Delhi District Court
Bses vs . Smt. Sunita & Ors., Fir No. 160/12 Page ... on 26 November, 2014
1
IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL SESSIONS
JUDGE, THE SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Sessions Case No. : 10/12
FIR No. : 160/12
Police Station : Vasant Kunj (South), New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406 RO209692012
STATE
Versus
1. Smt. Sunita W/o Shri Sunder Lal
2. Shri Surender Lal S/o Shri Lakhi Ram
Both are R/o B67, Gali No. 6D, Rangpuri Extension,
K Block, Mahipalpur Extension, New Delhi
...Accused
Appearances : Ld. Addl. P.P. for State along with Sh.Sharique Hussain,
counsel for the complainant.
Accused Smt. Sunita & Surender Lal are present on bail
along with counsel Sh.A.A. Khan, Advocate
Case instituted on : 08.08.2012
Judgment reserved on : 18.11.2014
Judgment pronounced on : 26.11.2014
JUDGMENT
1. The case of the prosecution in brief is that on 30.03.2012 a complaint was received at police station Vasant Kunj (South) on the basis of which above said FIR no. 160/12 was registered u/s. 135 Electricity Act, 2003.
BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 1 of 18 2
2. As per contents of the said complaint, the case of the complainant in brief is that on 01.03.2012, a raiding team consisted of Shri Ritu Raj - Senior Manager, Shri R.V. Singh - Engineer, Shri Krishan Kumar - Diploma Engineer, Shri Ramvir - Lineman and Shri Mukesh - videographer carried out inspection at the premises i.e. Plot No. 67, Ground Floor, BBlock, Rangpuri Extension, Near Khanzan STD., New Delhi and that same was being used by accused Sunita and Rajender and that no meter was found installed at the site and accused were found indulged in direct theft of electricity by using the supply directly through 2X10 sq.mm. illegal black colour wire/service cable from LVDS Distribution box. It is further mentioned in the said complaint that accused were found using total connected load of 8.363 KWs for domestic purpose. It is further mentioned in the complaint that inspection team seized two pieces red colour copper wire of size 7/20 SWG and length approximately two feet. It is further mentioned in the said complaint that videography was conducted by Shri Mukesh of M/s. Arora Photo Studio. It is further mentioned in the said complaint that the inspection report including meter detail report, load report and seizure memo were also prepared at the site and that same were offered to the accused to receive and sign, but they refused to do the same.
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3. It is further mentioned in the said complaint that complainant has assessed the civil liability of Rs. 1,39,970/ and theft bill as per DERC Regulations and tariff order was raised accordingly with due date as 21.03.2012 and same was served upon the accused but they failed to pay the said theft bill.
4. Initially notices were framed u/s. 251 Cr.P.C. against both the accused on 08.10.2012 by my Ld. Predecessor and the notice with regard to accused no. 2 was amended in order to correct his name as Surender Lal and inadvertently it was mentioned as accused Sunder Lal in the earlier notice and the said amended notice was framed by me on 24.05.2014.
5. Accused Sunita and Surender Lal pleaded not guilty against the said notice and claimed trial on the ground that they were not committing any theft of electricity and that false and fabricated case has been made out against them and that they had applied for electricity connection on 07.02.2012 and that a demand note was raised, which was valid upto 12.03.2012. Both the accused further answered that despite the period of validity of said demand note, the inspection was illegally conducted on 01.03.2012 and that the BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 3 of 18 4 connection was installed on 06.03.2012 and that they are not liable to pay any loss or damage to the complainant as alleged.
6. In order to prove the case, prosecution produced eleven witnesses, which have been discussed below.
7. The statements of accused Smt. Sunita and Shri Surender lal was recorded u/s. 313 Cr.P.C. separately and they pleaded their innocence and denied the evidence as false and answered that they were not indulging in any theft of electricity and that the supply was disconnected due to nonpayment and on 03.02.2012, entire outstanding dues were deposited and accounted upto 12.03.2012 and that load of used and unused components were simultaneously counted down and excess and exorbitant load as has been shown in the load report has not been depicted in the videography. Both the accused further answerd that the supply was disconnected and on 03.02.2012 entire outstanding dues amounting to Rs. 19,867/ was deposited by the accused and payment was accounted upto 12.03.2012 and that a fresh connection was applied because the supply became dormant and on 07.02.2012, reconnection was applied vide application Mark A against which a demand note was issued and same is Mark B and BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 4 of 18 5 same was valid upto 12.03.2012 and the paid bill of Rs. 19,867/ is Mark C. Both the accused further answered that the inspection was carried out on 01.03.2012 during the course when the entire outstanding was deposited and the demand note was valid and that they were not committing any direct theft of electricity at the premises in question on the date of inspection and that they are not liable to pay any amount as allegedly claimed by the complainant. Both the accused opted to lead defence evidence and produced one defence witness, which has been discussed below.
8. I have heard the Ld. Addl. P.P. for the State along with counsel for the complainant Shri Sharique Hussain, Advocate and counsel for the accused, Shri A.A. Khan, Advocate. I have also perused the record including the CD of videograpy displayed on the computer screen of the court.
9. PW1 HC Amir Khan was the duty officer, who proved the FIR as Ex. PW1/A.
10. PW2 Shri Ritu Raj was the Manager in the complainant company, who deposed that on 01.03.2012 at about 01:30 p.m., he BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 5 of 18 6 along with Sh. Ranvir Singh, Sh. Kishan Kumar, Sh. Ramvir and Sh. Mukesh visited and inspected the premises bearing plot no.67, BlockB, Rangpuri Extension, near Khajan Studio, New Delhi and that on reaching the premises, they found that there was no electricity meter installed at the site and the accused persons were found indulging in direct theft of electricity by way of directly tapping from the BSES LV Mains through the illegal wires. PW2 further deposed that they assessed the total connected load of the premises and same was found to be approximately 8.363 KWs for domestic purpose. PW2 further deposed that they seized two red colour copper wires of size 7/20 SWG and total length approximately 2 feet each vide seizure memo Ex.PW2/A. PW2 further proved the inspection report and load report as Ex.PW2/B and Ex.PW2/C, respectively. PW2 further deposed that the theft bill was prepared as per DERC regulations by Deputy Finance Officer. PW2 further deposed that the accused Sunita was present at the time of inspection and the accused Surender joined the inspection later on and PW2 also identified both the accused, who were present in the court on the day of his deposition. PW2 further deposed that they offered all the said documents to the persons present at the site but they refused to receive and sign the same. PW2 further identified the videography contained in the BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 6 of 18 7 CD Ex. Ex.PW2/E. PW2 also proved the seized wires i.e. two red colour copper wires of size 7/20 SWG length approximately 2 feet each as Ex.P1 and Ex.P2. PW2 further deposed that he filed a complaint to the SHO PS Vasant Kunj (South) on the basis of inspection dated 01.03.2012 and he also proved the said complaint as Ex. Ex.PW2/G and rukka to this effect is at point B to B.
11. In his cross examination on behalf of both the accused, PW2 answered that all the reports were prepared at the site. PW2 admitted it as correct that preparation of reports was not captured in the videography. PW2 answered that all the electrical gadgets were connected to the electricity, but the same were in switched off condition at the time of inspection. PW2 further answered that complaint for registration of FIR was made to the police station on 30.03.2012. PW2 further answered that a period of one month is required or consumed in the process of getting the complaint drafted by the panel lawyer, when the complaint was sent to the SHO concerned. PW2 admitted it as correct that the BSES service line was of yellow colour. PW2 replied that usually the yellow coloured service line is installed by the company and that the service line was carrying current at the time time of inspection. PW2 replied that when the company disconnects the supply on BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 7 of 18 8 account of nonpayment or otherwise, the connection was to be removed from the pole itself. PW2 did not know as to whether any meter was installed at the site and same was removed. PW2 did not know if any meter was found installed at the site at the time of inspection. PW2 further did not know with regard to the deposit of amount of Rs. 19,567/ on 03.02.2012 and with regard to the accused person's approach for restoration of supply on 07.02.2012. PW2 further did not know about the deposition of security amount of Rs. 3,000/ on 21.02.2012. PW2 further did not know as to whether any assurance was given by the officers of complainant company for restoration of supply within three days and as to whether any demand note was issued to the accused persons on 21.02.2012 and same was valid upto 12.03.2012. PW2 further did not know about the time frame given by the DERC for installation of the meter, once the demand note was raised. PW2 further admitted it as correct that only yellow colour service cable was found connected from BSES LV mains to the premises of the accused and that accused persons have not been captured in the videography. PW2 did not remember as to whether accused Smt. Sunita had shown any document pertaining to the restoration of supply at the time of inspection. PW2 replied that the seized illegal wires Ex. P1 and P2 are easily available in the market. PW2 BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 8 of 18 9 admitted it as correct that copy of seizure memo as Ex. PW2/F, which was found in the bag was a photocopy and not the carbon copy.
12. PW3 Shri Ranvir Singh was the Diploma Engineer in the complainant company deposed that on the same lines on which PW2 has already deposed and as mentioned in the complaint Ex. PW2/G. PW3 also identified both the accused, who were present in the court on the day of his deposition. PW3 identified the seized wires as Ex. P1 and P2.
13. In his cross examination on behalf of both the accused, on the day of his deposition, he did not remember the date when the FIR was got registered. PW3 replied that the delay in the FIR occurred because the consumer did not turn up in the office. PW3 answered that the copy of the seizure memo which was found from the bag of the case property Ex. PW2/F, was a photocopy and not a carbon copy and that the said photocopy of the seizure memo Ex. PW2/F was got made in their office. PW3 further answered that the preparation of the documents at the spot has not been covered in the CD of videography Ex. CW2/E. PW3 replied that initially accused Sunita was present at the spot and during inspection BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 9 of 18 10 accused Surender also came there. PW3 did not remember the distance between the premises in question and the tapping point. PW3 answered that the wires Ex. P1 and P2 were lying inside the premises in question and with the help of said wires, direct theft of electricity was going on and that the entire illegal wires were not seized at the time of inspection due to resistance of the accused persons. PW3 could not admit or deny the suggestion that the electric supply in the premises was disconnected due to non payment of charges or as to whether an amount of Rs. 19,567/ was deposited on 03.02.2012. PW3 could not say as to whether for a fresh connection, the accused was issued with a demand note by the complainant company, which was valid up to 12.03.2012 or that without waiting till that time, the inspection was deliberately conducted on 01.03.2012 in order to falsely implicate the accused in the present case.
14. PW4 Shri Mukesh was the videographer who conducted the videography of the inspection on the directions of Shri Ritu Raj, Senior Manager and he also identified the videography contained in the CD Ex. PW2/E. In his cross examination on behalf of both the accused, PW4 could not tell the exact duration of videography. PW4 replied that the duration of said videography meight be 2 - 2 BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 10 of 18 11 ½ minutes long. PW4 further answered that he remained at the site for about half an hour i.e. from 1.30 p.m. to 2.00 p.m. and he conducted the videography and he did not edit the same and submitted the same as it was. PW4 further answered that on 01.03.2012, some other inspections were carried out at the other premises apart from the said premises. PW4 admitted it as correct that no house number of the premises was captured in the videography. PW4 volunteered that he did not remember as to whether any house number or name plate was placed on the door of the said premises.
15. PW5 Ct. Dharamvir Singh is the witness of the seizure memo Ex. PW5/A, whereby sealed bag stated to be containing wires was seized by the IO. PW6 Lady Ct. Kavita, is the witness of the arrest of accused Smt. Sunita. PW7 Ct. Mukesh is the witness of seizure memo Ex. PW7/A, whereby the three documents given by the accused were seized.
16. PW8 Shri Amit Kumar proved the theft bill Ex. PW2/D. Inadvertently this theft bill has again been proved by the PW10 Shri G.B. Barapatre.
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17. PW9 Shri Rambir Singh was the lineman who deposed that on 01.03.2012 at about 1.30 p.m., he along with Shri Rituraj, Shri Ranvir, Shri Krishan Kumar and Shri Mukesh, visited and inspected the premises i.e. B67, Ranpuri Extension, New Delhi and that on reaching the premises in question, they found that there was no meter installed at the site and the consumer was found indulged in direct theft of electricity by directly tapping from BSES LV Mains. PW9 further deposed that they assessed the total connected load of the premises and same was found to be 8.363 KWs for domestic purpose. PW9 further deposed that at the time of inspection, both the accused were present at site and the inspection was carried out in their presence and that they prepared the inspection report and load report at site, which are exhibited as Ex. PW2/B and Ex. PW2/C, respectively. PW9 further deposed that they seized the illegal wires from the spot at the time of inspection vide seizure memo Ex. PW2/A. PW9 further identified the wires i.e. two red colour copper wires of size 7/20 SWG and length two feet approximately as Ex. P1 and P2.
18. In his cross examination on behalf of both the accused, PW9 replied that the preparation of the documents at the spot has not been covered in the videography Ex. CW2/E. PW9 answered that BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 12 of 18 13 initially accused Sunita was present at the spot and during inspection accused Surender also came there. PW9 did not remember the distance between the premises in question and the tapping point. PW9 answered that the entire illegal wires were not seized at the time of inspection due to absence of the concerned persons of O&M Department. PW9 could not say as to whether for a fresh connection, the accused was issued with a demand note by the complainant company, which was valid up to 12.03.2012 or that without waiting till that time, the inspection was deliberately conducted on 01.03.2012 in order to falsely implicate the accused in the present case.
19. PW11 HC Mahavir is the IO of the case, who deposed regarding the investigation conducted by him and he further proved the seizure memo Ex. PW11/B, whereby accused Surender Lal produced some documents besides the documents seized vide memo Ex. PW7/A. He also proved the site plan Ex. PW11/A. In his cross examination on behalf of the accused, he replied that that inspection of the premises took place on 01.03.2012 and FIR was registered on 30.05.2012.
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20. DW1 Shri Saurabh Sharma was the summoned witness, who had brought the record from BSES Rajdhani Power Ltd. regarding the demand note which was issued in the name of Shri Surender Lal S/o Shri Lakhi Ram vide application no. 1002017114 dated 07.02.2012 and same is Ex. DW1/A, which was earlier Mark A. DW1 had seen the demand note dated 21.02.2012 and same was valid upto 12.03.2012, which is Ex. DW1/B and he has also seen the bill which was earlier Mark C and now Ex. DW1/C. In his cross examination on behalf of the accused, he answered that he deposed on the basis of summoned record and he had no personal knowledge of the present case.
21. In this case, the inspection was conducted on 01.03.2012 and theft bill was raised and due date for its payment was 21.03.2012 and the complaint was made to the police station on 30.03.2012 but the FIR was registered on 30.05.2012 and as such, there is a considerable delay in the lodging of the FIR. I can understand that the complaint is made to the police on 30.03.2012 only after the expiry of the due date of the theft bill on 21.03.2012 to be paid by the accused by the said date but why the police kept sitting over the complaint or the complainant did not pursue its complaint upto 30.05.2012 and why the FIR was registered only on 30.05.2012. BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 14 of 18 15 Thus, a suspicion has arisen with regard to the truthness of the case coupled with other circumstances as discussed below.
22. The explanation tendered by the PWs with regard to said delay in FIR is full of material contradictions, which go to the root of the matter. PW2 has explained that the process of getting the complaint drafted by the panel lawyer consumed a period of about one month, when the complaint was sent to the SHO concerned. Admittedly, the complaint was sent on 30.03.2012 and if one month was taken by the panel lawyer by that date, it means the complaint would have been drafted prior to 30.03.2012 and admittedly within that period, the due date of payment of theft bill i.e. 21.03.2012 had not expired. The only inference is that as to whether a premature complaint was already drafted against the accused and the complainant was waiting to forward the same within 9 days of expiry of the due date of the theft bill. However, PW3 has another story to tell about the delay in the FIR who answered in his cross examination that the delay in the FIR occurred as the consumer did not turn up in the office. Thus, a reasonable doubt has arisen as to whether any "bargaining process" was going on with the accused at the behest of the complainant.
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23. That the said doubt is further aggravated by the fact that admittedly, the accused applied for restoration of his connection vide application No.1002017114 dt. 07.02.2012, Ex.DW1/A against which, a demand note to deposit the security charges for the electricity connection was issued on 21.02.2012 which was valid upto 12.03.2012 and the same is Ex.DW1/B which mentions that the accused paid security deposit of Rs.3,000/ on 21.02.2012 itself and remaining charges of Rs.19,567/ on 03.02.2012, which were accounted for upto 12.03.2012. What prevented the complainant to install a meter within a reasonable time before the date of inspection i.e. 01.03.2012 or why the alleged case of theft was booked during the validity period of the demand note which was 12.03.2012. For the said 7 days, the connection was not supplied and does it mean that complainant was waiting to book the accused in the present case without discharging its own liability under the Law.
24. Further, no demand note can be issued without a site verification and feasibility report with regard to installation of a meter. Since the demand note has been issued in this case, there must have been a site verification for the installation of the meter and surprisingly the official who conducted site verification, did BSES Vs. Smt. Sunita & Ors., FIR No. 160/12 Page no. 16 of 18 17 not notice any direct theft of electricity as alleged in the present case. Moreover, the accused were not captured in the videography and as per answer in the cross examination of PW2, he did not remember if accused Smt. Sunita showed him documents pertaining to restoration of supply at the time of inspection. It has further come in the evidence that from the bag in which the alleged illegal wire was seized, a photocopy of the seizure memo and not the carbon copy, was recovered as per cross examination of PW2 and PW3 admitted in his cross examination that said photocopy of the seizure memo Ex.PW2/F was got made in their office. Both PW2 & PW3 have admitted that preparation of documents at the spot has not been covered in the videography Ex.CW2/E and the said circumstances go to suggest that entire inspection seems to have been concocted at the office of the complainant.
25. There is further material contradiction with regard to seizure of illegal wire. As per PW3, the entire wire could not be seized as there was a resistance from the consumer but as per cross examination of PW9, as the officials of O&M department were absent, entire illegal wire could not be seized. This also creates a doubt about the seizure of illegal wire.
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26. In view of the my said discussion, I am of the considered opinion that the complainant has miserably failed to bring home the guilt of the accused beyond reasonable doubt and as such, both the accused are entitled to benefit of doubt and they are acquitted of the offence punishable U/sec. 135 of the Electricity Act, 2003. Their PB and SB, if any, are cancelled and discharged.
The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 26.11.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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