Delhi District Court
Cc No. 488/06 (Ndpl vs Sanjay Lata Etc) Page No..........1 Of ... on 5 June, 2012
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN: ASJ
(ELECTRICITY) : NORTHWEST DISTRICT: ROHINI
COURTS:DELHI
CC no.488/06
Unique ID no. 02404R0442012006
North Delhi Power Limited
A company incorporated under the Companies Act,1956 and having
its registered office at Grid Sub Station Building
Hudson Lines, Kingsway Camp, Delhi110009
(Through Shri Ashok Kumar Gupta)
.....Complainant Company
V E R S U S
1) Smt Sanjay Lata W/o Shri Mahavir Singh,
2) Shri Baldev
Both at:
4202, Sant Nagar, Rani Bagh, Delhi
...........accused persons
Date of institution: 11/03/2005
Date of hearing arguments: 28/05/2012
Date of decision: 05/06/2012
JUDGMENT
1) In the present case, charge for the offence punishable under section 135 of the Indian Electricity Act, 2003 was framed against the accused, namely, Sanjay Lata on the allegations that on 21/04/2004, at 4202, Sant Nagar, Rani Bagh, Delhi, at the time CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........1 of 15 of inspection by joint raiding team NDPL, she was found indulging in dishonest abstraction of energy as single half seals of polycarbonate meter were found tampered by refixing of seal wire with adhesive and a connected load was found 2.69KW against a sanctioned load of 6KW thereby she was causing wrongful gain to herself and wrongful loss to the complainant company i.e. NDPL.
2) Accused pleaded not guilty to the charge and claimed trial.
3) Vide order dated 05/03/2007, the Proceedings were dropped against accused Baldev who was alleged found user at the premises at the time of inspection.
4) Prosecution has examined two witnesses, namely, PW1, Sh. A.K. Gupta and PW2 Brijesh Kaushik to prove the allegations against the accused.
5) PW1 Shri A. K. Gupta is the attorney of the complainant company, vide attorney Ex.CW1/B has deposed that on the basis of the inspection dated 21/04/2004, a final assessment bill dated 24/05/2004 Ex.CW1/C was raised against the accused and proved the speaking order dt. 24/05/2004 Ex.CW1/D and the letter dt. 17/09/04 written by accused Ex.CW1/F. CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........2 of 15
6) PW2 Shri Brijesh Kaushik is the member of the raiding team and deposed that on 21/04/04 he was working as JE in the enforcement and on that day he alongwith Shri Nitin Marjara, Shri Naveen Kumar and Shri Manish Goel visited the premises at 4202, Sant Nagar, Rani Bagh, Delhi; there they found that a meter of single phase installed at the premises and its half seals were found tampered as they were refixed with some adhesive; at the time of inspection and supply was found being used for industrial purpose and a load of approximately 3KW was found connected; raiding team prepared the inspection report dt. 21/04/04 as Ex.CW2/B; they prepared the show cause notice dt. 21/04/04 at the site and the copy of the same is Ex. CW2/D. He further deposed that Vinod was present at site during inspection and told them that the user and occupier of the premises is one Baldev Singh who was not present at site; copy of the inspection report and show cause notice were served upon Vinod. He further deposed that the inspected meter was preserved at site by pasting a paper seal signed by the team at the time of inspection. He further deposed that on 24/07/07 he alongwith Sh. R. K. Avasthi and Shri Amit Bansal had revisited the site in question to remove the preserved meter at site but the said inspected meter was not found at site; one more meter was found installed at the said site CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........3 of 15 through which supply of electricity was going on and the supply was found connected for commercial and industrial purpose and the said meter was sanctioned for domestic purpose. He further deposed that a case of misuse was booked on the said meter on that day; the report of misuse case was supplied to a person namely Narender Singh; they prepared a inspection report in this regard. He further deposed that the inspected meter was not found at site.
7) Statement of accused u/s 313 CrPC recorded and accused has denied the allegations stating that she is innocent and falsely implicated in this case; the premises in question belonged to her and same was given on rent to one tenant namely Sh. Surender Singh and he was the actual user of the electricity.
8) Accused examined herself as DW1 and deposed that her actual name is Sanyog Lata and not Sanjay Lata and she has given the property in question on rent to one Shri Surender Singh S/o Shri Amarjeet Singh R/o 1885, Rani Bagh, Delhi on 12/03/04 vide rent agreement dt. 12/03/04 and proved the photocopy of the same as Ex. DW1/4; the rent agreement was effective from 12/03/04 to 11/02/05; Surender Singh was making the payment of electricity bill regularly received by him.
9) I have heard Shri Arvind Singh Ld counsel for the CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........4 of 15 accused and Shri K. B. Chaudhary, Ld counsel for the complainant.
10) Ld counsel for the accused has argued that the accused is innocent and has been falsely implicated in the present case and prosecution/complainant has failed to prove its case against the accused on following grounds: i. The speaking order in this case does not talk about the use of electricity for industrial purpose as is being claimed by the complainant and witness examined; the case is false and fabricated and no photographs of the alleged theft has been taken and no machinery being used for the purpose of committing theft has been seized and complainant has withheld this important evidence from the court which again shows that the case of the complainant is false.
ii. Accused is the owner of the premises in question and her name has not been mentioned in the inspection report and no bill after assessment of the alleged theft has been given to her.
iii. Mere tampering of the seal is not sufficient to prove the case of dishonest abstraction of energy/theft as consumption pattern of the premises has not been mentioned. iv. The accused has already submitted the rent agreement CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........5 of 15 to the NDPL and she has been made accused on presumption as there is no evidence regarding her involvement/abetment v. Only one raiding party member has been examined and remaining witnesses are not produced which has prejudiced her defence and no show cause notice was given to her before filing of the present complaint.
vi. The regulations 52 of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007 has been violated as no lab testing report regarding tampering of the meter has been filed and no case property allegedly seized from the spot has been produced in the court. vii. Coaccused Baldev has already been deleted from the array of the parties and one Vinod who was found on the spot was not made as accused by the NDPL deliberately.
In support of his arguments, Ld counsel has referred and relied upon following cases:
(a) In Narender Singh VS State of Haryana, 2006 (2) LRC 26 (Punjab & Haryana ) wherein in para no. 6 it was held that record of the checking party was found totally false, when the meter which was removed from the premises of the petitioner, was checked in the workshop of the complainant department and it was reported that no tampering of the CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........6 of 15 meter glass and replacement is observed. In view of this specific report, the FIR against the petitioner is nothing but an abuse of process of law and was accordingly quashed.
(b) In D.D. Chadha Vs State (NCT Delhi), 1999 (2) C.C. Cases HC 436 of Hon'ble High Court of Delhi, in this case petitioner was the registered consumer of electricity and on the inspection day, petitioner's tenant found dishonest abstracting electric energy from electric connection of petitioner; chargesheet was filed against the petitioner and not against the tenant and it was held that statutory theft created by Section 39 of Indian Electricity Act was against a person who has been shown to have dishonestly abstracted, consumed or used the electric energy and no case was made out against the petitioner. It was further held that the charge against the petitioner is abuse of process of court and was accordingly quashed.
(c) In R.K. Nayar (retired ) VS BSES Rajdhani Power Ltd, 140 (2007) DLT 257. In this case it was held that : "The only other ground on which the inference of FAE is sought to be made is the pattern of consumption and comparing the computed consumption with the recorded consumption. As already held, the consumption pattern by itself again cannot lead to an inference of FAE it would have to CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........7 of 15 corroborate what is detected on a physical examination. An accu check meter could have been used to detect if the meter was recording lesser energy than it should. That, however, was not done in the instant case. Since it is not shown that there was some device or even any technique used to slow down the meter to make it record lesser energy, the consumption pattern cannot be itself constitute the substantial evidence of FAE "
11) I have heard Ld counsel Shri K. B. Chaudhary for the NDPL/complainant/ deemed public prosecutor who has argued that meter in question was not sent for laboratory test because the Delhi Electricity regulatory commission has not provided any laboratory to the NDPL for that purpose.
12) It is further argued that complainant has placed on record sufficient evidence to prove the case against the accused because nonexamining of other member of raiding party was beyond the control of the complainant as they have left the services and are not traceable. It is further argued that the evidence of PW2 who is member of the raiding party has sufficiently established the case against the accused.
13) Regarding the deleting the name of coaccused Baldev it is argued that he was not traceable and as such case was withdrawn against him by making statement as his address was CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........8 of 15 not traceable.
14) Lastly, it is argued that accused being the owner of the premises and landlord of coaccused Baldev has abetted her tenant to commit theft of electricity and is accordingly liable to be convicted for the offence u/s 135 read with section 150 of the Electricity Act, 2003 .
15) I have considered the rival submissions made at bar and gone through the material evidence on record.
16) In Balraj Singh Vs. The State of Punjab, 1976 CrlJ 1471 (DB) (Punjab) of Hon'ble High Court of Punjab and Haryana in which it was observed as follows: The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole, the prosecution may be true, but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
17) In Tika Vs. State of UP, AIR 1974 SC 155, it was held that: CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........9 of 15 "One of the cardinal principles which has always tobe kept in view, in our system of administration of justice for criminal cases, is that an accused is presumed to be innocent, unless, that presumption is rebutted by the prosecution by production of evidence which may show him tobe guilty of the offence with which he is charged."
18) In Bhikari Vs. State of U.P., AIR 1966 SC 1, the Supreme Court has held that: "Undoubtedly, it is for the prosecution to prove beyond reasonable doubt that the accused has committed offence with the requisite mens rea. Once it is done, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon evidence adduced in the case, either by prosecution or by defence, a reasonable doubt is created in the mind of the court, regarding one or more ingredients of the offence including mens rea, then he would be entitled to be acquitted."
19) I have scrutinized the evidence led by the complainant to find out whether it has established its case against the accused beyond possibility of any reasonable doubt and further that accused has committed the offence with the requisite mens rea or further that it has established that it was the accused who has CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........10 of 15 abetted the commission of the alleged offence by coaccused Baldev.
20) PW1 A.K. Gupta is the formal witness who has not participated in the alleged raid as he has filed the present complainant as authorized representative by the NDPL/complainant company. In his examinationinchief he has stated that he has no personal knowledge about this case as he was not the member of the inspecting team. In his crossexamination he has admitted that speaking order was passed in this case against Baldev and Sanjay Lata and as per record the actual user was Shri Baldev. He has further deposed that on the basis of the inspection dt. 21/04/04, the case had been filed against accused. He further admitted in his crossexamination that there is no photographs available on record.
21) PW2 Brijesh Kaushik is the only material witness examined in this case. In his examination in chief he has deposed that the person namely Vinod was available at the spot during inspection and he had told that the user and occupier of the premises was one Baldev Singh who was not available at the spot. He further deposed that at the time of inspection the meter was found tampered for the purpose of dishonest abstraction of energy by the user. In his crossexamination on behalf of accused he has CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........11 of 15 deposed that Mr. Vinod told them that the user of the premises was Baldev and he did not note any address of Vinod and further did not enquire about Baldev after the inspection. He further admitted that they did not enquire regarding the ownership of the inspected premises. He further deposed that no case was made out against Vinod who told them that the user of the premises was Baldev and he was the worker of Baldev. He further deposed that "We assume that the meter is tampered in case if the seal is found broken and refixed with adhesive ".
22) He replied to a court question put to him as under: "Court question: Whether the above procedure told by you amounts to tempering in the meter as per the guidelines of DERC?
Ans: I am not aware if the above assumption told by me is covered by the guidelines of DERC regarding testing of meter to ascertain the tempering of the meter. "
23) He further admitted that no show cause notice was issued to Sanjay Lata by him. He further admitted in his cross examination that he could not tell on what basis Sanjay Lata had been made as accused in this case and the name of the accused was not mentioned in the inspection report. He further CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........12 of 15 stated that he cannot tell whether any speaking order was passed in this case against Sanjay Lata.
24) Thus, on perusal of the testimony of sole material witness examined by the NDPL, there is not an iota of evidence against the accused so as to link the accused with the offence alleged. There is no evidence to show that the user of the premises was accused and was indulged in commission of dishonest abstraction of electricity.
25) Accused has examined herself as DW1 and deposed that the premises in question was given on rent to one Surender Singh S/o Shri Amerjeet Singh vide agreement dt. 12/03/2004 Ex.DW1/4. The said agreement was effected from 12/03/2004 and her tenant was making regular payment of electricity bills received by him. She has placed on record the photocopy of the electricity bills Ex. DW1/5 (collectively). The para no. 18 of the rent agreement is read as under: "That the second party will be held responsible if the electric/water meters are tampered with or the seals of the meters found broken as these meters are in his custody and is the responsibility of the tenant who will use the water and electricity for domestic purposes only. The tenant has satisfied himself with the seals of the water and electric meters at the time of CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........13 of 15 execution of this Agreement "
26) Admittedly the meter in question was not tested in laboratory for the purpose of ascertaining the tampering in the same. The accused has placed on record letter dt. 17/05/2004 of NDPL as Ex. PW2/D1 wherein the meter in question has been replaced by a new meter.
27) As per regulations 52 (VI) of the Delhi Electricity Supply Code and Performance Standards Regulations, 2007, no case for theft shall be booked only on account of seals on the meter missing or tampering or breakage of glass window, unless corroborated by consumption pattern of consumer and such other evidence as may be available.
28) Admittedly consumption pattern of the consumer has not been proved on record. No other evidence i.e lab testing report regarding tampering of the meter has been placed on record in this case so as to establish dishonest abstraction of energy by the consumer/accused against accused. The case against coaccused Baldev who was allegedly user of the electricity at the time of alleged raid has been withdrawn by making statement on 05/03/07. Thus there is no sufficient evidence against accused to establish that she being the registered consumer of the electricity at the premises was in connivance with occupier Baldev or Vinod CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........14 of 15 at the time of inspection and has thus abetted them to commit dishonest abstraction of energy at the above said property because all the witnesses of the complainant deposed that they have not mentioned the name of the accused even in the inspection report and they are not aware on what basis she has been made as accused in the complaint case. The accused on the other hand has successfully established that on the date of alleged inspection the premises in question was let out by her to Surender Singh S/o Shri Amerjeet Singh vide agreement dt. 12/03/2004 Ex. DW1/4. Therefore,there is no evidence to link the accused with the offence alleged. The complainant has thus miserably failed to establish that on the date of alleged inspection accused was indulged in the dishonest abstraction of energy or has abetted any one for commission of the offence alleged.
29) Because of above discussion, I am of the considered opinion that complainant has failed to prove its case against accused and accused is accordingly acquitted. Bail bond cancelled and Surety bonds of the accused discharged.
30) File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON 5
June, 2012.
th
(RAJ KUMAR CHAUHAN)
ASJ(ELECTRICITY)
(NORTH WEST DISTRICT)
ROHINI COURT:DELHI
CC no. 488/06 (NDPL VS Sanjay Lata etc) Page no..........15 of 15