Delhi District Court
Complainant vs Randeep Chawla on 24 January, 2012
1
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 26.03.2007
Judgment reserved on : 10.01.2012
Judgment pronounced on : 24.01.2012
Complaint Case No. 529/08
PS Kalkaji, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Limited
Having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019
Also at;
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi110049.
Acting through Mr. Ashutosh Kumar
(Authorized Representative)
...Complainant
Versus
Randeep Chawla
RZ3263/36 1st Floor, Gali No.36,
Tughalkabad Extension, New Delhi
...Accused
Present : AR for the complainant
Sh. S.K.Alok, counsel for the complainant
Accused on bail with Sh. S.Satya Narayana, Adv.
JUDGMENT
1 Complaint u/sec. 151 of the Electricity Act (hereinafter called as 'the Act') has been filed by the complainant company against accused Randeep Chawla seeking to convict him for offence punishable U/sec. 135 of the Act and also for determining civil liability.
Page 1 of page 16 2 2 It is the case of the complainant that on 03.07.2008 at 04.19 p.m., premises bearing H.No RZ 3263/36, First Floor, Gali No. 36, Tughlakabad Extension, New Delhi was inspected by officials of the complainant company. One meter bearing No.23854884 was found unauthorisedly installed in the premises and accused was drawing electricity through this meter. Inspection team checked the records of the complainant company and this meter was not traceable in the company record. Previously also, a theft case had been booked against the premises in question on 22.06.2007. The unauthorised meter was removed from the site. The team found connected load of 21.651 KW for nondomestic use. Inspection report and load report were prepared at the spot. Videography of the inspection process was also carried out. On the basis of connected load, a theft bill for the amount of Rs.7,26,539/ was prepared. On failure of the accused to deposit the aforesaid bill, present complaint was filed seeking to convict the accused U/sec. 135 of the Act and for determining his civil liability. 3 The predecessor of this court took cognizance of the complaint and recorded presummoning evidence. On the basis of pressummoning evidence, accused was summoned to face trial. Accused entered appearance and was admitted to bail with direction to deposit Rs.10,000/ towards the theft bill. Notice of accusation was framed on 06.05.2009. Accused pleaded not guilty. He denied misappropriation of electricity energy and his liability to pay the amount of Rs.7,56,539/. He claimed trial. 4 Complainant, in support of its case, examined four witnesses. Sh.Rajender - Trainee Engineeer (PW1), Sh.Sant Kumar - AGII (PW3) and Page 2 of page 16 3 Sh.Sant Ram Sharma - Senior Manager (PW4) were the members of the raiding team, who proved the inspection. Sh.Binay Kumar (PW2) was the authorised representative of the company, who proved filing of the complaint. He was subsequently substituted by Sh.Ashutosh Kumar as AR. PW1, in addition to proving the documents prepared at the spot, also identified the accused and stated that he was present at the time of inspection. He also identified the meter, which had been removed from the site. He admitted that the documents prepared at the spot Ex.CW2/1 to Ex.CW2/3 did not bear his signatures. He denied that accused was using a generator set. Sh.Sant Kumar (PW3) also deposed that electricity was consumed at the premises in question through an illegal/ unauthorised meter. No record of the meter was with the complainant company. Consumer did not show any bill with respect to the meter in question. The ownership of the building could not be verified. The witness deposed that he can not identify the accused. He did not remember, if any generator was being used. However, he reiterated that the load of the premises was running through unauthorised meter. He denied that the generator supplied by Mona Generating Services Pvt. Ltd. was being used by the accused. He denied that the generator was deliberately not videographed. Sh.Sant Ram Sharma when examined on 07.08.2010, was mentioned as PW3, but when crossexamined on 27.01.2011 has been referred to as PW4. He was the leader of the inspection team. He also deposed that a fake meter was found installed. He identified his signatures on the documents prepared at the spot. On being cross examined, he stated that information about installed meter was sought from the consumer, who could not produce any document with respect to the meter in question. Some workers were present at the site, Page 3 of page 16 4 who stated that Randeep Chawla was the user of the premises in question. Randeep Chawla, however, was not present. He detailed some of the gadgets installed. He denied the suggestion that these gadgets were not installed and that no theft was being committed. He also stated that there were two other meters installed in the premises, which were not unauthorised. 5 Incriminating evidence was put to the accused and his statement U/sec. 313 Cr.P.C. was recorded. He stated the he was neither the user nor owner of the premises in question and was not present at site on the date of inspection. He denied the details of gadgets/ appliances connected to the load. He expressed ignorance about reports prepared at the site. He deposed that he had no concern with the premises in question. Previously also, a case of theft of electricity was booked for the premises in question against one Kanta Devi Mittal, which was withdrawn by the complainant. The owner and registered consumer namely Smt.Kanta Devi Mittal was responsible for offence, if any, committed. He sought to lead defence evidence. 6 Accused examined himself as DW1, one Gulshan as DW2 and Krishan Pal, recovery officer of BRPL as DW3. Accused (DW1) has deposed that he works as Manager (Operation) with M/s Maple Clothing Concepts Pvt. Ltd. One Amit Vaid is the Executive Director. The premises in question was taken on rent by M/s Maple Clothing Concepts Pvt. Ltd. through its Director Sh.Amit Vaid from one Sneh Kumar Mittal. He proved the copy of the license deed as Ex.DW1/A. The premises is still in possession of M/s Maple Clothing Concepts Pvt. Ltd. As per rent agreement, energy charges were to be paid by landlord Sneh Kumar Mittal. Despite having the electricity connection, there Page 4 of page 16 5 was a generator at the premises to feed electricity in case of power failure. He was neither the user nor the owner or beneficiary of the electricity connection installed and did not conduct any commercial activity. The complainant company had previously booked him along with landlady Kanta Devi in another case of theft of electricity bearing CC No.798/07, which was withdrawn having been settled by Smt.Kanta Devi. On being cross examined, he deposed that he is the Operations Manager and looks after administration and production of the company. He explained that his name was mentioned as an accused, because outsiders usually contact him, as he is Incharge of production. He stated that Amit Vaid is the owner, as well as, Director of the Company and Akhil Vaid is the Managing Director of the company. He was still employed in the company.
6.1 Sh.Gulshan (DW2) claims to be an Accountant in M/s Maple Clothing Concepts Pvt. Ltd. He had not been issued any appointment letter. He proved the license deed executed by landlord Sh.Sneh Kumar Mittal as Ex.DW2/A. The owner of the premises had got installed the electricity meter through the officials of complainant company and within 1520 days of the installation, present case was booked. He also deposed about the previous case against the accused and one Smt.Kanta Devi Mittal. He further deposed that whenever there was electricity failure, they use to operate the generator set, provided by Mona Generating Services Pvt. Ltd. He further deposed that previously a meter was removed by complainant company, which was not replaced due to some difference in the premises number. Till the installation of new meter, they used to hire generator from Mona Generating Services Pvt. Ltd. The meter in question was installed about 15 days prior to the Page 5 of page 16 6 inspection by officials of the complainant company. No acknowledgment/ meter change report was issued by the officials of the complainant company on the date of installation of the meter. Due to non availability of the electricity, they had hired diesel generator set of 40 KVA capacity from Mona Generating Services Pvt. Ltd. from 05.07.2008 to 17.12.2009. He proved the ledger A/c regarding payment of hiring of generator from 05.07.2008 to 17.12.2009 as Ex.DW2/A (colly). Original bills for the period 25.07.2008 to 01.12.2009 were proved as Ex.DW2/B (colly). Form 16A for TDS with respect to Mona Generating Services Pvt. Ltd. for the financial years 01.04.2008 to 31.03.2010 were proved as Ex.DW2/C (colly). M/s Maple Clothing Concepts Pvt. Ltd. vacated the premises in question on 18.12.2009 due to inadequate facility of electricity and huge costs of hiring generator sets. He was further examinedinchief on 21.04.2011, when he produced the computer generated ledger A/c details of payment to one Varsha Generator Repair for the period 25.04.2007 to 03.07.2008 as Ex.DW2/D (colly). Computer generated running and maintenance detail of the generator for the period 01.07.2007 to 02.07.2008 were proved as Ex.DW2/E (colly). Computer generated repair and maintenance record of the generator for the period 01.04.2007 to 02.07.2008 were proved as Ex.DW2/F (colly). Form 16A for TDS, with respect to Varsha Generator Services for the period 01.04.2007 to 31.03.2008 is proved as Ex.DW2/G (colly) and original bills for this period are Ex.DW2/H (colly). Diesel purchase bill for the period 01.07.2007 to 04.07.2008 have been placed on record as Ex.DW2/1 (colly). On being cross examined, he deposed that M/s Maple Clothing Concepts Pvt. Ltd. has not issued any appointment letter or ICard to him. He has been drawing salary through cheque. Mr.Amit Vaid and Mr.Akhil Vaid are the Directors. Form Page 6 of page 16 7 16A (Ex.DW2/G) bears the name of Amit Vaid as Director of M/s Maple Clothing Concepts Pvt. Ltd. He admitted that no document for verification of signature of Akhil Vaid has been filed. He also admitted that there is no Form 16A for salary of the accused from the aforesaid company in the court record. He denied the suggestion that he was not working as Accountant with M/s Maple Clothing Concepts Pvt. Ltd.
7 Accused also examined one Krishan Pal (DW3), official of the complainant BSES. He deposed that as per the record of the complainant company, meter No.23854884 was installed at F168, Tughalkabad village, New Delhi in the name of Gajraj Singh on 28.09.2007. The same was dis connected on 29.03.2008. He was not aware regarding installation of above said meter after its disconnection from F168, Tughalkabad village, New Delhi. He however admitted that after installation of a new meter, consumption bill is raised within about 23 months.
8 I have heard the Ld. Counsels with their assistance and perused the evidence on record and the documents produced 9 On the basis of pleadings, evidence and arguments raised, following issues arise for consideration.
(i) Whether a valid/ authorized meter was installed at the premises in question on the day of inspection?
(ii) Whether accused was associated with the premises in question?
(iii) Whether theft of electricity was being committed in the premises?
I shall now decide the issues so raised.
Page 7 of page 16 8 ISSUE NO.1 10.1 It is the case of complainant that meter No.23854884 found installed at the premises in question, was not an authorized/ valid meter installed by the complainant company. The members of the raiding team i.e. PW1, PW3 & PW4 have deposed that meter No.23854884 was not reflected in the records of the complainant company to be installed at the premises in question. Further, the representative of the consumer had failed to show any meter change report or proof of installation. Accused through Krishan Pal (DW3) has proved that the meter in question was removed from F168, Tughalkabad village, New Delhi on 29.03.2008. This witness has further deposed that even the bill is not generated for a period of 23 months from the date of installation. Accused during his testimony as DW1 has not made any statement, as regards, the meter having been duly installed by the officials of the complainant company. However, Gulshan (DW2) has so deposed, but when being cross examined, he deposed that no acknowledgment or meter change report was given by the officials of the complainant company. 10.2 From the evidence as discussed above and in the absence of any documents produced or proved on record by the accused, there is totally insufficient material on record to hold that the meter in question was a valid or authorized meter installed by officials of the complainant company. Judicial notice can be taken of the fact that for installation of a meter, an application is made by the consumer, demand note is raised by the complainant company and requisite charges are deposited. Only thereafter, the meter is installed and a meter change report or acknowledgment is Page 8 of page 16 9 handed over to the consumer. No such documents have not been placed on record. I thus hold that meter no.23854884 found installed in premises in question, on the date of inspection, was not a valid or authorized meter. ISSUE NO.2 11.1 It is the case of complainant that during the inspection on 03.07.2008,name of accused as user was revealed to them by the workers. Though, PW1 has deposed that accused was present at the time of inspection and has identified him ; yet this piece of evidence is not credible as the subsequent witnesses, who were also members of the team, namely, Sant Kumar (PW3) and Sh.Sant Ram Sharma (PW4) have deposed that accused was not present at the time of inspection. Accused has however not disputed his association with the premises in question. In his statement U/sec. 313 Cr.P.C., he has stated that in a previous case booked against this very premises, which resulted in CC No.798/07, he was impleaded as an accused along with Smt.Kanta Devi Mittal. During defence evidence, accused has built a case that he was an employee in M/s Maple Clothing Concepts Pvt. Ltd., which was the user and occupier of the premises in question. As DW1, he has deposed that he was working as Manager (Operations). During cross examination, he deposed that he saw the administration and production of the company and was employed at a salary of Rs.30,000/ p.m. However, he did not place on record any letter of appointment or salary certificate. He claimed Amit Vaid to be the owner, as well as, Director of the company and one Akhil Vaid as a Managing Director. He has further deposed that he was still employed in the company. Gulshan (DW2) has deposed that he was working as Accountant in M/s Maple Clothing Concepts Pvt. Ltd. and had Page 9 of page 16 10 not been issued any appointment letter. He deposed that accused was working as Incharge Production and Amit Vaid was the Executive Director. 11.2 On the basis of evidence, as noticed above, it is not disputed that accused was associated with M/s Maple Clothing Concepts Pvt. Ltd., which was the user and occupier of premises in question. He has, however, claimed that he was Incharge of the Production and Administration and one Amit Vaid and Akhil Vaid were the Director and Managing Director respectively. No appointment letter or the salary slip has been proved by him. Even, his bank A/c, which would indicate his salary has been withheld by him. No steps have been taken by the accused for summoning Amit Vaid and Akhil Vaid, socalled Director and Managing Director of M/s Maple Clothing Concepts Pvt. Ltd. to demonstrate that they were the actual users and it was their responsibility to maintain and manage the electricity connection. 11.3 Moreover, section 149 of the Act stipulates that a person who is incharge and responsible to the company for conduct of its business is deemed to be guilty of having committed the offence. For ready reference, Section 149 (1) & (2) is reproduced hereinbelow :
Sec. 149. Offences by companies:
"(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of having committed the offence and shall be liable to be proceeded against and punished accordingly.
Page 10 of page 16 11 Provided that nothing contained in this subsection shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in subsection (a), where an offence under this Act has been committed with the consent or connivance of or is attributable to any neglect or the part of any director, manager, secretary or other officer shall also be deemed to be guilty of having committed such offence and shall be liable to be proceeded against and punished accordingly.'' Accused has admitted himself to be a manager entrusted with administration and production. Failure of the accused to place on record the memorandum of association of M/s Maple Clothing Concepts Pvt. Ltd. and failure to summon the directors as witnesses or not seeking to summon the directors U/sec. 319 Cr.P.C. as accused persons leaves the court with no option but to draw an inference that accused has been rightly implicated. Failure to summon Akhil Vaid (Director of the company) as a witness or as an accused becomes all the more glaring in the facts and circumstances, when he has stood surety for the accused at the time of grant of bail to the accused, and was thus available. The accused also admitted at the end of his deposition that he was still in employment of M/s Maple Clothing Concepts Pvt. Ltd.
11.4 Placing on record the original cash memos (discussed in para 12) in favour of M/s Maple Clothing Concepts Pvt. Ltd. by the accused indicates that either the same are fake or that the accused has major role in the management and administration of M/s Maple Clothing Concepts Pvt. Ltd., Page 11 of page 16 12 that is why he could place on court record these invoices, which should ordinarily have been in the income tax return files of M/s Maple Clothing Concepts Pvt. Ltd.
11.5 I am thus of the considered opinion that it is accused, Randeep Chawla, who has committed the present offence. Though, he has placed on record certain documents to indicate that M/s Maple Clothing Concepts Pvt. Ltd. through its Directors Amit Vaid and Akhil Vaid were the users ; yet, I am not satisfied with the aforesaid documents. His failure to summon the aforementioned Directors as witnesses or as accused persons, creates a doubt, as regards, this plea of defence raised by him. The testimony of witnesses of the complainant that accused was named at the time of inspection to be user of the premises, has gone unrebutted. Accused himself admitted in his testimony that his name could have come up because he is incharge of the administration and production and outsiders usually contact him.
ISSUE NO.3 12.1 Complainant through its witnesses, who were members of the raiding team has proved that a fake meter bearing No. 23854884 was found installed, which was removed from the premises in question & produced in court and identified by PW1. As discussed in para 10 above, I have already held that this meter was not a valid meter. Accused has not produced on record any other bills of consumption of electricity for the premises in question, which he might have been paying.
Page 12 of page 16 13 12.2 It is the case of the accused that a diesel generator set was installed in the premises through which, load was running. A suggestion to this effect was given to Sant Kumar (PW3), who denied the position and stated positively that load of the premises was running through the unauthorized meter at the time of inspection. Accused has tried to build his case on the basis of invoices issued by Mona Generator Services Ltd. and Varsha Generator Repair and also through the corresponding record maintained by M/s Maple Clothing Concepts Pvt. Ltd. and also by way of TDS certificates, that load was running through the generator set. However, this evidence though raises some doubts in favour of the accused but is not sufficient as to give him a total clean chit. All record pertaining to Mona Generator Services Pvt. Ltd. is for the period 05.07.2008 to 17.12.2009. The inspection having been conducted on 03.07.2008, the entire record is irrelevant. The monthly rent paid to Mona Generating Services Pvt. Ltd. or reflection thereof in the TDS certificate is for the period subsequent to the inspection. The ledge A/c Ex.DW2/A showing the payment of hiring charges of generator is for the period 05.07.2008 to 17.12.2009, whereas the inspection was carried out on 03.07.2008. The bills issued by Mona Generating Services Pvt. Ltd. for hiring of the DG set pertains to the period 25.07.2008 to 01.12.2009 (Ex.DW2/B), which is also later to 03.07.2008, the date of inspection. TDS certificate Ex.DW2/C records the first payment to have been made on 30.09.2008, which corresponds to the bills raised after July, 2008. I, thus, find that Mona Generating Services Pvt. Ltd. was not providing generator set to M/s Maple Clothing Concepts Pvt. Ltd. at the time of inspection or prior thereto.
Page 13 of page 16 14 12.3 The record pertaining to Varsha Generator Repair is, of course, for the relevant period but the same is of doubtful authenticity. Ledge A/c Ex.DW2/D records details of payment for repair for the period 25.04.2007 to 03.07.2008. Computer generated maintenance details maintained by M/s Maple Clothing Concepts Pvt. Ltd. for the period 01.07.2007 to 02.07.2008 are exhibited as Ex.DW2/E. Repair and maintenance charges for the period 01.04.2007 to 02.07.2008 are Ex.DW2/F. The ledger records and the computer generated records so proved are a self serving record maintained by M/s Maple Clothing Concepts Pvt. Ltd., which as per accused was the consumer of stolen electricity. These documents have, therefore, to be scrutinised minutely and tested firmly to establish their evidenciary value. The documents are, of course, not authenticated by any Chartered Accountant. These have also not been produced from the income tax return of the M/s Maple Clothing Concepts Pvt. Ltd. The doubts thus created in the mind of the court are further compounded by studying the TDS certificate Ex.DW2/G. TDS certificate Ex.DW2/G (colly) which is for the period for financial year 01.04.2007 to 31.03.2008, records only two payments having been made in the entire financial year, which are 12,000/ each on 30.09.2007 and 31.12.2007.
12.4 Thus, for the period 01.01.2008 to 05.07.2008, (when Mona Generating Services Pvt. Ltd. was hired), there are no payments proved to have been made to any generator set provider. It is thus established from the record of M/s Maple Clothing Concepts Pvt. Ltd. itself that there was no generator set available at premises in question during the period 01.01.2008 to 05.07.2008. I must hasten to add that for the period claimed to be covered Page 14 of page 16 15 by payments to Varsha Generator Repair, the accused was not consuming electricity only through generator set. The accused as DW1 and Gulshan as DW2 have both deposed that generator set was used only in cases of power failure. Both the witnesses have so deposed in their examination in chief. Gulshan DW2, however, tried to improve upon his statement, when he was further examined on a subsequent date. However, this improved version as recorded on 03.03.2011 is pertaining to the period after the date of inspection. Accounts maintained in the ledger book of the complainant company are thus not credible, as the same are not supported by the TDS certificate. Cooking up the A/c books is a known phenomenon, in bodies engaged in commercial activities, to evade their tax liability. The same seems to have been done in the present case to avoid criminal liability. Placing on record of the diesel purchase invoices Ex.DW2/I (colly), in the absence of any support from duly authenticated income tax return or the TDS certificates, merely fattens the court file with no advantage to the accused. Study of the payments made to Varsha Generator Repair and Mona Generating Services Pvt. Ltd. for each of the financial year further strengthens the case of the complainant. In the year preceding the inspection, the generator was hardly used by M/s Maple Clothing Concepts Pvt. Ltd. TDS certificate Ex.PW2/C in favour of Varsha Generator Repair records a payment of Rs.24,000/ in the entire financial year, whereas, the Mona Generating Services Pvt. Ltd. which was hired after the inspection has been paid an amount of Rs.1.5 lacs in the subsequent financial year for a period of only 9 months. 12.5 Arguments has been raised by the defence counsel that as per the rent agreement, landlord was liable to pay for the electricity charges. The Page 15 of page 16 16 arguments is factually incorrect. A perusal of the license deed Ex.DW1/A reveals that the licensor i.e. landlord has avoided his responsibility and rather specifically stipulated that such a liability shall be that of the licensee. For ready reference, para 12 of the license deed is reproduced hereinbelow :
"The licensee shall comply with all the lawsbyelaws, enactment, statutes rules and regulations and acts of MCD/ NDMC/ DELHI JAL BOARD/ DDA/DELHI ADMN/BSES RAJDHANI POWER LTD (B.R.P.L) ELECTRIC COMPANY/ FIRE HEALTH/ POLLUTION/ CENTRAL GOVT. ACT etc. i.e. all of the aforesaid rules regulations acts by laws etc. for the time being enforce and if any illegality is found due to the part of the licensee and/ or any penalty, fine or criminal liability or damage is imposed the responsibility in such an event will be solely that of the licensee and the licensor shall not incur any liability whatsoever.'' I thus hold that it was not the liability of land lord Sh.Sneh Kumar Mittal to pay the electricity charges.
13 In the aforesaid facts & circumstances, as discussed in paras 10, 11 & 12, I am of the considered opinion that complainant has proved its case beyond reasonable doubts. I, therefore, hold that accused was responsible for theft of electricity being committed at the premises in question. Accused, Randeep Chawla, is thus held guilty for the offence punishable U/sec. 135 of the Act. He is also liable to recompense the complainant for illegally consuming the electricity for nondomestic purpose.
Announced in the open ( NAROTTAM KAUSHAL)
court on 24.01.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
Page 16 of page 16
17
CC No. 529/08
24.01.2012 (At 03.00 p.m.)
Present AR for the complainant with
Sh. S.K.Alok, counsel for the complainant
Accused on bail with Sh.S.Satya Narayana, Adv.
Vide a separate judgment announced today, accused is held guilty for the offence punishable u/sec. 135 of the Act.
Ld. Counsel for the convict is ready for arguments on the point of sentence and determination of civil liability.
Arguments heard.
Now, to come up on 04.02.2012 for orders on the point of sentence and civil liability.
( NAROTTAM KAUSHAL ) ASJ/SPL.COURT(ELECT.)SOUTH SAKET COURTS/24.01.2012 Page 17 of page 16