Delhi District Court
S.C No. 59/11 State vs . Manoj @ Sonu 1/17 on 22 January, 2013
IN THE COURT OF SHRI SUKHDEV SINGH: ADDITIONAL
SESSIONS JUDGE : SPECIAL ELECTRICITY COURT-2 :
KARKARDOOMA : DELHI.
SC No. 59/2011
Unique Case I.D 02402R0500252006
STATE FIR No. 147/2006
P.S Khajuri Khas
Versus U/s 135 of the
Electricity Act,2003
Manoj @ Sonu
S/o Shri Inder
R/o B-66, Gali No.9
( Opposite to house No.B-9/86
Gali No.9) Khajuri Khas, Delhi.
.... Accused
Date of Institution : 23.12.2006
Judgment Reserved for : 22.01.2013
Judgment Passed on : 22.01.2013
JUDGMENT
The case of the prosecution in brief is that on 18.02.2006, a complaint was filed by BSES Yamuna Power Limited, having its registered office at Shakti Kiran Building, Karkardooma (hereinafter referred to as 'complainant company') with P.S Nand Nagri, under Section 135 of the Electricity Act (hereinafter referred to as 'the Act') against the accused on the basis of which FIR was registered. It is stated in the complaint that on 18.02.2006, at about 1.05 p.m, an inspection was carried out at S.C No. 59/11 State Vs. Manoj @ Sonu 1/17 premises viz.; R/o B-66, Gali No.9 ( Opposite to house No.B-9/86 Gali No.9) Khajuri Khas, Delhi. ( hereinafter referred to as 'premises'), by the joint team comprising of Shri Nagender Kumar Assistant Manager, Dharmender Kumar Chauhan, GET, Chandresh Kumar, Lineman and Jagdish Kumar Lineman. It was found during the inspection, accused Manoj @ Sonu was found using electricity directly by tapping from BSES LV Mains, through illegal wires and no meter was found installed at the premises.
During the inspection illegal wires i.e aluminium black colour PVC cable ( 5 pieces) , 7.25 mm square, 3.5 meter approximately; aluminium black colour cable PVC ( 6 pieces), of size 2.5 mm square, 3.5 metre in length; aluminium black colour cable, of size 2.5 mm square, 16 metre in length and one red colour copper cable PVC ( two pieces), 3 X 22 mm square, having length of 7 metre, were seized from the spot. .
The stolen energy was being used for commercial purposes with connected load to the tune of 44.619 KW. It is further stated that the accused was using the electricity for running thread dyeing and plastic moulding work. Photography showing irregularity was done at the spot.
It is further stated that the complainant company assessed the loss on account of direct theft to the tune of Rs. 34,47,465/- ( Thirty Four Lakh, Fourty Seven Thousand, Four Hundred & Sixty Five).
S.C No. 59/11 State Vs. Manoj @ Sonu 2/17 Accordingly, the bill for the said amount was raised against the accused which he did not pay. Hence, the case.
3. Charge has been framed against accused Manoj @ Sonu to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined six witnesses viz; H.C Subhash Chand, PW.1, Shri Nagender Kumar, Senior Manager, BSES YPL, PW.2, SI Kashmira Singh (Retired) PW.3, Shri Ashok Kumar, Assistant V.P. BSES YPL, PW.4, Shri Chandresh Kumar, Lineman, BSES YPL, PW.5 and ASI Ram Kishore, IO, PW.6.
H.C Subhash Chand, PW1, is the Duty Officer who recorded FIR which has been got exhibited as Ex.PW1/A. He has also made endorsement on original Rukka which is Ex.PW.1/B. Shri Nagender Kumar, Senior Manager, BSES YPL, PW.2 has deposed in his testimony that he alongwith his inspection team members reached the premises bearing No. B-66, Gali No.9, Khajuri Khas, Delhi. During the inspection, they found that accused Sonu was indulged in direct theft of electricity and there was no meter at site. He has further stated that the inspecting team prepared the inspection report and other documents at the site. He has got exhibited the Inspection report as Ex.PW2/A and load report as Ex.PW2/B. He has further deposed that photography was done at the spot and he has got exhibited the photographs as Ex.PW.2/C., PW.2/C1 and PW.1/C2. He has deposed that accused was using the S.C No. 59/11 State Vs. Manoj @ Sonu 3/17 electricity illegally for industrial purposes, which was found to the tune of 44.619 KW/IX/DT.
He has further stated that he called Mr. Ashok Kumar Bhaskar, Manager at the spot to seize illegal wires. Shri Ashok Kumar Bhaskar came to the spot and seized the illegal material i.e aluminium black colour PVC cable ( 5 pieces) , 7.25 mm square, 3.5 meter approximately; aluminium black colour cable PVC ( 6 pieces), of size 2.5 mm square, 3.5 metre in length; aluminium black colour cable, of size 2.5 mm square, 16 metre in length and one red colour copper cable PVC ( two pieces), 3 X 22 mm square, having length of 7 metre, vide seizure memo Ex.PW.2/D at his instructions. He has identified the said case property as Ex.P-1.
He has further stated that on the basis of connected load, theft bill for a sum of Rs. 34,47,465/- was raised. He has further deposed that at the time of inspection, workers of the accused were present at the spot who told that premises belonged to the accused. However, the workers refused to sign the inspection report and other documents.
SI Kashmira Singh (Retired), PW-3 has deposed in his testimony that during the investigation of the case, he arrested the accused vide arrest memo Ex.PW.3/A . He also filed the chargesheet in the court.
Shri Ashok Kumar Bhaskar, Assistant V.P, PW.4 has deposed in S.C No. 59/11 State Vs. Manoj @ Sonu 4/17 his testimony that on 18.2.2006, Shri Nagender Gupta, Assistant Manager called him at B-66, Gali No.9, Khajuri Khas, Delhi. He reached the spot at about 1.30 p.m and seized the material vide seizure memo already Ex.PW.2/D. He has further stated that on 5.4.2006, he lodged complaint with P.S Khajuri Khas. He has got exhibited the said complaint as Ex.PW.4/A. He also handed over the case property to I.O vide handing over seizure memo Ex.PW.4/B. This witness has also identified the case property as Ex.P-1.
Shri Chandresh Kumar, Lineman/Electrician, BSES YPL, PW.5, has stated in his testimony that on 18.2.2006, he alongwith Shri Nagender Gupta, AM and other team members reached premises bearing No. B-66, Gali No.9, Khajuri Khas, belonging to accused Manoj. He has further stated that they found there was a direct theft from LV Mains. The site was inspected in his presence and photographs were taken by Shri Nagender Gupta and load was assessed by Shri Dharmender Chauhan, GET.
He has further stated that he removed illegal wire alongwith other lineman Jagdish. He seized the illegal wire in the presence of Manager Ashok Kumar Bhaskar vide seizure memo Ex.PW.2/D. ASI Ram Kishore Tyagi, PW.6, who is the I.O in the case has proved rukka as Ex.PW.1/B, complaint made by Shri Ashok Kumar Bhaskar as Ex.PW.4/A. He has deposed in his testimony that S.C No. 59/11 State Vs. Manoj @ Sonu 5/17 complainant Ashok Kumar handed over the case property to him and he prepared seizure memo which has been already got exhibited as Ex.PW.4/B. He alongwith the complainant visited the spot and prepared siteplan Ex.PW.6/A. He also recorded the statement of the witnesses under Section 161 of Cr.P.C. He could not trace accused Manoj. He also made enquiries from the neighbours who told that the property belonged to the accused.
5. Statement of the accused under Section 313 of Cr.P.C has been recorded separately in which he has denied the allegations of the prosecution. He has stated that he had nothing to do with premises inspected by the officials of complainant company. He has further stated that he has been falsely implicated by the officials of the complainant company by showing him the owner/user of House No. B-66, Gali No.9, Khajuri Khas, Delhi. He has stated that Shri Ram Jatan Thakur was the owner of the inspected premises.
6. In defence, the accused has examined one Shri Rakesh Kumar as DW.1 Shri Rakesh Kumar, DW-1 has stated in his testimony that House No. B-66, Gali No.9, Khajuri Khas was purchased by him from one Shri Ram Jatan in 2007 through GPA Mark A and he had sold the said house to one Smt. Satender Pal Singh Wife of late Shri Jatan Singh on 23.03.2012 against agreement dated 23.03.2012. The copy of the same has been marked B. He has further deposed that S.C No. 59/11 State Vs. Manoj @ Sonu 6/17 in the said house, Manoj never lived as tenant nor he had any concern with his house. He has stated that near to the house one Shri Mishraji and another side one Shri Babbar were residing. He has further stated that neither BSES officials nor the police ever visited his house in connection of theft of electricity.
7. I have heard Ld. Additional P.P. for the State assisted by Ld. Counsel for the complainant, Ld. Counsel for the accused and have also perused the material placed on record.
8. It has been argued on behalf of accused that he has no concern with the premises inspected i.e. House No. B-66, Gali No.9, Khajuri Khas, Delhi. This is the sole argument which has been advanced on behalf of accused.
On the other hand, Ld. Additional PP for the State assisted by Ld. Counsel for the complainant company has rebutted the arguments advanced on behalf of accused arguing that accused has concern with the case property. In support of his argument he has placed reliance on a document mark-X which is a Deed of Settlement executed by accused with the complainant company/BSES. Thus, to connect the accused with the premises inspected i.e. B-66, Gali No.9, Khajuri Khas, Delhi, it has been stated on behalf of the complainant company that it is the accused who made settlement and also made part payment of the settled amount.
S.C No. 59/11 State Vs. Manoj @ Sonu 7/17
9. In order to prove the case against the accused, the State/complainant is required to establish that the theft of electricity was being committed at the premises inspected by the raiding party. The complainant is further required to link the accused to the premises and prove that the accused was responsible for the commission of theft of electricity.
To appreciate the arguments of Ld. Counsel for the parties and to ascertain whether the accused has committed the offence, a look has to be made to the testimony of Shri Nagender Gupta, Senior Manager, BSES, PW-2; Shri Ashok Kumar, Assistant Vice President, PW-4 and Shri Chandresh Kumar, Lineman BSES YPL, PW-5 who are the members of the inspection team. In addition to this, the testimony of H.C. Subhash Chand, PW-1; Shri Kashmira Singh, retired S.I., PW-3 and ASI Ram Kishore Tyagi, PW-6 though not the witness of inspection requires examination as they are the police officers who investigated the case.
10. The first, foremost and the only point which has been raised on behalf of accused is that he has no concern with the property inspected i.e. B-66, Gali No.9, Khajuri Khas, Delhi. To ascertain this, firstly, the testimony of H.C. Subhash Chand, PW-1; S.I. Kashmira Singh, PW-3 and A.S.I. Ram Kishore, PW-6 is taken up.
H.C. Subhash Chand, PW-1 is the Duty Officer who recorded the FIR Ex. PW1/A. S.C No. 59/11 State Vs. Manoj @ Sonu 8/17 SI Kashmira Singh, (Retired) PW-3 who arrested the accused Manoj @ Sonu vide memo Ex. PW3/A and filed the challan against accused. When this witness has been cross-examined he has stated that he did not make any effort to ascertain the ownership of the inspected premises nor he has filed any document regarding the ownership/possession of accused Manoj @ Sonu alongwith the challan.
ASI Ram Kishore Tyagi, PW-6 investigated the case after its registration. He also seized the case property vide memo Ex. PW4/B. He has further deposed that he alongwith the complainant and other witnesses went to the spot i.e. B-66, Gali No. 9, Khajuri Khas, Delhi at the instance of complainant and other witnesses. He prepared the site plan which has got exhibited as Ex. PW6/A. He has further deposed that he enquired from neighbourers who confirmed that the property belongs to accused Manoj, but when this witness has been cross-examined, he has stated that he made efforts by making visits at M.C.D. Office to ascertain the ownership of premises, but the same was not retrieved. He has further stated that neighbours confirmed that the property belongs to the accused.
Thus, from the testimony of ASI Ram Kishore Tyagi, PW-6 who is the first I.O. went to the site, prepared the site plan and asked the neighbours about the ownership of the premises, it comes out that the property belongs to the accused. Though, document has been S.C No. 59/11 State Vs. Manoj @ Sonu 9/17 put on record, but he made efforts to obtain the documents from M.C.D. office which he could not get the same from there. The fact that the neighbours disclosed about the ownership of the property belonging to the accused, even if no document has been placed on record in respect of ownership of the inspected premises that does not make any infirmity in the case of the prosecution.
The testimony of H.C. Subhash Chand, PW-1 who is the Duty Officer and recorded FIR Ex. PW1/A and S.I. Kashmira Singh, (Retired), PW-3 who arrested the accused vide memo Ex. PW3/A is only of a formal nature.
11. Now, comes the turn to the testimony of Shri Nagender Gupta, Senior Manager, BSES, PW-2; Shri Ashok Kumar, Assistant Vice President, PW-4 and Shri Chandresh Kumar, Lineman, BSES YPL, PW-5 who are the witnesses of inspection.
Shri Nagender Gupta, Senior Manager, BSES, PW-2 is the member of the inspection team who inspected the premises bearing No. B-66, Gali No.9, Khajuri Khas, Delhi. He has proved the inspection report Ex. PW2/A; load report Ex. PW2/B; photographs collectively Ex. PW2/C, Ex. PW2/C1 & Ex.PW2/C2 and seizure memo Ex. PW2/D. He has identified the case property as Ex. P-1 which is alluminium cable PVC 7/2.5 sqr, mm, five piece (35 meters) in black colour; Single core 10 mm sqr aluminium PVC cable, six pieces (35 meters approximately) in black colour; Single core cable PVC 2.5 S.C No. 59/11 State Vs. Manoj @ Sonu 10/17 mm sqr four pieces ( 16 meters approximately) in black colour and copper PVC cable 3/22 mm sqr. in two piece (7 meters approximately) with red colour.
He has further stated that during the inspection, they found that the accused was indulging in direct theft of electricity by tapping the BSES LV Mains by using illegal wires. Connected load has been stated 44.619 KW/IX/DT. He has further deposed that on the basis of connected load a theft bill was raised against the accused for a sum of Rs. 34,47,465/- and accused approached to the complainant company for settlement of the said bill. The photocopy of the said settlement has been put on record as Mark-X. He has further deposed that at the time of inspection the workers of the accused told that premises bearing No. B-66, Gali No. 9, Khajuri Khas, Delhi belongs to the accused. He has further deposed that workers of the accused refused to sign the inspection report, load report and seizure memo.
However, when this witness has been cross-examined he has stated that they did not verify the ownership/user of the building before the inspection. He has further deposed that they did not verify the ownership/possession of the building which was inspected on 18.02.06 from M.C.D. or any other authority. He has further deposed that two properties were having same numbers i.e. B-66, Gali No. 9, Khajuri Khas, Delhi. He has further deposed that S.C No. 59/11 State Vs. Manoj @ Sonu 11/17 premises of the accused was bearing no. B-66, Gali No.9, Khajuri Khas, Delhi.
Shri Ashok Kumar, Assistant Vice President, PW-4 who seized the case property through seizure memo Ex. PW2/D. He has stated that he lodged the complaint with the Police Station which is Ex. PW4/A. He also handed over the case property to the I.O. vide memo Ex. PW4/B. He has identified the case property as Ex. P-1.
However, when this witness has been cross-examined he has stated that he asked the team member to verify with regard to ownership/possession/user during inspection of the premises. He has further deposed that workers present at site told the name of the user/owner as Manoj @ Sonu. They further told the number of the premises inspected. He has further stated that he has seen the copy of electricity bill for the month of February, 2006 in the name of Vikas Yadav, H. No. B-66, Gali No.6, Khajuri Khas Colony, Delhi-94 which was put to him in his cross-examination as Ex. DW4/D-A. Further he has voluntarily deposed that the colony was un- authorised one and there might be 2/3 houses having same house number.
Shri Chandresh Kumar, Lineman, PW-5 is also member of the inspection team who removed the illegal wires which were used for direct theft of electricity. He has seized the case property vide memo Ex. PW2/D. He has also identified the case property as Ex.
S.C No. 59/11 State Vs. Manoj @ Sonu 12/17 P-1 which is aluminium PVC 7/2.5 square mm, five piece (35 meters) black colour; Single core 10 mm square aluminium cable PVC, six piece (35 meters approximately) black colour; single core cable PVC 2.5 mm four pieces (16 meters approximately) black colour and copper cable PVC 3/22 mm square, two piece (7 meters) red colour.
However, when this witness has been cross-examined he has stated that there was no number plate at the premises, but they came to know the number of premises B-66, Gali No.9, Khajuri Khas, Delhi from the neighbouring houses. He has further deposed that accused did not meet them at the time of inspection.
12. Thus, from the testimony of all these witnesses the only thing which has been put in the cross-examination is that the premises did not belong to the accused and no document has been put on record to ascertain the ownership of the inspected premises. However, from the testimony of Shri Nagender Gupta, Senior Mananger, PW-2, it comes out that accused made settlement with the complainant company in respect of the bill for a sum of Rs. 34,47,465/- which is mark X. No suggestion has been put to this witness that document has not been executed by the accused. Only suggestion which has been put is that he did not compromise/settle the case with the complainant company. Further he was mis-guided by the officials of the complainant company without telling actual facts of the case. However, there is nothing on record to show that if he has been mis-
S.C No. 59/11 State Vs. Manoj @ Sonu 13/17
guided by the officials of the complainant company. He had not
made any complaint against the said officials. Thus the fact remains that accused has approached the complainant company for settlement of the said bill amounting to Rs. 34,47,465/-. If he has approached the complainant company for settlement, certainly the inspected premises for which the said bill has been raised belongs to the accused. If the inspected premises did not belong to the accused, he would not have approached the complainant company for any settlement. In the presence of this settlement, even if, no documents has been placed on record to show that the inspected premises belongs to the accused, it cannot be said that the inspected premises did not belong to the accused.
Not only this, from the testimony of this witness, it also comes out that the workers who were present at the time of inspection told that the premises belongs to accused Manoj @ Sonu. Even if, two properties are having the same numbers B-66, the facts on record categorically show that the property which was inspected belongs to the accused.
13. Not only this, execution of document mark-X which is the settlement made by the accused with the complainant company has been admitted by him in his statement under Section 313 Cr. P. C. This also strengthen the case of the prosecution.
14. Now, coming to the testimony of Shri Rakesh Sharma, DW-1, S.C No. 59/11 State Vs. Manoj @ Sonu 14/17 this witness has stated that house no. B-66, Gali No. 9, Khajuri Khas, Delhi was purchased by him from Shri Ram Jatan in 2007 which he has sold to one Smt. Satender Pal Singh W/o late Shri Jatan Singh on 23.03.2012. He has further deposed that in his house Manoj never lived as a tenant nor he has any concern with his house. However, when this witness has been cross-examined, he has stated that he did not visit the property bearing no. B-66, Gali No.9, Khajuri Khas, Delhi on 18.02.06. He has further deposed that he did not know whether on 18.02.06 accused was living in the said property. When this witness has failed to depose in respect of the possession of the property in question by the accused on the date of inspection on 18.02.06, his testimony is of no assistance to the accused. Therefore this goes.
15. Thus, from the testimony of Shri Nagender Gupta, Senior Manager, PW-2; Shri Ashok Kumar, Assistant Vice President, PW-4 and Shri Chandresh Kumar, Lineman, PW-5, it comes out that the property bearing B-66, Gali No. 9, Khajuri Khas, Delhi where the inspection was carried on 18.02.06 belongs to the accused. Therefore, the sole plea of the accused that the inspected premises do not belong to him cannot be accepted. Hence, the argument advanced by Ld. Counsel for the accused that he has no connection with the inspected premises goes.
16. The fact that Shri Nagender Gupta, Senior Manager, PW-2 has S.C No. 59/11 State Vs. Manoj @ Sonu 15/17 got exhibited the inspection report Ex. PW2/A, load report Ex. PW2/B, seizure memo Ex. PW2/D in which alluminium cable PVC 7/2.5 sqr, mm, five pieces (35 meters) in black colour; Single core 10 mm sqr aluminium PVC cable, six pieces (35 meters approximately) in black colour; Single core cable PVC 2.5 mm sqr four pieces ( 16 meters approximately) in black colour and copper PVC cable 3/22 mm sqr. in two pieces (7 meters approximately) with red colour were seized; photographs is Ex. PW2/C, Ex. PW2/C1 and PW2/C2 and copy of settlement mark X which has been admitted by the accused as well as the case property identified by Shri Ashok Kumar, Assistant Vice President, PW-4 and Shri Chandresh Kumar, lineman, PW-5 connect the accused with direct theft of electricity for industrial purposes.
17. If photographs Ex. PW2/C are looked into, it is noticed that the photographs show the machinery carrying out the work of thread dyeing as well as plastic moulding. The photographs also show the wire coming from pole. It is evident from these photographs that the electricity was being used in an authorised manner.
18. When the point raised on behalf of the accused that he is not the owner of the inspected premises stand nullified, identity of the accused as well as property stand established and there does not seem to be animosity against the accused, the testimony of Shri Nagender Gupta, Senior Manager, PW-2, Shri Ashok Kumar, Assistant S.C No. 59/11 State Vs. Manoj @ Sonu 16/17 Vice President, PW-4 and Shri Chandresh Kumar, lineman PW-5 has to be relied upon. The inspection also stands corroborated by the photographs taken during the course of inspection which also show that there was no meter installed at the site. As such electricity appears to be used by tapping with the knowledge of the accused and there does not appear to be any reason to doubt the testimony of the witnesses. It appears to be improbable that the accused may have been falsely implicated by the officers of the complainant.
19. In view of the above findings, I am of the opinion that the prosecution has succeeded in bringing home the guilt of the accused beyond reasonable doubt. Therefore, the accused is held guilty for the offence under Section 135 of the Electricity Act, 2003.
Announced in the open Court ( SUKHDEV SINGH )
on 22.01.2013 Addl. Sessions Judge:
Special Electricity Court-2
KKD: Delhi.
S.C No. 59/11 State Vs. Manoj @ Sonu 17/17