Delhi District Court
Cc No. 347/2017, Bses vs . Ganga Ram Sharma Page No. 1 Of 17 on 27 February, 2020
IN THE COURT OF SH. MUKESH KUMAR : ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 347/2017
U/s 135 of Electricity Act
In the matter of :
BSES Rajdhani Power Ltd.
Having its registered office at:
BSES Bhawan, Nehru Place,
New Delhi110019
Also at:
Corporate, Legal and Enforcement Cell,
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting Through its Authorized Officer
Sh. Ashutosh Kumar
.... Complainant
Versus
Ganga Ram Sharma
S/o Late Nathu Lal
R/o Khasna No. 31/7, Village Surehra,
Jaffarpur, New Delhi110073.
.... Accused
Date of institution : 05.06.2017
Arguments heard on : 26.02.2020
Judgment delivered on : 27.02.2020
JUDGMENT:
1. By this judgment, I shall dispose of the complaint CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 1 of 17 case filed by the complainant against the accused under Section 135 of the Electricity Act, 2003. The brief facts of the case are that on 09.08.2016 at about 12:00 noon as per the directions of the authorised officers, a Joint Inspection Team Comprising of Sh. Ajay Kumar JhankaraAssistant Manager, Sh. Monazir HussainEngineer, Sh. Vipin KaloniaTechnician and Sh. SantoshVideographer inspected the premises of the accused i.e premises at Khasra No. 31/7, Village Surhera, Surhera Bus Stand, Jaffarpur, New Delhi110073 (hereinafter referred to as premises in question) which falls within the distribution area of the complainant. It is stated that at the time of inspection of the premises in question, electricity meter bearing No. 27122489 was found installed at the premises in question and accused persons were found indulged in direct theft of electricity by four nos of faded black colour illegal wires directly connected from BSES Pole No. JFPU526 which were further connected to the load of the premises. It is further stated that there was a connected load of 7.246 KW/DX+AP/DT found in the premises for domestic purpose. It is further stated that the videography was done at site by Sh. Santosh, Vidographer. The Inspection report, Load Report and Seizure memo were prepared at site.
2. It is stated that the aforesaid illegal act, the accused has caused and was found to be causing wrongful loss to the Complainant Company and wrongful gain to themselves and thus acting dishonestly, thus, it is a case of direct theft of CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 2 of 17 electricity and a theft bill as per the DERC regulations and tariff order was raised by the complainant company for a Sum of Rs. 1,25,947/ with due date as 26.08.2016 but the accused persons had failed and neglected to make the payment of the theft bill amount.
3. The complainant company has filed a criminal complaint before this Court and the same has been registered as criminal complaint against the accused persons. Accused Ganga Ram Sharma was duly served and copies of documents were supplied to him. Notice for the offence under Section 135 of Electricity Act was framed against the accused on 25.08.2017 to which accused pleaded not guilty and claimed trial.
4. In order to prove its case complainant has examined the following witnesses, the details of which are as follows:
5. PW1 Sh. Ajay Kumar Jhankara, Assistant Manager, Division Hari Nagar Enforcement, New Delhi deposed that on 09.08.2016 at about 12:00 noon, he along with Sh. Munazir HussainGET, Sh. Vipin KaloniaLineman, Sh. Santosh Videographer visited and inspected the premises at Khasra No. 31/7, Village Surhera Near Surehra Bus Stand, Jaffarpur, New Delhi110073 and on reaching the premises, the accused Ganga Ram Sharma was present and the entire inspection was carried out in his presence. PW 1 further deposed that at the time of inspection, one meter was found installed at site in OFF CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 3 of 17 condition and accused was found indulged in direct theft of electricity by four number of faded black colour illegal wires directly tapping from BSES Pole and extended to the load of the premises. PW 1 further deposed that they had assessed the total connected load of the premises which was found to be 3.316 KW for domestic purpose whereas 3.930 KW for agricultural purposes and the agricultural load consist of one bulb and one water pump whereas domestic load CFL, bulb, refrigerator, coller, iron press, submersible pump etc. He further deposed that videography was done by Sh. Santosh Videographer. PW 1 duly identified the contents of the CD and proved the same as Ex.CW2/3. PW 1 also identified accused Ganga Ram Sharma in the videography. PW 1 further deposed that the illegal wires from which the direct tapping was going on could not be seized due to resistance of the accused and the inspection report, load report and seizure memo were prepared at the safe place nearby the premises in question and proved the same as Ex.CW2/1, ExCW2/2 and Ex.CW2/5, bearing his signatures at point A. PW 1 further deposed that they offered the documents to the accused Ganga Ram Sharma but he refused to receive and sign the same. PW 1 further deposed that thereafter all the documents were handed over in the office of the complainant company for further action.
In his cross examination PW 1 has deposed that it is correct that there was one three phase meter installed at the site and direct theft of electricity by way of illegal wires which CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 4 of 17 was directly connected from BSES Pole from the connected load of the premises (Court observation : On seeing the videography thrice, the witness could not point our as to from where those three illegal wires were entering into the premises of accused and where they were connected to the main load. When he could not show the same in the videography, they had checked it manually).
(Court Question : Did you mentioned the factum of checking the connection of illegal wires to the main load in your inspection report?
Ans : No. It is not mentioned).
PW 1 during his cross examination deposed that the water pump was not running at the time of inspection but the same was connected to the contactor switch but he could not capture the same in the videography. PW 1 further deposed during his cross examination that there was no crop in the agricultural land at the time of inspection and there was only one person present inside in the premises i.e accused. PW further deposed that similarly, there were five persons in his team including driver and there was no one present even outside the site in question at the time of inspection. PW 1 further deposed to the effect that the submersible pump in the site in question was in working condition and was connected to the main load.
PW 1 further denied the suggestion that no direct CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 5 of 17 tapping was going on due to which he could not seize the illegal wires and there was no resistance by the accused in seizing the said illegal wires. He further denied the suggestion that the present inspection report was made with malafide intention of the team to falsely implicate the accused in the present case.
6. PW2 Sh. Ashutosh Kumar, Authorised Representative of BSES deposed that he has been authorized by Sh. Arvinder Singh Gujral vide GPA dated 23.01.2015 to appear before any court on behalf of the company and to appoint consultants, professionals, Advocates, Attorneys, for the company. PW2 proved the GPA in his favour as Ex. CW1/B PW 2 also proved the complaint as Ex.CW1/A. In his cross examination, PW2 deposed that he had not visited the premises in question. PW 2 denied the suggestion that the GPA is false and fabricated document and he had not been authorised as A.R. PW 2 further deposed that he has no personal knowledge of the present case.
7. PW3 Monazir Hussain, Engineer, BSES Rajdhani Power Ltd. Enforcement office at Hari Nagar near DDU Hospital, New Delhi deposed that on 09.08.2016 at 12.00 p.m, he alongwith Ajay Kumar JhankaraAsstt. Manager, Vipin KaloniaLineman and SantoshVideographer visited and inspected the premises at Khasra no.31/7, Village Surehra near Bus Stand, Jafarpur, New Delhi - 110 073. He further deposed that on reaching the spot the accused Ganga Ram Sharma, CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 6 of 17 standing in court was present at the time of inspection and the entire inspection was carried out in his presence. He further deposed that at the time of inspection one meter was found installed at site in off condition and the accused was found indulged in direct theft of electricity by four number of faded black colour illegal wires directly tapping from BSES pole extended to the load of the premises. PW 1 further deposed that they had assessed the connected load of the premises which was found to be 3.316 kw for domestic purpose whereas 3.9 kw for agricultural purpose and videography was done by the videographer Santosh from M/s Arora Photo Studio. PW 3 identified the contents of the CD and also pointed out that the accused Ganga Ram Sharma is also shown in the videography. PW 3 further deposed that the illegal wires from which the direct tapping was going on could not be seized due to the resistance of the accused and proved the inspection report, load report and seizure memo as Ex. CW 2/ 1, Ex. CW 2/2 and Ex. CW 2/5 respectively. PW 3 further deposed that they offered the aforesaid document to the accused Ganga Ram Sharma but he refused to receive and sign the same and thereafter all the said documents were handed over in the office of the complainant company for further action. PW 3 further deposed that the said inspection was done under the guidance of the team leader Sh. Ajay Kumar Jhankara, Asstt. Manager and the entire load of the premises could not be captured in the videography because of the resistance of the accused. CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 7 of 17 PW 3 in his cross examination has deposed that the raiding team consists of five persons including the driver and as per the videography, only accused was present at the premises at the time of alleged raid. The CD of videography is again displayed and the witness states that four wires from the pole were going inside the premises of the accused Ganga Ram Sharma through roof. PW 3 denied the suggestion that the premises from whose roof the alleged theft is shown does not belong to the accused Ganga Ram. PW 3 further deposed that it is correct that in the videography the alleged wires were not shown connected with the main connection. PW 3 denied the suggestion that the four wires were not connected with the main load therefore, the same could not be seized. PW 3 further deposed during his cross examination that they had not taken the police assistance while conducting the inspection of the premises, even after the alleged resistance by the accused. PW 3 denied the suggestion that they have prepared all the said reports while sitting in the office and the alleged raid was not conducted at the premises of the accused and that there was no agricultural land adjoining the house of the accused. Thereafter, the complainant evidence was closed.
8. PW 4 Shri Shish Pal, Section Officer, Jaffarpur Division, District Najafgrh, BSES brought the summoned record and proved the consumption pattern of the meter bearing No. 27122489 and proved the consumption pattern as Ex.PW4/A. In his cross examination PW 4 deposed that he do CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 8 of 17 not have the knowledge of consumption pattern and he brought the record pertaining to the consumption pattern as per the direction of DGM Jaffarpur. PW 4 during his cross examination has deposed that he do not have any authorisation letter to appear be fore the Court by the DGM.
9. After recording the evidence of these witnesses, statement of the accused under Section 313 Cr.P.C. was recorded wherein accused denied all the allegations of the complainant. No defence evidence was led.
10. I have heard the arguments and have perused the record carefully.
11. Ld. Counsel for complainant has argued that PW 1 and PW 3 have been able to prove the fact that at the time of inspection, accused was found indulged in direct theft of electricity and one electricity meter found at the site and the accused was committing theft of electricity from BSES Pole with the help of illegal wires. It is also submitted that videography is done at the site and CD has been correctly identified and displayed in the Court computer at the time of examination of the witness. It is submitted that the accused was residing at the inspected premises, therefore, the accused was booked for the electricity theft under Section 135 Electricity Act. It is stated that accused may be punished for the offence under Section 135 Electricity Act as per law and accused be awarded maximum sentence provided under law.
CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 9 of 17
12. On the other hand, Ld. Counsel for the accused Ganga Ram Sharma has argued that the complainant has failed to prove its case beyond reasonable doubt as CD and photographs were not proved as required under the Evidence Act as the videographer has not been examined by the complainant. Even the photograph so produced are also not proved as per law.
13. Before coming to the final conclusion, I deem it appropriate to go through the relevant provision of law i.e Section 135 of Indian Electricity Act, which reads as under :
Section 135. (Theft of Electricity): 1[(1) Whoever dishonestly,
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 10 of 17 with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use (I) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. (2) Any officer authorised in this behalf by the State Government may
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being,] used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 11 of 17 article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under subsection (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
14. The bare reading of the aforesaid provision makes it clear in what manner a person can be booked for the theft of electricity. The complainant has relied upon the testimonies of PW1 and PW3 to prove the fact that it was the accused who was the user of the electricity in the premises in question. PW 1 and PW3 has deposed about the mode of theft as found committed at the premises in question and also deposed that at the spot accused Ganga Ram Sharma was present.
15. To prove its case, regarding the theft of electricity against the accused, it is for the complainant to prove beyond reasonable doubt that the accused Ganga Ram Sharma was CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 12 of 17 the user of electricity at the premises in question at the time when the alleged inspection was conducted. PW2 is the formal witness in this case. Counsel for complainant has relied upon the testimony of PW1 and PW3 to prove the fact that it was the accused who was the registered consumer and user of electricity at the inspected premises. He has deposed about the mode of theft as found committed at the premises in question.
16. Complainant has examined four witnesses which are disclosed above. However, as submitted by counsel for complainant that complainant company through their witnesses has been able to prove the case beyond reasonable doubt that accused has been committed theft at the time of alleged inspection and the total load was 3.316 KW for domestic purpose and 3.930 KW for agricultural purposes. Equipments as mentioned in the inspection report has been disclosed by PW 1 Sh. Ajay Kumar Jhankara in his testimony. PW 1 also identified the accused in the Court while in the cross examination he admits that one three phase meter was installed at the site and in the cross examination, Court observation was also given by Ld. Predecessor of this Court which reads as under :
(Court observation : On seeing the videography thrice, the witness could not point our as to from where those three illegal wires were entering into the premises of accused and where they were connected to the main load. When he CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 13 of 17 could not show the same in the videography, they had checked it manually).
In the cross examination, he also deposed that the water pump was not running at the time of inspection but the same was connected to the contactor switch but he could not capture the same in videography. In cross examination, PW 1 also admits that at the time of inspection there was only one person in the premises i.e accused only. The other witness PW 3 Monazir Hussain also deposed on the lines as deposed by PW 1. He also identified the CD and accused. However, in the cross examination PW 3 deposed to the effect that it is correct that in the videography the alleged wires were not shown connected with the main connection. In the cross examination, he also admits that they had not taken the Police assistance while conducting the inspection, even after the alleged resistance by the accused.
17. The allegations of resistance by the accused can not be believed as the accused is aged about 70 years and he was the only person who was present at the site therefore, the story so concocted by complainant regarding resistance on the part of accused is not believable.
18. The complainant also examined PW 4 Shri Shish Pal, Section Officer who appeared to prove the consumption pattern Ex.PW4/A but in his cross examination, he admits that he has no personal knowledge regarding the consuption pattern CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 14 of 17 produced in the Court and he is not having any authorisation letter to appear before this Court.
19. It is submitted by counsel for accused that the complainant witnesses in their cross examination has admitted that they could not capture the alleged theft of electricity in the videography and no other witness has been examined. Even the story so concocted regarding resistance is also having no force. The report regarding consumption pattern filed by the complainant is also can not be believed to establish that the accused was committed theft of electricity as there is consistency in the consumption pattern and it is a small size premises and the load so shown to be connected at the time of inspection can not be considered as correct assessment of the connected load.
20. PW1 has deposed that accused Ganga Ram Sharma was present at the spot. The name of accused is given in the inspection report as the user of the premises in question. In order to connect the accused with the offence, reliable evidence is required to be led by the company which could prove that the accused was connected with the premises in which the theft was being committed. Complainant did not examine witnesses Sh. Vipin KaloniaTechnician and Sh. SantoshVideographer. No explanation has been assigned for the non examination of these witnesses. No signature of any public witness were obtained on the inspection report. No CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 15 of 17 independent person was joined at the time of seizure of case property. PW 1 did not explain as to how and in what manner the electric connections were joined with each other by the accused persons to make theft of electricity.
21. Complainant has made the inspection on the direction of senior officials but they failed to disclose whether the direction was written or oral. This inspection was carried out on 09.08.2016, the company was under obligation to carry a written authority signed by designated officer of the licensee as per Regulations 25(i) of Delhi Electricity Regulatory Commission (Performance StandardsMetering and Billing) Regulations, 2002, which they failed to do and no such authority was placed on record.
22. Moreover, the reports were admittedly not pasted at the site of the inspected premises. As per regulation 52 (ix) Delhi Electricity Supply Code and Performance Standards Regulation, 2007, the report shall be signed by Authorized officer and each member of the inspection team and the same must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in/outside the premises and photographed. Therefore, the complainant has also not complied with the provisions of aforesaid mandatory regulations. As such the CC No. 347/2017, BSES Vs. Ganga Ram Sharma Page No. 16 of 17 complainant company has left a serious lacuna in the present case.
23. In view of the above discussion, I am of the opinion that from the evidence on record, the complainant has failed to prove its case beyond reasonable doubt that it was the accused Ganga Ram Sharma who has committed the theft of electricity at the premises in question. Accordingly, the accused Ganga Ram Sharma is acquitted for the offence punishable under Section 135 of Electricity Act. Amount if any, deposited at the time of granting bail to the accused or in pursuance to the interim order shall be refunded to the accused within one month along with interest @ 6% per annum from the date of deposit. Accused Ganga Ram Sharma shall furnish the surety bond in compliance of provision of Section 437 A Cr.P.C within ten days. File be consigned to Record Room.
Announced in the open Digitally signed
MUKESH by MUKESH
Court on dated February 27, 2020 KUMAR KUMAR
Date: 2020.03.17
12:32:13 +0530
(Mukesh Kumar)
ASJ: Special Electricity Court
South West District : Dwarka Courts
New Delhi.
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