Delhi District Court
Judge vs Bses Rajdhani Power Limited Held That on 10 August, 2010
1
IN THE COURT OF SHRI YASHWANT KUMAR, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
PATIALA HOUSE COURTS, NEW DELHI
Complaint Case No. 958/07
PS Sarita Vihar, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
BSES Rajdhani Power Limited
A company duly incorporated under the Companies Act, 1956
having its registered office at BSES Bhawan,
Nehru Place, New Delhi - 110019 and
Corporate, Legal and Enforcement Cell at Andrews Ganj,
Next to Andrews Ganj Market, New Delhi 110049
Through Sh. Binay Kumar, its authorised Officer
...Complainant
Versus
Sh. Mohinder Bhati (User)
H.No. 292, Bhangar Mohalla,
Village Madanpur Khadar, New Delhi
...Accused
JUDGMENT
1 The complainant company filed the present complaint u/sec. 135 r/w/sec. 151 of the Electricity Act, 2003 (hereinafter referred to as the 'Act'). According to the complainant, the accused has committed an offence punishable u/sec. 135 r/w/sec. 151 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.
3 The accused was summoned to face the complaint case u/sec. 135 of the Act by Ld. Predecessor Court vide order dt. 29.10.2007 after 2 recording the presummoning evidence and hearing the arguments on summoning. Accused appeared and was granted bail subject to furnishing personal bond in the sum of Rs.50,000/ with one surety of the like amount.
4 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.
5 The complainant company examined Abdul Salam - Senior Manager as PW1, Mohd. Amin - Trainee Engineer as PW2, Rajendra Kumar GET as PW3 and Binay Kumar - Legal Officer as PW4. The statement of the accused was recorded u/sec. 313 Cr.P.C. to explain the incriminating evidence against them. The accused wanted to lead evidence in defence, therefore, the accused was given an opportunity to lead evidence in defence. The application u/sec. 315 Cr.P.C. to produce the accused as a witness was filed and the same was allowed by the court. The accused, in his defence evidence, examined himself as DW1. 6 I have heard the Ld. counsel for accused represented by Sh.A.A.Khan and prosecution represented by Sh.S.S.Mittal, counsel/ deemed P.P and have perused the entire records.
7 Undoubtedly, the offence involved in the present complaint case relates to the economic offence. Before considering the facts and circumstances of this complaint case, it has to be seen and considered whether this court, being the special court under the Act, can take 3 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 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 4 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.''
8 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 sub section (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 sub section, 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 re hear 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 5 Court in this regard, it is unnecessary for the Special Court to give reasons for trying the 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.'' 9 Let us firstly examine whether the present complaint case has been filed by duly authorized representative on behalf of the complainant company. 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 PW4. PW4 deposed that he has been authorised by the complainant to file and pursue the cases on behalf of the complainant company in the special court including the present case. PW4 proved the copy of the authority letter dated 23.10.2006 as already exhibited as Ex.CW1/B. PW4 also proved the complaint signed and filed by him as already exhibited as Ex.CW1/A. During cross examination, PW4 deposed that Lalit Jalan, CEO of the complainant company was having the powers on behalf of the complainant company to authorise him for filing and pursuing this case for the complainant company. PW4 does not have any personal knowledge of the present complaint case. PW4 denied the suggestion that he has filed the false and fabricated case against the accused. Perusal of Ex.CW1/B dated 23.10.2006 reveals that Sh.Lalit Jalan, Manager u/sec. 2 (24) of the Companies Act, 1956 and Chief Executive Officer of BSES Rajdhani Power Ltd. authorized Sh.Binay Kumar, legal officer to institute and/or defend legal proceedings of whatsoever nature before the Special Courts and to sign & verify plaints, affidavits, written 6 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/B. Whereas, the accused has not led any evidence and failed to prove that the AR has not been authorised by the complainant company to file the present complaint case. Thus, I hold that Binay Kumar, AR of the complainant company is duly authorised and competent person to file the present complaint case on behalf of the complainant company. 10 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. Abdul Salam, Senior Manager examined himself as PW1 and deposed that on 31.07.2007 at around 11.50 a.m., he along with Omvir & Mohd. Amin - both Trainee Engineers, Rajender Kumar - GET, two electricians, one videographer from M/s Arora Photo Studio, local police along with CISF staff inspected the premises in question bearing H.No.292, Bhangar Mohalla, village Madanpur Khadar, New Delhi for theft of electricity. 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 sub section (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.U 11030/2/2003/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) commercial and enforcement functions in BSES Yamuna Power Limited, BSES Rajdhani Power Limited 7 and North Delhi Power Limited who shall be designated 'Authorised Officers' for the purpose of clause (a) of sub section (2) of 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 discussion, I hold that Abdul Salam, Senior Manager was the 'Authorised Officer' to carry out the inspection of premises in question under the provisions of section 135 of the Act.
11 After taking cognizance of the offence on the complaint, the accused was summoned to face the present complaint case. Accused appeared and was granted bail subject to furnishing personal bond in the sum of Rs.50,000/ 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.'' 8 12 Admittedly, the accused Mohinder Bhati 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 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 judgement 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.'' 9
13 The issue involved in this criminal complaint case is on the point of detection of theft of electricity. Now, let us finally examine whether the accused 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 has tried to prove the case against the accused Mohinder Bhati that there was a direct theft which was going on with the help of black colour 2 core illegal wire from the BSES LV mains linked at the connected load. The complainant, in support of its case, examined the witnesses i.e. Abdul Salam - Senior Manager as PW1, Mohd. Amin - Trainee Engineer as PW2, Rajendra Kumar GET as PW3 and Binay Kumar - Legal Officer as PW4. PW4 is the legal officer who has been authorised to file and represent the complaint cases on behalf of the complainant company which has already been discussed above. PW1 to PW3 proved the inspection report, inspection report (meter details), load report & CD as Ex.CW2/A to Ex.CW2/D respectively. Whereas, the accused, in support of his case, has taken the defence at the time of framing of notice u/sec. 251 Cr.P.C. that he was having authorised Kunda connection during the relevant period when the raid was conducted at the premises in question. Therefore, he is not liable to pay any amount as he had been paying the amount of the electricity used by him through the kunda connection and he has committed no offence as alleged against him by the complainant. In his statement u/sec. 313 Cr.P.C., the accused stated that he is the owner of the premises in question. The officials from the complainant company visited and inspected the premises in question on 31/07/2007 but the accused does not know whether the said offcers visited the premises on the date of inspection. The accused had already applied for installation of 10 electricity connection in the year 1998 and even also in the year 2003. The accused also lodged a complaint with the complainant in June 2007 regarding steps not taken by the complainant for installation of electricity connection on the basis of his earlier applications filed with the complainant. The load report is highly excessive and exhorbitant. The accused further stated that the team members prepared the inspection report, load report and also the videography of raid of inspection. According to the accused, he is innocent person. He is the legal consumer of the complainant since he has been using the kunda connection from 1998 and he has been regularly paying the bills against the consumption used by him through kunda connection. Except kunda connection, three connections have already been installed in the name of his brothers and his uncle. He along with his other family member was using the electricity through kunda connection and the aforesaid three connections already installed at the premises. Bills against the said three connections were also being regularly paid to the complainant. The reports as allegedly to have been prepared against him are false and fabricated. The accused, in support of his case, examined himself as DW1. DW1 proved the receipt for kunda connection as Ex.DW1/1, receipt of the complaint no.11883 dated 15.06.2007 as Ex.DW1/2, bill for the month of June, 2007 as Ex.DW1/3, the other bills in the name of Dharam Pal, Dharam Vir and Satish Bhati as Ex.DW1/4 to Ex.DW1/6, bills settled and the amount of settlement deposited with the complainant as Ex.DW1/7 to Ex.DW1/9.
14 I have carefully perused the inspection report Ex.CW2/A, inspection report (meter details) Ex.CW2/B, load report Ex.CW2/C and 11 also seen & perused the CD Ex.CW2/D. I have also gone through the testimony of PW1 to PW3 and DW1. It emerges from the testimony of PW1 to PW3 that they along with Omvir - Trainee Engineer, two electricians, one videographer from M/s Arora Photo Studio, local police with CISF staff inspected the premises bearing No.292, Bhangar Mohalla, village Madanpur Khadar, New Delhi and found that direct theft of electricity was going on with the help of black colour two core illegal wire from BSES LV mains linked at the connected load. The inspection team members requested the accused to show any electricity bill but he did not show any bill. PW1 prepared the inspection report already exhibited as Ex.CW2/A. The meter detailed report was also prepared and was proved as Ex.CW2/B. Total connected load of about 19 KW for domestic purposes and about 3 KW for non domestic purposes through the illegal wire was found and details of the same was mentioned by the raiding team members in the load report prepared at the site already exhibited as Ex.CW2/C. Videographer took the videography of the site which is connected to domestic and commercial load of the premises for which CD prepared and the same is already exhibited as Ex.CW2/D. The documents prepared at site were offered to the accused but the same were refused to be acknowledged by the accused. However, the same were not pasted on the wall and were later on sent by speed post by the office. The team members could not seize the illegal wire due to resistance and mob at the site. Whereas, it emerges from the testimony of DW1 that an inspection was carried out by the BSES Rajdhani Power Ltd. in his absence on 31.07.2007. The officials who visited/ raided the premises came to enquire the meter. DW1 has a kund connection since 1998 which is proved as Ex.DW1/1. On 15.06.2007, DW1 complained 12 regarding the installation of meter proved as Ex.DW1/2. DW1 was regularly paying the bill of Kunda connection and last bill of amounting Rs.17,000/ was paid by him on 23.06.2007 and the same was proved as Ex.DW1/3. There are three more meters installed in his premises in the name of Dharam Pal, Dharam Veer and Satish Bhati which have also been proved as Ex.DW1/4 to Ex.DW1/6. DW1 further deposed that after the raid which was conducted by the officials of the company directed to visit the New Friends Colony office of the company. These all directions were given to the house member because of he was not present at the time of the raid. DW1 visited at the directed place but result in vain. After sometime, DW1 received bills which were raised against him of theft. DW1 received four bills by speed post regarding the inspection which was carried out on 31.07.2007. Out of four bills, one bill was issued in his name of amounting Rs.3,83,000/ and other three bills were issued in the name of Dharam Pal who is the Uncle of DW1 for amounting Rs.1,71,265/ vide bill No.AGENR070820070021, another bill of Rs.13,572/ vide bill NO.AGENR070820070022 and last one of amounting Rs.6,071/ vide bill No. AGENR070820070023. DW1 deposed in his exmaination in chief that after receiving the all four bills, he visited at Corporate and legal Office of the company Andrews Ganj and met Anuj Aggarwal. All three bills which were issued in name of Dharam Pal were settled and the amount of the same bills deposited by him, all the bills are proved as Ex.DW1/7 to Ex.DW1/9 but the bill which was issued in his (accused) name of amounting Rs.3,83,000/ was not settled as per the assurances given by Anuj Aggarwal, one of the officials of the company. DW1 also deposed that he is not using the excess and exorbitant load as shown in the theft bill/ inspection report. DW1 was complaining 13 continuously for installation of meter of the Kunda connection but the company officials were not interested regarding the same and at the time of raid, all the relevant documents regarding the kunda connection were shown to the officials but they falsely implicated him in the case of direct theft.
15 It is an admitted fact that the accused is the owner and user of the premises in question and the officials of the complainant company inspected the premises in question on 31.07.2007, meaning thereby, there is no dispute about the premises & the accused. Therefore, the premises and the accused are identified. Now, the mode of direct theft of electricity by the accused has to be examined which is the crucial aspect. During cross examination, PW1 deposed that before inspection of the premises, the team members went to the police station and thereafter proceeded to the premises along with the police. No meter was found at the premises. The team members did not ask from the consumer for meter connection since no meter was installed at the premises. However, PW1 deposed that no meter is installed in the policy ''as is where basis''. PW1 did not know if kunda connection was continuing since 25.05.1998 as no document was shown at that stage. Due to stone pelting by the agitated mob, the materials could not be seized. PW1 denied the suggestion that the accused shown the bill about the premises to the raiding team members. PW1 further denied the suggestion that used and unused component have been simultaneously counted by the raiding team. PW2 deposed in his cross examination that the team members inspected the premises in question for one time. The inspection carried out at the premises was the mass raid. PW2 did not know if any meter is installed against kunda 14 connection, however, it could be said by the senior officers. PW2 denied the suggestion that the accused had shown to the team members the bill which was paid for kunda connection at the time of inspection. PW2 also denied the suggestion that the accused is not involved in the direct theft of electricity. PW2 further denied the suggestion that the team members have wrongly mentioned and assessed the load in the load report Ex.CW2/C. PW3 in his cross examination deposed that he himself seen the theft with the help of two core illegal wires and personally inspected the connected load at the premises in question. PW3 did not know about kunda connection. PW3 also did not know about ''as is where is policy''. PW3 further deposed that there was no earlier complaint regarding theft in the premises in question and it was a routine checkup of theft of electricity. The material evidence could not be seized due to resistance at site. The seizure could not be made as people have gathered at site. The people have threatened to cause harm to the team and also started throwing stones. Some of the members of the team were also hit by the stones but it was lightly. Police and CISF was there. The stones were thrown by the public after videography was shoot at site. No police complaint was made regarding any injury from stones. It was the only inspection conducted in premises No.292, Bhanger Mohalla, Madanpur Khadar, New Delhi by the team on 31.07.2007. PW3 further deposed that a commercial load has not been focussed in the videography. PW3 cannot say whether the accused is having kunda connection since 25.05.1998. PW3 denied the suggestion that any receipt regarding payment of kunda connection was shown by the accused at the time of inspection. PW3 also denied the suggestion that the company has not installed the regular connection despite repeated reminders in this 15 respect. PW3 further denied the suggestion that complainant has raised four bills thereby showing entire load in all the four bills. PW3 denied the suggestion that the load shown in the load report do not exist at site. However, PW3 volunteered that it has been duly covered in the videography. PW3 denied the suggestion that they have also shown the load which was not usable at the time of inspection in the load report Ex.CW2/C. PW3 further denied the suggestion that the accused has been consuming the load as sanctioned as per the kunda connection. 16 DW1 in his cross examination deposed that his entire load in the premises was running through the kunda connection taken by him in the year 1998. However, DW1 volunteered that his brother Satish Bhati and his uncle Dharampal Bhati were also having regular electricity connection at the premises in question and the said connections were installed somewhere 23 years before the inspection of the premises in question. He had also made the complaint to the complainant company for installation of regular connection on 16.06.2007. Prior to this, he also made a complaint for installation of regular connection somewhere in 2003 but he does not have any proof for the same. DW1 further deposed that he paid the amount of Rs.17,000/ in June,2007 towards the payment of kunda connection but he cannot say as to when the earlier payment was made for this kunda connection. Even, he cannot say whether any payment was made for kunda connection prior to 34 years from the payment of June, 2007. Moreover, DW1 cannot say whether this amount of Rs.17,000/ was towards the bill for 56 years payment for kunda connection. DW1 did not say whether the kunda connection was sanctioned only for domestic category and that to for 1KW only. DW1 16 denied the suggestion that some of the commercial load was also running at the time of inspection. DW1 further denied the suggestion that stone cutting work was going on at the time of inspection.
17 It is also an admitted fact that there was no meter at site and the accused was using electricity at the premises in question. The accused has taken the defence that he was using the electricity through kunda connection. Now, it has to be seen & examined whether the accused was using the electricity through kunda connection. If so, whether it was authorised. The specific defence of the accused is that he was having a kunda connection since 1998 and proved this fact by the receipt for kunda connection Ex.DW1/1. It reveals from the Ex.DW1/1 that it was issued by Delhi Vidyut Board to Mohinder - the accused herein on 25.05.1998. The accused has further taken the defence that he filed the complaint in the complainant's office on 15.06.2007 for installation of meter at the premises in question which is proved by DW1 as Ex.DW1/2. After perusal of Ex.DW1/2, it reveals that this is the customer's copy which was issued by BSES, Delhi vide complaint/ request no.11883 on 15.06.2007. It further shows the column as ''expected closer date: 10 days'' and remarks as ''for follow up, please quote your complaint/ request No.''. Nothing is mentioned in the Ex.DW1/2 that this complaint/ request was for installation of a meter. The accused has also taken the defence that he was regularly paying the bill as kunda connection and last bill for amounting of Rs.17,000/ was paid by him on 23.06.2007 which is proved by DW1 as Ex.DW1/3. Ex.DW1/3 is the bill which reveals the major details as name : Mohinder, Address : 292, Bhangar Mohalla, Madanpur Khadar 110076, New K.No. 2541C1421434, Bill month May 2007, date of 17 amendment 16.06.2007, round sum payable with the bill by 23.06.2007, bill amount Rs.17,000/. The connection details also mentioned in Ex.DW1/3 as category/ tariff : domestic plot / 1610, sanctioned load (KW) 1 and supply type : LT. The said amount of Rs.17,000/ was paid on 16.06.2007. Here, I take a pause. The inspection of the premises in question was carried out on 31.07.2007. The accused is using the kunda connection since 1998. Complaint filed on 15.06.2007 and an amount of Rs.17,000/ deposited on 23.06.2007. Meaning thereby, the accused was using electricity through kunda connection for about nine years and the accused neither taken any step for installation of meter nor deposited any bill for using the electricity through kunda connection for such a long period i.e. from the year 1998 to 14.06.2007, reasons are best known to the accused. DW1 during cross examination deposed that he also made a complaint for installation of regular connection somewhere in 2003 but he does not have any proof for the same. It appears that the accused without any basis or document tried to prove that he made a complaint but this defence is not tenable in the absence of any document. DW1 further deposed in his cross examination that the amount of Rs.17,000/ paid by him in June, 2007 towards the payment of kunda connection. He cannot say as to when earlier payment was made for this kunda connection. He cannot say whether any payment was made for kunda connection prior to 34 years from the payment of June, 2007. DW1 also deposed that he cannot say whether this amount of Rs.17,000/ was towards the bill for 56 years payment for kunda connection. It also reveals from the aforesaid deposition of DW1 in his cross examination that DW1 paid the amount of Rs.17,000/ against kunda connection only for one time from the year 1998 to 23.06.2007, meaning thereby, the 18 accused was never interested for installation of meter nor for payment of usage of electricity through kunda connection till the time, he deposited the aforesaid amount with the complainant. Further, kunda connection is sanctioned for domestic category and for 1 KW. The bill Ex.DW1/3 reveals the connection details as domestic plots and sanctioned load as 1 KW. Whereas, as per the load report Ex.CW2/C, 19 KW connected load for domestic purposes and 2.780 KW for non domestic purposes was found being used by the accused at the premises in question which has been proved by PW1 to PW3 who were the raiding team members. Such a heavy load i.e. both domestic as well as non domestic was being used by the accused against the sanctioned load of 1 KW which cannot be considered as legal connection i.e. kunda connection or even otherwise, it cannot also be considered as excess load or unauthorised load. 18 DW1 deposed in his examination in chief that three meters are installed in the premises in the name of Dharampal, Dharamvir and Satish Bhati which have been proved as Ex.DW1/4 to Ex.DW1/6. DW1 in his cross examination deposed that his entire load in the premises was running through the kunda connection taken by him in the year 1998. However, DW1 volunteered that his brother Satish Bhati and uncle Dharampal Bhati were also having regular electricity connection at the premises in question and the said connection were installed somewhere 23 years before the inspection of the premises in question. If the connections were installed for his brothers and his uncle at the same premises then what prevented the accused for installation of regular connection/ meter at the time when his brothers and uncle similarly situate got installed the connections, reasons are again best know to the 19 accused. Further, DW1 in his cross examination deposed that he received four bills by speed post regarding the inspection which was carried out on 31.07.2007. One bill was issued in the name of the accused and the other three bills were issued in the name of Dharampal who is the uncle of the accused which have been proved by DW1 as Ex.DW1/7 to Ex.DW1/9 which were settled in the office of the complainant but according to the accused, the bill issued to him was not settled as per the assurances given by Anuj Aggarwal one of the officials of the company. The accused, to my considered opinion, was having every right to summon and examine Anuj Aggarwal, official of the complainant to prove the aforesaid fact that Anuj Aggarwal gave him assurance that the accused was not using the excess and exorbitant load as shown in the theft bill / inspection report and due to that reason, it was not settled along with the aforesaid other three bills. Therefore, it is presumed that the accused was not interested to settle the theft bill with the other three bills. Hence, it is proved on record that the raid was conducted at the premises in question on 31.07.2007, the accused was illegally using the electricity with the help of illegal wire directly from the BSES LV mains, illegal wire was not seized due to resistance by the people present at site, reports and videography prepared at site, the accused was never interested for installation of connection for a long time, the accused was not paying bill for usage of electricity before June2007. I have found from the testimony of PW1 to PW3 and DW1 that the testimony of PW1 to PW3 has more credibility than the testimony of DW1. The complaint, the aforesaid reports prepared at site and also CD have been corroborated by the testimony of PW1 to PW3. The complainant has proved by its cogent evidence i.e. inspection report Ex.CW2/A, meter details Ex.CW2/B, load report Ex.CW2/C and compact 20 disc Ex.CW2/D that the accused Mohinder Bhati was found committing direct theft of electricity at the premises bearing No.H.No.292, Bhangar Mohalla, village Madanpur Khadar, New Delhi. Whereas, the accused namely, Mohinder Bhati has miserably failed to prove that he was not committing direct theft of electricity at the premises in question. Thus, I find that there is no reason not to accept the circumstances and the aforesaid evidence proved by the complainant through its witnesses examined as PW1 to PW3 on the point of direct theft of electricity. The prosecution has successfully proved its case against the accused beyond reasonable doubt. In BSES Rajdhani Power Ltd. Vs Saurashtra Color Tones Pvt. Ltd. and Anr. 161 (2009) DLT 28 (FB), it was held by the Hon'ble High Court of Delhi that ''Electricity is a public property. Law in its majesty benignly protects public property and behoves everyone to respect public property.'' 19 For the foregoing reasons discussed above in details, to my considered opinion, the circumstances and evidence proved by the complainant company established the involvement of the accused in the offence of direct theft of electricity. The complainant has proved its case against the accused beyond reasonable doubt. The present complaint case is squarely covered within the provisions of section 135 of the Act. Thus, I convict the accused Mohinder Bhati u/sec. 135 of the Electricity Act, 2003.
Announced in the open ( YASHWANT KUMAR )
court on 10.08.2010 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
PATIALA HOUSE COURTS NEW DELHI
21
CC No. 958/07
10.08.2010
Present AR for the complainant
Sh. A.A.Khan, counsel for the accused with
accused in person
Vide separate judgment of the day, the accused is convicted u/sec. 135 of the Electricity Act, 2003.
On request, put up for arguments on point of sentence and determination of civil liability with the other connected matter on 19.08.2010.
( YASHWANT KUMAR ) ASJ/SPL.COURT(ELECT.)SOUTH 10.08.2010