Delhi District Court
Bses vs . Mukhtiar, Cc No. 140/09 Page 1 Of Page 17 on 9 May, 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.: 140/09
Police Station : Badarpur, New Delhi
U/s 135 of Electricity Act, 2003
Unique ID No. 02403 RO300332009
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
Shri Mukhtiar
R/o RZ526A, Gali No. 24,
Tugalakabad Extension,
New Delhi.
...Accused
Appearances : AR with Sh. Rajesh Kumar, proxy counsel for Shri S.S.
Mittal, counsel for complainant.
Accused on bail with Sh. K.S. Sharma, Advocate.
Complaint instituted on : 23.03.2009
Judgment reserved on : 29.04.2013
Judgment pronounced on : 09.05.2013
BSES Vs. Mukhtiar, CC No. 140/09 Page 1 of page 17
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JUDGMENT
1 The case of the complainant in brief is that on 17.10.2008, the officers of the complainant company namely, Shri Sant Ram Sharma - Senior Manager, Shri P. Naulakha - Graduate Engineer Trainee and Shri Sanjay Meena - Diploma Engineer Trainee on the directions of DGM of complainant company inspected the premises of the accused at RZ526A, Gali no. 24, Tugalakabad Extension, New Delhi and it was found that electricity was being used by the accused and there was no meter installed at the said premises and accused was found indulging in the direct theft of electricity by illegally and directly tapping from the complainant's service line with the help of illegal black colour and yellow colour wires. It is further mentioned that the illegal wires were seized at the spot by the inspection team. The total connected load of the electricity was connected through illegal wires/ tappings and that a connected load of 3.650 KWs energy was found being connected / used for domestic purpose and 2.870 KW for non domestic purpose and the connected load was mentioned in the load report prepared at the spot and that the photography of the said theft was got conducted and inspection report was also prepared at the spot including the sketch of the manner of theft and thus, accused was causing wrongful loss to the complainant and wrongful gain to himself and was thus acting BSES Vs. Mukhtiar, CC No. 140/09 Page 2 of page 17 3 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. 1,60,241/ with a due date as 14.11.2008 and was served upon the accused but he failed and neglected to pay the said theft bill.
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 01.06.2009 and the accused appeared and was supplied with the copy of documents and CD and my ld. predecessor vide his order dated 27.01.2010 framed a notice u/s. 251 Cr.P.C. for offence u/sec. 135 of the Electricity Act, 2003 against the said accused and accused pleaded not guilty and claimed trial on the ground that he applied for installation of meter at the premises 23 months prior to the date of inspection and that he was not committing any direct theft of electricity and that a false and fabricated case has been made out against him and that he was not liable to pay any damages and loss to the complainant company.
BSES Vs. Mukhtiar, CC No. 140/09 Page 3 of page 17 4 4 In order to prove the case of the complainant, three witnesses were produced, which have been discussed below. 5 The statement of the accused was recorded U/sec. 313 Cr.P.C.,
wherein he pleaded his innocence and denied the evidence as false and he answered that he was not present at the premises in question at the time of inspection as the said premises was in occupation of certain tenants and that he subsequently came to know about said inspection through tenants and that he applied for electricity connection but the same was not allowed by the date of inspection and that the load report is wrong and exaggerated and that he does not know if any document was prepared at the spot or any wire removed or seized by the officials of complainant company and that he resides in village Tugalakabad and that there was high tension wire going above the said premises, therefore, meter was not allowed and that the said alleged equipments could not have been run because of the said high tension wire. Accused opted to lead defence evidence and produced only one defence witness, who has been discussed below.
6 I have heard the counsel for the complainant and counsel for the accused Shri K.S. Sharma, Advocate, and perused the record including BSES Vs. Mukhtiar, CC No. 140/09 Page 4 of page 17 5 the CD of photography displayed on the computer screen of the court. 7 PW1 Shri Sant Ram Sharma, Senior Manager (O&M) of the complainant company deposed that on 17.10.2008 at around 11.45 a.m., he along with Shri Pawan Naulakha - GET, Shri Sanjay Meena - DET inspected the premises bearing no. RZ526 A, Gali no. 24, Tuglakabad Extension, New Delhi and they found that the premises was used by Mukhtiar and there was no electricity meter and accused was using the electricity illegally by directly tapping from BSES LV Mains with the aid of illegal wires which were further connected to ground floor, basement and first floor of the said premises and the theft of electricity was going on for domestic as well as commercial purposes and that total connected load for domestic purpose was 3.6 KW and for commercial purpose 2.87 KW and the total connected load for domestic purposes consisted of room heater, ceiling fans, tube lights, TV etc. and the total connected load for commercial purposes was for sewing machines, heater, TV, fans, tube lights etc., and he proved the inspection report, meter report, load report and seizure memo as Ex. CW2/A to Ex. CW2/D and photographs of the said inspection as Ex. CW2/E and CD containing the said photography as Ex. CW2/F and that they seized illegal black and yellow wires from the spot by which BSES Vs. Mukhtiar, CC No. 140/09 Page 5 of page 17 6 the accused was committing direct theft of electricity and that he did not recollect as to whether the accused was present at the spot due to lapse of time and he identified the case property which was one carbon copy of seizure memo Ex. P1, one yellow colour copper wire as Ex. P2 and one black colour copper wire as Ex. P3, which were being used for illegally tapping the energy.
8 In his cross examination on behalf of the accused, PW1 replied that DGM had given the specific instructions to conduct the raid in the premises in question. He further replied that they verified about the premises in question from a shopkeeper in gali no. 24 and that he did not remember as to whether there was any board in front of the premises in question or not. He did not remember the names of the persons who were present at the spot from whom he inquired and that they disclosed their names but he did not remember the same. He further answered that he had inquired about the ownership of the premises in question from the persons who were present at the spot and they informed them (the inspection team) that Mukhtiar was the owner of the premises in question and said Mukhtiar was not present at the spot. He did not know the exact distance between the BSES pole and premises in question and the illegal wires Ex. P2 and P3 were BSES Vs. Mukhtiar, CC No. 140/09 Page 6 of page 17 7 removed from inside the premises in question and that they could not seize the illegal wires from the BSES pole upto the premises in question due to resistance created by the public and that the said area was sensitive and that they had no police force along with them at that time. He replied that he had not asked anybody regarding applying for the electricity connection in the premises. He had no personal knowledge if any electricity connection was applied by the consumer at the time of inspection and they never sought any record related to the premises.
9 PW2 Shri Pawan Naulakha - Assistant Manager (Power Supply) of the complainant company deposed the facts in his examination in chief almost on the same lines as mentioned in the said complaint and the deposition of PW1 and he also deposed that they took the photographs of the inspection and connected load and also proved the same collectively as CW2/E. PW2 also proved the CD of photography Ex. CW2/F. He further deposed that they offered the documents prepared at spot, to the person present at site but they refused to receive and sign the same and that at the time of inspection the mob gathered there and they had to leave the spot, therefore, he could not sign all the documents at the spot. He also identified the case property BSES Vs. Mukhtiar, CC No. 140/09 Page 7 of page 17 8 i.e. the illegal wires as Ex. P2 and P3.
10 In his cross examination on behalf of the accused, PW2 replied that they made inquiries from the neighbourhood to locate the premises, but his name was not recorded. He replied that at the beginning of the raid, public person were gathering there. He replied that he himself took the photographs of the inspection and connected load of the said premises. He did not remember as to on which floor, the documents were prepared. He replied that they had made inquiries regarding the ownership of the property but no document was produced for their inspection. He further replied that person present at the premises had told them that Mukhtiar was the owner and user but Mukhtiar was not present. He further answered that after inspecting the premises of the accused, they did not inspect any other premises and returned to the office. He further replied that the wires seized from the spot were about one meter in length each, and were connected parallel from the hook to the mesh of wires. He admitted that the yellow wire produced in the court is in two pieces, knotted from one side. He further answered that he had disconnected the wires at the spot from the illegal connection. He answered that he could not demonstrate as to how the wires were connected to the service cable, as BSES Vs. Mukhtiar, CC No. 140/09 Page 8 of page 17 9 there was a confusing mesh of wires. He answered that the point of tapping on the service line was within the house of the accused and that the pole was about 1015 meters away and illegal service line was drawn from the pole and that they did not disconnect the supply from the pole. He did not know if the owner of the premises had applied for electrification of his building or that same was not done despite his repeated visits and requests.
11 PW3 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. PW3/1 and he identified the signatures of the previous A.R. on the complaint Ex. CW1/A and he further proved letter of authority of the previous A.R. as Ex. CW1/C and he deposed that he has no personal knowledge of the facts of the case and has deposed as per records. In his cross examination on behalf of the accused he replied that he did not visit the premises in question and that Shri Lalit Jalan, Chief Executive Officer of the complainant company has powers to authorise Shri Binay Kumar for filing and pursuing the present complaint. PW3 further replied that Shri Arun Kanchan Chief Executive Officer has power to authorise him to pursue the present complaint and appear in the present case on behalf of complainant BSES Vs. Mukhtiar, CC No. 140/09 Page 9 of page 17 10 company. PW3 denied the suggestion that Shri Lalit Jalan and Shri Arun Kanchan are not competent to authorize Shri Binay Kumar or him to file, defend or purse the present complaint case and that false and fabricated case has been made out against accused and that there was no theft of electricity found at the premises in question. 12 DW1 Shri Inderjit deposed that on 17.10.2008 at about 10.00 a.m., two persons from BSES department came to the premises in question and that they opened and entered the premises and collected some photographs after connecting electrical wires from LV mains and that he being neighbourer came to the spot at the time of inspection and verified about the inspection but the said persons refused to tell the facts. He further deposed that the said officials of BSES enquired about the name of the owner of the house and someone from crowd told them the owner of premises is Shri Haroon (father of the present accused), who was not present at the spot at that time as he was attending the unwell mother of the accused. He also deposed that no documents were prepared nor the same were offered to any person present at the spot and that said officials did not enquire about the names and particulars of the persons present at the spot and that said officials remained present at the spot for about 1 ½ hours and he also BSES Vs. Mukhtiar, CC No. 140/09 Page 10 of page 17 11 remained at the spot for the entire duration of inspection. He also deposed that said officials did not inform him that a case under theft of electricity was being booked. He did not remember as to whether any high power tension wire was going above the house of the accused. 13 In his cross examination on behalf of the complainant, DW1 replied that he was occupying a tenanted premises and landlord was known by the name of Master, who owned a factory nearby and that he did not possess or has brought any rent note or rent agreement with his own landlord. He did not know the particulars of all occupants of the nearby houses. He further replied that he worked as cycle repairing mechanic at a shop with name and style of Jagdamba Cycle Works at gali no. 23. He further replied that he did not go to his said shop on the day of inspection. He admitted that the said premises was occupied by the father of accused and possessed by the accused and that the premises of the accused consisted of the basement, ground and first floor and he volunteered that first floor was not having pucca ceiling but only asbestos sheet were there. He identified the premises of the accused in the photographs Ex. CW2/E. He admitted that the sewing machines were installed in the premises of the accused. He did not know if any electricity meter was installed in the said premises of the BSES Vs. Mukhtiar, CC No. 140/09 Page 11 of page 17 12 accused or not. He replied that house of the accused consumed electricity but the said machines were not operational. He did not know if the accused had been paying electricity bills. He did not know as to what is LV mains but officials of BSES had connected the wire with the main electricity pole and he did not remember the colour of wire used by BSES officials. He replied that he had not entered into the premises of accused along with officials of BSES officials on the day of inspection and that he did not know to which hospital accused had gone and that father of accused used to visit the said premises occasionally. He did not know regarding the nature of work being performed by the accused as his vocation.
14 From the deposition of PW1 and PW2, who have no axe to grind against the accused, it has been specifically proved on record that on 17.10.2008 at around 11.45 a.m., the theft of electricity was going on in premises bearing no. RZ526 A, Gali no. 24, Tuglakabad Extension, New Delhi by way of directly tapping from the BSES LV mains with the aid of illegal wires, the part of the wires being Ex. P2 and P3 and the accused has not denied the premises under his use and since the artificial means to abstract the electricity in the form of said wires had been seized and the deposition of PW1 and PW2 have been corroborated BSES Vs. Mukhtiar, CC No. 140/09 Page 12 of page 17 13 by the inspection report, meter report, load report, Ex. CW2/A to Ex CW2/C and seizure of the said artificial means has been established by way of seizure memo Ex. CW2/D, and the inspection as well as connected load was further made evident by the photograph Ex. CW2/E and the CD of the photography Ex. CW2/F, I am of the considered opinion that the presumption raised in third proviso of section 135 of the Electricity Act, 2003, has arisen against the accused and now it was for the accused to rebut the same.
15 The extent to which the rebuttal of the said presumption is required has been laid down by the Hon'ble Supreme Court in catena of judgments dealing with socioeconomic offences and one such judgment is titled as Hiten P. Dalal Vs Bratindranath Banerjee cited as 2001 (6) SCC 16 wherein the Hon'ble Supreme Court in para 20 held as follows:
".....Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
16 The accused is not supposed to prove his defence "beyond BSES Vs. Mukhtiar, CC No. 140/09 Page 13 of page 17 14 reasonable doubt" but a reasonable probability of the existence of his defence is required to be established in order to make the court believe the existence of the same. The first defence the accused raised in the case is that the same premises was inspected, 1 ½ month prior to the inspection in question, but no document to that effect has been proved or was summoned from the complainant company in his defence and it is nothing but merely a bald submission. It is further submitted by the ld. defence counsel that accused applied for electricity meter three months prior to the date of inspection but the same was not installed. Again, this is a bald allegation and accused miserably failed to produce any document to that effect that he had applied for an electricity connection. Next is the contention that the accused was admittedly not present at the time of inspection, which is again meritless for the simple reason that nature of theft of electricity is such that the presence of the accused is not required to commit the theft of the same as in the case of tangible item, a subject matter of theft as defined u/s. 378 IPC. 17 The ld. counsel for the accused further argued that on the ground floor there were only two rooms out of which one was occupied by the brother of the accused and other was occupied by the relative of the accused and the said occupants were using candle light and gas lamps BSES Vs. Mukhtiar, CC No. 140/09 Page 14 of page 17 15 and the said contention is again devoid of any merits as the accused not only failed to produce the said occupants/ relatives in the witness box, but he further failed to prove by way of any cogent evidence that the said occupants were using the candle lights and gas lamps. 18 It has been vehemently argued on behalf of the accused that a high tension wire was going over the property of the accused and in the said circumstances the theft of electricity by way of direct tapping was not possible. However, no such suggestion was ever thrown to PW1 and PW2, who were better technical persons to answer the said question and contrary to that, the accused suggested that no such inspection was carried out at all and the case was prepared against the accused inside the office of the complainant and it was suggested to PW2 that he was not at all present at the time of inspection. Thus, the said contention is nothing but an argument of desperation. 19 It has been further argued on behalf of the accused that no public person was joined or made a witness to the inspection. This argument is misdirected and based upon ignorance of law. As per section 163 of the Electricity Act, 2003, the authorised officials of the complainant company has only power to search and seizure as distinguished from BSES Vs. Mukhtiar, CC No. 140/09 Page 15 of page 17 16 police powers which are mentioned right from section 154 to section 173 Cr.P.C., wherein the police has got power to register an FIR and the investigation may be carried out by the IO requiring the attendance of the persons / witnesses acquainted with the facts of the case and non compliance of the same by any such person, may result into penal consequences under the Indian Penal Code and further the police power to arrest the person are mentioned in section 41 of Cr.P.C., wherein the police is having vast powers to arrest any person in different circumstances and situations and certainly, the authorised officials conducting the inspection under the Electricity Act, have no such power to enforce or coerce any public person to be a witness or to arrest an accused if found involved in the offence of theft of electricity. Thus, non joining of a public witness at the time of inspection does not come to the help of the accused in the present case or in any other case of mere search and seizure conducted by the authorised officials of the complainant company, the said argument is not available as such. 20 Further, the accused has also miserably failed to even bring on record his prima facie case that he was using the electricity by duly making payments for the consumption of the same. Furthermore, the deposition of DW1 as reproduced above has further demolished the BSES Vs. Mukhtiar, CC No. 140/09 Page 16 of page 17 17 alleged defence of the accused.
21 In view of my said discussion, the accused has miserably failed to show a reasonable probability of his defence that the electricity was being consumed against payment through bills or he himself was not liable for any alleged theft. On the other hand, PW1 and PW2 have been successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, the accused is held guilty and convicted under section 135 of the Electricity Act, 2003.
Announced in the open ( RAKESH TEWARI )
court on 09.05.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Mukhtiar, CC No. 140/09 Page 17 of page 17