Delhi District Court
In The Case Of Vardhman Properties Ltd. vs Bses Rajdhani Power Ltd. on 30 July, 2011
1
IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint Case No. 837/06
PS Hauz Khas, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Ltd.
having its registered office at
BSES Bhawan, Nehru Place,
New Delhi110019
And its Corporate, Legal & Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through its Authorised Officer
Sh. Pankaj Tandon
...Complainant
Versus
Azad Singh, M/s. Bulls Marketing,
B49, Indra Enclave,
Neb Sarai, New Delhi. ...Accused
COMPLAINT INSTITUTION ON : 23.09.2006
JUDGMENT RESERVED ON : 27.07.2011
JUDGMENT PRONOUNCED ON : 30.07.2011
JUDGMENT
1 The complainant company filed the present complaint u/s 135 r/w/sec. 151 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused committed an offence punishable u/sec. 135 (1) of the Act and also to determine the civil liability as provided under the provisions of section 154 (5) of the Act.
2 Cognizance for offence was taken on a complaint filed by the complainant company BSES Rajdhani Power Ltd. through its authorised officer.
23 The accused was summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 02.01.2007 after recording the presummoning evidence and hearing the arguments on summoning. Accused appeared and was granted bail on furnishing PB and SB in the sum of Rs.25,000/ with one surety of the like amount. Separate notice u/sec. 251 Cr.P.C was framed against the accused by the Ld. Predecessor Court to which the accused pleaded not guilty and claimed trial.
4 The complainant company examined Binay Kumar - Legal Officer & AR as PW1, Mohd. Sadiq - Field Executive as PW2, Sanjeev Kumar - Assistant Manager as PW3 and Sh. Sanjay Kumar - Photographer as PW4. The statement of the accused was recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against him. The accused was given opportunity to lead evidence in his defence. The accused in his defence examined Sh. Om Prakash - Tax Assistant as DW1, Sh. R.K.Singh - Nodal Officer as DW2, Sh. Omvir Singh - Inspector as DW3. The counsel for the accused filed an application u/sec. 315 Cr.P.C. to examine the accused as a witness. Therefore, Sh. Azad Singh S/o Sh. Phool Singh, examined as DW4.
5 I have heard the Ld. counsel for accused represented by Sh. B.S.Sharma and prosecution represented by Sh. Rishab Raj Jain, counsel/ deemed P.P and have perused the written submissions/ arguments & reported judgments filed by the counsel for the accused and also entire records.
6 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and 3 circumstances of this complaint case, it has to be seen and considered whether this court, being the special court under the Act, can take cognizance of the offence punishable u/sec. 135 of the Act. Section 151 of the Act reads as under:
''Cognizance of offences - No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:
Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.'' In the case of Vardhman Properties Ltd. Vs BSES Rajdhani Power Ltd.
157 (2009)DLT 636, it was held by the Hon'ble High Court that:
''The special electricity court can take cognizance of the offence u/sec. 135 of the Act without awaiting committal of the case to it by the Magistrate. Therefore, in the instant case when by the order dt. 07.04.2006, the Ld.ASJ took cognizance of the offence and summoned the petitioner for offence u/sec. 135 of the Act, the Ld.ASJ was exercising the powers u/sec. 151 of the Act.'' The Hon'ble High Court of Delhi in its order dated 06.02.2009 passed in Crl. MC 2059/2008 & Crl. MA 7669/2008 entitled Dalbir Singh Vs BSES Rajdhani Power Limited held that :
''Section 154 (1) mandates that every offence punishable under sections 135 to 140 & section 150 shall be triable only by the Special Court within whose jurisdiction such offence has been committed. Considering the fact that Section 154 (3) the Special Courts are expected to proceed with the trial of the 4 complaints under sections 135 to 140 & Section 150 in a summary way, it is inconceivable that the Parliament intended that the cognizance of the offence should first be taken by the learned MM and thereafter the case committed to the Special Court. Further Section 155 begins with the words ''Save as otherwise provided in this Act'' when it talks of the applicability of the Cr.PC. Therefore, on a collective reading of Section 135, 151, 154 (3) and 155 it is plain that as regards the trial of the complaint case under the Act, the intention of the Parliament is that it is the Special Court will take cognizance of the offences and proceed to try the case, to begin with, in a summary way.'
7 Further, it is to be considered whether the special electricity court is required to give reasons for proceeding with the trial in a summary way. Section 154 (3) reads as under :
''The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in sections 135 to 140 and section 150 in a summary way in accordance with the procedure prescribed in the said code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :
Provided that where in the course of a summary trial under this subsection, it appears to the Special court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to rehear the case in the manner provided by the provisions of the said code for the trial of such offence:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.'' In this regard, the Hon'ble High Court of Delhi in the case Dalbir Singh (Supra) further held that :
''A plain reading of the above provision reveals that the intention of the Parliament was that cases concerning theft or illegal abstraction of electricity, attracting the offence under section 135 to 140 and section 150 of the Act, should be tried, to start with, in a summary way. Since the substantive portion of the above provision itself empowers the Special Court in this regard, it is unnecessary for the Special Court to give reasons for trying the 5 case in a summary way. The procedure under section 154 (3) is indeed a departure from the procedure of trial of warrant cases under the Cr.PC Section 154 (3) contains a nonobstante clause which indicates that it is a departure from the normal procedure. Even Section 155 of the Act which otherwise makes the entire Cr.PC applicable, begins with the words ''save as otherwise provided in this Act.''
8 After taking cognizance of the offence on the complaint, the accused namely, Azad Singh was summoned to face the present complaint case. Accused appeared and was granted bail on furnishing PB and SB in the sum of Rs.25,000/ with one surety of the like amount. The notice u/sec. 251 Cr.P.C. was framed against the accused, however, the accused pleaded not guilty and claimed trial. In this regard, I would refer the case of Sanghi Brothers (Indore) P. Ltd. Vs Sanjay ChaudharyI (2009) SLT 144, it was held by the Hon'ble Supreme Court of India that ''strong suspicion about commission of offence and involvement of accused is sufficient to frame charge.'' The statement of the accused was recorded u/sec. 313 Cr.P.C. In this context, I would refer the judgment delivered in the case of Chander Dev Rai Vs State (NCT of Delhi) 156 (2009) DLT 229 (DB), it was held by the Hon'ble High Court of Delhi that ''Examination of accused u/sec. 313 Cr.P.C is not a mere formality. Answers given by him have practical utility for criminal courts. Apart from affording an opportunity to the accused to examine incriminating circumstances against him also help the court in appreciating the entire evidence adduced in the court during the trial.'' 9 Admittedly, the accused Azad Singh is now facing trial and the complainant seeks to prove the complaint case through circumstances appearing against him. A criminal charge could be proved on the basis of circumstantial evidence and the requirement is that circumstances incriminating in nature must be proved by cogent evidence and then 6 circumstances so proved must form the complete chain so as to be not consistent with the innocence of accused. In this context, a reliance can be had upon the judgment passed by the Hon'ble Supreme Court of India in the case reported as AIR 1970 SC 1286 held that:
'' There is no predetermined way of proving any fact. The fact is said to have been proved where after considering the matter before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the specification that it exists.'' In the case of Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay AIR 1961 Supreme Court 1316, it was held that :
''...The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact....'' In the case of M/s Sodhi Transport Co. and another Vs. State of U.P. and another reported as AIR 1986 Supreme Court 1099, it was held by the Hon'ble Supreme Court of India that :
''A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.''
10 Let us firstly examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. Sh. Binay Kumar, Legal Officer being an authorized representative (hereinafter referred to as 'AR') of the complainant company filed the present complaint case. The AR entered into witness box and examined himself as PW1. PW1, during examination in chief, deposed that he is working with the complainant company as a Legal Officer. The present complaint has been filed by Sh.Pankaj Tandon vide letter of authority dated 14.07.2006 already exhibited 7 as Ex.CW1/1. The complaint bears his signature at point A. Since, PW1 has been working with Pankaj Tandon, therefore, PW1 recognizes his signatures and he is posted at Vikas Puri, Special Court as Authorised Representative of the complainant company, the present complaint already exhibited as Ex.CW1/2. PW1 further deposed that he has been authorized vide letter of authority dated 23.10.2006 to prosecute the present complaint and his letter of authority dated 23.10.2006 already exhibited as Ex.CW1/3. PW1 also deposed that he does not have the personal knowledge of the case because he was not the member of the inspection team. PW1 is prosecuting the present case on the basis of the documents to him by the complainant company. Perusal of Ex.CW1/1 dated 14.07.2006 reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorised Pankaj Tandon working as Senior Legal Officer with the company to institute and/or defend legal proceedings of whatsoever nature before the Special Courts and to sign & verify plaints, affidavits, written statements, petitions of claims, objections, memorandum of appeal & petition and application of all kinds and to file them in any such courts or office apart from other authorisation as mentioned in the said document Ex.CW1/1. Further, Binay Kumar Legal Officer PW1 was also authorised vide the letter of authority dt. 23.10.2006. The details of the authorisation in Ex.CW1/A are the same as mentioned in the authorisation Ex.CW1/1. Later on, Sh.Ashutosh Kumar was also authorised by the complainant company to appear and represent on behalf of the complainant in this complaint case and vide order dt. 25.09.2010, Sh.Ashutosh Kumar was allowed as a AR on behalf of the complainant to appear and represent in the proceedings of this complaint case. PW1 in his cross examination deposed that on seeing the complaint Ex.CW1/2, he can say that it was found by the officials of the complainant 8 during inspection on 15.07.2006 that the premises in question was being used by Azad Singh which is specifically mentioned in para no.6 of the complaint. PW1 further deposed in his cross examination that Ex.CW1/1 and Ex.CW1/3 are not the copies of the resolutions of board of directors of the complainant. However, PW1 volunteered that he can provide the copy of the resolution of the board of directors if required. PW1 denied the suggestion that the Ex.CW1/1 and Ex.CW1/3 are not the authorisation letters. PW1 also denied the suggestion that he cannot identify the signature of Pankaj Tandon, the previous AR of the complainant. PW1 categorically deposed in his cross examination that he is not aware about any document which was verified by the complainant prior to the inspection carried out at the premises in question. It is a matter of record if any document with respect to the legal connection at the premises has been filed on record. The counsel for the accused in his written submissions/ arguments stated that resolution of board of directors was never brought on record, the contentions of the authorisation not proved, therefore, the alleged authorisation letters Ex.CW1/1 and Ex.CW1/3 has placed on record are not proper authorisation letters. In this context, the counsel for the accused relied upon the judgments reported as AIR 1991 Delhi 25 ; 2000 Apex Decision Vol. II 863 ; 1997 Apex Decision (Vol.I) 529; 2004 CCC (Vol.4) 91 SC. The counsel for the accused also referred to section 61 to 65 of the Evidence Act on the aspect that proving the documents. It may be noticed that the complainant is rendering services for distribution of electricity to the public and all the complaint cases by the company are being filed through the authorised representatives on its behalf. PW1 not only proved the authority letter Ex.CW1/1 in favour of Pankaj Tandon, previous AR but also the complaint filed by him as Ex.CW1/2. Whereas, the accused has not led any evidence and failed to prove that the ARs have not been authorised 9 by the complainant company to file and represent the present complaint case. The facts and circumstances of the aforesaid judgments relied upon by the counsel for the accused are not applicable to the facts and circumstances of the present case. Thus, I hold that Sh.Pankaj Tandon, Sh.Binay Kumar and Sh.Ashutosh Kumar, ARs of the complainant company are duly authorised and competent persons to file and represent the present complaint case on behalf of the complainant company.
11 Now, let us secondly examine whether members of the inspection team were the authorised officers of the complainant company to carry out inspection at the premises in question. Sh.Sanjeev Kumar - Assistant Manager examined himself as PW3 and deposed that on 15.07.2006, at about 01:40 PM, he along with Mr. Sanjay Kumar - Manager, Pawant Pratihast - GET, Mohd. Sadiq - Field Executive, photographer, electrician and Delhi Police inspected the premises bearing No. B49, Indira Enclave, Neb Sarai, New Delhi. PW1 in his cross examination deposed that no written permission is required by the inspection team prior to the inspection of any premises since the members of the inspection team are authorised by the notification issued by the Govt. of NCT of Delhi and the copy of the notification is already annexued with the complaint filed on record. Copy of the notification No.F11(93)/2003/ power/1566 dt. 17.05.2005 filed by the complainant reveals that in exercise of the powers conferred by subsection (2) of section 135 of the Electricity Act, 2003 (36 of 2003) read with Govt. of India, Ministry of Home Affairs, Notification No. F.No.U11030/ 2/2003/UTL dt. 20.02.2004, the Lt. Governor of National Capital Territory of Delhi has authorised the technical officers, not below the rank of Assistant Engineer/Assistant Manager and above, in the departments dealing with distribution (District/ Zones) 10 commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited and North Delhi Power Limited who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of section 135 of the said Act in respective areas of the said companies in the National Capital Territory of Delhi. In view of the above notification and foregoing discussions, I hold that Sh. Sanjeev Kumar - Assistant Manager and Sh. Sanjay Kumar - Manager were the 'Authorised Officers' to carry out the inspection of premises in question under the provisions of section 135 of the Act on 15.07.2006.
12 The issue involved in the present criminal complaint case is on the point of detection of theft of electricity which is the crucial aspect. Let us finally examine whether the accused Azad Singh has committed the offence u/sec. 135 of the Act. It is well settled principle that prosecution has to prove its case against the accused beyond reasonable doubt. The complainant through its witnesses PW1 to PW4 has tried to prove the case against the accused that the accused was committing direct theft of electricity at the premises in question. PW2 deposed in his examination in chief that on 15.07.2006 at about 01:40 PM, he alongwith Sh. Sanjay Kumar - Manager Enforcement, Sh. Sanjiv Kumar Assistant Manager and Sh. Pawant Pratihast - GET alongwith lineman and photographer from M/s. Arora Photo Studio visited premises bearing No. B49, Indira Enclave, Neb Sarai, New Delhi. There was no electricity meter authorized by the BSES at the said premises and the electricity was being illegally used by directly tapping from the LV mains of the complainant with the aid of illegal wires which was connected to a total connected load of 3.11 KW for commercial purpose which was a godown. The connected load included tubelights, fans, heater of 1500 watts, TV of 110 11 Watts, Refrigerator 180 watts, one bulb of 200 watts and two bulbs of 100 watts besides other lighting load. The said premises was being used by accused Azad Singh in the name of 'Bulls Marketing'. PW2 further deposed that he can not say if accused Azad Singh present in the court today was there at the spot or not but definitely some workers were there who had disclosed name of Azad Singh as the user of the said premises. They prepared inspection report including meter report at the spot already exhibited as Ex.CW2/1 which bears his signatures at point B. The details of the connected load was noted in the load report prepared by them at the spot already exhibited as Ex. CW2/2 and which bears his signatures at point B. The photography at the spot was done by him with the help of digital camera. PW2 identified photographs 21 in number collectively exhibited as Ex.CW2/6 as the same which were taken by him at the spot and the CD containing these photographs already exhibited as Ex.CW2/7. The videography was also done by photographer from M/s. Arora Photo Studio and the CD exhibited Ex.CW2/7 contains that also. Team members seized copper wires of size 7 x 22 SWG of red colour from the spot which were seized vide seizure memo Ex.CW2/3. The said wires were seized by their Manager Sh. Sanjay Kumar which were sealed in an envelope with the seal of Sanjay Kumar Manager. One sealed parcel with the seal of Manager Enforcement was opened and 4 pieces of wire of red and faded red colour were produced in the court. PW2 identified these 4 wires as the one seized from the spot and with the aid of which the accused was committing direct theft of electricity from the LV mains of the complainant. These wires were collectively exhibited as Ex.P1. The parcel also contained carbon copy of seizure memo Ex.CW2/3. The said carbon copy exhibited as Ex.P2. PW2 deposed that they offered the reports prepared at the spot to be signed and received by the workers present there but same were not signed by them. 12 13 PW3/ Sh. Sanjeev Kumar - Assistant Manager also deposed in his examination in chief that on 15.07.2006 at about 01.40 p.m., he along with Mr. Sanjay Kumar - Manager, Pawan Pratihast - GET, Mohd. Sadiq - Field Executive, photographer, electrician and Delhi Police inspected the premises bearing No. B49, Indira Enclave, Neb Sarai, New Delhi. Said premises was go down. There was no electricity meter installed at the spot and the accused was illegally using the electricity by directly tapping from the LV mains of the compalinant with the aid of illegal tapping/ wires. There was a total connected load of 3.1 KW for Nondomestic purposes. The connected load included bulbs, tubelights, CFL, cooking heater, TV, fridge. The said premises was being used by accused Azad Singh in the name of "Bulls Marketing". PW3 further deposed that he can not say if accused Azad Singh was present at the spot duirng the inspection but some workers were present during the inspection who disclosed the name of accused Azad Singh as a user. PW3 further deposed that they prepared inspection report including meter details report and load report at the spot already exhibited as Ex.CW2/1, Ex.CW2/2 respectively bearing his signature at point C. PW3 also deposed that they seized the illegal tappings/ wires of red colour size 7/22 swg. at the spot vide seizure memo already exhibited as Ex.CW2/3. The said wires were seized by Sh.Sanjay Kumar which were sealed in an envelope. The wire seized were 4 in number of different size i.e., 2 of 4 mtrs. and 2 of 3 mtrs. One sealed envelope which was not legible was opened and the envelope found containing two bundles of wires containing two pieces in each bundle. PW3 identified the two bundles as above which were seized from the premises. The bundles were marked as Ex.P1 (colly). The reports prepared on the spot were offered for signature in token of receipts to the workers present in the premises but the workers 13 refused to sign the same. They submitted the report to the office on the same day. PW4/ Sh.Sanjay Kumar - Photographer deposed in his examination in chief that on 15.07.2006, he alongwith other officials of the company i.e. Sh. Sanjay Kumar - Manager, Sh. Sanjeev Kumar - Assistant Manager, Sh. Prasanjeet Ghatak - GET inspected the premises bearing No. B 49, Indira Enclave, Neb Sarai, New Delhi. As per the directions of the team members, he got conducted videography at the spot of the illegal wires and the load. After conducting the videography, he went to his office and downloaded the data and deposited with the office. The said CD containing the videography already exhibited as Ex.CW2/7 and which was the same as videographed by him. No tampering has been made.
14 The accused at the time of statement u/sec. 251 Cr.P.C. stated that he has been supplied with an electricity connection by the complainant company vide K. NO.711/146421/DL dated 30.04.1998 and thereafter the same was changed to K.No.2520G8590162 and thereafter after the raid, they installed a commercial meter in the premises in question and he was making regular payment of electricity dues through the recorded consumption of the said connections and that there was no direct tapping as alleged and that in the disc heater has not been shown which has been shown in the photographs and that the said heater was not connected as per the photographs placed on record by the complainant and that he is not the owner of the company as alleged in the complaint and that the said company was mere a tenant and he is the owner of the premises. At the time of statement u/sec. 313 Cr.P.C., the accused stated that he does not know if inspection was carried out in the premises. He is having authorised meter of the complainant company in the premises No. B49, Indra Enclave, Neb Sarai, New Delhi where there was no 14 theft of electricity by any means. There was no commercial use in the premises of the electricity which is owned by his wife. The meter K number was initially 711 146421 4 and thereafter the same K number was given new number i.e., K.No.2520G8590162 of which record is already on record of case file i.e. Ex.PW3/D1 to Ex.PW3/D19 including meter change report. The accused further stated that he has no concern with M/s. Bull Marketing or godown or use of the same for commercial purpose. All the documents are false documents and were not prepared in his presence. The documents have been prepared and manipulated by the interested witness being the employees of the complainant company. The accused also stated that a false case has been planted against him without any evidence while he has nothing to do with the premises as well as the godown and the M/s. Bull Marketing Company which is owned by one M.S.Mittal whereas he is working a government servant with Haryana Government and was residing at Faridabad H.No.203, Sector28, Faridabad at the relevant time and thereafter at present he is residing at 218, Sector28, Faridabad which is on rent. After recording of the said statement u/sec. 313 Cr.P.C. on 28.02.2009, an order dt. 16.04.2009 passed by the Hon'ble High Court in Crl.M.C.No.1078/2009, Crl.M.A.No.3978/2009 and Crl.M.A. No. 3977/2009 (stay) entitled Azad Singh Vs BSES Rajdhani Power Ltd. received in this court on 22.04.2009, thereby, the application of the petitioner u/sec. 311 Cr.P.C. for recalling Binay Kumar PW1 was allowed subject to payment of cost of Rs.10,000/ to the opposite side. The petitioner therein - accused herein paid the cost and cross examined PW1 on 24.04.2009. Thereafter, the matter was again put up for statement of the accused U/sec. 313 Cr.P.C. as per procedure. In the subsequent statement u/sec. 313 Cr.P.C., the accused denied that on 15.07.2006 at 01.40 p.m., Sh.Sanjay Kumar - Manager Enforcement, Sanjiv Kumar - Assistant Manager Enforcement, Pawan 15 Pratihast - GET enforcement, Mohd. Sadiq - FE enforcement along with Delhi Police visited the premises M/s Bulls Marketing, B49, Indra Enclave, Neb Sarai, New Delhi used by him. The accused further denied that he had illegally tapped with the LV mains to the premises in question and neither used the appliances mentioned in the load report Ex.CW2/2 since he is neither the user nor the owner of the premises in question at any time. Even, he does not know if the team members visited and prepared the report Ex.CW2/1 to Ex.CW2/3, Ex.CW2/6 & Ex.CW2/7 and if any person present at the premises in question refused to receive the reports since he already stated that he is not the user and owner of the premises. The accused further stated that PWs have deposed against him to extort the illegal demands by way of the impugned bill. 15 The accused in his defence examined Sh. Om Prakash - Tax Assistant from Income Tax Department as DW1. DW1 deposed in his examination in chief that he has brought the summoned record pertaining to Mangal Sain Mittal (M.S.Mittal), proprietor of M/s. Bulls Marketing. The photocopy of SARAL from pertaining to assessment year 20062007 exhibited as Ex.DW1/A(OSR). The photocopy of the intimation u/sec. 143(1) of the Income Tax Act, 1961 exhibited as Ex.DW1/B (OSR) and photocopy of the computation of income of Sh. Mangal Sain Mittal exhibited as Ex.DW1/C (OSR). DW1 also brought record pertaining to M.S.Mittal for the assessment year 20052006. Saral Income Tax Return assessment year 20052006 of Mangal Sain Mittal was also exhibited as Ex.DW1/D, Intimation to Magal Sain Mittal u/sec. 143(1) of the IT Act, 1961 exhibited as Ex.DW1/E and computation of income of of M.S.Mittal for year 200506 exhibited as Ex.DW1/F. DW1 also brought the summoned record pertaining to M.S.Mittal for the assessment year 20072008. Income Tax Return (ITR) 4 of Mangal Sain Mittal for the assessment year 16 20072008 was also exhibited by DW1 as Ex.DW1/G. DW2/Sh. R.K.Singh - Nodal Officer, Bharti Airtel Limited deposed in his examination in chief that he has brought the summoned record of mobile number 9810129318 in the name of Mangal S. Mittal resident of M18, M Block Market, Greater Kailash PartII, New Delhi110048 which was exhibited as Ex.DW2/A. DW2 further deposed that this connection was allotted to Manal S. Mittal since May1998 till date. Mark B shown to the witness bears the above said Mobile Number. DW3/ Sh. Om Vir Singh S/o Sh. Raghubir Singh, Inspector with circle32(1), IT department, C.R.Building, I.T.O., Delhi deposed in his examination in chief that he has brought summoned record. Bulls Marketing is Proprietory concern of Mr. Mangal Sen Mittal. As per audit report submitted by Mr. Mangal Sain Mittal in his IT return filed for assessment year 20062007 i.e. related to financial year 20052006. Mr. Mittal is Proprietor of two concerns namely Rajasthan Sales corporation and Bulls Marketing. He is filing his returns with address shop No.6, Gurudwara Road, K.M.Pur, New Delhi. His permanent Account No. is AAMPM 9306M. Copy of Audit report was exhibited as Ex.DW3/1(OSR). DW3 also brought the record pertaining to year 20072008. Audit report is not with this return as the return filed is computerised format. From assessment year 20072008, it was not necessary for the assessee to submit supporting documents with the IT return. In the said return, Sh. Mangal Sen Mittal is shown as Proprietor of only Rajasthan Sales Corporation. This return pertains to financial year 20062007. Copy of the return exhibited as Ex.DW1/G(OSR).
16 DW3 further deposed that he has also brought the record for assessment year 20052006 which pertained to financial year 20042005. As per this, Bulls marketing is Proprietory concern of Mr. Mangal Sen Mittal. As 17 per audit report, submitted by Mr. Mangal Sen Mittal in his IT return filed for assessment year 20052006, Mr. Mittal is proprietor of two concerns namely Rajasthan Sales Corporation and Bulls Marketing. He is filing his returns with address shop No.6, Gurudwara Road, K.M.Pur, New Delhi. His permanent a/c number is AAMPM9306M. Copy of Audit Report exhibited as Ex.DW3/2(OSR). Accused examined himself as DW4 and deposed in his examination in chief that he was working as SDO, Panchayati Haryana Government posted at Faridabad from Dec. 2004 to April 2009. Thereafter, he was posted at Punhana, Badhara, Palwal and at present again a Faridabad from 20.01.2010 to till date. Copy of posting order exhibited as Ex.DW4/A and copy of ICard exhibited as Ex.DW4/B(OSR). DW4 further deposed that since May2006 to June 2007, he was residing at H.No.203, Sector28, Faridabad, Haryana and thereafter from July2007 to July2009 at H.No.218, Sector28, Faridabad, Haryana. The copy of letter issued by the Welfare society exhibited as Ex.DW4/C (OSR) and copy of registration of gas connection and land line connection of AIRTEL Bharti exhibited as Ex.DW4/D (OSR). Copy of Election Card and Driving License exhibited as Ex.DW4/E. DW4 also deposed that he has no concern with M/s. Bulls Marketing. He is not connected with this company in any manner. The proprietor of M/s. Bulls Marketing is Sh. Mangal Sain Mittal (M.S.Mittal). The copy of visiting card exhibited as Ex.DW4/F on which the mobile number is the same as of mark B i.e. copy of photographs supplied to him by the complainant. DW4 further deposed that he was/is not the user or consumer of electricity supplied by the complainant company. He was/is not the resident/owner of H.No.B49, Indra Enclave, Neb Sarai, New Delhi. DW4 also deposed that he has not received any inspection report or letter of demand and infact same were never been sent to him by the complainant at his residence or at his office address. He has not committed any theft as alleged by 18 the complainant. DW4 being government employee as per service sules he can not engage himself in private work for gain and he has never engaged himself in private work for gain in past or at present. DW4 also deposed that he has been falsely implicated by the complainant reason known to them. 17 In the present case, the inspection in the premises in question was carried on 15.07.2006. As per inspection report Ex.CW2/1, the name of the user is mentioned as Azad Singh, M/s Bulls Marketing and supply address is mentioned as B49, Indira Enclave, Neb Sarai, New Delhi. The number of floors /dwelling units mentioned as Ground floor, First Floor & Second Floor. Trade description (nature of works) mentioned as godown. The name of the inspection team leader is mentioned as Sandeep Kumar - Manager. Photographing Agency - Arora Photo Agency, photographer's name self with digital camera. The name of the registered consumer - NA. No meter at site. The total connected load was found as 3.110 KW/NX/DT. Observed tariff category non domestic and material evidence collected as per seizure memo. Names of the inspection team officers mentioned as Sanjeev Kumar - AM, Pawan Pratihast - GET, Mohd. Sadiq - Field Executive and Sanjay Kumar - Manager Enforcement. On the page No. 2 of the said inspection report Ex.CW2/1, it is mentioned that as per the direction of Manager Enforcement (BRPL), a joint inspection team checked the above said address to detect the theft of electricity along with Delhi Police and the following observation are made as under : At the time of inspection, the above user found indulged in direct theft of electricity by illegally tapping through BSES LV mains through red colour (fadded) PVC Cu wire to the connected load of 3.110 KW/NX/DT. During inspection, no meter found at site and total connected load found running directly through BSES supply. Necessary photograph and 19 vediography are taken from the site. All illegal wire were removed from the site and seizued as material evidence. As per inspection report (meter details), no meter was found at site. Load report Ex. CW2/2 reveals the details of the appliances and items used at site on the date of inspection. Ex. CW2/3 is the seizure memo which reveals the illegal wire in red coloured seized from the premises in question at the time of inspection. Ex.CW2/4 is the postal receipt, Ex.CW2/5 is the assessment bill for theft of electricity. Ex.CW2/6 are the photographs. Ex.CW2/7 is the CD of the photographs and videography. Upon filing of this complaint, cognizance of the offence under the Act was taken and complainant was allowed to lead presummoning evidence. The complainant led presummoning evidence by way of affidavits. CW1 is the authorised representative who proved his complaint as Ex. CW1/2 and CW2 is the member of raiding team who proved the inspection report Ex.CW2/1 besides other documents. After presummoning evidence and presummoning order, summons issued to the accused and the summons not served upon the accused since the accused was stated to be living at Faridabad (Haryana) as per report of summons. Thereafter, B/w issued against the accused by the Ld. Predecessor Court. The accused appeared with the counsel and filed the bail application. The accused was admitted to bail on furnishing PB & SB in the sum of Rs.25,000/ with one surety of the like amount.
18 It is an admitted case of the accused that he is neither the owner nor the user of the premises in question, therefore, he had not illegally tapped the LV mains to the premises in question. Even otherwise, he does not know if the team members visited and prepared the aforesaid reports at site on the date of inspection. Whereas, the complainant's case is that the premises in question was being used by the accused Azad Singh in the name of Bulls Marketing but 20 PW2 and PW3 can not say if the accused Azad Singh was present at the spot during the inspection but some workers present at site disclosed the names of accused Azad Singh as user. Perusal of the inspection reports do not reveal names of any worker found present at site on the date of inspection. Even otherwise, the accused Azad Singh was not found present at site on the date of inspection. Further, the accused was not focused in the photographs Ex.CW2/6 and the CD of videography as Ex.CW2/7. PW3 in his cross examination admitted that it is no where mentioned in the proceedings conducted by them that workers told the name of the accused as owner / user of the raided premises. In the statement u/sec. 313 Cr.P.C., the accused stated that the premises in question owned by his wife and the accused has no concern with M/s. Bull Marketing or Godown or use of the same for commercial purpose and he was residing at H.No. 203, Sector28, Faridabad at the relevant time. In this regard, DW4 proved the copy of the letter issued by the welfare society as Ex.DW4/C (OSR) which is dated 15.07.2009 certifying that Sh. Azad Singh S/o Sh. Phool Singh is residing at H.No.218, Sector28, Faridabad since July2007 and prior to this, he was residing at H.No.203, Sector28 from May2006 to June2007. The aforesaid letter was issued by Sh. Rajender Sharma Beriwala, president of the Resident Welfare Association (Regd.) (H.No.134 to 633) Sector28, Pocket B, Faridabad. Office : H.No.162, Sector28, Pocket B, Faridabad, (M) 9899198162. The inspection of the premises in question was carried out on 15.07.2006. Ex.DW4/A is the transfer order dated 22.11.2004 thereby, the accused Azad Singh, Sub Divisional Officer, Panchayati Raj was transferred from Gurgaon to Faridabad against a vacant post. Ex.DW4/B is the identity card of Azad Singh issued by Govt. of Haryana (Development & Panchayat). Ex.DW4/D are the copies of registration of gas connection and landline connection of Airtel Bharti (OSR) which reveals 21 the date of deposit of amount of Rs.1,400/ against the gas connection on 24.05.2006 in the name of Azad Singh for Faridabad and also the receipt dt. 09.05.2006 issued by Airtel to Azad Singh for the address 203, sector28, Faridabad for an amount of Rs.500/. DW3 specifically deposed in his examination in chief that Mr. Mangal Sain Mittal is Proprietor of two concerns namely Rajasthan Sales Corporation and Bulls Marketing and proved the copy of the Audit report Ex.DW3/1(OSR) and Mr. Mittal is filing his returns with address Shop No.6, Gurudwara Road, K.M.Pur, New Delhi. DW3 also proved the copy of the return Ex.DW1/G (OSR) which is for the assessment year 20072008 pertaining to the financial year 20062007 and in the said return Sh. Mangal Sain Mittal is shown as proprietor of only Rajasthan Sales Corporation. PW3 in his crossexamination deposed that Ex.PW3/D1 to D18 pertains to Kunda connection which was provided to the accused on as is where is basis. Ex.PW3/D1 to Ex.PW3/D18 are the electricity bills issued in the name of Raj Bala w/o Azad Singh D49, Indra Enclave, Neb Sarai, New Delhi which is the premises in question. Ex.PW3/D17 is the bill for the month of June2006 for an amount of Rs. 1350/ which was paid on 17.07.2006. PW3 also admitted in his crossexamination the meter change report as Ex. PW3/D19. PW3 further admitted that new connection and meter was installed on the basis of the same K number of Kunda connection which was provided on as is where is basis. In the inspection report Ex.CW2/1, load report Ex.CW2/2 and Seizure memo Ex.CW2/3, there is no signatures or names of the persons present at site. Even otherwise, no public witness was joined during inspection. Further, there is no photograph covered in the photographs Ex.CW2/6 and even in the CD of videography Ex.CW2/7 of any independent person refusing to join the inspection carried out on 15.07.2006. Therefore, I find that the complainant has not proved on record that the 22 accused was present and was committing direct theft of electricity at the premises i.e. B49, Indra Enclave, Neb Sarai, New Delhi. Thus, there is no reason not to accept the circumstances and the aforesaid evidence proved by the accused against direct theft of electricity.
19 For the foregoing reasons discussed above in details, to my considered opinion, the complainant company has not established the involvement of the accused in the offence of direct theft of electricity. The complainant has not proved its case against the accused beyond reasonable doubt. The present complaint case is not covered within the provisions of section 135 of the Act. Thus, I acquit the accused Azad Singh, M/s. Bulls Marketing u/sec. 135 of the Act.
Announced in the open ( YASHWANT KUMAR )
court on 30.07.2011 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
23
CC No.837/06
30.07.2011
Present AR for the complainant
Sh. S.K.Alok, proxy counsel for
Sh. Rishab Raj Jain, counsel for the complainant
Sh. B.S. Sharma, counsel for the accused with
accused in person
The counsel for the accused has filed written submissions/ arguments. Copy given. The counsel for the accused and the complainant addressed and completed their final arguments.
On request, put up for orders today at 02:00 P.M. ( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 30.07.2011 24 CC No.837/06 30.07.2011(After02:00 P.M.) Present AR for the complainant accused in person Vide separate judgment of the day, the accused Azad Singh, M/s. Bulls Marketing is acquited u/sec. 135 of the Electricity Act, 2003. Surety for the accused discharged.
The copy of this order and the judgment be made available to the complainant and the accused immediately and thereafter file be consigned to Record Room.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 30.07.2011