Delhi District Court
Bses vs . Jeet Ram & Anr., Fir No. 113/2 Page No. 1 ... on 5 December, 2014
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Sessions Case No. : 08/13
FIR No. : 50/12
Police Station : Kotla Mubarakpur, New Delhi
U/s : 135 r/w/section 150 of Electricity Act, 2003
Unique ID No. : 02406 RO086392013
State
Versus
1. Naresh Basoya
S/o Late Shri Raghubar Dayal Basoya
2. Smt. Kailasho Devi
W/o Late Shri Raghubar Dayal
Both are R/o 2037, Ground Floor,
Village Pilangi, Kotla Mubarkapur,
New Delhi
...Accused
Appearances Ld. Addl. P.P. for State along with Shri S.K. Alok,
counsel for the complainant.
Accused Naresh Basoya and Smt. Kailasho Devi
are present on bail along with Shri N.K. Naagar,
Advocate.
Case instituted on : 05.03.2013
Judgment reserved on : 28.11.2014
Judgment pronounced on : 05.12.2014
JUDGMENT
1. The case of the prosecution in brief is that on 11.03.2012 on the basis of a complaint at police station Kotla Mubarakpur the FIR no. 50/12 was registered u/s. 135 of the Electricity Act, 2003. BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 1 of 15
2. As per contents of the said complaint, the case of the complainant in brief is that on 05.12.2011, a raiding team consisting of Shri Manoj Sharma - Manager (Enforcement), Shri Pramod - Diploma Engineer, Shri Rajesh Kumar - Diploma Engineer Trainee and Shri Raju - videographer carried out inspection at the premises i.e. 2037, Ground Floor, Village Pilangi, Kotla Mubarakpur, New Delhi and that same was being used by accused Naresh Basoya and accused Smt. Kailasho Devi was found to the registered consumer. It is further mentioned in the said complaint that there was one electricity meter bearing no. 21350549 found installed and accused were found indulged in direct theft of electricity by illegally and directly tapping the electricity supply from BRPL service line with the help of illegal wires by way of bypassing the meter and that accused Naresh Basoya was found present at the spot, who did not allow to take videography of the first and second floor of the said premises and he also manhandled with the members of inspection team and that it was further found by the inspection team that the member of family of the brothers of accused were residing in the said premises. It is further mentioned in the said complaint that accused were found using total connected load of 14.126 KWs for domestic purpose. It is further mentioned in the complaint that inspection BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 2 of 15 team seized one piece of red colour copper wire of 4 sq.m. having length approximately 8 inches and one piece of black colour aluminium wire of 4 sq.m.. having length of approximately 8 inches. It is further mentioned in the complaint that inspection team could not remove or seize the electricity meter due to resistance of the accused. It is further mentioned in the said complaint that videography was conducted by Shri Raju of M/s. Arora Photo Studio and that inspection team prepared the inspection report including meter detail report, load report and seizure memo at site and that same were offered to the accused to receive and sign, but they refused to do the same.
3. It is further mentioned in the said complaint that complainant has assessed the civil liability of Rs. 1,83,862/ and theft bill as per DERC Regulations and tariff order was raised accordingly with due date as 23.12.2011 and same was served upon the accused but they failed to pay the said theft bill.
4. Notice u/s. 251 Cr.P.C. for the offence punishable u/s. 135 of the Electricity Act, 2003 against accused Naresh Basoya and for offence punishable u/s. 135 r/w/section 150 of the Electricity Act, 2003 against accused Kailasho Devi, to which they pleaded not BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 3 of 15 guilty and claimed trial on the ground that they they were not committing any theft of electricity and that accused Kailasho Devi had a legal meter connection, for which she was regularly paying the bills and that there were no photographs of illegal wire or of alleged premises or members of their family. Accused Kailaso Devi further answered that she was not abetting accused Naresh Basoya for any theft of electricity. Both the accused further answered that false and fabricated case has been made out against them and that they are not liable to pay any loss or damage as alleged by the complainant company.
5. In order to prove the case, prosecution produced five witnesses, which have been discussed below.
6. The statements of accused Naresh Basoya and Smt. Kailasho Devi were recorded u/s. 313 Cr.P.C. separately and they pleaded their innocence and denied the evidence as false and answered that no raid was conducted at their premises and that false and fabricated reports were prepared by the raiding team at their office and that the theft bill was falsely raised against them and that false FIR was registered against them. Both the accused further answered that they had a valid meter connection which was BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 4 of 15 existing at the time of inspection as well and that they were regularly paying the consumption bills raised against the said electricity meter and that as per relevant consumption bill, sanctioned load was 8 KWs and connected load was approximately 2.36 KWs. Accused Naresh Basoya brought the electricity bills, which are Ex. D1 to D7 on which accused Kailash Devi also relied upon. However, both the accused opted to lead defence evidence, but no defence witness was examined on their behalf.
7. I have heard the Ld. Addl. P.P. for the State along with counsel for the complainant Shri S.K. Alok, Advocate and counsel for the accused, Shri N.K.Naagar. I have also perused the record including the CD of videograpy displayed on the computer screen of the court.
8. PW1 Shri Manoj Sharma was the Manager of the complainant company, who deposed that on 05.12.2011 at around 03.00 p.m., he along with Shri Parmod Kumar, Rajesh Kumar, Shri Deepak Kumar, and Raju, Photographer visited and inspected the premises i.e. House No.2037, village Pilanji Kotla Mubarakpur, New Delhi and that the said premises consisted of three floors i.e. ground floor, first floor and second floor and that they conducted BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 5 of 15 the raid on all the three floors. PW1 further deposed that the accused Naresh Basoya was the owner and accused Kailaso Devi was the registered consumer of the said premises. PW1 further deposed that one single phase meter was found installed at site but all the connected load of the premises was found being used illegally by direct tapping from the BSES service line by way of bypassing the meter and that accused Naresh Basoya was present at the spot and the entire inspection was carried out in his presence. PW1 identified accused Naresh Basoya, who was present in the court on the day of his deposition. PW1 further deposed that accused Naresh Basoya misbehaved with them and did not allow to take the complete videography and that the inspection team could only videograph the part of the connected load of the premises in question. PW1 further deposed that they assessed the total connected load of the premises in question which was found to be around 14 KWs for domestic purpose. PW1 also proved the inspection report and load report as Ex.PW1/A and Ex.PW1/B respectively. PW1 further deposed that they seized one number red colour aluminium wire of size 4 sq.mm. in length of approx. 8 inches and one number black colour aluminium wire of 4 sq.mm. in length of approx. 8 inches vide seizure memo Ex.PW1/C and he also identified the said wires as Ex.P2 and Ex.P3, BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 6 of 15 respectively. PW1 further identified the carbon copy of seizure memo as Ex. P1. PW1 further identified the videography contained in the CD Ex. Ex.PW1/D. PW1 further deposed that they offered the said documents to accused Basoya, but accused refused to receive and sign the same and that they tried to paste the said documents on the wall of the premises of the accused but he did not allow them to do the same. PW1 further deposed that he filed a complaint dated 02.02.2012 to SHO, PS Kotla Mubarakpur, New Delhi for registration of an FIR U/sec. 135 of the Electricity Act, 2003 and he also proved the said complaint as Ex.PW1/E.
9. In his cross examination on behalf of the accused, PW1 answered that inspection team used Maruti Van bearing registration no. 9604 to reach the premises in question for raid. PW1 answered that due to resistance of the accused, the videographer could not conduct the videography continuously or properly. PW1 answered that the name of the driver who was driving the Maruti Van was Chandra Prakash. PW1 could not admit or deny as to whether the resistance of accused was captured in videography or not. PW1 further answered that first page and third page of the inspection report was prepared by him in his hand writing and the second and fourth page of the inspection report BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 7 of 15 was prepared by Shri Pramod Kumar in his hand writing. PW1 further answered that the load report and seizure memo were prepared by the team member Shri Pramod Kumar at his instance. PW1 replied that the photocopy of seizure memo was got done at the spot from a shop which was situated at a distance of 50 paces. PW1 admitted it as correct that one AC and lighting load was captured in videography. He volunteered that the complete videography of the entire connected load could not be taken due to resistance of the accused Naresh Basoya. PW1 could not say as to who were the members of the raid party covered in the videography. PW1 further could not say as to whether accused was covered in the videography or not and as to whether the photographs were prepared on the same day or subsequently by the videographer as per videography.
10. PW2 Shri Pramod Kumar was the Diploma Engineer in the complainant company, who deposed on the same lines on which PW1 has deposed and as mentioned in the said complaint Ex. PW1/E. PW2 further identified accused Naresh Basoya, who was present in the court on the day of his deposition. PW2 identified the seized wires as Ex. P2 and P3.
BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 8 of 15
11. In his cross examination on behalf of both the accused, PW2 answered that there was a written complaint with Shri Manoj Sharma, Manager, which was provided by complainant company. PW2 admitted it as correct that the said complaint was not on the judicial record. PW2 did not know as to whether the said complaint was in the office of complainant or not. PW2 answered that the vehicle through which they reached the spot, was parked about 15 meter away from the premises in question. PW2 replied that photocopy of seizure memo was done near by the premises in question at the time of inspection and that the load report Ex.PW1/B and seizure memo Ex. PW1/C were prepared by him. PW2 answered that the present inspection was the routine inspection and that they had taken the load only of the ground floor of the premises in question. PW2 further answered that Naresh Basoya had resisted to take the connected load of the first and second floor of the premises and that was the reason they had not taken the load of the first and second floor. PW2 replied that on refusal of the documents by the accused, they tried to paste the same on the wall of the premises, but the accused did not allow them to do so. PW2 further answered that they did not mention the said facts in the documents, which were prepared by them. BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 9 of 15
12. PW3 Shri Raju was the videographer who deposed that he conducted the videography on 05.12.2011 at the premises in question on the directions of Shri Manish Sharma, Manager and he also identified and proved the said videography as Ex. PW1/D. In his cross examination on behalf of both the accused, he answered that he reached the spot at about 3.00 p.m. PW3 did not remember as to whether the documents were prepared at the office of the complainant or at the spot by the member of the raiding team. PW3 replied that they remained at the spot for about 45 minutes. PW3 did not remember as to whether the photocopy of the documents were done by the members of the raiding team at the spot.
13. PW4 HC Devender Kumar was the duty officer, who proved the FIR as Ex. PW4/A.
14. PW5 SI Akhileshwar was the Investigating Officer of the case, who deposed that on 21.02.2012, he was posted at PS Kotla Mubarakpur and that he received a complaint Ex. PW1/E from the complainant on which he got the FIR Ex. PW4/A registered on 11.03.2012. PW5 deposed that after registration of the FIR, the BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 10 of 15 accused was searched but they could not be traced out and later on it transpired that on 16.04.2012, the accused were ordered to be released on bail u/s. 438 Cr.P.C. PW5 further deposed that he arrested accused Naresh Basoya on 26.06.2012 and he proved the arrest memo as Ex. PW5/A and personal search memo as Ex. PW5/B. PW5 further deposed that on 17.11.2012, he arrested accused Kailsho Devi and proved her arrest memo as Ex. PW5/C and personal search memo as Ex. PW1/D. PW5 further deposed that he recorded the statements of the PWs and that the documents in original on the record were already annexed with the complaint. PW5 also proved the theft bill, which was also produced by the complainant, as Ex. PW5/F. PW5 further deposed that he visited the spot along with the complainant Shri Manoj, however, he did not remember the date of the same and that he prepared the site plan of the premises in question and which is Ex.PW5/E and recorded the statement of the complainant Shri Manoj Kumar to the effect that the case property would be produced before the court directly.
15. In his cross examination on behalf of both the accused, he answered that he was not the member of the raid party. BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 11 of 15
16. In this case admittedly the inspection was carried out on 05.12.2011 and the complaint to the police was given on 21.02.2012 vide DD no. 54B, but the FIR was registered on 11.03.2012 and thus, there is considerable delay in the registration of the FIR. Even if I take into consideration, the due date of the theft bill i.e. 23.12.2011 and if by that time accused failed to pay the said bill, no explanation is coming forth as to why the complaint was sent to the concerned police station on 21.02.2012 and still why the FIR was registered on 11.03.2012. Delayed FIR as such creates a suspicion in the story of the complainant.
17. This is again an admitted case of the PW1 and PW2 that accused Naresh Basoya misbehaved with them and did not allow to take the videography completely, but still no police was called at the spot against the said resistance of the accused nor the documents allegedly prepared at the spot were pasted at the wall of the premises in question, when the accused refused to receive and sign the same and when the said accused resisted the pasting of the documents.
BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 12 of 15
18. Admittedly there was meter at the spot, which was being bypassed, but in the inspection report, no reading of the meter was recorded and all other columns with regard to the said meter were left blank. As per seizure memo Ex. PW1/C, two wires of aluminium were seized, but I have gone through the complaint Ex. PW1/E at page second, one wire is mentioned as made of copper and these discrepancies do not inspire confidence with regard to the alleged inspection.
19. As per PW1, there were three floors in the premises in question and they conducted the raid on all the three floors and inspection team assessed the total connected load of the premises as 14 KWs, but as per PW2, who in his cross examination answered that they have taken the load only of the ground floor of the above said premises because accused Naresh Basoya had resisted to take the connected load of the first and second floor of the premises and no one from their team went to first and second floor of the premises due to the said resistance. As per cross examination of PW1, it was a mass raid in which the inspection in question was conducted and a complaint from the Vigilance Department was received by the DGM who authorised him to conduct the raid but there was no written authority with him given by the concerned BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 13 of 15 DGM, whereas according to cross examination of PW2, there was written complaint with PW1 which was provided by the complainant company. Further as per cross examination of PW1, the first and third page of the inspection report were prepared by him in his handwriting whereas second and fourth page of the said report were prepared by PW2 Shri Pramod Kumar in his handwriting, but as per cross examination of PW2, he prepared only load report and seizure memo.
20. The said contradictions in the respective deposition of PW1 and PW2 go to the root of the matter suggesting that the things have not been shown in the manner in which they actually happened creating a doubt as to whether any document as alleged, was prepared at the spot or not. Moreover, as per seizure memo, the material was sealed at the spot but when the case property was opened a photocopy of seizure memo Ex. P1 recovered from the bag which was not a carbon copy and as per cross examination of PW1 and PW2, the photocopy of the seizure memo was got done from a shop situated at a distance from 50 paces from the spot, which again gives a jolt to the story of the complainant. BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 14 of 15
21. In view of my said discussion and in totality of the circumstances, I am of considered opinion that the prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt. As such, benefit of doubt is extended to them and accused Naresh Basoya is acquitted of offence u/s. 135 and accused Smt. Kailasho Devi is acquitted of offence u/s. 135 r/w/section 150 U/sec. 135 of the Electricity Act, 2003. Their PB and SB, if any, are cancelled and discharged.
The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 05.12.2014 ADDITIONAL SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Jeet Ram & Anr., FIR No. 113/2 Page no. 15 of 15