Delhi District Court
Bses vs Udai Veer Singh Page 1 Of Page 14 on 29 May, 2012
1
IN THE COURT OF SHRI NAROTTAM KAUSHAL, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003
SAKET COURTS, NEW DELHI
Complaint instituted on : 19.09.2007
Judgment reserved on : 16.05.2012
Judgment pronounced on : 29.05.2012
Complaint Case No. 900/07
PS Mehrauli, New Delhi
U/s 135 r/w/sec. 151 of Electricity Act, 2003
Unique ID No. 02403RO379242009
BSES Rajdhani Power Limited
A company duly incorporated under the Companies Act, 1956
having its registered office at BSES Bhawan,
Nehru Place, New Delhi110019
Corporate, Legal and Enforcement Cell at Andrews Ganj,
Next to Andrews Ganj Market, New Delhi110049.
Through Sh.Ashutosh Kumar
(Authorized Representative)
...Complainant
Versus
1 Apollo Foods (Baking Unit) (User) (Proceedings Dropped,
vide order dtd 10.03.2008)
2 Udai Veer Singh (R/C)
S/o Sh.Kirpal Singh
407/1, Khasra No.460/1,
Neb Sarai, Near IGNOU, New Delhi
...Accused
Appearances : AR for the complainant
Sh. Rajesh Kumar, proxy counsel for
Sh. S.S.Mittal, counsel for the complainant
Accused on bail with Sh.Shailesh Kumar, Adv.
JUDGMENT
1 Complaint u/sec. 151 of the Electricity Act, 2003 (hereinafter called as 'the Act') was filed by the BSES Rajdhani Power Ltd. against Apollo Foods & Udai Veer Singh for offence punishable U/sec. 135 of the Act. Determination of civil liability of the accused persons was also prayed for.
BSES versus Udai Veer Singh Page 1 of page 14
2
2 It is the case of complainant that on 18.07.2007, a joint inspection team
inspected the premises no. 407/1, Khasra No.460/1, Neb Sarai, Near IGNOU, New Delhi. At the time of inspection, accused Apollo Foods was found to be the user and accused no.2 Udai Veer was found to be the registered consumer of electricity bearing K.No. 2520G3060601 and meter No.22374133. At the time of inspection, meter was found disconnected and hanging in idle condition. It is further pleaded that complainant company was not aware about constitution of accused no.1 and, therefore, reserved its right to implead persons responsible for day to day affairs of the accused no.1, as and when, such details are gathered. It was also pleaded that both accused, in collusion with each other, were indulging in direct theft of electricity by illegally tapping from BSES LV lines. A baking unit was found to be in operation. On seeing the enforcement team, the premises was locked and the users fled away. Illegal wire used for committing theft along with electronic meter and a sub meter were seized by the inspecting team. Inspection report, meter detail report, load report and seizure memo were prepared at site. Videography was also carried out. Connected load of 68.534 KW for non domestic purpose was assessed. On the basis of assessed load and applicable tariff, theft bill of Rs.25,06,307/ was raised. On failure of the accused persons to pay the same, complaint was filed.
3.1 Cognizance of the complaint was taken by the ld. predecessor of this court on 19.09.2007 and presummoning evidence was recorded. On the basis of pre summoning evidence, accused persons were summoned to face trial. Accused no.2 Udai Veer Singh entered appearance and was admitted to bail. He submitted that accused no.1 was a tenant and had vacated the premises. The proceedings BSES versus Udai Veer Singh Page 2 of page 14 3 against accused no.1 were dropped by ld. predecessor of this court on the ground that complete details about its identity were not available. Amended memo of parties was, thus, filed.
3.2 Finding sufficient accusation against accused Udaiveer Singh, notice of accusation for offence punishable U/sec. 135 Cr.P.C. of the Act was framed against him. He pleaded not guilty and claimed trial. The plea of defence taken by accused was that the meter in his name was disconnected by the complainant on 20.10.2004 and he was not using the electricity in any manner. He was also not liable to pay for any damage and loss to the complainant.
4.1 Complainant, in support of its case, examined four witnesses. Lallan KumarDiploma Engineer (PW1), Maneesh Arora General Manager (PW3) were the members of the inspection team. They have both deposed that, at the time of inspection, some workers were present at the spot, who locked the premises and ran away. It is also deposed by the witnesses that neighbours and the workers present at the site disclosed the name of Udai Veer Singh S/o Kirpal Singh to be the owner and registered consumer of Apollo Bakery. The inspecting team found electricity to be running directly and connected to the load of bakery unit. Deep freezer was cold and ovens were hot. It was also found that a meter was lying dis connected and was in idle condition. One sub meter was also found connected. Both the meters and illegal cable about 13 metres in length, were removed and seized. On being cross examined, PW1 deposed that Udai Veer Singh had been booked at the behest of workers present at site. His name was also confirmed from the EBS record. PW3, on being cross examined, deposed that two workers escaped from the premises and the inspecting team could catch hold of one of BSES versus Udai Veer Singh Page 3 of page 14 4 them but he did not possess the key. An old lady and a furniture shop owner also told the team that Udai Veer Singh was the owner of the premises. 4.2 Rakesh - videographer (PW4) has proved the videography carried out by him. Ashutosh Kumar (PW2) authorised representative of the company has proved the, letter of authority in favour of Binay Kumar, the previous AR and deposed that complaint was filed through Binay Kumar. He identified the signature of Binay Kumar on the complaint.
5.1 Incriminating evidence was put to the accused and his statement U/sec. 313 Cr.P.C. was recorded. Accused admitted his ownership of the inspected premises. However, he stated that he had rented out the same to Apollo Foods for being used as a godown. One Vimal Kumar S/o late Sh. Om Prakash was the user and theft of electricity was without his knowledge. He denied his knowledge of gadgets and machines connected to the load and denied the load report for want of knowledge. He also denied the documents prepared at site or the theft bill. He also denied removal of the wire, meter and sub meter, as the same were not produced in court. He further stated that he had rented out the premises to be used only as a godown with no provision of electricity, with a clear understanding that tenant shall not consume any electricity and use generator for lighting load. He sought opportunity to lead defence evidence and examined himself as DW1 and one Arun Chaudhary as DW2.
5.2 Accused as DW1 deposed that electricity connection bearing No. 2520G3060601 was installed in the premises, which was disconnected due to non payment on 20.10.2004. He had rented out the premises in 2005 to Apollo Foods at BSES versus Udai Veer Singh Page 4 of page 14 5 a rent of Rs.5,000/ p.m., to be used as godown without electricity. He also placed on record photocopy of a retail invoice issued by Apollo Bakery, as mark 'Y'. To prove that meter was disconnected on 20.10.2004, photocopy of the dis connection details was placed on record as Mark 'X'. He further deposed that the owner of Apollo Foods wanted to grab the property using muscle power. He had filed a complaint against Apollo Foods to the police but no action had been taken. However, after inspection, the owners of Apollo Foods vacated the premises with the help of neighbours, as well as, police. He deposed that one Vimal Pawar was owner of Apollo Foods and placed on record print out of address of Apollo Foods Bakery, as Mark 'Z'. On being cross examined, he admitted his ownership of the premises and denied suggestion that he was running the bakery unit. He also denied the suggestion that another case was booked against him on the same day for domestic use, which he had settled. He stated that copy of the order, which might record his presence in the settled case, has not been placed on record. He admitted that no rent agreement or lease deed with Apollo Foods had been placed on record. He also admitted that no rent receipt had been filed in court. He had also not placed on record copy of any complaint made by him to the police against Apollo Foods. He admitted that he had not filed electricity bills with respect to his residential premises at Neb Sarai.
5.3 Arun Chaudhary (DW2) is a resident of Neb Sarai, where the inspected premises is situated. He deposed that premises was rented out to Apollo Foods, as a godown. Vimal Pawar was the owner of the Apollo Foods and resided on the first floor of the premises. One motorcycle of Vimal Pawar was still lying in the premises. There was no electricity provided by the accused to Apollo Foods. On being cross examined, he admitted that he had not seen any rent agreement or BSES versus Udai Veer Singh Page 5 of page 14 6 lease deed between accused and Apollo Foods. He denied the suggestion that accused was running a bakery unit under the name & style of Apollo Foods at the premises in question at the time of inspection. He, however, identified the premises to be owned by accused Udai Veer Singh. He also admitted that motorcycle, mentioned by him in examination in chief, is not seen in the videography.
6 Sh. Rajesh Kumar, counsel for complainant, has argued that theft of electricity at the premises in question is established, as admittedly there was no valid electricity connection on the date of inspection. The user of premises as a fullfledged baking unit, is not disputed by the defence, as well. Moreover, the witnesses to the inspection, namely, PW1 & PW4 have withstood the test of cross examination. There is not even a suggestion given to them that premises was running on metered electricity. The videography proved by Rakesh videographer, supplements the oral testimony of witnesses to inspection. As regards the involvement of accused Udai Veer Singh in the present offence, it is submitted by Sh.Rajesh Kumar, adv. that PW1 & PW4 have deposed that the name of Udai Veer Singh was revealed at the time of inspection to be the user, as well as, registered consumer. Referring to the disconnection of previous connection for non payment of electricity, it is submitted that the conduct of accused corroborates the complainant's case that it was Udai Veer Singh himself, who was running the bakery unit in the name and style of Apollo Foods. The attempt to transfer liability to one Vimal Pawar S/o Sh.Om Prakash, as a proprietor of Apollo Foods, is an after thought. The accused, at the stage of framing of notice or at the stage of complainant's evidence, has not disclosed the said name. At the very outset, when the proceedings against accused no.1 were dropped by the court, accused should BSES versus Udai Veer Singh Page 6 of page 14 7 have come clean and disclosed the details of his socalled tenant. Further, no rent agreement or rent receipt has been placed on record. Document Mark'X' & mark'Z' do not establish the defence sought to be raised that Vimal Pawar S/o Sh.Om Prakash was the proprietor of Apollo Foods.
7 Sh.Shailesh Kumar, ld. defence counsel, has submitted that there is no pleading that accused was the user of premises or proprietor of Apollo Foods. Complainant had challenged the order dt. 10.03.2008 passed by the ld. predecessor of this court, whereby proceedings against accused no.1 were dropped. However, the said petition was dismissed for non prosecution by the Hon'ble High Court. Complainant was, therefore, all along of the view that proprietor of Apollo Foods is distinct and different from accused Udaiveer Singh. Accused, Udaiveer Singh, was himself a victim at the hands of accused no.1, who neither paid any rent nor damages for use of the premises. Complainant has failed to prove the user and seizure of any illegal means for abstraction of electricity. The alleged wire, meter and sub meter removed from site were not produced before the court and identified by the witnesses. Challan and receipts of Apollo Foods, which were available at site and also videographed were not seized and proved. The CD placed on record is an edited version, the unedited CD has been withheld from the court. No proof of proprietorship of Apollo Foods has been placed on record. It is, therefore, argued that the complainant has failed to establish its case beyond reasonable doubts.
8 I have heard the ld. counsels and with their assistance perused the pleadings, evidence, documents on record and also heard their arguments.
BSES versus Udai Veer Singh Page 7 of page 14
8
9 On the basis of arguments raised by the counsels, two questions arise for
determination by this court.
(i) Whether theft of electricity was being committed at the
premises bearing no.407/1, Khasra no.460/1, Neb Sarai, Near IGNOU, New Delhi?
(ii) Whether the accused was responsible for theft of electricity?
I shall now answer these questions one by one.
QUESTION NO. I Whether theft of electricity was being committed at the premises bearing no.407/1, Khasra no.460/1, Neb Sarai, Near IGNOU, New Delhi?
10 In my opinion, there is not much dispute, as regards the question no.1. PW1 and PW4 have deposed that one electricity meter bearing No.22374133 pertaining to connection No.2520G3060601 was found installed at the premises inspected. The meter was in idle condition. There is no suggestion to any of the above referred two witnesses that there was metered supply to the premises or that it had a valid connection at the time of inspection. The meter, found hanging at the premises, has been proved by accused/ DW1 to have been disconnected on 20.10.2004. Photocopy of the Disconnection details has been placed on record, as Mark 'X'. Witnesses PW1 & PW4 have also deposed that ovens were found hot and freezer were found cold. There is no cross examination of the witnesses on these aspects, as well. Moreover, the CD Ex.CW2/E was played before the court. Perusal of the videography reveals that path of one illegal wire had been duly traced leading to the premises in question. The electronic meter bearing no.22374133 is BSES versus Udai Veer Singh Page 8 of page 14 9 also covered, which is hanging disconnected. Wire leading to the premises was tested with a 'clip on' meter, which recorded a reading of 12.8 amperes showing that current was flowing through the wire. Videography also covers a generator set, which was covered with tarpaulin sheet and was nonfunctional. Bakery unit inside the premises was found stocked with raw material, as well as, finished goods. Machines were switched on and were found to be running. In such circumstances, I am of the considered opinion that the factum of theft of electricity is sufficiently established. Failure of the complainant to produce and prove the case property cannot be said to be fatal, as theft is sufficiently proved by evidence, as discussed above. I, thus, hold that complainant has proved beyond reasonable doubt that the bakery unit in the premises bearing no.407/1, Khasra no.460/1, Neb Sarai, Near IGNOU, New Delhi was running on direct theft. QUESTION NO. II Whether accused Udaiveer Singh was responsible for theft of electricity? 11 The real controversy in the present case is, as regards the identity of the user and role of accused Udai Veer Singh. Complainant, in its pleading and evidence, has taken consistent stand that the accused Udai Veer Singh, was a user. Though, it is pleaded in the complaint that he is a registered consumer, but there is no averment that he was abetting commission of theft of electricity. The offence of abetment punishable U/sec. 150 of the Act has neither been pleaded against accused in the complaint nor accusation u/sec. 251 Cr.P.C. was sought to be framed. As regards the identity of proprietor of Apollo Foods/ accused no.1, it is pleaded in the complaint itself that the details were not available and shall be furnished to the court, as and when available. Dropping of the proceedings BSES versus Udai Veer Singh Page 9 of page 14 10 against accused no.1 by the ld. predecessor of this court was challenged by the complainant before the Hon'ble High Court. The challenge was also not successful, as the details could not be furnished to the Hon'ble High Court, as well. All these proceedings have taken place after accused Udaiveer Singh had entered appearance. At no stage, accused Udaiveer Singh came forward and made available the details of the proprietor of Apollo Foods, whom he claims to be his tenant. Silence of the Udaiveer Singh to furnish the details of such tenant leads to an adverse inference against him. Udaiveer Singh was the best person to possess complete details of the proprietor of Apollo Foods, which he kept close to his chest, till the fag end of the trial; when he made a false attempt to implicate one Vinod Kumar S/o Sh. Om Prakash as proprietor of Apollo Foods. The said attempt was repelled by this court vide order dt. 19.04.2012. For ready reference, the relevant portion of the said order is reproduced hereinbelow :
5 Ld. predecessor of this court, vide order dt. 10.03.2008, had dropped the proceedings against Apollo Foods on the ground that 'No details were mentioned in the complaint to show that accused no.1 is a legal entity. During enquiry proceedings, no details were proved on record. In the absence of details of accused no.1 including name of associate, if any, proceedings cannot be continued against a non legal entity'. The said order has become final. It is not disputed that accused no.2 never challenged this order, whereas the complainant had challenged the order before the Hon'ble High Court, but had got the same dismissed as withdrawn as no details of the identity of owner/ proprietor of Apollo Foods or its address could be made available.
6 Nevertheless, accused no.2/ applicant in his testimony has mentioned that one Vinod Kumar S/o Sh.Om Prakash was the proprietor of Apollo Foods, who is now running the business at 56, Neb Sarai, New Delhi. I am afraid that on the basis of selfserving statement of the accused furnishing no rent note, rent receipt or rent agreement; it shall be highly unsafe to summon the aforesaid person, as an accused. I find merits in the arguement of the counsel for complainant that there BSES versus Udai Veer Singh Page 10 of page 14 11 can be many establishments in the name of Apollo Foods with different owners or franchise holders. Though, the applicant has named this person to be the occupant of the premises at the time of inspection, however, there is no supporting documentary evidence to indicate that Vinod Kumar S/o Sh. Om Prakash was the tenant in the premises and running business under the name & style of Apollo Foods. Evidence against Vinod Kumar S/o Sh. Om Prakash may create a ripple of suspicion against him but is totally insufficient to cause conviction.
7 Extraordinariy power U/sec. 319 Cr.P.C. has been advised to be sparingly used by the Hon'ble Supreme Court of India in MCD Vs Ram Krishan Rahtag reported as 1983 (1) SCC 1. The Hon'ble Surpreme Court of India again cautioned against indiscriminate use of power U/sec. 319 Cr.P.C. in the case of Michael Machado Vs CBI reported as AIR 2000 SC 1127. It was held by the Hon'ble Supreme Court of India that when evidence created mere suspicion against the person sought to be summoned and when the suspicion is not sufficient to cause conviction, there is no compelling duty on the court to proceed U/sec. 319 Cr.P.C..
For ready reference, the relevant portion is reproduced hereinbelow:
"This court must have reasonable satisfaction from the evidence already collected regarding two aspects while invoking power under S.319 to proceed against other persons appearing to be guilty of offence. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arrainged accused. But even then, what is conferred on the court is only a discretion as could be discerned from the words 'the court may proceed against such person'. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. Judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other person.'' 8 For the aforesaid reason, I find no merits in the present application. Same is, therefore, dismissed.
BSES versus Udai Veer Singh Page 11 of page 14
12
12.1 The above referred order was never challenged by accused Udaiveer Singh.
It is, therefore, assumed that he was not aggrieved by this order and the application was made only to create a defence and mislead the court. The trial had progressed for a period of almost four and a half years, when this application was moved by the accused. In fact, the mention of the name of Vinod Kumar S/o Sh.Om Prakash also came up in February, 2012 for the first time, whereas the accused had entered appearance on 20.12.2007.
12.2 There is, of course, no rent agreement or rent receipt placed on record by accused Udaiveer Singh to indicate that Apollo Foods was a distinct entity and was actually a tenant in the inspected premises. Mark'Y' and Mark'Z', placed on record in the testimony of DW1, do not establish any connection between the premises in question and said Vinod Kumar S/o Sh.Om Prakash. Mark'Y' is a retail invoice issued by Apollo Bakery. It does not record the name of its proprietor. Mark'Z' is an extract of address of Apollo Foods Bakery, New Delhi, which is updated on 21.03.2011. There is no material to indicate the name of proprietor of Apollo Foods in Mark'Z' or that this very Apollo Foods was in possession of inspected premises on 18.07.2007.
12.3 I also find force in the argument of Sh.Rajesh Kumar, counsel for the complainant that the conduct of the accused Udai Veer Singh indicates that he was indulging in theft of electricity. It is not disputed by accused Udai Veer Singh himself that a previous electricity connection was removed on account of non payment of electricity. The person, who had consumed electricity without payment on one occasion, can be expected to repeat the same offence. Thus, previous conduct of the accused also corroborates the complainant's case.
BSES versus Udai Veer Singh Page 12 of page 14
13
12.4 Arguments of ld. defence counsel that the proprietor of Apollo Foods
wanted to grab the property and had used muscle power to throw out the landlord, is not supported by any documentary evidence. No copy of complaint to the police has been placed on record. None from the police department was summoned to prove the alleged PCR call. A bald testimony of neighbour Arun Chaudhary (DW2) cannot substitute for any documentary evidence, which a prudent landlord is supposed to have generated against a tenant, who was not paying rent or was committing unauthorised act.
12.5 Failure of the complainant or its officials to seize the challan and receipts of Apollo Foods at the time of inspection is totally insignificant. The videography of the challan or receipts covered in videography does not indicate the name of proprietor thereof. Therefore, the seizure of these documents, if any, would not have served any purpose. The challenge to the CD Ex.CW2/E is highly belated. Rakesh - videographer, when examined as PW4 was not given any suggestion that the videography covered in CD is edited version of actual videography carried out by him. Moreover, ld. counsel has not pointed out, as regards the possible manipulation in the CD, which could dent complainant's case. 13 Accused Udaiveer Singh, being the owner of the premises was the best witness to disclose the identity of the accused no.1. He was in possession of special knowledge of this fact. His silence in disclosing the details and identity of accused no.1, at the first instance, shall be read draw an inference against him. In similar circumstances, when an offence was committed within the four walls of a house and the occupants had remained silent about the same, an inference was BSES versus Udai Veer Singh Page 13 of page 14 14 drawn by the Hon'ble Supreme Court of India and the occupants were held guilty. In Trimukh Maroti Kirkan Vs. State of Maharashtra reported as 2007Crl.L.J. at page No. 20 , it was held as under ;
''It is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts, which are especially within the knowledge of opponents or accused.'' 14 For the aforesaid reasons, I hold that accused Udai Veer Singh was the user of the premises, in the name of style of Apollo Foods and was consuming stolen electricity. The accusation against him is, thus, proved beyond reasonable doubt. He is accordingly held guilty for offence punishable U/sec. 135 of the Act. He is also held liable to recompense the complainant for the loss caused by the unauthorised & illegal consumption of electricity.
Announced in the open ( NAROTTAM KAUSHAL)
court on 29.05.2012 ADDL.SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS NEW DELHI
BSES versus Udai Veer Singh Page 14 of page 14
15
CC No. 900/07
29.05.2012
Present AR for the complainant is not present
Sh. Neeraj Singh, Legal Retainer of the complainant with Sh. Rajesh Kumar, proxy counsel for Sh. S.S.Mittal, counsel for complainant Accused on bail with Sh.Shailesh Kumar, advocate Sh.Rajesh Kumar has moved an application for exemption from personal appearance of the AR of complainant. Heard. For the reasons mentioned in the application, the exemption of the AR is allowed for today only.
Vide separate judgment announced today, accused is convicted for the offence punishable u/sec. 135 of the Electricity Act.
Now, to come up for arguments on the point of sentence and civil liability on 31.05.2012.
( NAROTTAM KAUSHAL )
ASJ/SPL.COURT(ELECT.)SOUTH
SAKET COURTS/29.05.2012
BSES versus Udai Veer Singh Page 15 of page 14