Delhi District Court
Brpl vs Suresh Chand Toakas & Ors. Cis No.400/18 ... on 7 January, 2019
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IN THE COURT OF MS. NEELAM SINGH, ADDL. SESSIONS JUDGE, THE
SPECIAL COURT UNDER THE ELECTRICITY ACT 2003,
SAKET COURTS, NEW DELHI
Complaint Case No. : 213/2018
Police Station : Vasant Vihar
U/s : 135 of Electricity Act, 2003
CIS No. : 400/18
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,
Near Andrews Ganj Market,
New Delhi110049.
Acting through Sh.Binay Kumar
(Authorised Officer)
...Complainant
Versus
1. Suresh Chand Tokas (R/C)
2. Roshni Devi (User)
Both At:
H.No.352V/4, Second Floor, VillageMunirka,
Near Girls School, New Delhi110067 ...Accused
Complaint instituted on : 17.04.2018
Judgment reserved on : 07.01.2019
Judgment pronounced on : 07.01.2019
BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 1 of 19
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JUDGMENT
1. Complaint u/sec. 151 of the Electricity Act, 2003 (hereinafter called as 'the Act') has been filed by the complainant company against accused Suresh Chand Tokas, Roshni Devi and Vinay for the offence punishable u/s. 135 of the Act. Determination of civil liability has also been prayed for.
2. As per the complaint, the case of the complainant in brief is that on 15.01.2018, a raid was conducted upon the premises i.e. H.No.353V/4, Second Floor, VillageMunirka, Near Girls School, New Delhi110067. It is further mentioned in the complaint that accused Suresh Chand Tokas was found to be the Registered Consumer of meter bearing no.21125719 which was found to be bypassed at the time of inspection. Accused Roshni Devi and Vinay were found to be user of electricity at the premises in question. During inspection, accused were indulged in theft of electricity by directly tapping from BSES Bus Bar with the help of illegal wire. Total connected load of 4.890 KW for domestic purpose was found at site. It is further mentioned in the complaint that inspection team seized meter bearing no.21125719 and illegal wire used by accused for committing theft. It is further mentioned in the said complaint that inspection report and load report were prepared at site and necessary videography was also conducted at the spot. BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 2 of 19 3
3. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per DERC Regulations and tariff order, was raised by the complainant for Rs.97,663/ with due date as 31.01.2018 and as the accused failed to pay the same, hence, the present complaint.
4. The case was fixed for presummoning evidence and accused were summoned to face the said allegations vide order dated 17.04.2018.
5. Notice u/s. 251 Cr.P.C. was framed against accused Suresh Chand Tokas and Roshni Devi on 21.07.2018 to which they pleaded not guilty and claimed trial. Accused Vinay was reported to be tenant at the premises in question and further reported by the accused persons that he (Vinay) has left the premises and they are not aware about his whereabouts.
6. The complainant in support of its case has examined five witnesses.
Complainant evidence was closed thereafter.
7. Accused Suresh Chand Tokas and Roshni Devi were examined u/s. 313 Cr.P.C. on 25.10.2018 to which they pleaded their innocence and denied the evidence as incorrect and answered that they were not committing any theft of BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 3 of 19 4 electricity at the premises in question on the date of inspection. Accused in their civil case bearing no.400/18 have examined two witnesses namely B. Saran Bhoyte and Sh. Krishan Tokas as PW3 & PW4 respectively and on the submission of counsel for accused persons, both these witnesses are considered as defence witnesses in the present case.
8. PW1 Sh.Amit Kumar SharmaManager, BRPL who deposed that he alongwith other raiding team members namely Sh.Chander KantDiploma Holder, Sh.Yash SharmaLineman and Sh.Harish GuptaVideographer visited and inspected the premises i.e. H.No.352, Second Floor, village Munirka, New Delhi. PW1 further deposed that on reaching the spot, it was found that supply of the premises in question was running directly and a changeover switch was installed at the first floor. PW1 further deposed that he switched off the MCBs and changeover switch installed in the premises in question but the supply of premises in question was still running. The connected load of third floor was assessed which was found to be 4.890 KW for domestic use. PW1 further deposed that change over switch, meter and illegal wires were removed from the site. He identified the case property i.e. meter bearing no.22923809 as Ex.P2, white colour changeover MCB as Ex.P3 and two pieces of yellow colour cable as Ex.P4(colly). He further proved the BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 4 of 19 5 inspection report, load report and seizure memo as Ex.CW2/1 to Ex.CW2/3. PW1 further deposed that said documents were offered to one Vinay, caretaker of the premises in question, however he refused to accept the same.
9. In his crossexamination on behalf of accused, PW1 replied that inspection report Ex.CW2/1 was prepared by him. PW1 admitted that the meter number mentioned in the inspection report at page no.9 at point X is 21125719 whereas the meter number mentioned in running page no.10 at point Y is 21133780. PW1 admitted that the number of meters mentioned at point X and Y are different. PW1 further replied that the correct number of meter in question is 21125719. PW1 replied that he told the caretaker to call the owner of the premises. PW1 further replied that the raid was not conducted in the presence of owner of the premises in question. PW1 further replied that inspection was conducted in the presence of caretaker of the owner namely Vinay and also pointed out him in the videography. PW1 admitted that handing over the documents to the caretaker is not depicted in the videography. PW1 replied that it was a mass raid and a lady at the premises in question ran away from the roof after seeing them which created doubt in their mind and thus raid was conducted at the premises in question. PW1 further replied that inspection was conducted with the help of Vinay BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 5 of 19 6 who disclosed himself as caretaker of the premises in question. PW1 further replied that police officials were with them during inspection. PW1 further replied that he inspected the entire premises and at that time there was no commercial activity going on. PW1 further replied that there was no generator at site at the time of inspection. He denied the suggestion that the changeover switch was not there at the premises for using the invertor. PW1 admitted that after meter was off (MCB), there was electricity supply at the premises. PW1 further replied that theft was being committed through the illegal wire from Bus Bar to the changeover switch. PW1 further replied that the bus bar was situated at the ground floor and the change over switch was at the stairs of first floor. PW1 further replied that there is no requirement of cutting the wire in case of direct theft from the Bus Bar and the said fact is clearly depicted in the videography.
10. PW2 Sh.Chander KantDET, who deposed in favour of the complainant company as per complaint. He also identified the reports prepared at site. He also identified videography as well as seized wire.
11. In his crossexamination on behalf of accused, PW2 replied that documents were offered to one Vinay, who was the tenant at the premises in question. BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 6 of 19 7 He admitted that handing over of documents to Vinay is not depicted in the videography. He proved the documents Ex.PW2/D1(Colly). PW2 further replied that the theft was first witnessed by the Technician who saw a lady running inside the premises in question from a gali to the premises which created doubt in their mind and thus, raid was conducted at the premises in question.
12. PW3 Shri G. B. Barapatre, the DGM (Finance), who deposed that he prepared the theft bill Ex.CW2/4 in the present case.
13. PW4 Sh.Harish GuptaVideographer who conducted the videography of the connected load during inspection as per the instructions of team leader which he correctly identified and proved the same as Ex.CW2/5.
14. PW5 Sh.Binay Kumar, A.R. of the complainant company proved his General Power of Attorney and filing of present complaint by him.
15. Arguments rendered by ld. Counsel for complainant company;
15.1 It is argued that on 15.01.2018, H.No.352V/4, Second floor, Munirka Village was visited and inspected by the inspection team headed by team BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 7 of 19 8 leader namely Sh.Amit Kumar Sharma and on reaching the premises, the team leader found that the premises is consisted of five floors and accordingly all the five floors were visited and inspected. It is further submitted that five separate complaints were made for the said premises against accused persons and out of these five criminal complaint, four have been sent to the concerned police station for registration of the FIR.
15.2 It is further submitted that although five meters were installed at the premises in question but there was MCB (Miniature Circuit Breaker) installed at the premises in question whereby accused have bypassed the electricity supply through meter and by this mode direct theft of electricity was committed by accused persons.
15.3 It is further submitted that in order to prove its case, complainant company has examined five witnesses who have duly proved that at the time of inspection accused were indulged in direct theft of electricity by directly tapping from the BSES Bus Bar with the help of illegal wire and also by using MCB.
BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 8 of 19 9 15.4 It is further submitted that accused Suresh Chand Tokas is the registered consumer and accused Roshini Devi and Vinay are the user of electricity at the premises in question.
15.5 It is further argued by ld. counsel for the complainant company that present case is booked for direct theft of electricity and it has been held in number of cases by the Hon'ble High Court of Delhi that in the cases of direct theft of electricity within the meaning of Section 135 of the Electricity Act, 2003, the complainant company is required to establish the following ingredients before the Court:
(a) identity of the accused and the premises in question.
(b) connection of the accused with the premises in question.
(c) that accused was indulged in direct theft of electricity at the premises in question during inspection.
15.6 It is further submitted by ld. Counsel for the complainant company that identity of the accused persons and connection of accused with premises in question are not disputed and the witnesses deposed before this court and the documents placed before this Court have duly established the fact that accused were indulged in direct theft of electricity through Bus Bar. BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 9 of 19 10
16. Arguments rendered by ld. Counsel for accused persons;
16.1 On the other hand, ld. Counsel for the accused submitted that the team leader is confused about the meter in question as in the inspection report at page no.9, the meter number is mentioned as 21125719 whereas at page no.10 of the inspection report, the meter number is mentioned as 21133780 and the same has been cut with the pen and another number was mentioned i.e. 21133780.
16.2 It is further argued by ld. Counsel for accused that PW1 has submitted that he has visited and inspected the premises i.e. second floor, however, the load has been taken for the third floor so even the team leader is confused as to which floor has been visited and inspected by the team. 16.3 It is further argued that there is a huge delay in filing the criminal case before this court as the inspection was carried out on 15.01.2018 but the case before the court has been filed in the month of March 2018. It is submitted that as per provision of Section 135 of the Electricity Act, 2003, a complaint is to be filed before the concerned police station within 24 hours of the disconnection of the electricity supply of the premises. BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 10 of 19 11 16.4 It is argued that PW1 in his crossexamination has deposed that the inspection was carried out in the presence of one Vinay who was reported to be a caretaker of the accused but Vinay has not been examined by the complainant company before the Court. It is further submitted that Vinay was not the caretaker but the tenant in the premises in question. 16.5 It is further argued that there is huge violation of DERC rules and regulations to the effect that:
(a) documents were not prepared at site.
(b) documents were not pasted at site.
(a) the refusal of the documents in the hands of accused is not proved as the same is not depicted in the videography contained in the CD placed on record. 16.6 It is further argued that the story of the complainant company regarding the suspect theft of electricity at the premises in question is full of contradictions as PW2 Chander Kant has deposed in his crossexamination that he saw one lady at the roof top and she on seeing them ran away from there and for that reason the team has suspected that the direct theft of electricity might be committed at the premises in question, however, PW1/team leader has submitted that since it was a mass raid hence all the BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 11 of 19 12 premises in the vicinity were visited and inspected and thus, the story of the complainant company cannot be relied upon in this regard. 16.7 It is further argued by ld. Counsel for the accused that there is no justification given by the complainant company as to why case of theft of electricity is booked at the premises in question since there was no commercial activity being carried out.
16.8 It is further argued that it is the case of the complainant company that the illegal wire was of 15 meters which was used for committing theft of electricity at the premises in question, however, to the surprise of the accused only 9 inches wire was seized and produced before this Court. 16.9 It is further argued by ld. Counsel for accused that the inspection at the premises in question was conducted in the absence of the owner/user/RC of the premises in question. It is further argued that name of one Vinay has been inserted in the inspection report by the team later on and the inserting of name of Vinay as one of the accused is an afterthought of the complainant company as he was not present at site.
BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 12 of 19 13 16.10 It is further argued by ld. Counsel for accused that the videography is silent about the fact as to how the theft is being committed by the accused persons at the time of inspection. It is further argued that in the load report, the number of premises/floor is not mentioned then how the DFO (Deputy Finance Officer) would have ensured that he has prepared the bill for the premises which was being inspected in the present case and accordingly, the complainant company is failure in proving the theft bill. 16.11 It is further argued that no neighbour from the vicinity has been examined as witness to the proceedings by the team and even no independent witness has been examined in the present case.
16.12 It is further submitted that the present case is a false and fabricated case in order to harass the accused persons by the complainant company.
17. Arguments in rebuttal by ld. counsel for complainant company;
17.1 It is argued that PW1 in first line of his deposition has submitted about his visit to the premises in question but later on he has duly deposed that the floor booked in the present case is the third floor and accordingly, there is no confusion in the mind of team leader about the floor in question. BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 13 of 19 14 17.2 It is further argued that there is no delay in filing the present complaint before this court and as per the provision of Cr.P.C. the period of limitation of filing criminal complaint before this Court is three years and the present complaint is filed well within the period of limitation. 17.3 It is further submitted in rebuttal that the person namely Vinay and his connection with the accused persons have been duly admitted by the accused and he was not examined by the team leader since he did not turn up and furthermore, it is the case of the accused persons that Vinay was tenant at the premises in question at the time of inspection who has now left the premises during the trial.
17.4 It is further submitted in rebutttal arguments that there is no contradiction in the story of the complainant company. It is further submitted that since it was a mass raid so the premises in question was visited and duly inspected by the team. It is further submitted that even the inspection at the premises of accused persons is not disputed rather it is admitted. 17.5 It is further argued that it is not necessary to commit the theft only in the cases where the commercial activity are being carried out by the accused BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 14 of 19 15 rather the theft can be committed for using electricity for domestic purpose. It is further submitted that in the present case the sanctioned load was 2 KW but the MDI was 2.9 KW.
17.6 It is further submitted that the illegal wire was of the size 15 meters but the lineman has cut the wire to the approachable length i.e. 9 inches. 17.7 It is further submitted that there is no rule or regulation to the effect that inspection cannot be carried out by the team in the absence of owner of the premises in question.
17.8 It is further submitted in rebuttal that although in the load report number of premises is not mentioned but while preparing the theft bill documents such as inspection report etc have been placed before the DFO and accordingly, he has duly exercised his mind and prepared the theft bill in question. It is further submitted that load report is part of inspection report. 17.9 It is further argued in rebuttal by ld. counsel for complainant company that MCB cannot be used for inverter and that the same is only used either for power cut or for generator and it is an admitted case of accused that he was BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 15 of 19 16 not using any generator which is a suggestive of the fact that MCB was installed for bypassing the meter. Lastly, it is submitted by ld. Counsel for complainant company that it has been held in catena of cases decided by Hon'ble Apex Court as well as Hon'ble High Court of Delhi that rules and regulations mentioned in DERC are not mandatory and simply regulatory and thus cannot over ride the statute in any manner.
18. Arguments heard. Record perused carefully as well as gone through the CD placed on record.
19. There is absolutely no dispute regarding the identity of the accused persons and their connection with the premises in question. The case of the complainant company is that on 15.01.2018 when the inspection team reached at the premises in question, accused were found indulged in direct theft of electricity by directly tapping from BSES Bus Bar with the help of illegal wire and using total connected load of 4.890 KW for domestic purpose.
20. Generally, the prudent defence as ought to have been available for an accused who is charged with direct theft of the electricity is to show to the court that he is using the electricity by duly paying the due electricity charges as raised BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 16 of 19 17 by the complainant company from time to time, where the accused persons are an utter failure. In this regard, reliance can be placed upon a judgment titled as Mukesh Rastogi Vs. North Delhi Power Limited, in Criminal Appeal No. 531/2007, decided on 23.10.2007, wherein the Hon'ble High Court has held as under: ".........6. The contention of the appellant is that electricity supply was through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through meter. Under Section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
7. "I consider that even if the inspection was not a valid inspection, complainant had a right to prove theft of electricity BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 17 of 19 18 done by the appellant irrespective of the status of inspection. The invalid inspection does not make theft of electricity as a non crime. Theft of electricity remains a crime irrespective of fact that inspection is valid or not. Supreme Court in State & Ors. v. N. M. T. Joy Immaculate 2004(5) SCC 729 observed that admissibility or otherwise of a piece of evidence has to be judged having regard to the provisions of the Evidence Act. Neither Evidence Act nor Cr.P.C. or any other law excludes relevant evidence on the ground that it was obtained under an illegal search or seizure. I, therefore, consider that even if the inspection was not conducted by an Officer as designated under the notification date 31st March,2004, the members of the inspection team, who had visited the site and found that electricity being stolen are competent witnesses to depose in the Court about the theft of electricity and the manner in which electricity was being stolen....."
21. Further, the issue arises as to what extent, the accused has to discharge his burden and the said issue was answered by the Hon'ble Supreme Court in the judgment 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'."
BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 18 of 19 19
22. Judging in the light of the said law laid down by the Hon'ble Apex Court, let me turn to the defence of the accused persons (two witnesses examined on behalf of accused in their civil suit bearing no. 135/18 namely B. Saran Bhoyte and Sh. Krishan Tokas as PW3 & PW4 respectively and adopted here as defence witnesses) however, nothing relevant comes out from their testimony to rescue the accused persons that they were using the electricity at the time of inspection by paying due charges and were not indulged in any kind of theft of electricity, hence accused have miserably failed to show a reasonable probability of their defence that the electricity was being consumed against payment through bills or they himself were not liable for any alleged theft. On the other hand, PW1 and PW2 have been successful in proving the guilt of the accused persons beyond reasonable doubt. Hence, accused Suresh Chand Tokas and Roshni Devi are held guilty for the offence u/s. 135 of the Electricity Act, 2003. Now, to come up for arguments on the point of sentence and determination of civil liability on 10.01.2019.
Announced in the open ( NEELAM SINGH)
Court on 07.01.2019 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
BRPL VS SURESH CHAND TOAKAS & ORS. CIS No.400/18 Page no. 19 of 19