Delhi District Court
Bses vs . Naushad & Anr., Cc No. 22/09 Page 1 Of ... on 6 August, 2013
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IN THE COURT OF SHRI RAKESH TEWARI,
ADDITIONAL SESSIONS JUDGE, THE SPECIAL COURT UNDER THE
ELECTRICITY ACT 2003, SAKET COURTS, NEW DELHI
Complaint Case No.: 22/09
Police Station : Jamia Nagar, New Delhi
U/s 135 & 150 of Electricity Act, 2003
Unique ID No. 02403 RO022782009
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1. Shri Naushad (Absconding)
2. Ms. Shehnez Begum
W/o Late Shri Qamrul Islam
Both R/o:
House No. I98,
Muradi Road,
Batla House, New Delhi
...Accused
BSES Vs. Naushad & Anr., CC No. 22/09 Page 1 of page 17
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Appearances : AR with Shri Rishab Raj Jain, counsel for
complainant.
Accused Shehnez Begum present on bail along with
Shri S. Satyanarayana, Advocate
Complaint instituted on : 29.01.2009
Judgment reserved on : 03.08.2013
Judgment pronounced on : 06.08.2013
JUDGMENT
1. The case of the complainant in brief is that on 22.10.2008, the officers of the complainant company namely, Shri Ishfaq Ahmed Beigh - Assistant Manager, Enforcement,Shri M.C. Sharma - Senior Manager, Enforcement, Shri K.K. Sharma - Trainee Engineer along with other members of team inspected the premises of accused i.e. House No. I98, Muradi Road, Batla House, New Delhi and it was found that the premises was being used by accused Naushad and Mrs. Shehnez Begum and it was further found that no electricity meter was installed at the said premises for supply of electricity, however, accused Naushad was illegally using the electricity by directly tapping from L.V. distribution board of the complainant company with the aid of illegal tappings / cable, which was further connected to entire connected load of the said premises. It is further mentioned in the complaint that earlier the meter no. 23538958 installed BSES Vs. Naushad & Anr., CC No. 22/09 Page 2 of page 17 3 against K. No. 2541C4040854 in the name of accused Ms. Shehnez Begum was found deliberately tampered, when the same was tested in the independent laboratory at Vadodara. It is further mentioned in the complaint that the connected load of 7.375 KWs and 4.578 KWs was found being connected / used through stolen energy by the accused for commercial and domestic purposes respectively. It is further mentioned in the said complaint that the videography was got conducted at the spot by photographer from M/s. Arora Photo Studio and inspection report and load report were also prepared at the site, and that accused had refused to sign the said documents, thus, accused were causing wrongful loss to the complainant and wrongful gain to themselves and were thus acting dishonestly.
2. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per the DERC regulations and tariff order was raised by the complainant for Rs. 3,40,080/ with due date as 18.11.2008 and was served upon the accused but they failed to pay the said theft bill.
3. The case was fixed for presummoning evidence and BSES Vs. Naushad & Anr., CC No. 22/09 Page 3 of page 17 4 accused were summoned to face the said allegations by my Ld. Predecessor vide his order dated 20.04.2009 and accused Ms. Shehnez appeared and supplied with the documents and CD of videography. Accused Naushad was declared proclaimed offender by my Ld. Predecessor vide order dated 26.03.2011. My Ld. Predecessor vide his order dated 05.04.2011 framed notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 r/w section 150 of the Electricity Act, 2003 against the accused Shehnez Begaum and accused pleaded not guilty and claimed trial on the ground that she was not abetting accused Naushad for committing direct theft of electricity and that she had not tampered the meter no. 23538958 and that the said meter was removed by the complainant on 17.04.2008 and another case of theft was booked against her on 22.005.2008 and that the said another case might had been disposed of by this court and that she is not liable to pay any damages and loss to the complainant company.
4. In order to prove the case of the complainant, six witnesses were produced, which have been discussed below. BSES Vs. Naushad & Anr., CC No. 22/09 Page 4 of page 17 5
5. The statement of accused Shehnez was recorded U/sec.
313 Cr.P.C. and accused pleaded her innocence and denied the evidence as false and answered that she was not present at the premises at the time of inspection and that she did not reside in the said premises and that she owned the premises, however, the same was occupied by tenant namely Naushad and others and that said Naushad had vacated the premises after the present inspection and that she was not committing nor abetting accused Naushad (absconding). She further answered that the load report was not prepared in her presence and she had no knowledge of the connected load and the said premises was let out for residential purposes and that she had no knowledge whether tenant was using the said premises for any commercial purposes. She further replied that none of the documents was prepared in her presence and that theft bill has wrongly raised and that she was not aware of any videography being conducted. She further answered that the tenant vacated the said premises shortly after the inspection without her knowledge and permission and subsequently, she came to know that accused Naushad was occupying the premises bearing no. A13, 3rd floor, Joga Bai, Batla House, Jamia Nagar, New Delhi and that the said BSES Vs. Naushad & Anr., CC No. 22/09 Page 5 of page 17 6 address was also given to the SHO for arresting the proclaimed offender Naushad, but he was not produced before the court and that a false and fabricated case has been made against her.
6. I have heard the counsel for the complainant and counsel for the accused Shri S. Satyanarayana, Advocate, and perused the record including the CD of videography displayed on the computer screen of the court. Further, accused opted to lead defence evidence and produced DW1 in her defence, which has been discussed below.
7. PW1 Shri K.K. Sharma, being the member of the inspection team deposed in his examination in chief regarding the inspection conducted as mentioned above in the facts of the complaint. He proved the inspection report Ex. CW2/1, which was prepared by Shri Ishfaq Ahmed Beigh, the meter details and load report as Ex. CW2/2, which was prepared by him and the inspection team visited the site on the basis of lab report and as there was no meter at the site the team booked the case for direct theft. He further proved the videography Ex. CW2/4 and deposed that inspection team could not be able to seize the BSES Vs. Naushad & Anr., CC No. 22/09 Page 6 of page 17 7 illegal wires due to mob gathering.
8. In his cross examination on behalf of the accused, PW1 replied that the name of the business M/s. Ruby Fashions, covered in the videography, was not mentioned in the inspection report and he admitted that area in question was thickly populated. He replied that they had taken the bill from the workers present at the site from which they reached the conclusion that premises in question was I98 and he admitted that the said bills were not filed along with the inspection report, but the same were returned at the site. He admitted that the taking of the bill and returning the same is not covered in the videography. He replied that they had gone to the site to note down the connected load based on the lab report. He had no idea as to whether any case of theft of electricity was booked on the basis of the lab report and the removal of the meter on 17.04.2008. He did not know as to whom the documents were offered at site. He answered that they came to know that user of the premises in question was one Naushad and his tenants. He replied that they did not call police for taking help when the tenants used to give their identity and their names. He admitted BSES Vs. Naushad & Anr., CC No. 22/09 Page 7 of page 17 8 that the meter was installed at the site till 17.04.2008. He was not aware as to whether any separate load report other than the documents Ex. CW2/2 was prepared after removal of the meter on 17.04.2008. He was not aware as to why the date of taking the videography was not shown. He answered that name of Shehnez Begum was mentioned in the inspection report being the registered consumer only. He admitted that Ex. CW2/A shows the consumption details upto 31.05.2008. He could not comment upon regarding the yellow cable shown in the videography as provided by BSES or not. He replied that they has tested the flow of electricity on the yellow illegal wire by a tester, but same was not covered in the videography. He admitted that after having seen the videography, they could make out that there was no resistance from the persons available at site. He answered that till the time they went inside the premises, there was no problem but the moment they tried to remove the wires, the persons gathered at site, and started shouting due to which illegal wire could not be removed.
9. PW2 Shri M.C. Sharma, deposed the facts on the same lines as mentioned in the complaint narrated above and deposed BSES Vs. Naushad & Anr., CC No. 22/09 Page 8 of page 17 9 by PW1 and he further deposed that owner of the building Ms. Shehnez Begum was not present at site. However, in his cross examination on behalf of the accused, he also admitted that they visited the site on the basis of lab report but they have not given any notice to the registered consumer of the meter in question and he volunteered that same might have been given from the Enforcement Office. He replied that they asked the persons available at site to show the consumption bill, but no bill was supplied to them at site. He did not verify from the records as to whether the meter was supplied to the consumer after removing the subject meter. He also admitted that the name of the business M/s. Ruby Fashions was not mentioned in any document. He further answered that there could be a possibility that M/s. Ruby Fashions was not name and style of the business of accused persons. He replied that the yellow coloured service cable seen in the videography was not provided by the complainant, but was an unauthorised cable. He replied that checking of load by line tester might not have been covered in the videography. He replied that there was no resistance within the premises with respect to videography but a large crowd had gathered outside. He admitted that resistance by the mob in BSES Vs. Naushad & Anr., CC No. 22/09 Page 9 of page 17 10 removal of illegal cable was not captured in the videography. He replied that the name of accused Shehnez Begum was mentioned only because she was the registered consumer.
10. PW3 Shri Ishfaq Ahmed Beigh also deposed the same facts as deposed by PW1, PW2 as per facts mentioned in the complaint narrated above and he further gave details of connected load. However, in his cross examination on behalf of the accused, he replied that they inspected the premises on the basis of the lab report but no notice was given to the registered consumer for asking her to be present at site. He replied that they had gone on the inspection to the premises on the basis that meter was tampered, as the lab report had so indicated but finding no meter at site, they booked it as a case of direct theft. He had no knowledge that the meter was in existence till 17.04.2008. He did not remember if any generator set was supplying electricity to the premises in question on 22.10.2008. He replied that the document Ex. CW2/A was issued from the office of the complainant company but it does not signify that the reading mentioned in it was actually being downloaded from the meter as it could be provisional billing also. BSES Vs. Naushad & Anr., CC No. 22/09 Page 10 of page 17 11
11. PW4 Shri Sonu, videographer from M/s. Arora Photo Studio deposed that he conducted the videography on 22.10.2008 in the premises in question and he also proved the CD Ex. CW2/4 and videography contained therein. In his cross examination on behalf of the accused, he proved his identity card, which was valid upto 31.03.2013.
12. Shri A.S. Menon, Dy. Finance Officer in the complainant company deposed that he prepared the theft bill as per DERC regulations and he also proved the said bill as Ex. CW2/3. In his cross examination on behalf of the accused, he admitted that he was not the member of inspection team and had no personal knowledge about the alleged theft case and that he prepared the theft bill at his office on the basis of documents supplied to him and he further admitted that there could be variation in period of usage of impliments for the winter or summer use.
13. PW6 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. PW6/1 and he also proved the BSES Vs. Naushad & Anr., CC No. 22/09 Page 11 of page 17 12 complaint Ex. CW1/3 and he further proved letter of authority of the previous A.R. as Ex. CW1/1 and he deposed that he has no personal knowledge of the facts of the case and has deposed as per records. In his cross examination on behalf of the accused, he replied that he did not visit the premises in question and that he deposed on the basis of documents on record.
14. DW1 Mohd. Sufiyan deposed that the premises bearing house no. I98, Muradi Road, Batla House was let out to one Naushad without executing any rent agreement and that prior to the present inspection the official of BSES had conducted another inspection at the same premises on 22.05.2008 and booked a case of electricity in which his mother namely Shenez Begum was named as an accused and the CC no. was 458/08 and on 27.11.2010 his mother was acquitted in the said case and he tendered the copy of the judgment Ex. DW1/A. In his cross examination on behalf of the complainant company , he answered that electricity in the premises was being supplied through generator which was jointly purchased by Naushad and his mother, but he has no receipt of the same as it was the second hand generator which was purchased from one Sandeep BSES Vs. Naushad & Anr., CC No. 22/09 Page 12 of page 17 13 and that after the disconnection of the said meter during the earlier inspection, he had not applied for the fresh one and he identified Naushad in the videography.
15. This is admitted case of PW1, PW2 and PW3 that they had gone to the premises on the basis of a lab report in which, as per arguments on behalf of the complainant, the meter was found tampered by the lab and it is also admitted case that earlier a case of theft was booked against accused Shehnez Begum on 22.05.2008. The said lab report suggests that either the meter was faulty and there was a complaint of the consumer to that effect and as such the meter was removed from the site and was sent to the laboratory for testing. It may be a case of dishonest abstraction of energy (DAE) by way of tampering of the meter in any manner whatsoever and the complainant company removed the meter and sent the same for the said testing at the laboratory. In both the cases, it is the mandatory command of the law that immediately after the removal of faulty or tampered meter, a new meter is supplied as substitute. In the present case it is again the admitted case of the said three witnesses that they did not find any meter at the site and at the same time they had BSES Vs. Naushad & Anr., CC No. 22/09 Page 13 of page 17 14 gone to the premises in question on the basis of a lab report to record the connected load of the premises. There is no iota of evidence on record as to when the said earlier meter was removed, for what reason or as to whether any substitute new meter was replaced or not. This is neither the case of the complainant nor of the accused that any substitute meter was provided which was either stolen or was disconnected and removed due to other reasons such as non payment of consumption charges etc. If there was no meter at all on the date of inspection i.e. 22.10.2008, I failed to understand as to how accused Shehnez Begum was being called a registered consumer. Thus, the very edifice of the case is missing against accused Shehnez Begum and if it so, there is no other evidence on the record against her.
16. The case of the said three PWs, the members of the inspection team, admittedly is that accused Shehnez Begum was not at all present at the time of inspection on 22.10.2008 and her name is mentioned just because she was the registered consumer, but there is no evidence as discussed above that she was the registered consumer or in what circumstances and BSES Vs. Naushad & Anr., CC No. 22/09 Page 14 of page 17 15 manner the premises was found without a meter and certainly it is not the case of the complainant that it had provided a meter to accused Shehnez Begum at her premises which was thrown away by her. Even PW2 replied in his cross examination that he did not verify from the records as to whether the meter was supplied to the consumer after removing the earlier meter. Admittedly, accused Naushad and his tenants were the users of the premises and accused Naushad is absconding.
17. Moreover, there are so material contradictions in the deposition of said three witnesses that it is difficult to swallow the story narrated by them in their respective examination in chief. PW1 specifically answered in his cross examination that electricity bill was taken from the workers present at site from which they came to a conclusion that premises number was I98, but the said bill was not filed along with the inspection report because it was returned at the same time at the site. Whereas, PW2 has answered that no such bill was ever supplied to them at the site despite demanding the same. Further, PW1 could not comment regarding the yellow cable shown in the videography as the one provided by the complainant company or not. Whereas BSES Vs. Naushad & Anr., CC No. 22/09 Page 15 of page 17 16 for PW2, the yellow coloured cable was not provided by the complainant company but it was an unauthorized cable.
18. Moreover, this is admitted by PW2 and PW3 in their respective cross examinations that they have not given any notice to the registered consumer at the time of inspection. This go to suggest that mandatory requirement of the law and the rules framed thereunder have not been complied by the said three PWs, if at all they were taking accused Shehnez Begum as the registered consumer and their admitted case is that they had gone to the premises on the basis of a lab report to assess the connected load. This circumstance, also demolishes the story of the complainant and all the three PWs miserably failed to prove the accused Shahnez Begum as registered consumer on the date of inspection. The complaint cannot be allowed to take advantage of the weakness of the defence of the accused because it has to stand on its own legs and prove the case beyond reasonable doubt against the accused. Hence, it cannot be said that presumption as provided under the 3rd proviso to section 135 of Electricity Act, 2003 can be raised in this case against accused Shehnez Begum so as to be rebutted by her.
BSES Vs. Naushad & Anr., CC No. 22/09 Page 16 of page 17 17
19. In view of my said discussion, I am of considered opinion that the complainant has failed to bring home the guilt of the accused beyond reasonable doubt and benefit of doubt is extended to the accused. Hence, she is acquitted of the offence u/s. 135 r/w section 150 of the Electricity Act, 2003. Her PB & SB are discharged. The file may be revived, as and when, accused Naushad, who is now absconding, is brought to books. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 06.08.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Naushad & Anr., CC No. 22/09 Page 17 of page 17