Delhi District Court
Cc No. 60/06 (Ndpl vs Kuldeep Singh & Anr) Page No.....1 Of 30 on 23 April, 2013
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
ASJ(ELECTRICITY):NORTHWEST DISTRICT:ROHINI: DELHI
CC no.60/06
Unique ID no. 0204R0441342006
North Delhi Power Limited
(a company incorporated under the Companies Act, 1956
and having registered office at Grid Sub Station Building
Hudson Lines, Kingsway Camp, Delhi110009
through Mr. Ashok Kumar Gupta who is duly
authorized and empowered to file the instant
complaint on behalf of the NDPL )
.....Complainant Company
V E R S U S
1) Shri Kuldeep Singh S/o Zile Singh
M/s Comet Battery Parts , Bank Street,
Village Sultan Pur Majra, Delhi.
2) Shri Jethanand Shuklani
M/s Comet Battery Parts, Bank Street,
Village Sultan Pur Majra, Delhi.
3) Shri Sunil Shuklani
M/s Comet Battery Parts, Bank Street,
Village Sultan Pur Majra, Delhi.
...........accused persons
Date of institution: 15/02/2005
Date of hearing arguments:22/04/2013
Date of decision:23/04/2013
JUDGMENT
(1) The brief facts of the present case are that the North Delhi Power Limited (hereinafter referred as complainant company) has instituted the present criminal complaint against the CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....1 of 30 accused persons under section 151 of the Electricity Act interalia alleging that accused persons had been indulging in illegal abstraction of energy and also committed theft of electricity directly from the distribution network of the complainant company and thereby causing wrongful loss to the complainant company and wrongful gain to themselves. It is further alleged that Kuldeep Singh/accused no.1 is registered consumer having K.no. 42200128811 and accused no. 2 and 3 namely Jethanand Shuklani and Sunil Shuklani were the users. The complainant company conducted a raid on 06/12/2004 at the premises of accused persons i.e Bank Wali Gali, Sultanpur Mazra, Delhi. At the time of inspection it was found that accused persons were indulged in direct theft of electricity by illegally and directly tapping the service line before the meter with a twocore wire by bypassing the meter and total connected load was 22.478KW. (2) After recording the presummoning evidence vide order dt. 28/02/2006, my Ld Predecessor has taken cognizance of the offence punishable u/s 135 Electricity Act, 2003 and summoned all accused persons for facing trial.
(3) On 30/08/2006, after hearing accused persons and their Ld counsels and Ld counsel for the complainant company, a charge for the offence u/s 135 Electricity Act was framed against them to which they pleaded not guilty and claimed trial. CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....2 of 30 (4) In order to prove its case complainant company has examined three witnesses.
(5) The brief summary of the deposition of the prosecution witnesses is as under: (6) CW1 Shri A. K. Gupta was working as Technical Manager and posted in Enforcement Assessment Cell, Keshav Puram of the complainant company who has filed complaint on the basis of Power of Attorney dt. 20/09/04 as Ex. CW1/1. He has deposed that on 06/12/2004 an inspection team of Enforcement of the complainant company inspected the premises of accused persons at Sultanpur Mazra, Delhi and found that accused persons were indulged in direct theft of electricity. He further deposed that total connected load was 22.478 KW found and a final assessment bill dt. 07/12/04 of Rs. 10,17,964/ was raised and one representation was received in the office EAC on 08/12/2004 given by accused Kuldeep Singh as Ex.CW1/1 and another representation was given by accused Jethanand as Ex.CW1/2. He further deposed that on 13/12/2004 another representation of accused Jethanand was received in the office of EAC as Ex.CW1/3. He further deposed that accused no.1 was registered consumer and accused no. 2 and 3 were the users. (7) CW2 Shri Mukesh Kumar was working as Assistant Manager and deposed that on 06/12/2004 under the directions and CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....3 of 30 supervision of Manager (Enforcement) and Senior Manager (Enforcement) NorthWest, he alongwith Shri Ravi Bharti, Shri Imran Khan, Shri Ashish Joshi, Shri S.A. Zaidi, Shri Pankaj Singh, Shri Ashutosh Tyagi, Shri Bhagat Singh alongwith photographer of M/s Shyam Photo Studio and Security personnels of NDPL and police force inspected the premises of accused persons at Bank Wali Gali, Sultanpur Mazra, Delhi where accused persons were involved in the business of battery charging works in the name of M/s Commet Battery Parts and they were found indulged in direct theft of electricity by tapping the service line before the meter by twocore PVC wire; one employee of accused no. 2&3 namely Raj Kishore met them at the spot at the time of inspection; the visiting card in the name of shop is shown in the photographs taken at the time of raid; they have prepared the inspection report dated 06/12/2004 as Ex. CW1/A; the copy of the inspection report delivered to employee Raj Kishore who refused to sign the same and joint inspection report dated 06/12/2004 as Ex. CW1/B was also prepared. Thereafter, inspection team removed the meter and service cable alongwith illegal wires vide seizure memo as Ex.CW2/73 and the case property was handed over to zonal staff and proved the case property i.e one meter K no. 518128811, meter no. DVB 2001/011915 and one black colour two core (red and black) CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....4 of 30 service wire attached with another two core black colour (black and light brown) PVC wire. The meter is proved as Ex. P1 and proved the wires as Ex. P2 (collectively). He has also proved the photographs of theft being committed at the spot which were taken by photographer Shri Shyam as Ex. CW2/1 to Ex. CW2/36 and its negative as Ex.CW2/37 to Ex. CW2/72.
(8) CW3 Shri Imran Khan is another member of raiding team and he has corroborated the version of CW2 and also proved the case property Ex. P1 and Ex. P2.
(9) CW4 Shri Jiten Pratap Singh has produced the record regarding K no. 518/128811/NDL and proved the copies of the same as Ex. CW4/A Collectively (page no. 1 to 6). (10) Statement U/s 313 Cr.P.C of accused persons were recorded. In their statements, accused Sunil Shuklani has stated that he is innocent and falsely implicated in this case as he was a student at the time of inspection and M/s Comet Battery works was not owned by his father and he has no concern with M/s Comet Battery Works in any manner.
(11) Accused Jethanand Shuklani has stated that he is innocent and falsely implicated in this case and he was tenant of Vijay Singh and running business in the name and style of M/s J.S.Batteries of which he was sole proprietor; the electricity connection which was in the name of Vijay Singh was CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....5 of 30 disconnected in the year 2001 where he was working and he was allotted an industrial plot at Bawana Industrial area and started his business in that plot since September, 2004; although he was also doing work prior to September, 2004 and he has no concern or connection with M/s Comet Battery Works in any way. (12) Accused Kuldeep Singh has stated that he is innocent and falsely implicated in this case and accused Jethanand Shuklani was tenant of his brother.
(13) Accused persons have examined six witnesses in their defence.
(14) DW1 Sh. Mukesh Kumar Singh was working as Commercial Manager, District Bawana with NDPL has produced the summoned record and deposed that accused Jethanand applied for connection in the name of M/s J.S.Batteries (Regd.), Proprietor Sh. Jethanand for installation of electricity meter at premises no. I17, Sector3, DSIDC, Bawana, Delhi; the electricity connection has been installed to M/s J.S. Batteries (Regd) vide K no. 41105024152 on 22/08/04 and proved the attested copy of the application for applying the electricity connection in the name of M/s J.S. Batteries (Regd) as Ex.DW1/1 and proved the attested copy of paid demand note Ex.DW1/2. (15) DW2 Shri Tarun Kumar was working as Assistant in District Mangolpuri (Commercial Section) with the NDPL has CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....6 of 30 deposed that electricity meter bearing no. 4H9902088 was disconnected and removed on 01/02/2001 which was in the name of Shri Vijay Singh S/o Shri Zile Singh at Khasra no. 623/463 to 480, Village Sultanpur Mazara, Delhi and proved the copy of the Zonal report Ex. DW2/1.
(16) DW3 Shri Ram Tej Singh was working as Senior Assistant in Delhi College of Arts and Commerce, Netaji Nagar, Delhi produced the letter as Ex. DW3/1 which was signed by Principal of the college, Dr M.S. Rawat with regard to accused Sunil Shuklani.
(17) DW4 is Shri Shrawan Kumar, Deputy Manager from the office of DSIDC who has deposed that Plot no. 17, Pocket1, Sector3, Bawana Industrial Area, Delhi has been registered in the name of M/s J.S. Batteries (Regd.) in the year 2000 as the Hon'ble Supreme Court has closed down the polluted industries and M/s J.S.Batteries were running at Bank Street, Sultanpur Majra, Nangloi, Delhi and Shri Jethanand Shuklani is the proprietor of M/s J.S. Batteries. He has proved the record as Ex. DW4/1. (18) DW5 Shri J.P. Srivastav (inadvertently mentioned as DW4 instead of DW5), Chief Section Supervisor from DSIDC, telephone Exchange, MTNL, Nangloi, Delhi has deposed that as per record the telephone connection no. 5476069 was installed in the name of M/s J.S.Batteries through its proprietor Shri CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....7 of 30 Jethanand, Bank Wali Gali, Nangloi, Delhi41 and the said telephone was disconnected on 23/04/2001 and proved the same as Ex. DW4/1.
(19) DW6 Shri Sunil Arora, (inadvertently mentioned as DW5 instead of DW6), Chartered Accountant has proved the income tax return of M/s J.S. Batteries filed by him for the year 01/04/2000 to 31/03/2001 for the assessment year 20012002 as Ex. DW5/1. He has also proved the income tax return filed by him for the year 01/04/2001 to 31/03/2002 for the assessment year 20022003 as Ex. DW5/2.
(20) DW7 Shri Vijay Singh (inadvertently mentioned as DW6 instead of DW7) has deposed that accused Jethanand was his tenant in the property in Sultanpur Majra, Delhi since 1988 till 2000; he was doing the work of battery; he has left the premises in December, 2000 as the premises was vacated by the orders of Hon'ble Supreme Court of India. He further deposed that after one and half month he got disconnected the electricity. (21) DW8 Jathanand (inadvertently mentioned as DW7 instead of DW8 ) the accused himself has examined as defence witness u/s 315 CrPC.
(22) I have heard Ld counsel Shri O.P. Gupta for the accused Jethanand Shuklani and Sunil Shuklani, Shri C.M. Mathur Ld counsel for accused Kuldeep Singh and Shri K. B. Chaudhary Ld CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....8 of 30 counsel for the complainant company.
(23) Ld counsel Shri K. B. Chaudhary has argued that after inspection accused Jethanand and Kuldeep had made representations Ex.CW1/1 and Ex. CW1/3 in their own handwriting and signed the same which shows that it was the accused persons who were involved in direct theft of the electricity in the premises in question. It is further argued that summons of accused Kuldeep Singh has been served upon at the same address i.e the premises in question and it has been established that he was owner and in possession of the premises in question and accused no. 2 and 3 were his tenants who were indulged in direct theft of electricity and as such he has abetted the commission of direct theft of electricity by accused no. 2 and
3. In that regard Ld. Counsel for the complainant company referred, the case of Sushil Sharma Vs. BSES Rajdhani Power Ltd. & Anr. Criminal Appeal No. 1060 of 2010 and Crl. M. (B) No. 1253 of 2010, reported as 2011 (1) JCC 665 High Court of Delhi, wherein it was held that: "the appellant was found present at the premises when the inspection team reached the premises and started inspection. The inspection started in his presence, this fact was proved by PW1 who testified that when the inspection team reached the premises of Village Baprola, Nangloi, it found manufacturing of PVC Packing strip activity going CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....9 of 30 on. The appellant was present there in the factory besides workers and the machines were working.
It was further held that there is intrinsic evidence to show that it was the appellant who was running this factory and indulged into theft of electricity. The summon to the appellant, in respect of the complaint was served on the appellant at the same premises where theft had taken place. Even, at the time of bail, the appellant filed the same address, where the theft was committed.
(24) Regarding the accused no. 2 and 3, it is argued that visiting card was found on the table in the premises because accused Jethanand Shuklani is the sole proprietor of M/s Comet Battery Parts, Ld counsel for the complainant has argued that complainant has duly proved its case against the accused persons and accused persons are liable to be convicted. (25) Ld counsel Shri O.P. Gupta for the accused has argued that accused Sunil Shuklani was student on the date of alleged inspection as he was attending his college and this fact has been proved by DW3 who has proved the letter Ex. DW3/1 written by Dr. M.S.Rawat, Principal of Delhi College of Arts and Commerce, stating that accused Sunil Kumar Shuklani was regular student from year 20032006 in B.Com (Pass) and he has passed his final year in the October, 2006. It is argued on behalf of Sunil Kumar Shuklani that he has no concern with the CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....10 of 30 premises or the battery repair work being done there as he was a student on the date of inspection and has been falsely implicated. (26) With regard to accused Jethanand Shuklani, it is argued that he has no concern with M/s Comet Battery Parts as he was running battery repair work by the name of M/s J.S. Batteries. It is argued that earlier he was doing the said work at the premises in question as tenant of Vijay, brother of accused Kuldeep Singh but has shifted to Bawana Industrial area, DSIDC after the closure of the industries by the orders of Hon'ble Supreme Court of India. It is argued that he has closed the business at the premises in question in the year 2001 and has obtained new meter at I17, Sector3, DSIDC, Bawana, Delhi as proprietor of M/s J.S.Batteries registered where the electricity connection was installed in his name vide K no. 41105024152 on 22/08/04 as deposed by DW1. It is further argued that DW2 has proved the record of the NDPL with regard to disconnection of meter of electricity bearing no. 4H9902088 which was disconnected and removed on 01/02/2001 was in the name of Shri Vijay Singh S/o Shri Zile Singh at Khasra no. 623/463 to 480 Village Sultanpur Mazara, Delhi. It is further argued on behalf of accused Jethanand Shuklani that DW4 Shri Shrawan Kumar has proved that earlier he was running the factory in the name of M/s J.S Batteries from Bank Street, Sultanpur Majra, Nangloi, Delhi (i.e premises in CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....11 of 30 question) and has closed down his business there by the orders of Hon'ble Supreme Court of India and shifted at I17, Sector3, DSIDC, Bawana, Industrial area, Delhi. It is further argued that DW4 Sh.J.P.Srivastav has proved that telephone no. 5476069 was installed in the name of M/s J.S. Batteries through proprietor Shri Jethanand, Bank Wali Gali, Nangloi, Delhi41 and the said telephone was disconnected on 23/04/2001 and proved the same as Ex. DW4/1.
(27) Ld counsel for the accused further argued that photographer Shri Shyam who has taken the photographs Ex.CW2/1 to Ex.CW2/36 and its negative Ex.CW2/37 to Ex. CW2/72 has not been examined and the photographs are not admissible in evidence.
(28) Lastly, it was argued that DW5 has proved the income tax returns for the period 01/04/2000 to 31/03/2001 for the assessment year 20012002 as Ex. DW5/1 and for the period 01/04/2001 to 31/03/2002 for the assessment year 20022003 as Ex. DW5/2 in which showing Jethanand Shuklani as proprietor of M/s J.S. Batteries registered at Bank Street,Village Sultanpur Majra, Delhi.
(29) Regarding the representations Ex.CW1/1 and Ex.CW1/2, it is argued by the Ld counsel for the accused persons that same are false and fabricated by the NDPL and court may CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....12 of 30 send the same to the CFSL. It is further argued that the NDPL has failed to prove that the said documents are in the handwriting and under the signatures of the accused. It is further argued that the summons on accused Jethanand Shuklani and Sunil Shuklani were not received at the premises in question but same has been served at Paschim Vihar address i.e 704, CA Apartment, Paschim Vihar, Delhi.
(30) Ld counsel for the accused Jethanand Shuklani and Sunil Shuklani has also filed written arguments wherein it is argued that CW1 Ashok Kumar Gupta has admitted in his cross examination that he could not tell the name of person who has received the representation Ex.CW1/1 and Ex. CW1/2. It is therefore argued that these representations were not written and signed by any of accused and this fact can be confirmed u/s 73 of Indian Evidence Act by the court by comparing signatures of these accused on Vakalatnama which shall establish that same are forged and fabricated. It is further argued in the written arguments that witness has failed to prove that accused persons were running business under the name of M/s Comet Battery Parts at the premises in question and mere filing of visiting card in that regard does not establish that fact. It is further argued that witnesses have admitted that accused Jethanand and Sunil were not found at the site and they have been impleaded as accused on CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....13 of 30 the statement of one Raj Kishore whose identity and parentage has not been disclosed by the complainant. It is further argued that documents filed by the NDPL with regard to granting of electricity connection to accused Kuldeep does not clearly show the property number and ration card copy of which has been filed is joint ration card of Vijay Singh and Kuldeep Singh and does not bear the premises no. 27, Sultanpur Majra,Delhi. (31) Lastly, it is submitted in the written arguments that there is no incriminating evidence led by the complainant to prove the allegations and there was no need to examine the accused persons under Section 313 CrPC. It is argued that the complainant has failed to prove the case beyond reasonable doubt and accused were entitled to be acquitted. A reliance has been placed on the case of our own Hon'ble High Court of Delhi reported as Ajay Gupta Vs BSES. Raj Power Ltd, (189) 2012 DLT page 709. (32) I have considered the rival submissions and perused the case file carefully.
(33) In order to establish the case against the accused persons the complainant is required to establish following three things:
(a) At what premises the direct theft of electricity was being committed.
(b) By what means the direct theft of electricity was being CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....14 of 30 committed in the said premises.
(c) By whom the said direct theft of electricity was being committed in the premises in question.
(34) I proceed to examine the evidence led by the complainant to ascertain whether above these three facts are established beyond reasonable doubt.
(35) It is the case of the complainant company that direct theft of electricity was being committed by M/s Comet Battery Parts being run at Bank Wali Gali, Sultanpur Mazra, Delhi on the date of inspection i.e 06/12/2004. CW1 Shri Ashok Kumar Gupta, attorney of the complainant company has deposed that on 06/12/2004 the inspection team of Enforcement of the complainant company inspected the premises of the accused at Bank Wali Gali, Sultanpur Mazra, Delhi and found that accused persons were indulged in direct theft of electricity. He has proved two representations of accused Kuldeep and Jethanand Shuklani as Ex. CW1/1 and Ex. CW1/2 regarding the said theft where their address has been mentioned as Sultanpur Mazra. The said documents were objected by the Ld defence counsel on the ground that same are not made by the accused persons and even does not bear their signatures. It was further argued that same were false and fabricated and a request was made on behalf of defence counsel to send the said representations to the CFSL to CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....15 of 30 confirm their fabrication. It was also argued that the said documents has not been proved as per the Indian Evidence Act because witnesses have admitted that they did not know by whom these representations were received in the office of NDPL. It was also argued that these representations does not show that accused persons were mentioned as proprietor of M/s Comet Battery Parts.
(36) I find force in the arguments of Ld counsel for the accused persons that the documents Ex. CW1/1 and Ex. CW1/2 are relevant documents to link the accused persons with the offence alleged but same has not been proved as per Indian Evidence Act. It is so because accused persons has denied signatures and handwriting on the same and the complainant has not pointed out any admitted signatures of the accused persons for comparison by this court on the same with the signatures made on these documents as per provisions of section 73 of Indian Evidence Act. Moreover, the complainant's witnesses are not sure as to by whom the said representations have been received in the office of the NDPL therefore these documents which are highly pressed into service by the complainant to link the accused persons with the offence alleged are not admissible in evidence against the accused persons.
(37) CW2 Mukesh Kumar has further stated that battery CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....16 of 30 charging shop was running in the name of M/s Comet Battery Parts and the visiting card photograph of which was taken at site is shown at the corner of photograph markA1. The said witness has not explained where the said visiting card has gone. Even Ld counsel for the NDPL did not explain anything in that regard. The photocopy of the said visiting card is not admissible in evidence unless there is some explanation for not producing the original of the same. It was argued on behalf of NDPL that accused Jethanand Shuklani in his crossexamination as DW7 has admitted that the telephone no. 25278169 mentioned on the visiting card shown in the photograph markA1 belonged to his residence. He has further denied that visiting card shown in the photograph markA1 is belonged to him. He has admitted that he had vacated the property of Shri Vijay Singh in December,2000. This deposition of witness is contrary to the documents filed by him i.e income tax returns Ex. DW5/1 for the assessment year 20012002 and Ex. DW5/2 for the assessment year 20022003 (income year 01/04/2001 to 31/03/2002). In these income tax returns the business premises of Mr. Jethanand, propereitor of M/s J.S. Batteries has been shown as Bank Street,Village Sultanpur, Nangloi, Delhi. These admitted documents shows that he had been carrying on the business of battery repairing at the premises in question beyond year 2000 upto 31/03/2002. This CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....17 of 30 shows that he has not closed his business after sealing of the premises by the orders of Hon'ble Supreme Court of India in the year 2000 as is being claimed by him and has continued the said business at the premises in question till the raid was carried out by the NDPL officials. In his statement u/s 313 CrPC accused Jethanand has stated as under:
"He was allotted an industrial plot at Bawana Industrial area where he started business in that plot since September, 2004. although he was also doing work prior to September, 2004 and he has no concern or connection with M/s Comet Battery Works in any way."
(38) This shows that he has been doing the battery repair work prior to September, 2004. It is not the case of the accused Jethanand that after closing his business in the premises in question in 2000 he has shifted the work to some other place before started the said business in September. 2004 at Bawana Industrial area. Therefore it has to be concluded that prior to September, 2004 he has been doing his business at the premises in question and also when the raid was conducted at the premises and direct theft of electricity was detected. It is therefore established that a direct theft of electricity was being committed at Bank Wali Street Sultanpur Majra, Delhi for running the battery repair business by accused Jethanand. (39) CW2 Shri Mukesh Kumar, member of raiding party CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....18 of 30 has deposed that accused persons were involved in the business of battery charging works and committed direct theft of electricity; the battery charging shop was running in the name of M/s Comet Battery Parts and visiting card in the name of said shop is shown in the photograph taken at the time of raid. It was also deposed by these witnesses that direct theft was being done by tapping the service line before the meter by two core PVC wire and the meter and service lines wires were removed at the time of inspection and he has identified the removed meter as Ex. P1 and the illegal wires as Ex.P2. He has given meter no. DVB2001/011915 having its K no. 518128811.
(40) CW2 Mukesh Kumar has identified the meter Ex. P1 bearing K no. 518128811 and he has also deposed that after inspection of the premises the said meter alongwith service cables and illegal wires were removed by them from the premises. CW4 has placed on record the documents regarding K no. 518/128811/NDL and meter no. DVB 2001/011915 which shows that the meter was installed in the name of Kuldeep S/o Zile Singh at village Sultanpur Mazra. In these documents an affidavit of Kuldeep also placed on record wherein he has claimed himself to be owner/lawful occupier of premises in Village Sultanpur Majra and had applied for nondomestic connection for the load of 2KW. It is further mentioned that shop CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....19 of 30 will be used for general store having its area not exceeding 50sq meter. Thus, it is established from the above evidence that on the date of inspection electricity meter was installed in the name of accused Kuldeep in the premises in question and at the time of inspection it was found that theft of electricity was being committed by tapping the service line before the meter by two core PVC wire by bypassing the meter for running the battery repair business of accused Jethanand.
(41) As per inspection report Sh. Kuldeep S/o Zile Singh was consumer and Jethanand Shuklani of M/s Comet Battery Parts was user of the said premises. It was rightly argued by the Ld counsel for the NDPL that the summons of accused Kuldeep has been served at the premises in question. The report on the summons dated 06/07/2006 shows that summons has been received at the premises in question by Sh. Zile Singh father of accused Kuldeep Singh. In pursuance to the said service accused Kuldeep has appeared on 18/07/2006 and was taken into custody and remanded to judicial custody on 31/07/2006. (42) Regarding the service of summons of accused Jethanand Shuklani and Sunil Shuklani at the premises in question for 10/03/2008, Process server has reported that he visited the premises on 09/03/2006 to serve the summon upon both of them and a person at the premises told him that both has CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....20 of 30 shifted the factory to Bawana and supplied the residential address as 704, CA Apartment, Paschim Vihar, Delhi. Accordingly, he went there and served the summons upon wife of Jethanand Shuklani. In pursuance to summons wife of Jethanand Shuklani and mother of Sunil Shuklani has appeared in the court and sought adjournment stating that both the accused were out of station. Thus, the service of summons upon accused Jethanand Shuklani in this manner shows that accused Jethanand was also connected with the premises in question before he shifted his battery repair works to Bawana.
(43) Accused Jethanand has examined himself as DW7, by way of affidavit Ex. DW7/A. He has deposed that he was tenant in a premises in Bank Street, Village Sultanpur Majra under Shri Vijay Singh S/o Shri Zile Singh and was running his work under the name and style of M/s J.S. Batteries of which he was sole proprietor. He further deposed that the premises in which he was working was sealed by the order of Hon'ble Supreme Court of India in December, 2000 and electricity connection was disconnected in 01/02/2001 which was in the name of Vijay and he was using the said electricity connection. He further deposed that he never remained tenant of Kuldeep Singh on 06/12/2004 or before that. In his crossexamination by the Ld counsel for the NDPL, he has admitted that there was no house number 27 on any CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....21 of 30 of the document filed by him. He further deposed that document filed by him did not belong to year 2004. He further admitted that he has not disclosed to Shri Vijay Singh that a case of theft of electricity had been booked against him. He admitted that he has not filed any document to show that Vijay was his landlord. (44) Shri Vijay Singh examined as DW6 has deposed that Jethanand was his tenant in property in Sultanpur Majra, Delhi since 1988 till 2000 and was doing the work of battery. In a court question, he has replied that he was the only owner of the said property which was situated in Lal Dora on the basis of which electricity connection was sanctioned to him. In another court question put to him, whether he owned the property alongwith his brother Shri Kuldeep Singh, he has replied that Kuldeep Singh had separate property on the other side of the village but he could not tell when the division took place as there was no division of the family property. He further stated that his property where Jethanand Shuklani was his tenant was part of his house as said property was situated on the ground floor and he was living on the second floor. In another court question put to him about the residence of his brother Kuldeep in the village, he has replied as under: "Court Question: Where is the residence of your brother Kuldeep Singh in this village?
Ans: My brother is also living in the same CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....22 of 30 house i.e H no. 27 in another portion."
(45) He however in his crossexamination by Ld counsel for the NDPL has admitted that name of accused Kuldeep was mentioned in ration card till today as they have joint ration card. The photocopy of ration card as Ex. DW6/C1 which has been admitted by him to be correct. He admitted that Kuldeep Singh was registered consumer of electricity having separate electricity connection in his name which was for commercial purpose. He further admitted that he was not aware if electricity theft case was booked against Kuldeep Singh in the year 2004. He further admitted that a theft of electricity case was booked against accused Jethanand in the property of his brother Kuldeep Singh. This deposition of Vijay Singh(DW6) has established that accused Kuldeep Singh was residing in the same premises but in a different portion where Vijay Singh was also residing i.e premises in question. Their property was not separated or partitioned and they were having joint ration card. No document of tenancy has been filed admittedly by accused Jethanand Shuklani to show that he was tenant of Vijay Singh and not tenant of Kuldeep Singh. It is also established from the deposition of Vijay Singh that theft case of electricity was registered against Jethanand Shuklani in the property of his brother Kuldeep and his brother Kuldeep was having an electrical connection for commercial purpose in the CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....23 of 30 same premises.
(46) The above deposition of witnesses and discussion made therein shows that complainant has established that on the date of inspection the meter was installed in the premises in question in the name of Kuldeep Singh. The direct theft of electricity was being committed by tapping the service line before the said meter with a twocore wire by bypassing the meter for carrying out commercial activities. It has been established that it was accused Jethanand who was running said work as user of premises of Kuldeep Singh being owner of the premises having electricity connection in the premises for commercial purpose. The only explanation given by the accused persons is that the work of charging of batteries being done in the name of J.S. Batteries by accused Jethanand Shuklani has been closed by the orders of Hon'ble Supreme Court of India and premises was lying locked. The income tax returns Ex. DW5/1 and Ex. DW5/2 filed by accused Jethanand shows that he has been doing the business of battery charging works in the premises in question and was earning the income in lacs rupees till 31/03/2002 and thereafter. It was common phenomenon in Delhi that the premises which were closed and sealed by the orders of Hon'ble Supreme Court of India were being illegally used by their occupants for the same purpose by breaking the seals applied by SDMs concerned. It was CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....24 of 30 not always possible for the government machinery to supervise the entire sealed area in Delhi. Moreover, there is nothing brought on record by the accused persons to show that the witnesses of the complainant/ NDPL were inimical towards them and had made a false case. Technically, NDPL could not establish that accused Jethanand was carrying the battery charging work in the name of M/s Comet Battery Works but it hardly matter whether the work was being done in the name of Comet Battery works or M/s J.S.Batteries or without any name.
(47) The question under consideration is whether the premises in question was being used for carrying out commercial activities by committing direct theft of electricity by accused persons. It was explained by CW2 and others witnesses that they have named the M/s Comet Battery Works on the basis of visiting card found on the table in the premises in question. This is another thing that the photocopy of the said visiting card which was containing telephone number of accused Jethanand could not be considered as admissible evidence because there was no explanation given by the witnesses as to what has happened with the original vising card found on the table in the premises in question. But the evidence of the witnesses is sufficient to establish that premises in question was being used for running business of battery charging works by accused Jethanand and CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....25 of 30 accused Kuldeep Singh, owner of the premises in question was having electricity meter in his name at the time of inspection for commercial purpose and the said meter was bypassed for committing direct theft of electricity.
(48) Regarding the means through which the theft of electricity was being committed in the premises in question, the witnesses have deposed that the direct theft of electricity was being committed by tapping the service line before the meter by one black colour two core (red and black) service wire attached with another two core black colour (black and light brown) PVC wire. It is further deposed that inspection team has removed the meter and illegal wires from the premises in question and handed over the same to the zonal staff. A pullanda was opened having one meter K no. 518128811, meter no. DVB 2001/011915 and one black colour two core (red and black) service wire attached with another two core black colour (black and light brown) PVC wire which identified by the witnesses as material having been removed from the premises in question as meter was proved as Ex. P1 and the wires as Ex. P2.
(49) Regarding the involvement of accused Sunil Shuklani, DW3 Ram Tej Singh has placed on record a letter signed by Principal as Ex.DW3/1 dated 01/05/2007 stating that Mr. Sunil Shuklani S/o Shri Jethanand was regular student of their college CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....26 of 30 from 20032006 in B.Com Pass course with College roll no. 74. He further stated that he has passed his final year examination held in September/October, 2006.
(50) Accused Jethanand has also placed on record documents regarding M/s J.S. Batteries Registered as Ex. DW4/1 wherein he has been shown as sole proprietor of the said business. Admittedly, Sunil Shuklani was not found on the spot at the time of raid. Thus the evidence led by the complainant is not sufficient to link accused Sunil Shuklani with the offence alleged. (51) Regarding accused Kuldeep, it is not the case of the complainant that he has abetted the commission of direct theft of electricity by accused Jethanand in the premises owned by him. Nothing is mentioned in the complaint by the NDPL that accused Kuldeep Singh was abetting the offence of direct theft by his co accused Jethanand. None of the witness has stated that accused Kuldeep was involved in the abatement of theft of electricity or he has committed theft of electricity in furtherance of common intention of coaccused Jethanand or under a criminal conspiracy to commit direct theft of electricity. Once it is established that it was accused Jethanand who was found in the premises as user of direct theft of electricity, in the absence of evidence, the owner of the premises or registered consumer in the premises in question cannot be held liable for direct theft of electricity by the CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....27 of 30 user of the premises.
(52) The case relied by counsel for accused persons reported as Ajay Gupta Vs BSES. Raj Power Ltd, (189) 2012 DLT page 709 (Supra) is not applicable in the present case as the case referred is having the facts of dishonest abstraction of energy whereas the present case is of direct theft.
(53) Since the evidence on record is not sufficient to prove the charge leveled against accused Kuldeep Singh and Sunil Shuklani and hence they are accordingly acquitted. Their bail bonds cancelled and Surety discharged.
(54) From the above discussions, it has been established beyond reasonable doubt that on the date of inspection it was accused Jethanand Shuklani who was found indulged in direct theft of electricity in the premises in question i.e Bank Street, Village Sultan Pur Majra, Delhi for running the business of battery repair works. I, therefore, hold accused Jethanand Shuklani guilty and convict him for the offence under section 135 of the Electricity Act, 2003.
(55) The complainant company in the prayer clause of the complaint has prayed for determining the civil liability under Section 154 of the Electricity Act on account of loss due to the act of the accused. Therefore, I proceed to determine the civil liability of the accused under Section 154 (5) of the Act. The civil CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....28 of 30 liability against the consumer or a person shall be determined in terms of money for theft of energy under section 154 (5) of the Act. However, as prescribed under Section 154 (5) of the Act, the same cannot be less then an amount equivalent to two times of the tariff rate applicable for a period of 12 months preceding the date of detention of theft of energy or the exact period of theft if determined, whichever is less.
(56) The bill Ex. CW1/C dated 13/12/2004 is for an amount of Rs. 10,17,964/. The authenticity of the said bill has not been disputed in the crossexamination of the witnesses. The said bill has been raised for the period of 07/06/2004 to 06/12/2004 i.e for a period of six months. The same has been issued on the basis of 5 times as prescribed under regulation 25 (v) of the Delhi Electricity Regulatory Commission (Performance Standards Metering & Billing ) Regulations, 2002. The raid in the premises in question has been conducted on 06/12/2004. Thus, keeping in view all the facts and circumstances, I am of the view that the bill has been raised correctly by taking the period of theft as six months. The said bill has been raised on the basis of 6 X 5 formula. Thus, the same has been raised for a period of 30 months. Thus, it comes to about Rs.33,932/ per month. (57) Keeping in view all the facts of the case, I determine the civil liability of the accused taking the period of theft as six CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....29 of 30 months. Thus, the civil liability of accused comes to Rs.4,07,185/ (33,932 X12). The same is accordingly determined as Rs.4,07,185/.
ANNOUNCED IN THE OPEN COURT ON 23 April, 2013 rd (RAJ KUMAR CHAUHAN) ASJ(ELECTRICITY) (NORTH WEST DISTRICT) ROHINI COURT:DELHI CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....30 of 30 IN THE COURT OF SHRI RAJ KUMAR CHAUHAN:
ASJ(ELECTRICITY):NORTHWEST DISTRICT:ROHINI: DELHI CC no.60/06 Unique ID no. 0204R0441342006 North Delhi Power Limited ......Vs ...... Jethanand Shuklani ORDER ON SENTENCE 27/04/2013 Present: Shri K. B. Chaudhary, Ld counsel for the NDPL.
Convict Jethanand on bail with counsel Shri Sanjiv Kumar (1) The accused has been convicted u/s 135 of the Electricity Act, 2003 vide judgment dt. 23/04/2013 and civil liability determined to the tune of Rs. 4,07,185/ (2) I have heard Ld counsel for the convict as well as Ld counsel for the complainant on the point of sentence . (3) Ld counsel for the complainant submitted that maximum sentence be awarded to convict alongwith heavy fine because due to act of the people like him general public suffers who genuinely pays their electricity bills regularly. Ld counsel for the complainant has referred and relied upon 2006 (8) SCC 629 titled as Jagmodhan Mehtab Singh Gujral and Ors Vs State of Maharastra in criminal appeal no. 1113 of 2006 wherein it was held that " Large scale theft of electricity is a very alarming problem faced by all the State electricity Boards in our country, which is causing loss to the State revenue running in hundreds of crores every year. In our considered view, after proper adjudication of the case of all those who are found to be guilty of the offence of committing theft of electricity, apart from the CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....31 of 30 sentence of conviction, the court should invariably impose heavy fine making theft of electricity a wholly non profitable venture.
The most effective step to curb this tenancy perhaps could be discontinue supply of electricity to those consumers for temporarily or permanently who have been caught abstracting electricity in a clandestine manner on more than one occasion." (4) Ld counsel for the convict on the other hand submitted that convict is not involved in any other offence and is not a previous convict and he is aged about 53 years and as such a lenient view be taken while sentencing him.
(5) I have considered the submissions and perused the material on record.
(6) In the given facts and circumstances and considering the age and antecedent of the convict, I am of the considered view that the end of justice shall be met if convict is sentenced to undergo rigorous imprisonment for a period of two years for the offence under Section 135 of the Electricity Act, 2003. It is ordered accordingly.
(7) Let a copy of the judgment and the order on sentence be given to convict free of cost.
ANNOUNCED IN THE OPEN COURT
ON 27 April, 2013
th
(RAJ KUMAR CHAUHAN)
ASJ(ELECTRICITY)
(NORTH WEST DISTRICT)
ROHINI COURT:DELHI
CC no. 60/06 (NDPL Vs Kuldeep Singh & Anr) Page no.....32 of 30