Delhi District Court
State vs . on 21 November, 2014
1
IN THE COURT OF DR. SHAHABUDDIN : ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, EAST
DISTT., KARKARDOOMA COURTS, DELHI
FIR NO. 376/07
S.C. NO. 49/13
P.S. KALYANPURI, DELHI
U/S 135 OF THE ELECTRICITY ACT, 2003
I.D. NO. 02402R0873152008
STATE
(THROUGH: M/S B.S.E.S. YAMUNA POWER LIMITED)
VS.
MUKESH KUMAR,
S/O SH. SHYAM LAL,
PRESENTLY R/O E2, ROAD NO. 6,
GAZIPUR DAIRY FARM,
DELHI. .......ACCUSED
DATE OF INSTITUTION OF THE CASE :02.05.2008
DATE ON WHICH JUDGMENT WAS RESERVED :13.11.2014
DATE OF PASSING OF JUDGMENT :21.11.2014
JUDGMENT
1. A criminal complaint dated 30.05.2007 was filed against FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 1 of 27 2 accused Mahesh Kumar by Sh. Bhupinder Singh, Manager (EnforcementI)/ Authorized Officer of BSES YPL company (in short to be called as complainant company hereinafter) for the offence punishable u/s 135 of the Electricity Act, 2003 (in short called as Act hereinafter). This complaint was addressed to the SHO Police Station (in short PS) Kalyan Puri, Delhi.
2. The main allegations made in this complaint were to the effect, inter alia, that on 21.12.2006, at about 05.40 a.m., an inspection was carried out by the joint inspecting team members of the complainant company comprising of Sh. Rajbeer Singh (Assistant Manager), Sh. Rakesh Kumar (Assistant Manager), Sh. KhaliliurRehman (Diploma Engineer Trainee), Sh. Vinay Chauhan (Diploma Engineer Trainee) and Sh. Bishnu (Lineman) respectively, at the premises bearing H.No. E5, Near BSES Pole No. GD170, Gajipur Dairy Farm, Delhi (in short called as inspected premises); that during course of inspection, an electricity connection vide K.No. 1240Q4170019, having the meter no. 23379751 was found installed at the said premises; that the accused/user was found indulging in direct theft of electricity from BSES LTMP Line, PoleNo. GD170 through FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 2 of 27 3 illegal wires; that the entire load of the premises was running through illegal tapping done by the accused; that such supply was being used for industrial purposes; that the videography of tapping and connected load had been done at the site by the inspection team; that from the spot, one electronic meter no. 23379751, two black colour aluminum service cable of 2x10 mm sq. and black colour aluminum wire of 2x10 mm sq., were seized in the presence of Sh. S.K.Gajbhiye, Manager (Enforcement); that during the course of inspection, the total connected load, which was illegally used by accused, was assessed to the extent of 16.878 Kilo Watt (in short KW) for industrial purposes; that during the course of inspection, the inspection report, load report and seizure memo, were prepared at the site on the basis of factual position and that contents of the same are correct; that a representation of accused refused to sign inspection report, load report and seizure memo when tendered to him, that the site plan / electrical diagram was also prepared at site; that during the inspection, the accused side was found stealing the electricity to the extent of approximately Rs. 15,96,012/ (rupees fifteen lakhs, ninety six thousand and FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 3 of 27 4 twelve), as per record, for which demand of payment was made by the complainant company but accused did not make any payment of such theft bill to the complainant company. In the end, a prayer was made in this complaint for registration of an FIR against the accused Mukesh Kumar for the offence punishable u/s 135 of the Act.
3. On the basis of the above mentioned complaint, an FIR no. 376/2007 was registered against the accused on 31.05.2007 at P.S. Kalyanpuri, Delhi. After completion of the entire investigation, a charge sheet was filed before this court on 02.05.2008 against the accused Mukesh Kumar u/s 173 Cr.P.C. for the offence punishable u/s 135 of the Act.
4. Copies of charge sheet and documents relied upon were supplied to the accused which were told to be complete.
5. A notice of accusation, as per provisions of Section 251 of Cr.P.C., was given to the accused on 04.12.2009 for the offence punishable under Section 135 of the Act to which he pleaded not guilty and claimed trial.
6. In support of its case, the prosecution side has examined nine witnesses namely PW1 ASI Shailendra Singh, PW2 Sh. FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 4 of 27 5 Rakesh Kumar (Deputy General Manager), PW3 Sh. R.V.Singh (Senior Manager), PW4 Sh. S.K.Gajbhiye (Assistant Vice President), PW5 Sh. Vivek Arora (Proprietor of Arora Photo Studio), PW6 Sh. Bhupender Singh (General Manager), PW7 Sh. Manish Kumar Singh (Assistant Manager), PW8 Sh. Jitender Shankar (Authorised representative of BSES YPL) and PW9 HC Rajesh Kumar respectively and thereafter, remaining prosecution evidence was closed.
7. After closing of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. explaining all the incriminating evidence against him on record which he denied as false and incorrect and wanted to lead defence evidence (in short D/E). Accused has examined one witness namely Sh. Ram Ashrey as DW1 in his defence. Thereafter, D/E on behalf of the accused was closed vide order of this court dated 20.09.2013 and more particularly in view of oral submissions of accused and hid ld. counsel, made before this court on 20.09.2013, to the effect that remaining D/E of accused may be closed in this case by giving liberty to the accused to file certified copies of certain records before this court, in FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 5 of 27 6 compliance to previous order of this court dated 17.08.2013. A further order was made by Hon'ble Delhi High Court on 16.04.2014, passed in Criminal Revision Petition no. 670/2013, vide which the Hon'ble Delhi High Court allowed the accused side to obtain certified copies of certain records from electricity department and for filing the same before this court and which was to be taken into consideration by this court at the time of final disposal of this case on merits. However, an oral submission was made by ld. Defence counsel before this court on 26.07.2014 to the effect that accused did not apply to BSES YPL company for obtaining certified copies of the relevant records reportedly due to the reason that electricity bills pertaining to such records were already on judicial file and already got exhibited on record. Hence, this clarification at this stage qua above mentioned records of which certified copies were sought to be produced on record by the accused side, as mentioned above.
8. I have heard oral final arguments in this case from both sides.
9. The main submissions made, during course of oral final FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 6 of 27 7 arguments, on behalf of the prosecution side, were, interalia, to the effect that the accused herein was found indulging in direct theft of electricity at the relevant time by using the electricity directly from BSES LTMP Line through illegal wires, without any authority in this regard; that accused herein had not taken any permission from the complainant company for using electricity in such a way; that due to huge illegal theft of electricity committed by the accused herein, for industrial purposes, the complainant company suffered huge monetary losses; that all the relevant papers like inspection report, load report, meter detailed report, seizure memo etc. were prepared at the spot in the presence of a representative of the accused (as the accused himself was not found available at the spot at the time of inspection) but he refused to sign the same deliberately; that ultimately, an assessment theft bill to the extent of Rs. 15,96,012/ ( rupees fifteen lakhs, ninety six thousand and twelve), with due date of payment as 04.01.2007, as per record, was sent to the accused but he deliberately failed to pay any amount out of it to the complainant company; that all the necessary formalities like conducting of inspection, preparation FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 7 of 27 8 of inspection report, load report, meter detailed report, seizure memo etc. were done by the team of complainant company at the spot as per rules; that copies of all the documents prepared at the spot, were tendered to the representative of the accused but he neither accepted the same at the spot nor signed the same deliberately for the reasons best known to him; that all the material witnesses have been examined in this case by the prosecution side and that prosecution side has duly proved the case against the accused herein beyond reasonable doubt for offence punishable u/s 135 of the Act, by way of cogent evidence, both oral as well as documentary; that accused is liable to be convicted as per law for the offence punishable u/s 135 of the Act; that accused is also liable for civil liability as per provisions of Section 154 (5) of the Act. In the end, a prayer was made for convicting the accused strictly as per law for the offence punishable u/s 135 of the Act as well as for making him liable for civil liability as per provisions of Section 154 (5) of the Act.
10. On the other hand, the main submissions made by ld.
defence counsel, on behalf of the accused, during course of oral FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 8 of 27 9 final arguments, were, interalia, to the effect that no inspection was carried out at the premises in question, as alleged; that no documents like inspection report, load report, seizure memo etc. were prepared at the spot in the presence of representative of the accused, as alleged by the prosecution side, but rather the same were prepared subsequently in the office of BSES YPL company; that prosecution witnesses examined in this case have given contradictory statements and have not proved the case against the accused for any offence beyond reasonable doubt; that neither the accused nor any of his representative was present at the spot at the time of alleged raid conducted in this matter and that due to this reason, neither the accused nor his representative has been shown in the videography allegedly prepared at the spot; that there was no question of refusing, on part of alleged representative of the accused, to sign alleged documents allegedly prepared at the spot; that there is no clear proof of direct theft being committed by the accused in this matter; that alleged entire electricity wire, allegedly used for committing direct theft of electricity in this case, was not seized by the inspecting team members at the time of alleged FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 9 of 27 10 inspection; that no independent and reliable persons of the locality were joined as witnesses during alleged inspection despite the fact that the alleged inspected premises was surrounded by thickly populated area; that proper opportunity of hearing was not given to the accused, as per provisions of section 126 of the Act, before raising the alleged theft bill against the accused; that accused did not commit any theft of electricity in this matter. In the end, a prayer was made for acquittal of the accused for the offence u/s 135 of the Act as well as for discharging him from civil liability as per provision of Section 154(5) of the Act.
11. I have perused the entire judicial file minutely, in view of the above mentioned rival submissions made from both sides.
12. I have to see now as to whether the prosecution side has been successful or not to prove the guilt of the accused in this case beyond reasonable doubt for the offence punishable u/s 135 of the Act.
13. Before proceeding further, I refer to relevant provisions of section 135 of the Act. It provides, interalia, to the effect that whoever, dishonestly taps, makes or causes to be made any FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 10 of 27 11 connection with overhead, underground or underwater lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be, so as to abstract or consume or use electricity, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
14. Now turning to the prosecution evidence on record, PW1 ASI Sh. Shailendra Singh deposed to the effect that he was posted as duty officer at P.S. Kalyanpuri, Delhi, on 31.05.2007 and on the basis of rukka, received by him from HC Sh. Rajesh, he recorded FIR no. 376/07 in this case at P.S. Kalyanpuri, Delhi, of which copy is on record as Ex. PW1/A and that he also made endorsement on original rukka to this effect and such endorsement is Ex. PW1/B on record. This witness was not crossexamined at all by and on behalf of the accused despite opportunity given and hence his entire testimony remains completely unrebutted and unchallenged from the side of the accused.
15. The next prosecution witness examined in this case is PW2 Sh. Rakesh Kumar. He deposed in his examination in chief, mainly to the effect that on 21.12.2006, at about 05.40 FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 11 of 27 12 a.m., he, alongwith Sh. Vinay Chauhan, Sh. K.U.Rahman, Sh. Rajveer Singh, Sh. Vishnu, Sh. Pawan, from M/s Arora Photo Studio, CISF and local police, respectively, went to the inspected premises i.e. premises bearing H.No. E5, Near BSES LT Pole No. GD170, Gazipur Dairy Farm, Delhi; that during the course of inspection, it was found that accused Mukesh Kumar was stealing the electricity directly from LV overhead; that the connected load was found to the extent of 16.878 KW; that the videography was done by Sh. Pawan from M/s Arora Photo Studio to show the exact position of direct theft as well as connected load at the inspected premises; that inspection report bearing no. 7868 and running into three pages was prepared at the spot and the same is Ex. PW2/1(collectively), bearing his signature at PointA and that it has been signed by other inspecting team members also; that load report running into four pages, Ex. PW2/2(collectively), was also prepared at the site by the member of joint inspection team; that meter report Ex. PW2/3 was also prepared at the site by the member of joint inspection team; that the seizure memo Ex. PW2/4 was prepared by Sh. S.K.Gajbhiye, the then Manager Enforcement, FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 12 of 27 13 who was authorized to inspect and seize the case property; that during course of inspection, representative of accused was present at the spot and all the reports prepared at the spot were tendered to him but he refused to accept the same deliberately and hence remarks have been made to this effect on such documents; that the CD of videography is Ex. PW2/5 and it was prepared by team of EnforcementII; that the case property was sealed with the seal of Rakesh A.M.Enf. This witness also correctly identified the case property items when produced before him during his evidence and proved the same i.e. two core black colour wire having size 2x10 mm sq. and single phase meter bearing no. 23379751 on record as Ex. P2. He further deposed that carbon copy of seizure memo was Ex. P1.
16. This witness was crossexamined at length on behalf of the accused. During his crossexamination, various questions were asked from him and mainly on the points as regards other premises also being inspected by this witness in that area; as regards details of those premises; as regards joining of raiding parties by this witness during his posting in Enforcement Team; as regards his proceeding to the spot alongwith other team FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 13 of 27 14 members; as regards vehicle used for inspection; as regards distance of the alleged LV Mains Line of the complainant company upto the inspected premises; as regards removing of illegal wire by the lineman concerned; as regards functioning or not functioning of the machines at the time of inspection; as regards rooms in the inspected premises at the time of inspection; as regards possibility of theft of electricity by the wire allegedly used by the accused; as regards his deposing falsely in this matter.
17. On the careful perusal of entire examination in chief and cross examination of this witness, coupled with the various questions asked from this witness in his crossexamination, as mentioned above, I am of the considered view that this witness was not shaken at all on the material points deposed by him in his examination in chief and more particularly as regards his taking part in the inspection conducted in this matter and as regards taking various steps by this witness during the course of inspection. In other words, in the considered opinion of this court, this witness has been successful to prove on record, by cogent evidence, both oral as well as documentary, beyond FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 14 of 27 15 reasonable doubt, regarding the steps taken by him in this case against the accused, pertaining to the commission of direct theft of electricity by the accused in this matter, by way of illegal means.
18. The next witness is PW3 Sh. R.V. Singh. He deposed in his examination in chief, interalia, to the effect that on 21.12.2006, at about 5.45 a.m., he, alongwith Sh. Rakesh Kumar, Sh. Vinay Chauhan and Sh. Khaili ul Rehman respectively, visited the inspected premises; that they found that one single phase electronic meter was installed there but its outgoing were disconnected; that the electricity was being used illegally by connecting illegal wire from the BSES LV Mains, which was feeding the industrial load at the first floor of the inspected premises alongwith the milk dairy at the ground floor of the inspected premises; that at the first floor, the industrial work of washing of jeans was going on. He further deposed about various other steps taken by him and other inspecting team members at the spot at the time of inspection. This witness also proved on record various documents prepared at the site i.e. inspection report already Ex. PW2/1, load report already Ex. FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 15 of 27 16 PW2/2, meter details report already Ex. PW2/3 and seizure memo already Ex. PW2/4 respectively. This witness further deposed that the photographer Pawan from M/s Arora Photo Studio conducted videography at the site and proved its CD as already Ex. PW2/5. This witness also correctly identified the case property when produced before him and proved the same on record as already Ex. P2.
19. This witness was also crossexamined at length on behalf of the accused. To my considered view, almost similar type of questions were asked from him, during his crossexamination, as so asked in the crossexamination of PW2.
20. On the basis of entire examination in chief and cross examination of this witness, coupled with various questions asked from him in his crossexamination, I am of the considered view that this witness was also not shaken on the material points deposed by him in his examination in chief and more particularly on the points pertaining to his taking various steps in this matter at the time of inspection, in the company of other team members.
21. The next witness is PW4 Sh. S.K.Gajbhiye. In his FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 16 of 27 17 examination in chief, he deposed, inter alia, to the effect that on 21.12.2006, there was a mass raid in the morning hours; that at about 5.40 a.m., in the area of Gajipur Dairy Farm, he was supervising 2/3 inspection teams, including that of Mr. Rajbir Singh - A.M. and Sh. Rakesh Kumar - A.M., Sh. Vinay Kumar
- DET, Sh. Khaliul Rehman - DET and Sh. Vishnu - Lineman respectively; that mass raid was conducted with the help of CISF and local police; that the inspecting team had detected direct theft at inspected premises during the mass raid; that the videography was conducted in this matter at the spot; that on his instructions, the lineman removed the electricity meter, service cable and illegal wire of black colour of length five meter and the said material was seized by him vide seizure memo already Ex. PW2/4. This witness also correctly identified the case property in the court as already Ex. P2.
22. This witness was crossexamined on certain points as regards vehicles used by CISF personnel and other inspecting team members for reaching the inspecting premises. He was also crossexamined on the points as regards videography done in this matter; as regards machines found at the spot; as regards FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 17 of 27 18 area of inspected premises. From the careful perusal of his entire deposition, I am of the considered opinion that this witness was also not shaken on material points deposed by him in his examination in chief.
23. The other prosecution witnesses examined in this case, on behalf of prosecution, are PW5 Sh. Vivek Arora, PW6 Sh. Bhupender Singh, PW7 Manish Kumar Singh, PW8 Jitender Shankar and PW9 HC Rajesh Kumar, Investigating Officer (in short I/O) of this case, respectively.
24. As regards PW5, he mainly deposed about the videography done by his employee Mr. Pawan, photographer, in this matter qua inspection conducted by inspected team members at the inspected premises and about preparation of CD thereof. Though he was crossexamined at length by ld. defence counsel but, to my considered opinion, he was not shaken on the main point qua preparation of CD of the videography, already on record as Ex. PW2/5.
25. As regards PW6, Sh. Bhupender Singh, his main deposition was that on 21.12.2006, an inspection was conducted by enforcement team of BSES at inspected premises and FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 18 of 27 19 accused Mukesh Kumar was found indulging in direct theft of electricity and as per the instructions of complainant company, he made a complaint against the accused Mukesh Kumar at P.S. Kalyanpuri on 09.03.2007, vide complaint Ex. PW6/A, bearing his signature at PointA. He further deposed that he also handed over copies of inspection report, load report, seizure memo and theft bill, alongwith complaint, to the police. In my considered view, this witness was also not shaken, on the above mentioned points, during his crossexamination.
26. As regards PW7, Sh. Manish Kumar Singh, his main deposition was that on 28.12.2006, on the basis of documents pertaining to the inspection in this case dated 21.12.2006, a theft bill for a sum of Rs. 15,96,012/, Ex. PW7/A, was raised by Sh. Nikunj Malik against accused Mukesh Kumar. In my considered view, this witness was also not shaken, during his cross examination, on the above mentioned points, and more particularly qua the preparation of theft bill.
27. As regards PW8, Sh. Jitender Shankar, his main deposition was that on the basis of inspection dated 21.12.2006, he, being the authorized representative of complainant FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 19 of 27 20 company, filed a complaint u/s 151 of the Electricity Act, Ex. PW8/A, against the accused Mukesh Kumar. In my considered view, this witness was also not shaken, on the above mentioned points, during his crossexamination.
28. As regards deposition of PW9, HC Rajesh Kumar, he happens to be the I/O of this case and he deposed in his examination in chief mainly pertaining to various steps taken by him during course of investigation conducted in this matter, including arrest of accused vide arrest memo Ex. PW9/3 and as regards taking his personal search vide personal search memo Ex. PW9/4. He further deposed regarding recording of statements by him of material prosecution witnesses during investigation conducted by him. This witness proved the copy of FIR already Ex. PW1/A, seizure memo prepared by him, in respect of case property of this case, being handed over to him (PW9) by Sh. R.V.Singh of complainant company on 27.10.2007 and such seizure memo is on record as Ex. PW9/2. This witness was also crossexamined at length by ld. Defence counsel. However, in my considered view, he was also not shaken, during his crossexamination, as regards various steps FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 20 of 27 21 taken by him during investigation of this matter.
29. No other witness was produced on behalf of the prosecution side and hence the remaining evidence of prosecution was closed.
30. Now turning to defence evidence on record, the only witness examined by the accused in his defence is DW1 Sh. Ram Asray. He deposed in his examination in chief mainly to the effect that he was residing near the inspected premises and that the milk dairy was being run at the inspected premises by Smt. Kailash Devi rather than by the accused Mukesh Kumar. However, in his cross examination, conducted by Ld. Addl. Public Prosecutor for the State, this witness has admitted that it was correct that Smt. Kailash Devi and accused herein namely Mukesh Kumar were both living together as husband and wife. In other words, this witness has also miserably failed to prove on record, by way of any cogent evidence, either oral or documentary, to the effect that the alleged theft of electricity was not committed in this matter by accused Mukesh Kumar.
31. One of the main contentions on behalf of the accused, made during course of oral final arguments, was to the effect FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 21 of 27 22 that no public and independent person of the locality was joined at the spot at the time of inspection conducted in this matter by the officials of the complainant company, despite the fact that the inspected premises was surrounded by thickly populated area. In this regard, I am of the considered view that the persons of the locality are mostly reluctant to become witnesses of inspection / raid in such like matters in order to avoid taking unnecessary wrath of the accused in such like cases because the accused in such like matters mostly happen to be well known to the persons of the nearby locality. Further, to my considered view, a sort of technical expertise is required, during course of inspection / raid, in such like matters, and the persons of nearby locality may not be well versed in such like technicalities / expertise, and hence, it does not make much difference even if the persons of the nearby locality were not joined during inspection / raid, conducted in this matter. Further, to my considered opinion, it has come on record that prosecution witnesses examined in this case were not the biased nor the interested witnesses having any personal grudge against the accused in this case so as to falsely implicate him in this matter. FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 22 of 27 23 The prosecution side has examined total nine witnesses in this case. To my considered view, these witnesses happen to be reliable and trustworthy witnesses. Hence, in my further considered view, the above mentioned submission on behalf of the accused, qua not joining independent and reliable persons of the locality, during inspection, is not found favourable to the accused in the given facts and circumstances of this case.
32. The other main strong contention, on behalf of accused, made during course of oral final arguments, was to the effect that no representative of the accused was at all available at the inspected premises at the time of raid conducted in this matter, as alleged by the prosecution side. In this regard, I refer to provisions of section 106 of the Indian Evidence Act, 1872 (in short Evidence Act). To my view, the mandate of this section is that when any fact is specially within knowledge of any person, burden of proving that fact is upon him.
33. If the accused side strongly feels that no representative of the accused was really available at the spot at the time of inspection, the accused side was not prevented to bring cogent evidence on record in support of this submission. However, as FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 23 of 27 24 revealed from judicial file, there is no such cogent evidence on record, either oral or documentary, on behalf of the accused, to satisfy this court that no representative of the accused was really available at the inspected premises at the time of inspection.
34. The other main contention on behalf of the accused, raised during course of oral final arguments, was to the effect that before raising the impugned theft bill against the accused, proper opportunity of hearing was not given to the accused as per provisions of section 126 of the Act. On this point, I am of the considered view that section 126 of the Act is not applicable to the present case. This section mainly provides for provisional assessment of electricity charges in case of unauthorized use of electricity rather than to the dishonest theft of electricity for which the appropriate sections are w.e.f. section 135 to 140 and 150 of the Act respectively, which deal with theft of electricity in the matters like the instant one. Further, as per record, fair opportunity of hearing was given to accused before raising of impugned theft bill against him in this case. Hence, this submission is not found favourable to the accused in this matter.
35. The other main contention on behalf of the accused, FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 24 of 27 25 raised during course of oral final arguments, was to the effect that the entire wire, allegedly used in committing theft of electricity in this matter, was not seized by the inspecting team members at the time of inspection. On this aspect, I am of the considered view that this fact does not make much difference. Even if entire length of the wire was not seized by the inspecting team members for one reason or the other, this lapse, if any, on the part of inspecting team members, cannot go to establish that accused was completely innocent in this matter or that he did not commit theft of electricity in this case at all. The theft in such like cases can be committed even by the wire of which certain portion might have been not seized / taken into possession at the time of inspection. Hence, to my considered view, this submission is not found helpful to the accused in this matter.
36. The other main contention on behalf of the accused, raised during course of oral final arguments, was to the effect that even the alleged representative of the accused, allegedly present at the spot at the time of alleged inspection, as per submissions of prosecution side, has not been shown in the FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 25 of 27 26 photographs taken at the spot at the time of inspection. In this regard, I am of the considered view that, as per evidence of certain material prosecution witnesses on record, such representative did not cooperate with the inspecting team members at the time of inspection. He reportedly did not sign the documents, prepared at the spot, when tendered to him. In such like situation, it cannot be expected from such representative of the accused that he would cooperate so as to be photographed at the time of inspection. Hence, in my considered view, this submission also does not find favour with the accused in this matter.
37. On the basis of above mentioned discussion, coupled with entire oral as well as documentary evidence on record, produced by both sides in this case, as discussed hereinabove, I am of the considered view that prosecution side has been successful, by leading cogent evidence, both oral as well as documentary, to establish against the accused herein, beyond reasonable doubt, to the effect that direct theft of electricity for industrial purposes, was committed by the accused herein by illegal means not authorized by the complainant company. In other words, the FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 26 of 27 27 prosecution side has established the guilt of accused herein, beyond reasonable doubt, for the offence punishable u/s 135 of the Act. Accordingly, the accused Mukesh Kumar is convicted for the offence punishable u/s 135 of the Act.
ANNOUNCED IN THE OPEN COURT TODAY ON 21st NOVEMBER, 2014 ( DR. SHAHABUDDIN ) ASJ/ SPECIAL ELECTRICITY COURT, EAST DISTT./KKD COURTS/DELHI FIR NO. 376/07, P.S. KALYANPURI, STATE ( BSES YPL) VS. MUKESH KUMAR page 27 of 27