17.09.2013. Announced in the open Court on dated 11.09.2013 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 12/2012 Page 1 of 4 IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTRICT COURT DWARKA, NEW DELHI CC No. 12/2012 ID No. 02405R0003922012 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 Ram Khiladi ......................... Convict ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that convict was indulging in direct theft of electricity. He further submitted that convict is a habitual offender as another case bearing CC no.349/12 u/s 135 Electricity Act, 2003 is pending disposal against the convict CC No. 12/2012 Page 2 of 4 which is listed for hearing on 14.10.2013. He further submitted that convict was also found committing electricity theft during two other inspections regarding which complaints have not been filed in the court so far. He further submitted that such kind of convict should not be shown any kind of leniency.
2. Ld counsel for the convict submitted that convict is 56 years old who is having four school going children. He further submitted that convict is unemployed. He further submitted that there is nothing on record that he has been convicted in any other case of same nature. He further submitted that entire family is dependent upon convict so a lenient view be taken in his favour.
3. Heard and perused the record. There is nothing on the record that convict has been previously convicted for the same offence. The criminal complaint for the same offence is pending disposal in this court but that by itself is not sufficient to prove the allegations against him. The convict has family to support including children and any substantive sentence will affect his family. The load is less than 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. 1,11,194/ by considering the fact that CC No. 12/2012 Page 3 of 4 inspected premises is used for domestic and non domestic purposes.
The convict has been held guilty for offence u/s 135 of the Electricity Act,2003 and the entire load of 7.353 KW was found for domestic purposes. Ld counsel for the complainant submitted that the revised bill for the load of 7.353 KW/DX is of 74,500/. In view of the entire facts, I am of the view that interest of justice shall be met if a lenient view is taken. Hence, convict is sentenced to pay fine of Rs. 1,15,000/ and in default of payment of fine to undergo simple imprisonment for five months. The civil liability shall be paid out of the fine, if realized.
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.
5. The convict has been held guilty U/s 135 of the Act. The bill was raised for a sum of Rs. 1,11,194/ by considering the fact that inspected premises is used for domestic and non domestic purposes.
The convict has been held guilty for offence u/s 135 of the Electricity CC No. 12/2012 Page 4 of 4 Act,2003 and the entire load of 7.353 KW was found for domestic purposes. Ld counsel for the complainant submitted that the revised bill for the load of 7.353 KW/DX is of 74,500/. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs.74,500/ which shall be payable with simple interest at the rate of 7% per annum from the due date of bill till its realization. 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 18.09.2013 (Suresh Kumar Gupta) ASJ: Special Electricity Court Dwarka: New Delhi CC No. 12/2012