Delhi District Court
Complainant vs Ramesh Kumar on 12 December, 2012
Page 1 of 11
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 443/11
ID No. 02405R0634602008
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
1. Ramesh Kumar
2. Ashok Gupta
Both at:
Shop no.58, DDA Market,
Tilak Vihar,New Delhi.
......................... Accused.
Date of institution: ........................ 25.03.2008.
Arguments heard on: ........................ 27.11.2012.
Judgment passed on : ........................ 12.12.2012.
Final Order: ........................ Acquitted.
CC No. 443/11
Page 2 of 11
JUDGMENT:
1. The brief facts of the complaint are like this. On 06.11.2007 at 12.35 pm a joint inspection team headed by Sh.ParitoshDy.Manager (Enforcement) of the complainant inspected the premises i.e. Shop no.58, DDA Market, Tilak Vihar, New Delhi (hereinafter referred to as inspected premises). The inspected premises is used by accused who disclosed his name as Ramesh Kumar. No electricity meter was found installed in the inspected premises. The accused was indulging in the direct theft of electricity by tapping service line of the complainant with the help of wires. A connected load of 4.70 KW was found running for non domestic purposes. The photographs were taken which were downloaded in CD. Inspection report and load report were prepared at the spot. An assessment bill for theft of electricity was raised against the accused which remained unpaid. Hence, this complaint.
2. The complainant examined two witnesses in pre summoning evidence. Accused Ramesh was summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act). 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. Accused Ashok Gupta is summoned on the application u/s CC No. 443/11 Page 3 of 11 319 Cr.PC of the complainant. Copy of complaint and documents were supplied to him. NOA U/s 251 Cr.P.C was put to the accused to which he pleaded not guilty and claimed trial.
4. The complainant examined three witnesses. Complainant evidence was closed. Accused were examined u/s 313 Cr.PC. The defence of accused Bittoo @ Gurmeet @ Ramesh is that he has no connection with the premises. The defence of the accused Ashok Gupta is that he has been running his shop under the name and style of M/s Aggarwal Sweet, opposite Rajouri Garden Police Station, Vishal Enclave, DDA Market, New Delhi. He has no connection with the premises. He was not present at the spot. However, no defence evidence is led by the accused.
5. The complainant examined three witnesses. PW1 Dinesh Chand stated that on 06.11.2007 at 12.35 p.m., he along with PW2 D K Sharma, Paritosh SrivastaveAM, SamratGET and SunilFE has inspected the inspected premises. The accused Ramesh is user of the premises. The accused is not present in the court though he was present in the court as observed by the court. No electricity meter was installed in the premises. The accused was indulging in the theft of electricity by tapping service line of the complainant. There was a connected load of 4.5 KW for non domestic purposes. The photographs were clicked by Samrat which were downloaded in CD CC No. 443/11 Page 4 of 11 Ex.CW2/C. The CD is identified by him. Inspection report and load report Ex.CW2/A and B were prepared by Samrat and offered to Ramesh who refused to receive and sign the same. A court question was put to which he stated that the accused was Hindu and not a Sikh. He was again called for further examination. He stated that he saw the accused outside the court room when he was leaving for office after deposition. The accused is present as the witness pointed out towards a person namely Ashok Gupta who was standing with the accused as the person who was present at the time of inspection and using the premises. Likewise is the testimony of PW2 D K Sharma.
6. Ashok Gupta is impleaded as an accused on the application u/s 319 Cr.PC filed by the complainant. Both the PWs were recalled for examination in chief after impleading Ashok Gupta as an accused. The earlier examination in chief was adopted by the complainant.
7. During cross examination, PW1 stated that load was assessed by SamratGET. The distance between L V mains and inspected premises is 1 ½ metres. Accused Ashok Gupta is not focused in the photographs. They did not seize any document from the inspected premises with respect to the identity of the accused. Accused have refused to sign the reports. The reports were not pasted at site. The accused disclosed that he is a tenant in the premises and using the same as welding shop. He is not aware if Ashok Gupta has CC No. 443/11 Page 5 of 11 been running a sweet shop under the name and style of M/s Aggarwal Sweet at Rajouri Garden for the last 10 years. He along with D K Sharma had seen the accused Ashok Gupta near the lift on 25.08.2011 when their examination in chief was recorded. The suggestion is denied that accused Ashok Gupta was not present at site or accused have no connection with the premises.
8. During cross examination, PW2 admitted that date, time and any landmark are not reflected in the photographs. The premises number and shutter are focused in the photographs. The distance between the pole and the inspected premises is 810 metres. The wires were not seized due to the gathering of mob. Accused Ashok Gupta is not covered in the photographs. The suggestion is denied that accused Ashok Gupta has no connection with the premises in question or was not present at site. They have not ascertained the ownership of the premises in question. 23 more workers were present at the time of inspection. He has pointed out towards accused Ashok Gupta present in the court who was sitting on the scooter at the time of inspection. The accused Bittoo @ Gurmeet @ Ramesh was not present at the time of inspection. The pole number is not mentioned on the pole. There is no other proof on record that pole shown in the photographs is the same which is situated near the premises. He did not check the load as it was checked by a lineman with some instrument. One drill machine, CC No. 443/11 Page 6 of 11 two welding sets and one bulb of 100 watts were found at the spot. The drill machine and one welding set were lying in unused condition. The welding point is not covered in the photographs. There is no photograph to show that all these appliances were found in the premises. The documents were not pasted at site. The suggestion is denied that accused Ashok Gupta has no connection with the premises or he has been falsely implicated. He is not aware if Ashok Gupta has been running a sweet shop under the name and style of M/s Aggarwal Sweet at Rajouri Garden for the last 10 years.
9. PW3 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.
10. 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 were responsible for committing theft of electricity in the inspected premises.
11. The complainant has examined three witnesses in order to prove its case. PW1 and 2 are members of the joint inspection team. Their testimony is material in order to prove the allegations as set out in the complaint. I have heard ld counsel for the parties and perused CC No. 443/11 Page 7 of 11 the entire oral as well as documentary evidence on record. Both the PWs have categorically stated that on 06.11.2007 at 12.30 p.m., an inspection was carried out in the inspected premises. The accused Ramesh Kumar was found user of the premises. The accused is not present in the court. The complaint is filed against accused Ramesh Kumar. A bare perusal of the ordersheet shows that NBW against accused Ramesh was issued for 19.04.2011. The process serving constable recorded the statement of Ms.Shanti Devi i.e. owner of the premises who disclosed that she had let out the premises to Bittoo @ Gurmeet around three years ago who used to do welding work in the premises. On 19.11.2011, the NBW was issued against Bittoo @ Gurmeet Singh for 18.05.2011 as a result Bittoo @ Gurmeet Singh @ Ramesh appeared in the court and he was admitted to bail.
12. Bittoo @ Gurmeet Singh @ Ramesh is not identified by PW 1 and 2 though he was present at the time of their examination. The application u/s 311 Cr.PC of the complainant to recall PW1 and 2 was allowed by my Ld Predecessor. Both of them categorically stated that person standing with the accused was present at the time of inspection who disclosed his name as Ramesh and that person was found using the premises. Accused Ashok Gupta is impleaded as an accused on the application u/s 319 Cr.PC of the complainant.
13. The material question is whether accused Bittoo @ CC No. 443/11 Page 8 of 11 Gurmeet @ Ramesh or Ashok Gupta who allegedly disclosed as Ramesh was found user of the premises. A bare perusal of the record shows that Bittoo @ Gurmeet @ Ramesh is not identified by PW1 and 2 though Ashok Gupta has been identified by them. The testimony of PW1 and 2 to this effect does not inspire confidence. The cross examination of PW2 shows that accused Ashok Gupta was sitting on a scooter at the time of inspection. 23 workers were also present at the time of inspection. They did not try to ascertain the owner of the premises. A bare perusal of the page 2 of inspection report Ex.CW2/A nowhere shows that accused Ramesh met the inspected team at the spot who disclosed his name as Ramesh Kumar or some workers were found working in the shop. No explanation is forthcoming why all these material facts were not incorporated in the inspection report. Mere sitting on a scooter or coming to the court with the accused Bittoo @ Gurmeet @ Ramesh does not mean that accused Ashok Gupta is user of the inspected premises. Accused Ashok Gupta might have been sitting on the scooter at that time but that does not make him user of the inspected premises. Ms.Shanti Devi is owner of the premises. The process was issued to Bittoo @ Gurmeet on the basis of her statement recorded during the execution of NBW dated 19.04.2011. The complainant could have examined Smt. Shanti Devi in order to clear the dust who was tenant in her CC No. 443/11 Page 9 of 11 premises at the time of inspection. Her examination was essential in order to unfold the real fact with respect to the user of the inspected premises. Her non examination calls for an adverse inference against the complainant.
14. PW1 and 2 stated that accused was indulging in the direct theft of electricity by tapping service line of the complainant with the help of wires. The premises is used for welding shop. The inspection report Ex.CW2/A is nowhere reflects that premises is used for running a welding shop. The inspection report nowhere reflects that what kind of activity was going on in the inspected premises. The omission to incorporate these facts in the inspection report amount to contradiction which goes to the root of the case regarding no explanation has come on record. The existence of welding set is essential in case welding work is going on. The load report Ex.CW2/B does not show that any welding set was found at the spot though PWs have deposed that welding set was found at the spot. There is no explanation on record why the existence of welding set is not shown in the load report as such the testimony of PW1 and 2 to this effect does not inspire confidence.
15. PW1 and 2 had clicked the photographs which were downloaded in CD Ex.CW2/C. The CD shows that there are two shutters which are closed. The photograph of the accused or of CC No. 443/11 Page 10 of 11 workers was not taken. The complete photographs of the entire premises was not even taken from outside to show that these photographs pertain to the premises in question. It is not discernible from CD that it pertains to premises in question. Further the CD does not show that an illegal tapping from the pole was going to the premises in question. The CD placed on record does not in any way support or advance the case of the complainant. The photographs were not taken properly by the videographer for the reasons best known to him.
16. The wires in question were not seized from the site. PW2 stated in the cross examination that wires were not seized as mob gathered at site. The explanation furnished by PW2 is too big a pill to be swallowed. Inspection report nowhere depicts that mob gathered at the spot which prevented them from collecting the evidence from the site. This fact should have been reflected in the inspection report in order to inspire confidence in the mind of court. A stereotyped explanation is always given by the members of the joint inspection team which has no legs to stand. The explanation furnished by PW1 and 2 does not inspire confidence and there is no explanation on record why the illegal wires were not disconnected and seized from the spot in case there was illegal tapping. An adverse inference has to be drawn against the complainant. The reports were not pasted at site. CC No. 443/11 Page 11 of 11 There is no logical explanation for the non pasting of reports at site. It is the duty of the members of joint inspection team to paste the reports at site but they observe the regulations under Delhi Electricity Supply Code and Performance Standards Regulation Act,2007 in breach.
17. The testimony of PW1 and 2 does not inspire confidence in the mind of the court. Their evidence is not enough to bring home the guilt of the accused.
18. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has failed to bring home the guilt against the accused beyond shadow of reasonable doubt and accordingly accused are acquitted of the offence charged. The amount, if any, deposited by accused be returned back with an interest of 6 % from the date of deposit of the amount till its return. The copy of the judgment be sent to CEO of the complainant company with the direction that proper photographs of inspected premises covering the entire appliances be placed on record and reports be pasted at site in accordance with the regulations. File on completion be consigned to record room.
Announced in the open
Court on dated 12.12.12 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 443/11