Delhi District Court
Corporation Ltd vs Bses Rpl,138 (2007) Dlt 679. on 14 February, 2012
Page 1 of 13
IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL
SESSIONS JUDGE, SPECIAL ELECTRICITY COURT,
DISTRICT COURT DWARKA, NEW DELHI
CC No. 99/11/08
ID No. 02405R0634402008
Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd
Registered office at:
(a) BSES Bhawan Nehru Place,
New Delhi 110019
(b) Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market,
New Delhi 110049
........................ Complainant
Versus
1. Kawaljeet ........................ PO
2. Hari Kishan ......................... Accused
Both at:
Shop at WZ131, 131 A,
Village Khayala
New Delhi.
Date of institution: 16.01.2008
Arguments heard on: 06.02.2012
Judgment passed on : 10.02.2012
CC No. 99/11/08
Page 2 of 13
JUDGMENT:
1. The facts of the case are like this. On 22.08.07 at 12.15 pm a joint inspection team headed by Sh Ajay Sharma AM (Enforcement) of the complainant company along with Amit Photographer from M/s Arora Photo Studio inspected the premises bearing shop No.WZ 131 and 131 A, Ground Floor, Village Khayala, New Delhi (hereinafter referred to as inspected premises). The inspected premises is used by accused No.1. Three electricity meters bearing Nos .9815452D2, 9918505D1 and 22502802 were found installed in the inspected premises in the name of accused No.2. The accused no.1 was not using the electricity through the said meters . The accused was found indulging in the direct theft of electricity by tapping from L V mains of the complainant with the help of wires which were connected to the connected load of the premises. Accused no.2 has aided and abatted the theft of electricity by allowing such an arrangement. V P Yadav, Manager Enforcement was informed who reached at the spot. The videography was done through a photographer from M/s Arora Photo Studio. The connected load was 31.519 KW for industrial purposes. The meters and wires were removed and taken into possession. Inspection report, meter detail, load report and seizure memo were prepared and offered to the accused who refused to receive and sign the same. A theft bill was CC No. 99/11/08 Page 3 of 13 raised against the accused which remained unpaid. Hence, this complaint.
2. The complainant examined two witnesses in pre summoning evidence. Accused were summoned for the offence U/s 135 of Electricity Act (herein after referred to as Act). Accused no.1 did not put his appearance as a result he was declared PO on 31.01.2011 by my Ld. Predecessor. Copy of complaint and documents were supplied to the accused no.2. NOA U/s 251 Cr.P.C for the offence u/s 135 read with section 150 of the Act was put to the accused no.2 to which he pleaded not guilty and claimed trial.
3. The complainant examined four witnesses. Complainant evidence was closed. Accused was examined u/s 313 Cr PC wherein he has taken the plea that Kawaljeet was user of the inspected premises though meters were installed in his name. The factory was lying closed. The lock was broken and factory was inspected. He has examined one witness in defence evidence.
PW1 Ajay Sharma stated that on 22.08.07 he along with Parveen TripathyGET, Anant VivekDH, V P YadavManager, inspected the inspected premises. Accused Kawaljeet was found using the premises. Three single phase meters were installed in the name of accused Hari Kishan. There was tapping of electricity from L V mains CC No. 99/11/08 Page 4 of 13 through wires which were connected to the change over switch and thereafter connected to the load of the inspected premises. There was no load through meter. A load of 31 KW was found for industrial purpose i.e for injection moulding, power press and other small loads. The videography was done by Sh.Amit. CD Ex.CW2/E was prepared and identified by him. The meters and wires were removed and sealed in a bag with seal of V P Yadav and taken into possession vide seizure memo Ex.CW2/D. The case property i.e. meters and wires Ex.P1 to P3 is identified by him. The documents were offered to accused who refused to receive and sign the same. Accused Kawaljeet is not present in the court. During cross examination, he stated that no notice in writing was given to accused Hari Kishan as same is not required. The suggestion is denied that they entered inside the premises by breaking open its lock. There were several wires i.e. one separate wire for each particular load. It is correct that change over switch was not seized. Each wire produced in the court has a load bearing capacity of 20 KW. These wires can not be differentiated as phase and neutral wire . It is correct that no sign is fixed on the seized wire to show that they were recovered from the inspected premises. The seal remains with V P Yadav Manager. The person who refused to receive and sign the documents is not present in the CC No. 99/11/08 Page 5 of 13 court. He is unable to recollect whether a generator set was functional in the premises or not. The suggestion is denied that no machinery was found in running condition or no wire was connected with L V mains or there were no theft of electricity or energy was running through meter or no load was tested with the help of tong tester or accused is residing at WZ129 which is situated on the other side of the street.
4. PW2 Pankaj Tandon stated that he is authorized by the complainant company to sign, file and proceed with the complaint Ex. CW1/2 on the basis of authority Ex. CW1/1 given to him by the complainant.
5. PW3 V P Yadav has corroborated the version of PW1 in his examination in chief. During cross examination, the suggestion is denied that premises was locked at the time of inspection or no meter was by passed or consumption was through meter. They did not specifically test the connected load on each meter as loads were found running directly by bypassing the meters. The load was assessed with the help of rating plates and tong tester. The workers had switched off the load when they entered the premises but this fact is not covered in the videography. The L V mains is situated opposite to the inspected premises. The change over switch was not seized. No CC No. 99/11/08 Page 6 of 13 specific mark was put on the seized wires. He is not aware whether any generator was found installed at site. He does not remember whether accused Hari Kishan was present at the time of inspection or not. The suggestion is denied that change over switch was connected between generator and connected load or accused did not abet the theft of electricity to the co accused who had just entered in the premises as a tenant two months prior to the date of inspection. It is correct that refusal is nowhere shown in the documents.
6. PW4 Amit is a videographer. He stated that on 22.08.07 he along with PW1 Ajay Sharma and other officials of the complainant visited the inspected premises to conduct the videography. He conducted the videography and handed over the cassette and camera to Mr. Vivek Arora i.e. owner of M/s Arora Photo Studio. CD Ex.CW2/E is identified by him.
7. DW1 Suraj Prakash is a witness examined in defence evidence by the accused. He stated that Kawaljeet was using the inspected premises in 2007 who used the premises for 79 months from May/June/July. An electricity meter was installed in the inspected premises in 2007. The owner of the premises lives in another lane which is near to the inspected premises. During the cross examination, he stated that the portion of the inspected premises is CC No. 99/11/08 Page 7 of 13 around 4050 square yards but he has not placed on record any document to this effect. It is correct that plastic molding and iron work were carried out in the inspected premises at the time of inspection. He is not aware if direct theft was going on by bypassing the meter with the help of change over switch. The suggestion is denied that Hari Kishan and Kawaljeet were users of inspected premises at the time of inspection. (Voluntarily stated that Hari Kishan used to sit idle and was not working and known as Pradhan in the area). It is correct that Hari Kishan is owner of the entire inspected premises. He is not aware if Kawaljeet was paying rent to Hari Kishan.
8. Ld counsel for the complainant submitted that accused being the owner of the premises and registered consumer could not have shut his eyes to the direct theft of electricity and the theft of electricity was only possible with the aid and knowledge of accused. He further contended that entire evidence shows that accused was in collusion with coaccused for committing theft of electricity. Ld counsel has placed reliance upon Hindustan Petroleum Corporation Vs BSES Rajdhani Power Ltd 138 (2007) DLT 679 in support of the contentions.
9. Ld counsel for the accused contended that accused had CC No. 99/11/08 Page 8 of 13 let out the premises to the coaccused. He further submitted that meters were installed in the premises. He further submitted that accused was not aware if coaccused was indulging in the direct theft of electricity and accused cannot be held liable for the fault committed by coaccused.
10. In order to prove its case, the complainant is required to establish that the theft of electricity was going on in the inspected premises at the time of inspection. The complainant is further required to connect the accused with the inspected premises and also to prove that accused abetted the commission of theft of electricity.
11. The complainant has examined three witnesses in order to prove its case whereas accused has examined one witness to further his defence. PW1 and 3 are the members of joint inspection team. Their testimony clearly reflects that on 22.8.2007 an inspection was carried out in the inspection premises. The presence of PW1 and 3 as well as inspection of the inspected premises is nowhere controverted during the course of crossexamination meaning thereby that presence of PWs and inspection stands admitted. Their testimony further reflects that there was direct tapping of electricity from LV mains with the help of wires which were connected to the change over switch and thereafter to the connected load of premises. The meters CC No. 99/11/08 Page 9 of 13 were installed in the premises but there was no supply through the meters. The existence of changeover switch stands admitted if we peruse the crossexamination of PW3. PW3 has denied the suggestion that change over switch was connected between generator and connected load. He further stated that he is not aware if generator was installed there or not. The very suggestion shows the existence of change over switch in the inspected premises which stand connected with the wires. There are three meters in the premises. The question of keeping the generator is out of question when three meters were installed in the inspected premises. Moreover, there is nothing on the record that generator was of particular make, number and horsepower. The theory of generator coined by the accused does not inspire confidence. The accused has failed to explain why the change over switch was installed when the use of electricity was allegedly through the meters. The very installation of change over switch lends support to the fact that it was installed for the purpose of committing theft of electricity. There is nothing on the record that consumption of electricity was through electricity meters as accused has failed to produce any paid electricity bills till the date of inspection on record. The wires were removed and taken into possession . The wires stand identified in the court. There is nothing on the record that there was CC No. 99/11/08 Page 10 of 13 any alternative mode of electricity for the inspected premises. All this shows that there was theft of electricity.
12. To appreciate the submissions of ld counsel for the accused, it is relevant to mention that the arrangement between the owner and user of the inspected premises is within the knowledge of the parties as premises is used for unauthorized industrial units. The abetment by the owner is to be inferred from the facts and circumstances on record as direct evidence is unlikely to come. It is correct that the testimony of PWs and DWs show that one Kanwaljeet was found user of the premises at the time of inspection. The defence of the accused is that accused Kanwaljeet was inducted as tenant only two months prior to the date of inspection. The defence does not inspire confidence as testimony of DW1 shows that Kanwaljeet was tenant for 79 months. No rent agreement is placed on record. There is nothing on the record as to what were the terms and conditions of the tenancy. No tenant verification report was obtained by the accused. There is nothing on the record when accused Kanwaljeet vacated the inspected premises. The machinery was found in the inspected premises. It is quite surprising that tenant did not lift the machinery in case he was inducted as a tenant or vacated the premises. The accused is owner as well as registered consumer of the CC No. 99/11/08 Page 11 of 13 electricity meters. The entire trend of the crossexamination reflects that everything was going on with his consent and knowledge. PW3 stated in the crossexamination that workers switched off the load as shown in videography when they entered into the inspected premises. He is not aware whether generator was installed there or not. He has denied the suggestion that changeover switch was connected between generator and connected load. He has denied the suggestion that accused did not abet the theft of electricity. All these questions or suggestions can only be put by a person when the entire arrangement for the supply of electricity is within his knowledge or theft was going on with his consent. Three meters are installed in his name but no bill is produced to show that electricity was consumed through meters. The registered consumer cannot be oblivious of the fact that he is not receiving any electricity bill. All these facts show that theft of electricity was going on with his knowledge.
13. Section 2 (15) of the Act defines consumer. "Consumer means any person who is supplied with electricity for his own use by a licensee or the government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving CC No. 99/11/08 Page 12 of 13 electricity with the works of licensee, the government or such other person, as a case may be". The very definition of consumer covers both owner and user. The both are liable in case of illegal abstraction of electricity. Reliance is placed on Crl Appeals No. 470/11 (Crl MA 624/11) and 471/11 (Crl MA No. 625/11) titled as Lokesh Chandela Vs State of NCT of Delhi decided on 3.1.2012 by our own High Court. The accused Kanwaljeet was found using the inspected premises and the same was allegedly let out to him by coaccused Hari Kishan. There were three electricity meters but accused has failed to show that consumption of electricity was through meters as no electricity bill is on record. The obvious means to use the electricity by accused Kanwaljeet was by means of theft.
14. Accused Hari Kishan is the owner of the inspected premises as well as registered consumer of the electricity connection granted to him by the complainant. He could not have shut his eyes to the theft of electricity in the premises and the same could not have been carried without his consent and knowledge. The abetment may not be done by positive act but also by omission to do positive act. Reliance in this regard may also be placed upon Hindustan Petroleum Corporation Ltd Vs BSES RPL,138 (2007) DLT 679.
15. The complainant has duly proved that the theft of CC No. 99/11/08 Page 13 of 13 electricity was going on with the consent and knowledge of accused Hari Kishan. The testimony of PWs is consistent. There is nothing on the record to view their testimony with the aid of spectacles. There is no evidence of enmity so the question of false implication is out of question. Hence, their testimony is relied upon.
16. In the light of my aforesaid discussion, I have no hesitation to hold that complainant company has proved the case against the accused Hari Kishan beyond shadow of reasonable doubt. Hence, accused Hari Kishan is held guilty U/s 135 read with section 150 of the Electricity Act, 2003 and is convicted. Let the file to come up for quantum of sentence on 14.02.2011.
Announced in the open
Court on dated 10.02.12 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 99/11/08
8. I have heard ld counsel for complainant, ld counsel for accused and perused the record. The complainant has to link the accused with the inspected premises either as a owner or user. The complainant has to show that accused was responsible for committing theft of electricity in the inspected premises.
CC No. 99/11/08
12. There is no electricity connection in the inspected premises meaning thereby that accused will indulge in theft of electricity. Section 2 (15) of the Act defines consumer. "Consumer means any person who is supplied with electricity for his own use by a licensee or the government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of licensee, the government or such other person, as a case may be". The very definition of consumer covers both owner and user. The both are liable in case of illegal abstraction of electricity. Reliance is placed on Crl Appeals No. 470/11 (Crl MA Page 10 of 11 624/11) and 471/11 (Crl MA No. 625/11) titled as Lokesh Chandela Vs State of NCT of Delhi decided on 3.1.2012 by our own High Court. The accused Surender was found using the inspected premises and the same was allegedly let out to him by coaccused without any electricity connection in the premises. There was no electricity meter and obvious means to use the electricity by accused Surender was by means of theft. This all happened with the knowledge and consent of accused Ravi Prakash Grewal otherwise he would not have let out the inspected premises in the absence of any electricity connection.
CC No. 99/11/08 Page 1 of 3 IN THE COURT OF SURESH KUMAR GUPTA: ADDITIONAL SESSIONS JUDGE, SPECIAL ELECTRICITY COURT, DISTRICT COURT DWARKA, NEW DELHI CC No. 99/11/08 ID No. 02405R0634402008 Section 135 Electricity Act, 2003.
BSES Rajdhani Power Ltd ........................ Complainant Versus Hari Kishan ......................... Convict ORDER ON POINT OF SENTENCE:
1. Ld counsel for the complainant submitted that direct theft of electricity was going on in the inspected premises with the consent and knowledge of the convict and such kind of convict should not be shown any kind of leniency.
2. Ld counsel for the convict submitted that convict is the first offender. He further submitted that convict is 57 years old. He further submitted that convict has four children including three daughters. He further submitted that convict is dependent upon his son. Ld counsel further submitted that a lenient view be taken in CC No. 99/11/08 ..2..
favour of the convict.
3. Heard and perused the record. The convict is the first offender. There is nothing on the record to show that he has been previously convicted for the same offence. The convict is allegedly without any source of income. All these facts are sufficient to take a lenient view. The load is more than 10 KW and fine imposed should not be less than three times of the financial gain on account of theft of electricity. The bill was raised for a sum of Rs. 9,53,109/. To my mind, interest of justice shall be met if sentence of fine is imposed. Hence, convict is sentenced to pay fine of Rs. 14,29,613/ and in default of payment of fine to undergo SI for 9 months. The convict is also liable to pay civil liability U/s 154 (5) of the Act so amount of civil liability shall be paid to the complainant towards satisfaction of the civil liability, out of fine, if realized. The amount already paid shall be adjusted towards civil liability.
ORDER ON CIVIL LIABILITY:
4. Section 154 (5) of the Act says that civil liability shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detection of the theft of energy or exact period of theft, if determined whichever is less. The civil liability is to be recovered as the decree of civil court.
5. The convict has been held guilty U/s 135 of the Act. The CC No. 99/11/08 ..3..
connected load was 31.519 KW for industrial purpose. The bill was raised for a sum of Rs 9,53,109/. The bill is raised on the basis of consumption for a period of 12 months multiplied by two times of the applicable tariff rate. Accordingly, the civil liability on the basis of tariff rate is assessed at Rs. 9,53,109/. Copy of the order be given to the convict free of cost. File on completion be consigned to record room.
Announced in the open
Court on dated 14.02.12 (Suresh Kumar Gupta)
ASJ: Special Electricity Court
Dwarka: New Delhi
CC No. 99/11/08