Delhi District Court
Bses vs . Amit Prasad, Cc No. 452/08 Page 1 Of Page ... on 9 September, 2013
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IN THE COURT OF SHRI RAKESH TEWARI, ADDITIONAL
SESSIONS JUDGE, THE SPECIAL COURT UNDER THE
ELECTRICITY ACT 2003, SAKET COURTS, NEW DELHI
Complaint Case No.: 452/08
Police Station : Hauz Khas, New Delhi
U/s 135 of Electricity Act, 2003
Unique ID No. 02403 RO468552008
BSES Rajdhani Power Ltd.
Having its registered Office at
BSES Bhawan, Nehru Place,
New Delhi110019
and its Corporate, Legal and Enforcement Cell at
Andrews Ganj, Next to Andrews Ganj Market,
New Delhi110049
Acting through Ashutosh Kumar,
(Authorised Representative)
...Complainant
Versus
1. Amit Parshad @ Amit Prasad
S/o Shri Shankar Prasad
2. Brijesh Jha (Absconding)
Both are R/o House No. 183A,
Arjun Nagar, New Delhi
...Accused
Appearances : AR with Shri Rajesh Kumar, proxy counsel for
Shri S.S. Mittal, counsel for complainant.
Accused Amit Parshad is present on bail along with
Shri J.P.N. Gupta, Advocate
BSES Vs. Amit Prasad, CC No. 452/08 Page 1 of page 32
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Complaint instituted on : 30.07.2008
Judgment reserved on : 29.08.2013
Judgment pronounced on : 09.09.2013
JUDGMENT
1. The case of the complainant in brief is that on 005.05.2008, the officers of the complainant company namely, Shri Asit Tyagi - Business Manager Commercial, Shri Naveen Kulshrestha - Assistant Manager Power Supply, Shri Ashish - Field Executive, Shri Naresh Kumar - Telephone Operator and Shri Santosh - Lineman along with other team members inspected the premises of accused persons i.e. House No. 183A, Arjun Nagar, Division Hauz Khas, New Delhi and it was found that the premises was being used by accused Amit Parshad and Shri Brijesh Jha and it was further found that no electricity meter was installed at the said premises and that accused was illegally using the electricity by directly tapping from the BusBar of the complainant company with the aid of illegal tappings/ wires, which were further connected to load of the said premises. It is further mentioned in the complaint that the connected load of 13.55 KWs was found being connected / used through stolen energy by the accused persons for commercial and domestic purposes i.e. construction. It is further mentioned in the said BSES Vs. Amit Prasad, CC No. 452/08 Page 2 of page 32 3 complaint that photographs were clicked and that illegal tappings/ wires of black, yellow and blue colour were also seized and inspection report in which the sketch of manner of theft was also shown, load report and seizure memo were also prepared at the site, and that accused persons had refused to sign the said documents, thus, accused were causing wrongful loss to the complainant and wrongful gain to themselves and were thus acting dishonestly.
2. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per the DERC regulations and tariff order was raised by the complainant for Rs.5,03,990/ with due date as 07.07.2008 and was served upon the accused but they failed to pay the said theft bill.
3. The case was fixed for presummoning evidence and accused were summoned to face the said allegations by my Ld. Predecessor vide his order dated 16.02.2009. My Ld. Predecessor vide his order dated 17.09.2011 declared accused Brijesh Jha as proclaimed offender. Accused Amit Parshad appeared and supplied with the documents and CD of BSES Vs. Amit Prasad, CC No. 452/08 Page 3 of page 32 4 photography. My Ld. Predecessor vide his order dated 01.10.2011 framed notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 of the Electricity Act, 2003 against the accused Amit Parshad and accused pleaded not guilty and claimed trial on the ground that the said flats stood sold out to different persona and that he was never the user of the said flats and that his father was the owner of the land, whereupon said flats were constructed by consortium of builders and said builders mights have committed theft of electricity and that he was not committing any theft of electricity and that false and fabricated case has been made out against him and that he is not liable to pay any damages and loss to the complainant company.
4. In order to prove the case of the complainant, four witnesses were produced, which have been discussed below.
5. The statement of accused Amit Parshad @ Amit Prasad was recorded U/sec. 313 Cr.P.C. and accused pleaded his innocence and denied the evidence as false and answered that he was not present at the premises at the time of inspection and BSES Vs. Amit Prasad, CC No. 452/08 Page 4 of page 32 5 that inspected premises was initially owned by his mother and there was no Power of Attorney in his favour and that he was not associated with the said premises personally and that he was not aware if any theft of electricity was being committed in the premises. Accused further answered that none of the documents was prepared in his presence and he had no knowledge of the connected load. Accused further answered that he was residing at the 137A, Arjun Nagar, New Delhi at the time of inspection and that he was neither the owner nor the user/occupier of any of the flats constructed in the premises in question and that he was not builder by profession nor he was associated with the construction allegedly carried out at the premises in question. Accused answered that he was national level shooter and he also provides training to upcoming shooters. Accused answered that there were several owners, occupiers and users at the premises in question and that there were 78 electricity connections in the premises in question and that a false and fabricated case has been made against him. Further, accused opted to lead defence evidence and produced DW1 and DW2 in his defence, which have been discussed below.
BSES Vs. Amit Prasad, CC No. 452/08 Page 5 of page 32 6
6. After recording depositions of DWs, ld. counsel for accused filed an application u/s. 313 Cr.P.C., which was allowed and additional statement of accused was recorded u/s. 313 Cr.P.C. and in his said statement accused exhibited documents Ex. D1 to D23, which he could not exhibit in his earlier statement.
7. I have heard the counsel for the complainant and counsel for the accused Shri J.P.N Gupta, Advocate, and perused the record including the CD of photography displayed on the computer screen of the court.
8. PW1 Shri Ashutosh Kumar is the A.R. of the complainant who proved his General Power of Attorney on behalf of the complainant company as Ex. PW1/1 and he also proved the complaint Ex. CW1/3 and identified the signatures of previous A.R., Shri Binay Kumar on the said complaint and he further proved letter of authority of the previous A.R. as Ex. CW1/1 and he deposed that he has no personal knowledge of the facts of the case. In his cross examination on behalf of the accused, he replied that he did not visit the premises in question. BSES Vs. Amit Prasad, CC No. 452/08 Page 6 of page 32 7
9. PW2 Shri Naveen Kulshreshtha was the Business Manager of complainant company, who deposed that on 05.05.2008 at about 3.15 p.m. he along with Shri Asit Tyagi - Business Manager, Shri Naresh Kumar - Telephone Operator, Shri Ashish Saini - Field Executive and Shri Santosh - Lineman visited and inspected the premises of the accused Amit Prasad i.e. House No. 183A, Arjun Nagar, New Delhi and on reaching the said premises they found that the said premises was consisted of four floor excluding ground floor, which was parking and that they checked the bus bar which was installed at the parking and that they further found that one cable was directly connected to busbar, which was further connected to 2nd, 3rd and 4th Floor of the said premises, where construction work was going on and said flats were vacant at the time of inspection. PW2 did not remember the description of said illegal cable. PW2 further deposed that there was no electricity meter installed for 2nd, 3rd and 4th floor of the said premises and on each floor there was construction work was going on in the said premises. PW2 deposed that workers present at the spot disclosed name of accused Amit Prasad as builder, owner and BSES Vs. Amit Prasad, CC No. 452/08 Page 7 of page 32 8 user of the said premises, and said Amit Prasad was engaged in the business of selling the building after construction. PW2 deposed that they assessed the connected load of the said premises, which was being used for construction purpose without any electricity meter and total connected load was approximately 13.5 KW for nondomestic purpose. PW2 proved the photographs Ex. CW2/5. PW2 proved the inspection report and load report as Ex. CW2/1 and Ex. CW2/3. PW2 deposed that they prepared all the documents and same were offered to one Brijesh, who was labour supervisor and representative of the accused to sign and accept the same but he refused to do so and stated that he was only an employee and said Brijesh made a phone call and accused Amit Prasad reached at the spot. PW2 could not identify the accused due to lapse of almost four years. PW2 also proved seizure memo Ex. CW2/3 vide which illegal cables of yellow, blue and black colour were seized and same were proved collectively as Ex. P2 and he deposed that the seized wires could not be sealed as there was no material to melt the lac. PW2 further proved copy of seizure memo Ex. P1 and he also proved the CD of videography and photography as Ex. CW2/6.
BSES Vs. Amit Prasad, CC No. 452/08 Page 8 of page 32 9
10. In his cross examination on behalf of the accused, PW2 replied that there were five members in the inspection team and at the relevant time his designation was Assistant Manager, Power Supply and that he was not the head and head of the inspection team was Asit Tyagi. PW2 answered that there was no vacant place adjoining the said building and that he did not remember the house of the of the premises on the right or left of the premises in question and he also did not remember as to whether there had been gate installed in the building as the said building was under construction. PW2 answered that no independent witness was associated at the time when said Brijesh refused to sign the documents and that the meter report was prepared by Shri Ashish Saini, wherein it has been written that "no meter at site" and that the said report was correct. PW2 answered that the premises in question was not occupied as the same was under construction at the time of inspection and he could not disclose the source of information on the basis of which said inspection was conducted. PW2 did not remember as to whether there was any park nearby the premises in question.
BSES Vs. Amit Prasad, CC No. 452/08 Page 9 of page 32 10
11. PW3 Shri Aashish Saini was the Field Executive in the complainant company who deposed almost on the lines on which PW2 had deposed and as mentioned in the complaint. PW3 further deposed that they asked about the owner from one Brijesh and who told them that Amit Prasad was constructing the premises in question and that he was also the owner of the said premises and he was working for Amit Prasad. PW3 also proved inspection report, load report, seizure memo as Ex. CW2/1, Ex. CW2/2 and Ex. CW2/3 respectively and he also proved and identified photographs collectively as Ex. CW2/5. PW3 also proved seized copper wire of black, yellow and blue colour as Ex. P2 and he deposed that the said wires could not be sealed because they had not carried with them the substances for melting the lac for sealing purposes and also because he was not authorised to seal the case property as only Business Manager was authorised to seal the same. He further proved CD of videography and photography as Ex. CW2/6. PW3 deposed that said Brijesh made a call to Amit Prasad, who reached at the spot, but he refused to receive and sign the documents. PW3 also identified the accused Amit Prasad BSES Vs. Amit Prasad, CC No. 452/08 Page 10 of page 32 11 correctly, who was present in the court on the day of deposition of PW3.
12. In his cross examination on behalf of the accused, PW3 replied that Shri Asit Tyagi was the Team Leader. PW3 answered that they remained at the spot for about half an hour and that there were four floor in the building and on the ground floor there were stilts. PW3 did not remember the direction of building faces, however, it was on the left hand side of the gali and he also did not remember the premises number of opposite or adjoining buildings and he also did not notice as to whether there was any park near the building. PW3 further replied that when accused refused to receive and sign the documents, they did not associate any neighbour as independent witness in the proceedings and that he did not report to police regarding the refusal of accused to cooperate in the inspection. He volunteered that it was the role of team leader. PW3 replied that they did not paste the documents prepared at site, on the wall of the premises. PW3 answered that he accepted Amit Prasad to be owner and builder of the premises as said Brijesh told him so and accused also reached at the spot on phone call BSES Vs. Amit Prasad, CC No. 452/08 Page 11 of page 32 12 made to him by said Brijesh. PW3 admitted that the 2nd, 3rd and 4th floor were unoccupied and vacant as the labour were working there. PW3 replied that he made inquiries from the occupants of adjoining premises who expressed their ignorance with regard to the ownership of the 2nd, 3rd and 4th floor and that the portion, which was inspected by him, did not have any meter. PW3 answered that inspection report Ex. CW2/1 was in his handwriting and he had written the words "no meter found at site".
13. PW4 Shri A.S. Menon, Deputy Finance Officer of complainant company deposed that after considering the inspection report, meter details report and load report, he raised that theft bill against the accused on the basis of formula given under the DERC Regulations and he also proved the said theft bill Ex. CW2/4. In his cross examination on behalf of the accused, he answered that the assessment of the theft bill was done with the help of computer software, programmed as per DERC Regulations. He admitted that he has no personal knowledge of the present case. He denied the suggestion the theft bill Ex. Cw2/4 was wrong and arbitrary. BSES Vs. Amit Prasad, CC No. 452/08 Page 12 of page 32 13
14. DW1 Shri Manoj Kumar was produced by the accused and he deposed that he knew accused Amit Prasad since last 67 years and accused was doing business of artificial, gold and silver jewellery items. DW1 further deposed that accused was State level shooter since last 1012 years and he also provided shooting for upcoming shooters. DW1 deposed that he first met accused Amit Prasad in the year 200607 and he was residing at House No. 137A, Arjun Nagar, New Delhi at that time and in year 200809 accused shifted to P10, Green Park Extn., and since then he is residing at said premises with his family. PW3 deposed that as per his knowledge, accused Amit Prasad never resided at House No. 183A, Arjun Nagar, New Delhi nor he was the owner, occupier or used of the said house.
15. In his cross examination on behalf of complainant company, DW1 replied that accused was his friend and he had visited the house of the accused at P10, Green Park Extn., New Delhi and that he did not visit the house of accused situated at House No. 137A, Arjun Nagar, New Delhi, however, he had dropped him outside the said house. DW1 replied that he knows the father of accused namely Shri Shankar Prasad. DW1 BSES Vs. Amit Prasad, CC No. 452/08 Page 13 of page 32 14 did not know about the property of Shri Shankar Prasad and accused Amit Kumar Prasad and he only knew that they were busy in business of jewellery and accused was shooter by profession. DW1 had no knowledge as to whether the premises in question belonged to accused or father of the accused in year 2008. DW1 was teacher by profession. DW1 admitted that he had not filed any document which could show that accused and his father were engaged in business of jewellery and DW1 had no knowledge as to whether accused carried out the construction work in the premises in question.
16. DW2 Shri Kapil Singh Chaprana also produced on behalf of accused, deposed that he knew accused Amit Kumar Prasad since last 1415 years. DW2 deposed that accused Amit Kumar Prasad was residing at 137A, Arjun Nagar, New Delhi since year 200102 and he was residing on the said address in the year 2008 and that thereafter accused shifted to P10, Green Park Extn., New Delhi and he was still residing at the said address. DW2 deposed that accused was never user, owner or occupier of the property bearing no. 183A, Arjun Nagar, New Delhi and that accused never had any connection with the said property. BSES Vs. Amit Prasad, CC No. 452/08 Page 14 of page 32 15 DW2 further deposed that accused was doing business of artificial jewellery at Arjun Nagar, where he had been selling artificial as well as some original jewellery and that accused was State level pistol shooter and had owned several shooters.
17. In his cross examination on behalf of complainant company, DW2 replied that he was not summoned witness and that had come to court at the instance of accused. DW2 answered that he was informed that present case pertained to theft of electricity. DW2 replied that he used to visit the house of accused i.e. once or twice in a year on the said two addresses as deposed by him i.e. at Arjun Nagar and Green Park Extn. DW1 did not remember the name of the father of the accused and that accused had not shared with him as to how many properties accused had purchased in Delhi or that from how many sources accused was earning his livelihood and money. DW2 could not say as to whether house no. 183A, Arjun Nagar, New Delhi belonged to father of the accused and whether the accused and his father were using the same. DW2 did not know as to whether accused was doing anything except the said training given by him to upcoming shooters and said business BSES Vs. Amit Prasad, CC No. 452/08 Page 15 of page 32 16 of artificial jewellery and he had no knowledge as to whether accused was raising construction at the premises in question on the date of inspection.
18. It has been contended on behalf of the accused that my Ld. Predecessor of this court vide order dated 04.08.2009 directed the purchaser of the flats in the premises in question with regard to their actual possession to be present before the court and this direction was passed as the accused had placed on record certain sale deeds in order to prove that accused was not concerned with the premises in question in any manner whatsoever and it was his mother and his father as GPA of his mother, who sold the said flats in the premises in question to the different purchaser. It is further pointed out that vide order dated 04.11.2009, the flat purchaser namely Deepak Ghai, Sheela Ghai, Nanki Devi and Surender Kumar Rawal were present before the court and Shri Surender Kumar Rawal purchased the flat in the premises in question on 16.01.2006 from Shankar Prasad, father of accused Amit Prasad and he was directed to file the copy of sale deed on the next date. The accused Amit Prasad also filed certified copy of the sale deed BSES Vs. Amit Prasad, CC No. 452/08 Page 16 of page 32 17 executed by his mother Smt. Chanda Devi in favour of Syro Malabar Mission and said Mission was also allowed to be summoned on the next date. It is further pointed out that 3 rd certified copy of the sale deed filed by accused Amit Prasad was executed by his father Shri Shankar Prasad in favour of Smt. Nanki Devi on 25.10.2007 and the inspection in the premises in question with regard to theft of electricity was carried out on 05.05.2008. 4th sale deed was executed by Shri Shankar Praasad in favour of Ms. Shobhna Rana on 18.04.2006 and she was directed to be summoned for the next date. 5th sale deed also executed by Shri Shankar Prasad in favour of Shri Om Pal Singh was dated 25.04.2006 and said Om Pal Singh was also directed to be summoned for the next date. 6th sale deed was executed by Smt. Chanda Devi in favour of Domini Joseph and Annie Domini on 30.01.2006, who were also summoned for the next date. 7th sale deed was executed by Shri Shankar Prasad in favour of Shri Deepak Ghai on 26.12.2005 and said Deepak Ghai was present before the court and made a submission that he was the owner of the flat purchased from Shri Shankar Prasad from the date of execution of the aforesaid sale deed till date and he also got installed the separate electricity meter in the BSES Vs. Amit Prasad, CC No. 452/08 Page 17 of page 32 18 said flat in the year 2008 but the meter which was installed in the name of Shankar Prasad was being used by Shri Deepak Ghai since the time the flat was purchased by him till the name of the consumer was changed in February 2008 and said Deepak Ghai was paying regular bills against the meter installed at the premises since the time the flat was purchased by him.
19. It is also noted in the said ordersheet dated 04.11.2009 that A.R. and the counsel for the complainant submitted that theft of electricity was detected on 02nd, 3rd and 4th floors of the premises in question and Smt. Nanki Devi admitted that she was residing on the 3rd floor and Shri Deepak Ghai admitted that he was the owner of the upper ground of the premises in question.
20. It is also noted in the said ordersheet that from the forgoing discussion it revealed that Smt. Nanki Devi and Shri Deepak Ghai admitted the fact of purchase of flats of the premises in question prior to the date of inspection and that accused Amit Prasad submitted that premises in question was constructed in a way as lower ground, upper ground, first floor, BSES Vs. Amit Prasad, CC No. 452/08 Page 18 of page 32 19 second floor and third floor and the A.R. and the counsel for the complainant had stated that there were total five floors and total ten flats were constructed at the premises in question and that accused Amit Prasad admitted that there were total nine flats i.e. one flat on lower ground and the other eight flats are on upper ground, first, second and third floor. It is also noted that A.R. of the complainant submitted that Deepak Ghai and Smt. Sheela Ghai were the users of the flat on upper ground, whereas theft of electricity found on 2nd, 3rd and 4th floor and my Ld. Predecessor discharged said Deepak Ghai and Smt. Sheela Ghai as having no role and concern with the theft of electricity and held that there are chances that Nanki Devi might be the user of electricity connection and also having concern with the theft of electricity and Smt. Nanki Devi was directed to appear in the proceedings of this case till further order.
21. It is further submitted that thereafter in the further ordersheets some efforts were made regarding that Surender Rawal, Om Pal , Domini Joseph and Annie Domini as mentioned in order dated 17.07.2010 and thereafter, the accused Brijesh Jha was declared as proclaimed offender on BSES Vs. Amit Prasad, CC No. 452/08 Page 19 of page 32 20 17.09.2011 and said inquiry disappeared as there was change in the Presiding Officer, who dismissed the application of accused Amit Prasad u/s. 245 Cr.P.C., wherein prayer to discharge the said accused was made and notice was framed against the accused on 01.10.2011.
22. It is contended that in the said manner the inquiry towards innocence of the accused, was hushed up.
23. I am of considered opinion that the said inquiry was rightly hushed up and notice was rightly framed against the accused by my next Ld. Predecessor vide his order dated 10.01.2012 and 01.10.2011 respectively because the said inquiry conducted by my earlier ld. Predecessor is not provided by any procedure established by law. In a complaint case, the cognizance taking court has the option either to send the complaint for registration of FIR u/s. 156 (3) Cr.P.C. or to record the presummoning evidence u/s. 200 Cr.P.C. and thereafter to take a decision with regard to issuance of the process against the accused and if the process is issued against the accused, the notice u/s. 251 Cr.P.C. is to be mandatorily framed against the BSES Vs. Amit Prasad, CC No. 452/08 Page 20 of page 32 21 accused because of use of word "shall" in section 251 Cr.P.C. and there is no procedure that after the appearance of the accused and before framing of notice, court taking the cognizance, can conduct any sort of inquiry as was done in this case. Furthermore, calling the said alleged purchasers of the flats in the premises in question and recording their submissions and drawing the inferences from the said submissions was nothing but a violation of principles of natural justice as the complainant was not given a chance to cross examine the said purchasers of the flats and the whole proceedings were one sided. This has more so became evident in this case that at the appropriate stage of the trial, accused Amit Prasad has miserably failed to produce the said alleged purchasers in his defence which earlier appeared before my ld. Predecessor, so as to give a chance to complainant to cross examine them in order to know the veracity of the depositions of the said purchasers. Although, section 245 Cr.P.C. was not available to the said accused in the present complaint case under which the accused has moved the application which was dismissed by my next ld. Predecessor vide order dated 10.01.2012, but the reasoning given in the said order for rejecting the request of the accused to BSES Vs. Amit Prasad, CC No. 452/08 Page 21 of page 32 22 discharge him is hereby endorsed by me also. Thus, the said contention of the ld. defence counsel does not hold much water and same is hereby rejected.
24. It has been further contended on behalf of the accused Amit Prasad that deposition of PW2 to the effect that workers present at the spot disclosed the name of the accused Amit Prasad as builder, owner and user of the premises, who was engaged in the business of selling the buildings after constructing the same and deposition of PW3 that to the effect that they asked about the owner of the premises whose name was Brijesh (Absconder accused) and the said Brijesh told them Amit Prasad was constructing the premises in question, are nothing but hearsay which are not admissible under the law.
25. The said contention is based on the wrong understanding of hearsay rule as is understood in the Law of Evidence. Grammatically speaking, if "first person" tells the "the second person" regarding whatever said or done by a "third person" and if "second person" wants to depose what he heard from "first person" regarding "third person", then the said BSES Vs. Amit Prasad, CC No. 452/08 Page 22 of page 32 23 deposition of "second person" will amount to "hearsay" and is inadmissible under the Law of Evidence, for the simple reason that the oral evidence must be direct which means the oral deposition must be of such a person who perceived a fact by his own five senses. But in the present case, both PW2 and PW3 did not merely hear about accused Amit Prasad as the person constructing the flats in the premises in question but they came to know regarding accused Amit Prasad in response to their question put to the persons who were present at the spot and not only that, as per deposition of both the said witnesses, the said Brijesh gave a phone call to accused Amit Prasad informing him regarding the inspection and documents offered to him to be signed by the officials of the electricity department, accused Amit Prasad reached the spot also and he was asked to receive the documents and acknowledge the same but accused Amit Prasad refused to receive and signed the documents. The said depositions regarding reaching and the presence of the accused Amit Prasad at the spot in the said manner, is corroborated by the videography contained in the CD, Ex. CW2/6, wherein accused Amit Prasad has been covered as present at the spot and the said witnesses also identified the BSES Vs. Amit Prasad, CC No. 452/08 Page 23 of page 32 24 accused as the person present in the court also. It is not the case of the accused that he was called by Brijesh at the spot for seeking some help or as a guest. Thus, the said contention is hereby rejected being meritless.
26. It is further contended on behalf of the accused that said witnesses had deposed that there was no meter at the premises which was inspected but one of the purchaser Smt. Nanki Devi had admitted before this court as per said ordersheet written by earlier ld. Predecessor of this court that she was having a meter in her flat in the premises in question.
27. This contention is boneless because of said reasons already given by me while discussing the first contention of the accused regarding the said inquiry conducted by my said ld. Predecessor. Even otherwise, nobody had stopped accused Amit Prasad from producing the said Smt. Nanki Devi in the witness box in his defence but same was not done for the reasons best known to the accused.
BSES Vs. Amit Prasad, CC No. 452/08 Page 24 of page 32 25
28. It is further contended on behalf of the accused that the seized illegal wire was not sealed. The contention is meritless in view of the explanation tendered by PW2 and PW3 in their respective examination in chief that they did not carry with them the substance for melting the lac for sealing purposes at the relevant time.
29. The other contentions that the said two PWs could not give the location of the premises or there was contradiction with regard to the fact as to who refused to receive the documents, whether Brijesh or the accused Amit Prasad, are not of much help to the accused because of lapse of time between the date of inspection and the respective dates of their depositions.
30. It has been further contended on behalf of the accused that no independent public witness was joined or the matter was not informed to the police. Regarding the second part of the contention, the officials of the complainant were not obliged under the law to inform the police because they were otherwise empowered by the law to take appropriate action as BSES Vs. Amit Prasad, CC No. 452/08 Page 25 of page 32 26 per law in case of refusal of the accused to receive the documents. The first part of the contention that no independent public witness was joined, is nothing but wrong understanding of the provisions of the Electricity Act, 2003, which provides to the licensee the power of "search and seizure"
only and not the "police powers", which means, they cannot force any public person to be a witness by issuing him a notice u/s. 160 Cr.P.C. or recording his statement u/s. 161 Cr.P.C., which can be done by an IO while investigating a case under the "police powers" provided by the Code of Criminal Procedure and the law also provides that if any public person fails to comply with the directions given by the IO, the said public person may expose himself to a criminal charge under IPC. Thus, no benefit can be given to the accused in view of the said position of law, of the fact of not joining an independent public person at the time of inspection.
31. On the other hand, it is submitted by the counsel for complainant that there is no denial of the meters installed at the premises in question, but there was no meter in the portion of the premises which was inspected and the machines such as for BSES Vs. Amit Prasad, CC No. 452/08 Page 26 of page 32 27 grinding the floor for smoothing the same, etc. were being used as part of the construction by way of direct tapping of electricity as mentioned above.
32. In the said circumstances, I am of considered opinion that presumption provided in the 3rd proviso to section 135 of the Electricity Act, 2003 has arisen against the accused in the present case and it was for him to rebut the same.
33. The accused is not required to rebut the presumption as raised in the 3rd proviso to section 135 of the Electricity Act, 2003, "beyond reasonable doubt" and it has been held by the Hon'ble Supreme Court in case titled Hiten P. Dalal Vs Bratindranath Banerjee cited as 2001 (6) SCC 16 in para 20 as follows:
".....Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
BSES Vs. Amit Prasad, CC No. 452/08 Page 27 of page 32 28
34. Judging in the light of the said law laid down by the Hon'ble Apex Court, let me turn towards the defence of the accused.
35. The accused took a major defence that he has nothing to do with the premises, which belonged to his mother and some of the flats constructed in the same were sold by his mother and some flats were sold by his father being the GPA of his mother and that he was residing elsewhere.
36. In order to substantiate the said defence, he has produced 23 documents in his additional statement u/s. 313 Cr.P.C. which are Ex. D1 to D23. Ex. D1 to D6 are the documents such as passport, driving license, ration card, bank passbooks and voter identity card, were produced to show that prior to , subsequent to and on the date of inspection of the premises in question he was residing at the addresses mentioned in the said documents. Ex. D14 to D20 are some certificates, which were produced to show that he was a pistol shooter and was also imparting the training of the said pistol BSES Vs. Amit Prasad, CC No. 452/08 Page 28 of page 32 29 shooting to the upcoming shooters. Documents Ex. D21 to D23 have been produced to show that accused was engaged in the business of artificial and real jewellery and by all these documents he tried to show that he was in some other business and was residing elsewhere.
37. Even if, I take the said documents as proved, the same nowhere go to establish that he was not concerned with the business/ construction work going in the premises in question where the theft of electricity was being committed. His appearance in response to the phone call given by accused Brijesh (now absconder) and his presence at the spot and conduct at the relevant time as deposed by the said PW2 and PW3 not only go to uproot the said defence but establish a confirmed concern of the accused with the portion of the premises where the inspection was carried out.
38. Further, in response to the question put to the accused in the notice u/s. 251 Cr.P.C., he took stand that his father was the owner of the land whereon flats were constructed by a consortium of builders who might have committed theft of BSES Vs. Amit Prasad, CC No. 452/08 Page 29 of page 32 30 electricity. Neither anyone of the said builders nor the father was produced by the accused in the witness box to substantiate his said stand taken in his defence. Similarly, he even did not produce his mother, being the owner of the premises in question, who also sold some flats to the said alleged purchasers, in the witness box so that the truth would have come on the surface. At the cost of repetition, I am of the opinion that it was the stage of rebuttal of the said presumption that the said alleged purchasers should have been produced, but no such effort was made on behalf of the accused. Further, this is an admitted position that there were nine flats in the premises in question and only seven sale deeds were produced on the record, even if to be taken as proved, go to justify the submission of the counsel of the complainant that the portion of the premises in question, where the inspection was carried was neither having any electricity meter nor the same was being occupied by anyone.
39. DW1 and DW2 have deposed that accused Amit Prasad was residing at house no. 137A, Arjun Nagar, New Delhi and later on he shifted to premises no. P10, Green Park Extn., New BSES Vs. Amit Prasad, CC No. 452/08 Page 30 of page 32 31 Delhi and he never resided at house no. 183A, Arjun Nagar, new Delhi nor he was the owner, occupier or user of the said house and that the accused was dealing in artificial jewellery as his main profession and he was a national and State level pistol shooter. However, in their respective cross examinations they showed their ignorance as to whether accused or his father were engaged in construction business and they have no knowledge as to whether the construction work was carried out by the accused in the premises in question or not. DW2 even could not tell if house no. 183A, Arjun Nagar, belonged to the father of the accused or that the father of the accused and the accused, both were using the same. He had no knowledge if on the date of inspection, the accused was making construction at the said premises in question or that in the said process he was committing theft of electricity.
40. With said evidence in defence, I am of considered opinion that accused has miserably failed to make the court believe the factum of his innocence from a "prudent man's" point of view and thus, he failed to rebut the presumption in all respects. BSES Vs. Amit Prasad, CC No. 452/08 Page 31 of page 32 32
41. In view of the unassailed testimony of PW2 and PW3 on the record, who were having no axe to grind against the accused, I am of considered opinion that the complainant has been successful in bringing home the guilt of the accused beyond reasonable doubt and accordingly, the accused Amit Prasad is held guilty and convicted for the offence u/s. 135 of the Electricity Act, 2003. The said evidence on the record shall be read against the absconder accused Brijesh as and when he is arrested or brought to the books. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 09.09.2013 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BSES Vs. Amit Prasad, CC No. 452/08 Page 32 of page 32