Delhi District Court
Brpl vs . Deen Mohd. & Anr. Sc No.6587/16 Page No. ... on 20 November, 2017
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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
Session Case No. : 6587/16
FIR No. : 662/14
Police Station : Fatehpur Beri, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406 RO211272016
STATE
...Complainant
Versus
(i) Deen Mohd.
(ii)Karima @ Kariman
Both resident of premises in front of
House No. 156, Village Chandan Holla,
New Delhi110074
...Accused
Case instituted on : 22.02.2016
Judgement reserved on : 20.11.2017
Judgement pronounced on : 20.11.2017
BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 1 of 15
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JUDGEMENT
1.Accused Deen Mohammad and Karima @ Kariman have been charge sheeted by PS Sangam Vihar for the offence punishable u/sec.135 of the Electricity Act, 2003 (hereinafter called as 'the Act').
2. FIR Ex.PW4/A has been lodged on a written complaint made by Sh. Himanshu Agarwal- Assistant Manager of BRPL. It is the case of the complainant that on 12.06.2014 at about 08.35 a.m., a team of its officers inspected premises bearing no. H. No. 156, Village Chandan Holla, New Delhi110074 which was used and occupied by accused persons. At the time of inspection, accused were consuming electricity without a meter and was thus committing direct theft of electricity by tapping from BSES LV mains through illegal wire. The total connected load was assessed at 12.156 KW for domestic use. Inspection report including meter detail report, load report and seizure memo were prepared. Videography of the inspection was carried out. A theft bill of Rs.2,68,108/ was raised. On failure of the accused persons to pay the theft bill, complaint was made to the PS -Fatehpur Beri for registration of FIR.
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3. On the basis of complaint aforesaid, FIR bearing no.662/14 Ex.PW4/A was registered and after investigation, Chalan was submitted.
4. As per provisions of section 154 (3) of the Act, procedure for summary trial was adopted.
5. Notice of accusation u/s. 251 Cr.P.C. for the offence u/s 135 of the Electricity Act, 2003 was framed separately against both accused persons. They pleaded not guilty and claimed trial. They further stated that they were not committing any theft of electricity and false & fabricated case has been made out against them by the complainant company.
6. In order to prove the case, prosecution produced seven (05) witnesses, which have been discussed below.
7. Statement of both accused persons was recorded u/s 313 Cr.P.C. Both accused persons pleaded their innocence and denied the evidence as false on the ground that they were not committing any direct theft of electricity at the premises in question on the date of inspection. Both BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 3 of 15 4 accused further answered that they were using the electricity from the meter vide CA No. 102276152, CRN 2520165294 and had been regularly paying the electricity charges. It was further answered on behalf of accused Deen Mohd. that the meter was installed in the name of his brother namely, Hazar. Accused further opted to lead evidence in their defence in this case and examined one witness, which has been discussed below.
8. Prosecution in support of its case, examined five witnesses.
9. PW1 Sh. Himanshu AgarwalManager, BRPL, who has deposed that he alongwith Sh. Prayag DuttEngineer, Sh. PraveenLineman and Sh. RahulVideographer, inspected the premises in front of H. No. 156, Chandan Haula, New Delhi74. He further deposed that at the time of inspection, there was no meter installed at site and the consumer/accused were indulged in direct theft of electricity by directly tapping from BSES LV mains with the help of illegal wires. He further deposed that at the time of inspection, accused persons and other family members created hinderance and resistance as well as mob was gathered at site. He further deposed that some load for domestic purpose was BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 4 of 15 5 assessed. He further deposed that total connected load could not be assessed and covered in the videography due to resistance created by accused at site and the load was assessed on the basis of another case against the accused person on 27.05.2013. He proved the documents i.e. inspection report, load report and seizure memo as Ex.PW1/A (Colly), Ex.PW1/B and Ex.PW1/C. He identified the wires as Ex.P2 and the videography as Ex.PW1/D. He further proved a complaint filed by him in PS. Fatehpur Beri as Ex.PW1/E.
10. In his crossexamination on behalf of accused, PW1 replied that no complaint against the hinderance created by accused was lodged. PW1 replied that after preparing the documents in office, service of the documents could not be effected upon the accused persons personally at site and volunteered that the reports were sent through post. He admitted the fact that no postal receipts are place on record. He further replied that entire videography of the load could not be taken due to hinderance created at site. He admitted that ownership of premises in question and the entire connected load was already in the knowledge of raiding team as a previous case was already booked on the premises. He denied the suggestion that no inspection was carried out at the premises BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 5 of 15 6 in question on 12.06.2014. He further denied the suggestion that the documents pertaining to the raid on 27.05.2013 were used in the present case in order to falsely implicate the accused.
11. PW2 Shri RahulVideographer, who conducted the videography of the inspection and proved the same as Ex.PW1/D and in his cross examination on behalf of the accused, he admitted that the gadgets shown in videography were not working at the time of videography. He further replied that there was resistance caused by the accused at the time of inspection. He further deposed that the duration of videography might be 34 minutes. He admitted that date and time are not mentioned in the videography.
12. PW3 Shri Amitabh Srivastav, Manager, who prepared the theft bill and proved the same as Ex. PW3/A. During his crossexamination, he replied that bill was generated as per rules and regulations feed in the system by the complainant company and volunteered that the theft bill was prepared as per formula mentioned in Annexure XIII of DERC Regulations.
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13. PW4 HC Kamlesh, who deposed that he received the complaint on 16.12.2014 which is Ex.PW1/E and made endorsement to that effect on the same at point X. He further deposed that on the basis of said complaint, the FIR was registered by him which he proved as Ex.PW 4/A. He further deposed that the certificate under Section 65B of the Indian Evidence Act was also issued by him which he proved as Ex.PW 4/B.
14. PW5 HC Ramesh Kumar, who is the IO of the present case. He deposed that on 04.08.2014, the investigation of the present case was entrusted to him. He further deposed that the charge sheet was prepared by him. He further deposed that the site plan was prepared by him on 08.01.2015 at the instance of Sh. Himanshu Assistant Manager which he proved as Ex.PW5/A. He further deposed that he recorded the statement of PWs u/s 161 Cr.P.C. and thereafter after completing the investigation, he filed the chargesheet before the Court.
15. During crossexamination on behalf of accused, PW5 replied that he had no personal knowledge of the present. He was not aware if any prior inspection pertaining to theft of electricity was conducted at the BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 7 of 15 8 premises in question. He further replied that NOC of another case had been placed on record. He denied the suggestion that he did not fairly investigate the matter.
16. Accused persons examined one witness namely Sh. Vinay Kumar Coordinator, BRPL as DW1. He brought the summoned record i.e. record of vide CA No. 12276152 installed at H. No. 156, Chandan Holla, New Delhi110074 in the name of Hazar against sanctioned load 7KW and its energisation date as 15.12.2017, which he proved as Ex.DW1/A and Ex.DW1/B.
17. During arguments, it is submitted by ld. Counsel for complainant company that on 12.06.2014, the officials of the complainant company had visited and inspected the premises in front of House No. 156, Village Chandan Holla, New Delhi110074 and at the time of inspection, there was no electricity meter installed at site and accused were indulged in direct theft of electricity by directly tapping from BSES L.V. Mains with the help of illegal wires. It is further submitted that at the time of inspection, the accused persons were creating hinderance/resistance and a mob was gathered at site and for that reason BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 8 of 15 9 they could not take the load of the premises in question. It is further submitted that the videography was prepared and accused Karima @ Kariman is duly depicted in the Videography. It is further submitted that a case was booked against accused persons against the same premises on 27.05.2013 wherein NOC had been obtained by the accused persons and for the purpose of load in this case, the same load as in the previous case of inspection conducted on 27.05.2013 has been taken in this case since accused persons did not allow the inspection team to take load of the premises in question at the time of conducting raid. It is further submitted that after the inspection, the complaint was filed at PS. Fatehpur Beri on 04.08.2014 vide DD No. 47B and accordingly, the chargesheet has been filed in this case by the IO. It is further submitted that the witness HC Kamlesh has been examined during the Trial who has registered the FIR bearing no.662/14. HC Ramesh Kumar, IO of the case has been examined who has proved the site plan and who has filed the chargesheet alongwith documents placed on record. It is further submitted that NOC of other case has been placed on record by the IO.
18. On the other hand, ld. Counsel for accused has submitted that accused were using electricity by paying due charges to the complainant BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 9 of 15 10 company. Ld. Counsel for accused has further argued his case on the basis of not following the rules and regulations mentioned in DERC to the effect of not preparing the documents at site, not handing over the documents to the accused persons and the taking of the load in question alongwith delay in lodging the FIR.
19. In rebuttal to above said arguments, ld. Counsel for complainant company submitted that the accused persons had created hinderance and obstruction during the inspection and accordingly, the documents were not handed over to the accused persons but same were sent through the post. It is further submitted that for that reason even the load of the premises could not be taken and the load of previous inspection conducted on 27.05.2013 has been taken. Ld. Counsel for complainant company has been taken me to the crossexamination of PW1 and submitted that it has duly come in the deposition of said witness that ownership of premises in question and the entire connected load was taken as previous case was already booked at the same premises. It is further submitted that accused even after obtaining NOC in that case was still involved in the direct theft of electricity and accordingly, the present case was registered against the accused and also the complaint BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 10 of 15 11 was filed before the police and on the basis of which FIR registered and chargesheet was filed.
20. Ld. Counsel for accused has further submitted that no resistance was created by accused persons as nothing of the sort has been depicted in the videography. Ld. Counsel for accused has further submitted that all the documents prepared in the previous case has been filed in the present case in order to falsely implicate the accused persons in case of direct theft of electricity as accused were duly paying the charges for use of electricity.
21. However, in rebuttal, ld. Counsel for complainant company submitted that no electricity bill for the period in question i.e. on the date of inspection has been placed on record by accused in order to show that he was using the electricity by paying due charges. It is further argued by ld. Counsel for the complainant company that the premises of accused is in front portion of H. No. 156 and all the documents placed on record for electrification of CA No. 102276152 are of one Mr. Hajar who is brother of accused as admitted by accused while recording his statement under Section 313 Cr.P.C. and even if that document be taken into BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 11 of 15 12 consideration then also the accused persons cannot use electricity from other premises illegally. Ld. counsel for complainant company has further argued that even for the premises of Mr. Hazar, no electricity bill of the time of inspection has been placed on record by the accused persons and these are suggestive of the conclusive fact that accused persons were indulged in direct theft of electricity.
22. Heard. Considered. Record perused carefully.
23. On the basis of arguments rendered on behalf of both parties, following facts have come on record that the identity of accused persons is not disputed, the connection of accused persons with the premises in question is also not disputed and the only dispute in this case is that they were using the electricity by paying electricity charges to the complainant company whereas the case of the complainant company against accused is that at the time of inspection, there was direct theft of electricity going on at the premises in question. However, this defence taken by the accused persons has no weight since accused have failed to produce any electricity bill with respect to his premises i.e. in front of H. No. 156, Village Chandan Holla, where the raid was conducted. BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 12 of 15 13 Hence the documents i.e. Ex.DW1/A and Ex.DW1/B which have been summoned in defence evidence have no relevance in the present case and do not support the defence of accused persons in any manner.
24. The other defence of accused is that at the time of inspection, no load of the premises in question has been taken. However, in rebuttal it was argued that due to hinderance and disruption created by the accused persons during inspection so the load of previous case was taken in this case which is very much depicted in the videography.
25. On the basis of documents placed before this Court, I am of the considered opinion that complainant company is successful in discharging its onus and the burden shifts to accused. The accused persons have taken stand that they were using the electricity by paying due charges but admittedly nothing substantial has been placed on record by accused to show that they were consuming electricity legally. Moreover, the documents placed in defence are of the premises belonging to one Mr. Hazar and admittedly, the accused has a different portion of premises in question. It is also a fact that no electricity bill for the premises in question at the time of inspection has been placed on BRPL VS. DEEN MOHD. & ANR. SC NO.6587/16 Page no. 13 of 15 14 record by the accused coupled with the fact that in earlier case, accused had obtained NOC and admittedly on 27.05.2013 there was no electricity meter at the premises of accused. So, in the light of these facts, documents of energisation of connection in the name of some Mr. Hazar finds no relevance in the present case and does not help the accused persons in order to discharge their burden.
26. I could lay my hand in a case decided by Hon'ble High Court of Delhi;
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".
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7. "I consider that even if the inspection was not a valid inspection, complainant had a right to prove theft of electricity done by the appellant irrespective of the status of inspection. The invalid inspection does not make theft of electricity as a noncrime. 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 31 st 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....."
27. Thus, I am of the considered opinion that complainant has been successful in proving the case against both the accused beyond reasonable doubt and hence both the accused namely Deen Mohd. and Karima @ Kariman are held guilty and convicted u/s. 135 of the Electricity Act, 2003. The file be consigned to record room.
Announced in the open ( NEELAM SINGH)
Court on this 20th November 2017 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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