Delhi District Court
Before Special Electricity Court vs Shri Kishan on 31 August, 2022
BEFORE SPECIAL ELECTRICITY COURT, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI
CC No. 273/19
BSES Rajdhani Power Ltd.
Registered office at - BSES Bhawan,
Nehru Place, Delhi - 19
Also at:
Corporate, Legal and Enforcement Cell,
Near Andrews Ganj Market, Andrews Ganj,
Delhi - 49 .....Complainant
Versus
1. Shri Kishan, s/o Bablu Ram
Plot opposite Pole No. 51-F,
Near Pole No. NJF-XE-75
Near Durga Mandir,
Village Paprawat,
Najafgarh, Delhi - 43
2. Sanjay (discharged vide order dt. 09.12.2019)
Plot opposite Pole No. 51-F,
Near Pole No. NJF-XE-75
Near Durga Mandir,
Village Paprawat,
Najafgarh, Delhi - 43
3. Dinesh (discharged vide order dt. 09.12.2019)
Plot opposite Pole No. 51-F,
Near Pole No. NJF-XE-75
Near Durga Mandir,
Village Paprawat,
Najafgarh, Delhi - 43 ......Accused
Case instituted on - 18.02.2019
Arguments heard on - 18.08.2022
Judgment pronounced on - 31.08.2022
Digitally signed
by MURARI
MURARI PRASAD
PRASAD SINGH
Date:
SINGH 2022.08.31
15:52:37 +0530
CC No. 273/19 BSES v. Shri Kishan Page 1 of 16
JUDGMENT
1. Relevant facts, as set out in the complaint, are as follows:
I) On 10.08.2018 a BSES team comprising of PW1 Deepak Kumar (Graduate Engineer Trainee), PW2 Lalit Kumar (Technician), Sahil Kumar (Assistant Manager) and videographer, namely Rahul visited the premises, that is, plot opposite pole no. 51F, village Paprawat, near Durga Mandir, Najafgarh, Delhi-43 for an inspection. II) Accused Shri Kishan was the user of the electricity whilst accused Sanjay and Dinesh were owners of the premises. No electricity meter was found at the site. III) Aforesaid team of BSES noticed that accused Shri Kishan, abetted by accused Sanjay and Dinesh, was indulging in direct theft of electricity by tapping from BSES distribution box with the help of two illegal wires and which wires were then connected to load of the premises. Total connected load of the premises was 6.464 KW for domestic purpose.
IV) Aforesaid team of BSES could not seize the illegal wires used to commit theft of electricity as the area was sensitive in nature. Rahul (videographer) videographed the inspection.
V) Inspection team members prepared the Inspection Report Ex. PW1/C, Load Report Ex. PW1/D and the Seizure Digitally signed by MURARI MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH CC No. 273/19 BSES v. Shri Kishan Page 2 of 16 15:52:47 +0530 Memo Ex. PW1/E at the site. The consumer allegedly refused to receive and sign these reports/ memos. Based on the inspection report, load report and seizure memo, complainant raised a theft bill Ex. PW1/F of Rs. 2,58,777.44/- against the accused.
VI) On these averments, complainant lodged the instant complaint through its authorised representative PW3 Ashutosh Kumar.
2. On 09.12.2019 accused Sanjay and Dinesh were discharged. Order dt. 09.12.2019 reads as follows:
"As submitted by accused no.2 Sanjay Sharma and accused no.3 Dinesh that they have no concern with the inspected premises and the property belongs to one Sh. Devender, who is owner of the inspected premises. As per verification report1, accused Shri Kishan is residing at the given address. Accordingly, accused no.2 Sanjay Sharma and accused no.3 Dinesh arrayed in the memo of parties are discharged in this case and case shall proceed against the accused Shri Kishan only. Be put up on 30.01.2020."
3. It may also be mentioned here that separate, but identical statements on oath of Sanjay and Dinesh were got recorded on 09.12.2019. Their identical statements are as follows:
"I am residing at the above address [near Government Girls School, village Paprawat, Najafgarh, New Delhi
- 110043]. The inspected premises i.e. Plot Opposite 1 Vide Order dt. 14.10.2019 complainant BSES was directed to verify the ownership of the inspected premises and file the report by next date of hearing, i.e. 09.12.2019.MURARI Digitally signed by MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:52:57 +0530 CC No. 273/19 BSES v. Shri Kishan Page 3 of 16 Plot no. 51-F, Near Pole no. NJF-XE-75, Near Durga Mandir, Village Paprawat, Najafgarh, New Delhi - 110043 not belongs to me. The inspected premises belongs to accused no.1 Shri Kishan S/o Sh. Bagdu Ram who is present in the Court today. I may kindly be discharged. This is my true and correct statement."
4. Verification report filed by the complainant, inter alia, reads as follows: "Shri Kishan s/o Bablu Ram presently stay at premises but he said the premises not belongs to him, the said premises belongs to his elder brother late Devender........ Sanjay & Dinesh son of his younger brother."
5. To a notice for the offence under section 135 of Electricity Act, 2003, served on 30.01.2020, accused Shri Kishan pleaded not guilty and claimed trial.
6. In complainant's evidence, following three witnesses were examined.
PW1 Deepak Kumar, (Graduate Engineer Trainee, BSES). He was a member of the team that had visited the premises in question on 10.08.2018 for an inspection. PW2 Lalit Kumar (Technician, BSES). He too was a member of the team that had visited the premises in question on 10.08.2018 for an inspection. PW3 Ashutosh Kumar. He is complainant's authorised representative. He deposed that he had been authorised vide Power of Attorney Ex. PW3/A to institute the present Digitally signed by MURARI MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:53:05 +0530 CC No. 273/19 BSES v. Shri Kishan Page 4 of 16 complaint.
7. Examined under section 313 of CrPC, accused Shri Kishan pleaded innocence and alleged false implication. He stated, "My house is adjacent to the house of the inspected premises. I have nothing to do with the inspected premises." He went on to state, "BSES officials called me as a witness to the inspection and took my signatures on only one paper."
8. In defence evidence, accused Shri Kishan examined himself as DW1. He deposed that on the day of inspection he had been called to witness the inspection; that on being asked by BSES official about the owner of the premises, he told him that it belonged to one Devender who died about 5-6 years ago; that the premises is lying vacant; that BSES official took his signatures on some document; that later on he came to know that case had been falsely registered against him.
9. Arguments heard. Record perused.
10. Insofar as the assertion of the complainant that electricity was being stolen in the premises in question is concerned, it is the view of this court that this has fairly been well established. On this count, PW1 and PW2 have given oral evidence to the effect that electricity was being stolen in the premises in question by tapping with the help of two illegal wires that were illegally connected to the distribution box on the electricity pole. They Digitally signed MURARI by MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:53:14 +0530 CC No. 273/19 BSES v. Shri Kishan Page 5 of 16 further deposed that there was no electricity meter at the site. To this, there is hardly any cross-examination of PW1 and PW2. On this aspect, I see no reason to doubt the oral evidence of PW1 and PW2. Inspection report (Ex. PW1/C) notes direct theft of electricity by directly tapping from the distribution box through 2 illegal wires. Load Report (Ex. PW1/D) shows that total connected load at the time of inspection/ raid was 6.464 KW for domestic purpose. These reports prepared by the officials of complainant is an act in discharge of their duties and cannot be straightaway disbelieved unless there is definite and cogent material on record to arrive at such a finding {see Punjab State Electricity Board & Others v. Ashwani Kumar, (2010) 7 SCC 569}. The fact that the illegal wires used to steal electricity were not sized is not fatal to the case of the complainant. This is no infirmity in complainant's case since allegations of electricity theft can very well be proved by oral deposition coupled with other material on record. Electricity is not a tangible object and therefore recovery of case property may not be necessary akin to other cases where case property like, jewellery, cash, motor vehicle etc. may be recovered. Non-seizure of illegal wires is not fatal to complainant's case and reference in this regard can be had to Mukesh Rastogi v. North Delhi Power Limited, 2007 SCC OnLine Del. 1435.
11. However, it is on the other count, that is, the connection Digitally signed by MURARI MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:53:22 +0530 CC No. 273/19 BSES v. Shri Kishan Page 6 of 16 between accused Shri Kishan and the inspected premises, that this court views the case of the complainant with doubt. The case of the set up by the complainant in its complaint was that accused Shri Kishan was the user of electricity and accused Sanjay and Dinesh were owners of the premises.
12. It does not help the complainant that there are no property documents whatsoever to connect accused Shri Kishan with the premises in question. Admittedly, accused Shri Kishan is not the owner of the premises in question. It bears repetition to state that as per the complainant, accused Shri Kishan was user of electricity in the premises in question. And on this count, complainant rests its case by and large on the oral evidence of PW1 and PW2.
13. On this aspect, PW1 Deepak Kumar in his oral evidence has, inter alia, deposed as follows:
"......Sh. Kishan s/o Bablu Ram was the user of the premises in question and Sanjay and Dinesh were the owners of the premises in question...... xxxxx by Sh. Sunil Yadav, Ld. Counsel for the accused .........Accused Shri Kishan informed us about the registered owner of the property and the user. In the sensitive area we cannot verify the information about the registered owner or user of the raided premises. Whatever information we received from the person present at the spot, we proceed according to that only.
It is correct that as per my statement Sh. Sanjay and Sh. Digitally signed by MURARI MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:53:29 +0530 CC No. 273/19 BSES v. Shri Kishan Page 7 of 16 Dinesh are the owners of the property in question and Shri Kishan is the user of the property in question. It is correct that I do not know whether Sh. Sanjay and Sh. Dinesh are already discharged by this Hon'ble Court as they were not the owner of the property. It is correct that our information regarding Sh. Sanjay and Sh. Dinesh was incorrect during the trial. Volt. We proceeded as per information given by Shri Kishan at site. It is correct that the information regarding the user Shri Kishan can also be found incorrect. It is correct that we did not find any name plate of user Shri Kishan at the premises in question. It is correct that user Shri Kishan was present there. It is correct that in the videography the user is covered.
It is correct that owners Sh. Sanjay and Sh. Dinesh were not present at the time of inspection. It is correct that on the statement of user Shri Krisha, Sanjay and Dinesh were included in this case.
It is correct that we do not have any document which prove that Shri Kishan is the user of the premises in question...............
It is wrong to suggest that the user was not present there at the time of inspection. It is wrong to suggest that on the information received from the persons gathered at the spot, user Shri Krishan was implicated in the present case. It is wrong to suggest that we implicated all the accused on the basis of fake information.
It is wrong to suggest that accused Shri Kishan is neither the user nor the registered owner of the property in question."
14. PW2 Lalit Kumar in oral evidence on this count stated as follows:
"........Shri Kishan was the user of the premises in question and Sanjay and Dinesh were the owners of the premises in question........ MURARI Digitally signed by MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:53:40 +0530 CC No. 273/19 BSES v. Shri Kishan Page 8 of 16 Xxxxx by Sh. Sunil Yadav, Ld. Counsel for the accused .....I did not verify the name of the owner and the user of the premises in question from anybody else. It is correct that we proceed for booking the case of electricity theft as per the information received from the person present at the spot. It is correct that the information received about the owner and the user of the raised premises cannot be incorrect. We have not placed any document or photo to verify that Shri Kishan is the user of the aforesaid premises. .......It is wrong to suggest that at the time of inspection Shri Krishan was called as a witness / visitor at the aforesaid premises and later on he was implicated in the present case as accused.
It is wrong to suggest that Shri Krishan is neither the registered owner of the property nor the user. It is wrong to suggest that Shri Krishan is the owner of the property which is next to the property in question...... ...........It is correct that there were 2-3 persons including children were there in the premises except Shri Krishan. I do not remember whether identity proof of other persons was taken or not. It is wrong to suggest that I am deposing falsely in this regard as the identity proof of any of the other person is not on record.
........It is wrong to suggest that this case is based on the false and fabricated facts about the property owner and the user......."
15. Now the oral evidence of PW1 and PW2 about accused Shri Kishan being the user is hazy and nebulous. PW1 in his oral evidence states that it was accused Shri Kishan who had informed them about the registered owner of the property and the user. He (PW1) further states that they proceeded to book the case as per information given by accused Shri Kishan alone. Admittedly, this Digitally signed by MURARI MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:53:48 +0530 CC No. 273/19 BSES v. Shri Kishan Page 9 of 16 information about the user and registered owner was not got verified from any other person. PW2 Lalit Kumar in his oral evidence says, "I did not verify the name of the owner and the user of the premises in question from anybody else." Going by this, it does appear that the accused persons were arrayed in this case entirely and entirely based on what accused Shri Kishan had told/ informed the inspection team members. As per PW1 and PW2 accused Shri Kishan had admitted / confessed to the inspection team members that he was the user of the premises in question wherein electricity theft was detected. Part of the information allegedly provided by accused Shri Kishan to the inspection team members vis-à-vis owner of the premises in question has already been found to be incorrect, for accused Sanjay and accused Dinesh have already been discharged. PW1 Deepak Kumar in his cross-examination was candid enough to admit that information regarding user Shri Kishan may also be incorrect. Complainant BSES has no documents/photos to show that accused Shri Kishan was the user. On this, PW1 Deepak Kumar in his evidence states, "It is correct that we do not have any document which prove that Shri Kishan is the user of the premises in question." As per, PW2 Lalit Kumar's oral evidence, no documents or photos have been placed on record to verify/ show that Shri Kishan was the user of the aforesaid premises.
16. Therefore, to show that accused Shri Kishan was the user, MURARI Digitally by MURARI signed PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:53:56 +0530 CC No. 273/19 BSES v. Shri Kishan Page 10 of 16 all that remains in complainant's arsenal is the information allegedly derived from accused Shri Kishan himself, as told to PW1 and PW2 at the time of inspection. Now, such extra judicial confession is a very weak type of evidence. It cannot alone be sufficient to bring home the guilt of accused. It would be unsafe to base conviction on such extra judicial confession. Extra judicial confession alone cannot be relied upon. It needs support of other evidence. It needs corroboration. In the case at hand, I find that there is no other evidence whatsoever to support to complainant's case that accused Shri Kishan was the user.
17. Next, in the case at hand, accused (DW1) too has given oral evidence. He has given oral evidence, inter alia, to the effect that he has no concern with the premises in question. Now, I find that this oral evidence of accused stands not discredited in any manner in his cross-examination.
18. Thus, what we have is the word of two persons (PW1 and PW2) against that of one (accused as DW1) on the aspect of accused Shri Kishan being the user. Now, it would be naïve to contend that the word of PW1 and PW2 should carry greater weight than that of accused (DW1). The word of PW1 and PW2 cannot be put on a higher pedestal just because they are the witnesses of the complainant that launched the prosecution. It is the quality of evidence that would matter, irrespective of whether the oral evidence that is being offered is from the side of the Digitally signed by MURARI MURARI PRASAD SINGH PRASAD SINGH Date: 2022.08.31 15:54:03 +0530 CC No. 273/19 BSES v. Shri Kishan Page 11 of 16 complainant or from the accused himself. It bears repetition to state that by and large the oral evidence of accused (DW1) has remained intact, and it stands not discredited in any manner in his cross-examination.
19. Learned counsel for the complainant invited court's attention to the fact that in PW1's cross-examination, multiple questions were asked and several suggestions given about "user Shri Kishan". I find that at four places in the cross-examination of PW1 Deepak Kumar, suggestions/ questions were put about "user Shri Kishan". Learned counsel for the complainant argued that this was an admission of the fact that accused Shri Kishan was the user. However, for reasons more than one, I would disagree with this contention of complainant's counsel. Putting questions and suggestions about "user Shri Kishan" to complainant's witnesses does not appear to be consistent pattern. Towards the end of cross-examination of PW1, the following occurs, "It is wrong to suggest that accused Shri Kishan is neither the user nor the registered owner of the property in question." In the cross- examination of PW2 Lalit Kumar, there is not a single question/ suggestion using the words "user Shri Kishan". In his own evidence as DW1, accused Shri Kishan has not described himself as "user". On the contrary, he has, inter alia, testified that 'he has no concern whatsoever with the premises in question'. Therefore, putting questions and suggestions about "user Shri Kishan" in the Digitally signed by MURARI MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:54:12 +0530 CC No. 273/19 BSES v. Shri Kishan Page 12 of 16 trial does not appear to be consistent pattern. Had this been a consistent pattern, then things of course would have been different. Further, questions /suggestions were put to PW1 at four places in his cross-examination about "user Shri Kishan". Given the material and circumstances on record, this court would be slow, in the absence of any corroborating material, to accept that accused Shri Kishan was the user merely on the basis of the fact that his advocate had put questions /suggestions to PW1 at four places in his cross-examination about "user Shri Kishan". It is my view that given the nature of evidence that has come up against accused Shri Kishan, there ought to have been some corroborating material to show that he was the user. Furthermore, to me it appears to be an exercise in inept cross-examination. It appears that the counsel for the accused did not have much experience in conducting trials. It appears to be a case of not caring to choose words carefully in recoding of oral evidence. This would be exemplified by the following circumstance as well. In the cross-examination of PW2 Lalit Kumar the following sentence occurs: "It is correct that the information received about the owner and the user of the raised premises cannot be incorrect." This, to my mind, ought to have been: "It is correct that the information received about the owner and the user of the raised premises can be incorrect." Therefore, in all probability, it is a case of inept cross-examination. I do not think that guilt of the accused can be brought home on this basis. Complainant Digitally signed by MURARI MURARI PRASAD SINGH PRASAD SINGH Date: 2022.08.31 15:54:20 +0530 CC No. 273/19 BSES v. Shri Kishan Page 13 of 16 ought to rest its case on surer and firmer footings to bring home the guilt of the accused.
20. In the cross-examination of PW1 the following sentence occurs, "It is correct that in the videography the user is covered." In the videography accused Shri Kishan is not at all seen. Instead a female/lady is seen in the videography. Therefore, it does appear to me that when PW1 says in his cross-examination that in the videography the user is covered, he perhaps means to say that the female/lady seen in the video is the user.
21. It was pointed out that death of certificate Ex. DW1/P1 of Devender Prasad (brother of accused) records the address as 121, Chhoti Patti, Paprawat, South West, New Delhi - 43. This document bears accused's signature with a pen. Accused signing the death certificate of his brother Devender with a pen is no incriminating circumstance against him. Signing the death certificate of brother Devender will not make accused Shri Kishan either the owner or the user of the premises / address mentioned therein.
22. It was next pointed out that accused had furnished the surety bond of his son Kulvinder Sharma on 14.10.2019. In the surety bond, surety Kulvinder Sharma (son of accused Sri Kishan) had furnished photocopy of Registration Certificate (RC) of his vehicle and which RC mentions the address to be 121, MURARI Digitally signed by MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:54:28 +0530 CC No. 273/19 BSES v. Shri Kishan Page 14 of 16 Chhoti Patti, Paprawat Village, New Delhi. It was submitted that this was a strong enough circumstance along with the aforesaid circumstance of accused signing death certificate of his brother (which mentioned the same address) to hold that accused was the user. I am not inclined to accept this for multiple reasons. To begin with, it was none of the case of the complainant that address of the premises in question is/ was 121, Chhoti Patti, Paprawat Village, New Delhi. It was not stated so in the complaint. There is no oral evidence to this effect of either PW1 or PW2. Secondly, the area in question is rural. Premises in question falls in a village area. And I doubt if all or any of the properties in the village Paprawat have been given separate municipal numbers by municipal authorities. At least, there is no evidence to this effect on the judicial record. Thirdly, urbanised rural areas with their unmarked labyrinthine bylanes often have houses that are not sequential. Given this, I do not think that this circumstance would, even remotely, suffice to hold the accused guilty.
23. Evidence on record falls short of proving that accused Shri Kishan was in possession or in charge of the premises in question. Evidence on record also falls short of proving that accused was the user of the premises. Evidence on record also falls short of proving that accused Shri Kishan was enjoyer of the premises on the date of inspection/ raid. As already stated, Digitally signed by MURARI MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:54:36 +0530 CC No. 273/19 BSES v. Shri Kishan Page 15 of 16 evidence on this count is nebulous and hazy at best.
24. Learned counsel for the complainant urged that in terms of the proviso to section 135 of Electricity Act a presumption is to be drawn against accused. In this regard, he also relied on the report of Sushil Sharma v. BSES Rajdhani Power Ltd. & Anr., 2010 SCC OnLine Del 4537. This argument does not impress me. No doubt, a presumption is to be drawn under this provision. But the statutory presumption, as per the written text of this provision, is to be drawn against the 'consumer' of electricity. Under the given circumstances, I do not think that accused Shri Kishan is proved to have been the 'consumer' of electricity in the inspected premises. It is not proved that he was the user.
25. Accordingly, accused Shri Kishan is acquitted of offence punishable under section 135 of Electricity Act, 2003.
Announced through video conference on 31.08.2022 M. P. Singh Presently Judge, Family Court Central District, Tis Hazari Courts, Delhi Digitally signed by MURARI MURARI PRASAD PRASAD SINGH Date: 2022.08.31 SINGH 15:54:44 +0530 Earlier - ASJ : Special Electricity Court South West District, Dwarka Courts, Delhi CC No. 273/19 BSES v. Shri Kishan Page 16 of 16