Delhi District Court
Bses vs . Rayazuddin, Cc No. 358/11 Page 1 Of Page ... on 11 September, 2013
1
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.: 358/11
Police Station : Kalkaji, New Delhi
U/s 135 of Electricity Act, 2003
Unique ID No. 02406 RO301082011
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
Rayazuddin
S/o Shri Sarazuddin
R/o House No. RZ750/23,
Tuglkabad Extension, New Delhi
...Accused
Appearances : AR with Shri P.M. Bhatt, counsel for complainant.
Accused Rayazuddin is present on bail along with
Shri Rajesh Kumar Passey, Advocate
Complaint instituted on : 30.10.2011
Judgment reserved on : 31.08.2013
Judgment pronounced on : 11.09.2013
BSES Vs. Rayazuddin, CC No. 358/11 Page 1 of page 23
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JUDGMENT
1. The case of the complainant in brief is that on 02.01.2010, a joint inspection team comprising officers of the complainant company namely, Shri Hari Mohan - Senior Manager, Shri Mahender Prasad - Diploma Engineer and Shri Shailesh Kumar
- Diploma Engineer Trainee inspected the premises of accused i.e. House No. RZ750/23, Tuglkabad Extension, New Delhi and accused Rayazuddini was found be the user of electricity without having any legal metering equipment in the said premises and that a meter bearing no. 13441799 was found installed at site but no record found in EBS of the complainant company and that as per DGM Business the said meter was fake and consumer had not provided any document with respect to said meter to the said Joint Inspection Team. It is further mentioned in the said complaint that accused was illegally using the electricity by directly tapping from the BSES supply with the help of illegal tappings/ fake meter bearing no. 13441799 and diagram of same was shown in the inspection report. It is further mentioned in the complaint that illegal meter and wire used by the accused were seized and that total connected load of BSES Vs. Rayazuddin, CC No. 358/11 Page 2 of page 23 3 16.620 KWs and 7.960 KW for non domestic category was found. It is further mentioned in the said complaint that inspection report, load report and seizure memo were also prepared and that photography/ videography was also done, thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting dishonestly.
2. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per the DERC regulations and tariff order was raised by the complainant for Rs. 3,76,182/ with due date as 18.01.2010 and accused had paid sum of Rs. 1,50,000/ out of said theft bill amount and the net amount due was Rs. 2,93,422/ remained to be paid by the accused to complainant company.
3. The case was fixed for presummoning evidence and accused was summoned to face the said allegations by my Ld. Predecessor vide his order dated 13.12.2011. Accused Rayazuddin appeared and supplied with the documents and CD of photography/videography. My Ld. Predecessor vide his order dated 16.02.2012 framed notice U/sec. 251 Cr.P.C. for BSES Vs. Rayazuddin, CC No. 358/11 Page 3 of page 23 4 commission of offence punishable u/s. 135 of the Electricity Act, 2003 against the said accused and accused pleaded not guilty and claimed trial on the ground that he had duly authorised connection from complainant company and meter no. 13054337 bearing K. No. 2510N8070621 with CRN No. 2510112419 was installed in his premises in the year 2006 and that he was regularly paying the bills raised thereon. Accused further claimed that the said meter got stolen on 09/10.12.2009 and complaint in this regard was also made to police as well as to complainant company and that another meter was installed in name of his wife in the month of July, 2009 and that his wife was issued meter change report no. 140041 dated 08.07.2009, and that he was not committing any theft of electricity and that false and fabricated case has been made out against him and that he is not liable to pay any damages and loss to the complainant company.
4. In order to prove the case of the complainant, four witnesses were produced, which have been discussed below.
5. The statement of accused Rayazuddin was recorded BSES Vs. Rayazuddin, CC No. 358/11 Page 4 of page 23 5 U/sec. 313 Cr.P.C. and accused pleaded his innocence and denied the evidence as false and answered that he was present at the premises at the time of inspection and that the said inspection was conducted by officials of BRPL on his complaint intimating them that his meter bearing CRN No. 251012419 had stolen in the night intervening on 10/11.12.2009 and that none of the documents was prepared in his presence. Accused had not disputed the removal of cable and meter and that videography was also conducted and that the theft bill was wrongly raised. Accused further answered that he was not committing any theft directly or indirectly and that there were two connection at his premises i.e. one for domestic and another for nondomestic use and that one meter meter bearing no. K. No. 2510N8070621 and CRN No. 2510112419 for 1 KW installed at the premises in question for domestic purpose in year 2006 and that in March 2008, he got enhanced the load for 8 KW and also changed the use of electricity as commercial and that he was paying the electricity bills regularly for the same. Accused further answered that in year 2009 he was using the first floor for domestic purposes and that he applied for another connection in his wife's name and that on 08.07.2009 the meter BSES Vs. Rayazuddin, CC No. 358/11 Page 5 of page 23 6 in question was installed at the premises and that he had paid electricity bills for consumption raised against K. No. 2510N8070621 and CRN No. 2510112419 till November 2009. Accused further answered that after installation of second meter, he visited the office of the complainant and requested them to issue bill for his 2nd meter but he was told that as it was the new meter, it would take time to issue bill for the said and he was asked to wait and that the meter baring no. 13441799 against K.No 2510N8070621, CRN No. 2510112419 installed in the said premises was stolen on the night intervening on 10/11.12.2009 and that he had reported the said matter to police on 14.12.2009 and at the office of BRPL at Savitri, New Delhi on 15.12.2009. Accused further answered that the inspection was conducted on his said complaint and he had been falsely implicated and that when he visited the office of the complainant, he was threatened by the officials of the department on 08.01.2010, to pay the bill dated 05.01.2010 and if he failed to pay the said bill, his electricity connection would never be restored and he and his members of family will be implicated in the false cases of electricity theft and that in the said circumstances, he had to made the part payment of said impugned bill. Accused further BSES Vs. Rayazuddin, CC No. 358/11 Page 6 of page 23 7 answered that the present complaint was counter blast to his civil suit bearing no. 13/2010, which is pending before the present court and that false and fabricated case has been made against him. Further, accused opted to lead defence evidence and produced DW1, DW2 and DW3 in his defence, which have been discussed below.
6. I have heard the counsel for the complainant and counsel for the accused Shri Rajesh Kumar Passey, Advocate, and perused the record including the CD of photography/ videography displayed on the computer screen of the court.
7. PW1 Shri Mahender Prasad was the Diploma Engineer in the complainant company and deposed that on 02.01.2010 at about 12.35 p.m., he along with Shri Hari Mohan, Shri Shailesh Kumar, Shri Rajesh and Shri Praveen visited and inspected the premises bearing no. 750/23, Tugalkabad Extension, New Delhi and that they found that there was one electronic meter installed and the electricity was being supplied through the said meter. PW1 further deposed that they found that there was no record in EBS in their office of t he said meter and the supply of BSES Vs. Rayazuddin, CC No. 358/11 Page 7 of page 23 8 electricity was being used for domestic as well as nondomestic purposes and that they further found that the premises in question was being used by accused Rayazuddin at the time of inspection. PW1 further deposed that the connected load of the said premises, which was running through the said meter was found to be 8.661 KW for domestic and 7.96 KW for non domestic purpose and that they mentioned the details of connected load of the said premises in the load report . PW1 also proved the load report Ex. CW2/3, inspection report Ex. CW2/1, meter report Ex. CW2/2 and seizure memo Ex. CW2/4. PW1 further deposed that they seized the service cable and meter from the spot and that after preparing all the documents they offered the same to accused, who was present at the spot during inspection, but he refused to receive and sign the same. PW1 also identified accused Rayazuddin who was present in the court on date of his deposition. He also correctly identified videography and proved the CD of videography as Ex. CW2/7. Ld. defence counsel had objected on mode of proving the said CD as certificate u/s. 65B Evidence Act was not furnished and PW1 also identified the accused depicted in the said videography. He also correctly identified the case property i.e. BSES Vs. Rayazuddin, CC No. 358/11 Page 8 of page 23 9 carbon copy of seizure memo as Ex. P1, one electronic meter bearing no. 13441799 as Ex. P2 and one yellow colour cable (service line) of about 9 meters in length as Ex. P3.
8. In his cross examination on behalf of the accused, PW1 admitted that for carrying out inspection/raid in any premises within the jurisdiction of their office, the same can only be done by authorised persons of the department and that apart from persons as mentioned in his examinationinchief, no other official from their office visited the premises in question. PW1 also admitted that no document authorising them to conduct raid/inspection of any of the property had been placed on record and that prior to raid/ inspection no public witness was joined in the inspection proceedings. PW1 could not say as to whether prior to raid, one meter bearing K. No. 2510N8070621 and CRN No. 2510112419 was installed at the premises in question in the name of the accused Rayazuddin. PW1 admitted that accused Rayazuddin had filed a complaint regarding theft of his aforesaid meter on 13.12.2009 vide diary no. 1147 as Ex. PW2/DA and that copy of same was not taken by them at the time of inspection. PW1 volunteered that the said BSES Vs. Rayazuddin, CC No. 358/11 Page 9 of page 23 10 copy was not handed over by the accused. PW1 further admitted that accused had informed them regarding his complaint of theft of meter to the police. PW1 could not say as to whether any inspection was carried out in respect of property in question by the complainant company. PW1 denied the suggestion that on 02.01.2010 premises in question was inspected on complaint of accused as Ex. PW2/DA. PW1 could not say as to whether initially in the year 2006, the sanctioned load of aforesaid meter of the accused was 1 KW. PW1 did not know as to whether meters make Kaifa Ex. P2 similar to the meter allegedly removed are available in the market and he also did not know as to whether meters make Kaifa were supplied exclusively to BSES R.P.Ltd. He could not say as to whom meter in question was issued or sanctioned. PW1 answered that after the inspection, he had not made any efforts to know to whom said meter was sanctioned. PW1 admitted that the meter in question was recording correct consumption and that there was no visible tampering with the meter. PW1 did not know as to whether Smt. Shahnaz Begum wife of accused had applied for meter on 30.03.2009 for sanctioned load of 2 KW for the inspected premises vide application Ex. PW1/DA and original BSES Vs. Rayazuddin, CC No. 358/11 Page 10 of page 23 11 copy of the same is placed on case file of civil suit no. 13/10.
9. In his further cross examination, PW1 could not say as to whether meter bearing no. 13441799 was installed by complainant company vide meter change report dated 08.07.2009, Mark A and carbon copy of the same is placed on case file of civil suit no. 13/10. PW1 did not remember as to whether the complainant company had filed a complaint regarding fake meter installed at the premises of the accused which was received at office of complainant prior to visit at the spot. PW1 volunteered that the complaint was received through Email dated 31.12.2009 and that this fact was mentioned in the inspection report Ex. CW2/1. PW1 was shown the judicial file to find the said complaint, but after going through the file, PW1 stated that the said complaint, which was received through Email was not on the file. PW1 denied the suggestion that he had not received any such complaint and that was why copy of said Email or complaint had not been placed on judicial record. PW1 answered that when they visited the ground floor on 02.01.2010, the sewing machines were not running. PW1 again said that number of employees / workers BSES Vs. Rayazuddin, CC No. 358/11 Page 11 of page 23 12 were present at the spot, but he could not tell their numbers. PW1 could not even say as to whether there were 2, 3, 4, 7 or 10 or more than 10 workers present. PW1 admitted that the workers as well as sewing machines were covered in the videography and that some of the machines were working at the relevant time. PW1 further admitted that he had no personal knowledge of the present case except that inspection was conducted on 02.01.2010. PW1 denied the fact that the theft bill Ex. CW2/6 was illegal. PW1 admitted that he or Shri Hari Mohan or Shri Shailesh Kumar were not authorised to remove and install the meter. He volunteered that the said duty is assigned to lineman. PW1 admitted that he had not gone through the complaint filed by the complainant company and that he had seen the inspection report Ex. CW2/1 and that the said report does not contain the name of the lineman as Rajesh Kumar or at portion A1 to A2 where names of other members of inspection team were mentioned. PW1 further admitted that accused did not create any hurdle in their way when they visited the premises in question on 02.01.2010 including the time when the videography was being conducted.
BSES Vs. Rayazuddin, CC No. 358/11 Page 12 of page 23 13
10. Towards the last question of the cross examination, it is written as an answer given by the PW1 as follows " it is correct that accused had filed civil suit against the complainant prior to filing the complaint or that the complaint is the counter blast of the suit". If prior to the conjunction word "or" the suggestion is correct because factually civil suit was filed prior to the complaint. After the conjunction word "or" if it is to be taken as correct that complaint is counter blast of the suit and if it is so admitted by the witness, then what was the need of filing of this complaint. As such, I am of the considered opinion that the suggestion should have been in two parts and should be read as such. The first portion that civil case against the complainant was filed prior to the present complaint is correct and it is incorrect that complaint is the counter blast of the suit.
11. PW2 Shri Hari Mohan was the Senior Manager in the complainant company, who deposed almost on the lines on which PW1 had deposed and as mentioned in the complaint. PW2 further deposed that accused had told them that his earlier meter was stolen by someone and the said meter was installed by a person from BSES department. PW2 further deposed that BSES Vs. Rayazuddin, CC No. 358/11 Page 13 of page 23 14 they mentioned the details of fake meter in the documents prepared by them at the spot. PW2 also proved the documents as Ex. CW2/1. CW2/2 and Ex. CW2/4, which are inspection report, meter details and seizure memo and he also proved CD of videography as Ex. CW2/7. Ld. defence counsel had objected on mode of proving the said CD as certificate u/s. 65B Evidence Act was not furnished and he also identified accused Rayazuddin depicted in the said videography. He also correctly identified the case property, which was exhibited in the deposition of PW1.
12. In his cross examination on behalf of the accused, PW2 almost answered on the same lines as PW1 answered in his cross examination as mostly questions were identical as had been put to PW1.
13. PW3 Shri A.S. Menon, Deputy Finance Officer of complainant company deposed that after considering the inspection report and load report, he raised that theft bill against the accused on the basis of formula given under the DERC Regulations and he also proved the said theft bill Ex. CW2/6. BSES Vs. Rayazuddin, CC No. 358/11 Page 14 of page 23 15 In his cross examination on behalf of the accused, he admitted that he had no personal knowledge of the present case and that inspection report and load report were not prepared in his presence.
14. PW4 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. PW1/1 and he also proved the complaint Ex. CW1/3 and identified the signatures of previous A.R., Shri Binay Kumar on the said complaint and he further proved letter of authority of the previous A.R. as Ex. CW1/1 and he deposed that he has no personal knowledge of the facts of the case.
15. In his cross examination on behalf of the accused, PW4 answered that he had no personal knowledge of the present case and that Shri Arun Kanchan, Executant of G.P.A. dated 18.08.2009 was still in service of complainant company. PW4 volunteered that he was not the CEO. PW4 admitted that Resolution regarding empowering Shri Arun Kanchan to execute the said GPA had been passed and the date of said Resolution BSES Vs. Rayazuddin, CC No. 358/11 Page 15 of page 23 16 was 23.04.2008 and that certified copy of said resolution was also not on judicial record. PW4 further admitted that he had not brought the minute book containing the said resolution. PW4 volunteered that he can produce the copy of said resolution and minute book. PW4 admitted that a suit was filed by the accused against the company challenging theft bill Ex. CW2/6. PW5 did not know the institution date of said suit. PW1 admitted that he had not gone through the other documents except filed in the present complaint case, which were provided by the company to him. PW4 was not aware as to whether any complaint had been filed by the accused regarding theft of a meter from his premises, which was exhibited as Ex. PW2/DA or that a meter change report Mark A had been issued or that an application Ex. PW1/DA was moved by Smt. Shahnaz Begum, wife of the accused. PW4 answered that he might have appeared in the civil suit bearing no. 13/10 filed by the accused. PW4 volunteered that he did not remember the facts of each, personally.
16. DW1 Ct. Kishan Kumar was summoned on behalf of the accused and he brought the summoned record i.e. complaint of BSES Vs. Rayazuddin, CC No. 358/11 Page 16 of page 23 17 theft lodged on 14.12.2009 by accused Riyazuddin R/o RZ750/23, Tughlakabad Extension, New Delhi in respect of CRN No. 2510112419 vide diary no. 5196. DW1 proved the copy of said complaint as Ex. DW1/1 and original of the same is placed on civil suit bearing no. 13/10. He also brought the original complaint dated 22.01.2010 which was lodged by Riyazuddin vide DD no. 42B. DW1 deposed that he has no knowledge as to whether any action was taken on the said complaints. He further deposed that complaint dated 22.01.2010 and DD entry in this regard was registered and he exhibited the same as Ex. DW1/3 and original of the same is placed on civil suit bearing no. 13/10. In his cross examination on behalf of the complainant company, he answered that he deposed as per the record brought by him and had no personal knowledge regarding present case.
17. DW2 Shri S.P. Singh, Meter Reading Superintendent of complainant company brought the summoned record i.e. record of electricity meter bearing K. No. 2510N8070621, CRN No. 2510112419 was installed in the name of Riyazuddin and as per records electricity bills were raised against said Riyazuddin and BSES Vs. Rayazuddin, CC No. 358/11 Page 17 of page 23 18 same were paid from February, 2003 to March, 2011 and DW2 exhibited the said bills as Ex. DW2/1. DW2 also deposed that in the month of March, 2008, said Riyazuddin got enhanced the load with regard to aforesaid meter and same was enhanced and sanctioned load of the same was enhanced upto 8 KW for non domestic purpose and DW2 exhibited the electricity bill of the said meter with due date as 17.01.2013, which was the latest bill as Ex. DW2/2. DW2 confronted with the copy of complaint Ex. DW1/1 and he admitted that the said complaint was lodged by Riyazuddin with the complainant on 15.12.2009 vide diary no. 1147. DW2 also brought the meter details of consumer Rayazuddin and exhibited the copy of same as Ex. DW2/3 and he also exhibited the reading details of the said meter as Ex. DW2/4. In his cross examination on behalf of the complainant company, DW2 answered that he had deposed on the basis of record and he had no personal knowledge of the present case.
18. DW3 Shri Pancha Nand Singh, DGM in the complainant company brought the summoned record i.e. status report of Smt. Shehnaz Begum W/o Shri Riyazuddin dated 26.03.2012 and exhibited the copy of same as Ex. DW3/A. DW3 had not BSES Vs. Rayazuddin, CC No. 358/11 Page 18 of page 23 19 brought the booklet containing copy of Ex. DW3/B i.e. meter change report as the said booklet was not traceable and carbon copy of same was lying in C.S. No. 13/10. In his cross examination on behalf of the complainant company, DW3 answered that he had deposed on the basis of record and he had no personal knowledge of the present case.
19. The specific and pinpointed allegation of the complainant against the accused is that meter number 13441799 which was found installed at the premises by the members of the inspection team, was recording the energy correctly but it was a fraud meter as it was not found in the record of EBS (Electronic Billing System) and thus, accused was found indulging in the theft of 8.661 KW of energy for domestic and 7.96 KW for nondomestic purpose and accordingly they prepared the documents i.e. inspection report, meter report as Ex. CW2/1 and Ex. CW2/2 and the said meter was seized vide seizure memo Ex. CW2/4.
20. From the said deposition of PW1 and PW2, I am of considered opinion that the onus did shift upon the accused to BSES Vs. Rayazuddin, CC No. 358/11 Page 19 of page 23 20 rebut the presumption which has arisen against him as provided under the 3rd proviso to section 135 of the Electricity Act, 2003. It was for the accused to establish as to how he came into possession of the said meter number 13441799.
21. The defence of the accused is that he applied for a new connection in the name of his wife Ms. Shehnaz Begum and on 08.07.2009 meter no. 13441799 was installed in his premises by the complainant company itself and regarding the same he has placed on report a meter change report, which was earlier Mark A and now Ex. DW2/B (inadvertently the exhibit Ex. DW2/B was wrongly written on the same and it should have been Ex. DW3/B because the said document was exhibited on 02.04.2013 by DW3 Shri Pancha Nand Singh whereas DW2 Shri S.P. Singh was examined on 27.02.2013 and the date below the exhibit number is 02.04.2013). The question arises as to whether the said meter change report whereby the meter no. 13441799 was installed, can be said to have been proved as it is a carbon copy which is lying in the Suit No. 13/10 pending before this court itself and the photocopy of the carbon copy has been exhibited in the present case.
BSES Vs. Rayazuddin, CC No. 358/11 Page 20 of page 23 21
22. Let me turn to the deposition of DW3, an official of the complainant company itself, who proved the status report of the application of Smt. Shehnaz Begum W/o Shri Riyazuddin dated 26.03.2012 and he proved the same as Ex. DW3/A. He further deposed that he had not brought the booklet containing copy of the Ex. DW3/B i.e. the said meter change report since the said booklet is not traceable. Even otherwise, both PW1 and PW2 have answered in their respective cross examinations that they cannot comment upon the authenticity of the said meter change report Ex. DW3/B dated 08.07.2009 whereby the alleged meter in question was installed in the name of the wife of the accused.
23. If the booklet containing the said meter change report was not traceable as per deposition of DW3, it would have been taken to have been proved by way of secondary evidence but for the production of the status report of the application Ms. Shehnaz Begum, the applicant of the said meter. In the said status report Ex. PW1/DA, it is mentioned that Ms. Shehnaz Begum applied for the meter on 30.03.2009 and as no payment was deposited by the prescribed time of 14 days for the said BSES Vs. Rayazuddin, CC No. 358/11 Page 21 of page 23 22 meter with the complainant company, on the 2nd page of the said report, it is written in the last column as "payment pending for more than 14 days" and as such the application was "auto cancel" which means the application stood automatically cancelled. In the said status report even the column "EBS details" on the 2nd page of the report is blank.
24. From the said status report Ex. PW1/DA, although a meter was applied by the wife of the accused on 30.03.2009 but as she failed to pay the prescribed amount for the same, her application stood automatically cancelled and accused failed to show as to how in the said circumstances, the said meter in question came to be installed, on 08.07.2009 as per alleged meter change report Ex. DW3/B. Even the accused failed to show any bill issued to him against the said meter which was paid by him. If the bills were not issued, the accused failed to show any written complaint given to complainant against the same. The accused also failed to show any demand note raised by the complainant for installation of the meter in question or receipt of the amount deposited by him for issuance of new meter. Thus, I am of considered opinion that the meter change BSES Vs. Rayazuddin, CC No. 358/11 Page 22 of page 23 23 report dated 08.07.2009 (earlier Mark A) was itself demolished by the status report of the application of Shehnaz Begum Ex. PW1/DA.
25. In the said circumstances, the accused failed to discharge the onus upon him to make believe this court that the meter no. 13441799 was installed at the premises by the complainant company by following due procedure so as not to be called a fake or fraud meter. Hence, the accused Rayazuddin is held guilty and convicted for offence punishable u/s 135 of the Electricity Act, 2003. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 11.09.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Rayazuddin, CC No. 358/11 Page 23 of page 23