Delhi District Court
Bses vs . Aashish & Anr., Cc No. 200/10 Page No. 1 ... on 31 January, 2014
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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. : 200/10
Police Station : Badarpur, New Delhi
U/s : 135 of Electricity Act, 2003
Unique ID No. : 02406 RO369242010
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. Aashish
S/o Shri Tapan Kumar
2. Gauri
W/o Shri Shiv Charan
Both are R/o:
BII, 4, 5 Left BII6,
M.C.I., Badarpur,
New Delhi
....Accused
Appearances : AR with Shri S.K. Alok, counsel for the complainant.
Accused Aashish is present on bail along with Shri Sanjay
Sharma, Advocate
Accused Gauri is present on bail along with Shri K.L.
Boudh, Advocate.
BSES Vs. Aashish & Anr., CC No. 200/10 Page no. 1 of 13
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Complaint instituted on : 29.10.2010
Judgment reserved on : 21.01.2014
Judgment pronounced on : 31.01.2014
JUDGMENT
1. The case of the complainant in brief is that on 09.09.2010, the officers of the complainant company namely, Shri Bharat Pratap - Assistant Manager, Shri Manish Kumar - Diploma Engineer Trainee and Shri Ajay Kumar - Lineman, conducted inspection at premises i.e. BII, Left BII6, M.C.I., Badarpur, New Delhi and it was observed by the inspection team that there was no meter present at the site and that direct theft of electricity was going from the feeder piller in front of the premises through two core black colour aluminium. cable of size 10 sq.mm. and accused were using total connected load of 7.540 KWs for domestic and 0.375 KW for nondomestic purpose. It is further mentioned in the complaint that inspection team seized two core black colour aluminium cable of size 10 sq,mm. of length one meter. It is further mentioned in the said complaint that the inspection report, load report and seizure were also prepared at the site and necessary photography/videography was also conducted at the spot.
2. It is further mentioned in the complaint that it was a case of direct theft of electricity and theft bill as per DERC Regulations tariff order was BSES Vs. Aashish & Anr., CC No. 200/10 Page no. 2 of 13 3 raised by the complainant for Rs. 1,66,336/ with due date as 27.09.2010 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 23.11.2010. My Ld. Predecessor vide his order dated 31.05.2011 framed notice U/sec. 251 Cr.P.C. for commission of offence punishable u/s. 135 the Electricity Act, 2003 against accused Aashish and Gauri separately, to which they pleaded not guilty and claimed trial on the ground that they were present at the premises in question at the time of inspection and that they were not committing any theft of electricity and that false and fabricated case has been made out against them and that they are not liable to pay any loss or damage to the complainant company. Accused Gauri answered that she was chaukidar at the premises in question. Accused Aashish answered that he was user of the shop situated at the premises in question.
4. In order to prove the case of the complainant, four witnesses were produced, which have been discussed below.
5. The statement of the accused Aashish and Gauri were recorded u/s. 313 Cr.P.C. separately and accused pleaded their innocence and BSES Vs. Aashish & Anr., CC No. 200/10 Page no. 3 of 13 4 denied the evidence as false and answered that they were present at the time of inspection and were drawing electricity from the connection provided to them by Meena and Ramesh and that they used to pay electricity charges to them. Both the accused further answered that the load report is false and highly exaggerated and that load of the neighbours was also included in the said load report. Both the accused further answered that they were running a tea shop and were also selling cooked food and that none of the documents were prepared in their presence. However, Both the accused opted to lead defence evidence and produced one defence witness, which has been discussed below.
6. I have heard the counsel for the complainant and counsel for the accused Aashish, Shri Sanjay Sharma, Advocate and counsel for accused Gauri, Shri K.L. Boudh, Advocate. I have also perused the record including the CD of photography displayed on the computer screen of the court.
7. PW1 Shri Ashutosh Kumar is the Authorised Representative of the complainant company, who proved his General Power of Attorney on behalf of the complainant company as Ex. CW1/2 and he also proved the complaint Ex. CW1/1 and he deposed that he had no personal knowledge of the present case.
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8. PW2 Shri Bharat Pratap was the Assistant Manager of the complainant company, who deposed that on 09.09.2010 at about 12.30 p.m., he along with Shri Manish Kumar, Shri Ajay Kumar and Shri Vijay inspected the premises bearing No. BII, 4 & 5, Mohan CoOperative Industrial Estate, New Delhi and that on reaching the said premises, they found that the consumer were indulged in direct theft of electricity by directly tapping from BSES Feeder pillar, which was in front of the premises in question and that there was no meter at site at the time of inspection at the spot. PW2 further deposed that a Dhaba (restaurant) was running at the time of inspection in front portion of the premises in question and that the said Dhaba was being run by the accused namely, Ashish and Gauri and that it was lunch time at the relevant time. PW2 deposed that he prepared the inspection report and he also proved the same as Ex.CW2/1. PW2 deposed that Sh. Manish, had prepared the load report and he proved the same as Ex. CW2/2. PW2 further deposed that the inspection team had assessed the total connected load and found the same to be 7.54 KWs for domestic and 0.30 KWs for commercial purposes. PW2 also proved the CD of videography as Ex.CW2/3 and and also identified the videography contained therein and he also identified accused Gauri depicted in the said videography. PW2 also identified and proved the copy of seizure memo as Ex. P1 and two BSES Vs. Aashish & Anr., CC No. 200/10 Page no. 5 of 13 6 core black colour aluminium wire of size 10 mm.sq. in length of approx. one meter.
9. In his cross examination on behalf of the accused Aashish, PW2 answered that he did not make any public person as witness, however, he tried to do so and that the videographer Shri Vijay had done the videography on his instructions. PW2 further replied that the premises in question was consisted of two portions and that the front portion of the premises was being used for a Dhaba and that the back portion of the premises was being used for domestic purpose.
10. In his cross examination on behalf of accused Gauri, PW2 admitted it as correct that both the accused Ashish & Gauri were using same Dhaba and that both the said accused were present at the time of inspection and the Dhaba was running at that time. PW2 answered that the inspection team had assessed the total connected load of the Dhaba jointly and that accused Ashish & Gauri had disclosed that they were the owner/ user of the premises in question. PW2 identified accused Aashish and Gauri, who were depicted and captured in the CD of videography Ex. CW2/3. PW2 did not know as to whether Meena and Ramesh were occupying another portion in the premises and were also indulging in theft of electricity.
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11. PW3 Shri Manish Kumar was the Diploma Engineer Trainee of the complainant company, who deposed on the same lines on which PW2 has deposed and as mentioned in the complaint. PW3 also proved the seizure memo as Ex. CW2/4. PW3 also proved two core black colour aluminium approx. one meter in length and 10 mm.sq. collectively as Ex. P2.
12. In his cross examination on behalf of accused Aashish, PW3 replied that the premises in question was consisted of 34 rooms, which were being used for residential purpose. In his cross examination on behalf of accused Gauri, PW3 replied that accused Gauri told the inspection team that she was the owner of the Dhaba and the number of premises was collectively bearing no. BII, 4 & 5, but, there was no distinction in the premises as the same was one unit. PW3 could not specifically point out the name of user or owner, but the accused persons revealed to be the user and owner of the premises bearing no. 4 & 5. PW2 replied that the premises bearing no. 4 & 5, was being occupied by accused Aashish and Gauri. PW3 could not identify the portions from their numbers in the videography as no distinct numbers were displayed at the site.
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13. PW4 Shri Vijay Kumar was the videographer, who conducted the videography at site and he also proved the same as Ex. CW2/3 and he also identified the videography contained in the said CD. In his cross examination on behalf of accused Aashish, PW4 replied that the video footage, which was videographed by him was downloaded in the computer in his presence and that no notice was served upon consumer for his presence at the time of downloading the video clipping in the computer of M/s. Arora Photo Studio. In his cross examination on behalf of accused Gauri, PW4 replied that accused persons, who were present in the court on the day of his deposition, were also present at the site at the time of inspection. PW4 did not remember as to who was present in B4 & B5.
14. DW1 Shri Shiv Ram was summoned on behalf of accused Gauri, who deposed that accused Gauri was known to him for the last 10 years and that once he visited the premises of accused Gauri during the summer and accused had informed him that she did not have meter and that she had taken the electricity from neighbour namely Meena and Ramesh, who were residing in the adjoining house bearing no. B2 to 4. PW4 further deposed that accused Gauri resides in B2 5 and that she informed him that she paid electricity charges to Meena. BSES Vs. Aashish & Anr., CC No. 200/10 Page no. 8 of 13 9
15. In his cross examination on behalf of complainant company, DW1 replied that he did not remember the date of his visit, but the same was most probably in July, 2003 and that he had not personally met Meena and Ramesh. DW1 further answered that he had seen a table fan and television in the house of accused Gauri. DW1 admitted it as correct that there was no meter installed at the premises of the accused. DW1 further answered that accused Gauri did not disclose him the period when she was paying electricity charges to Meena and Ramesh.
16. With this evidence on record, it has been established by way of evidence that both the accused were found present in the premises in question at the time of inspection where the theft of electricity was going on and the accused have also admitted in their respective reply to notices u/s. 251 Cr.P.C. and the statements u/s. 313 Cr.P.C., that they were present at the time of inspection and their said statements are fully corroborated not only by the deposition of PW2 and PW3, but also by the videography Ex. CW2/3, wherein both the accused were covered in the same at the time of inspection.
17. It has been argued on behalf of both the accused by their respective counsels that premises no. BII, 4 belong to one Meena and Ramesh from whom the accused were allegedly taking the electricity, but BSES Vs. Aashish & Anr., CC No. 200/10 Page no. 9 of 13 10 the said suggestion when thrown to PW2 and PW3, was denied by the said witnesses and they answered that the premises in question was collectively bearing no. BII, 4 & 5, but there was no distinction in the premises as it was one unit. The said witnesses specifically deposed that premises bearing no. 4 & 5, was being occupied by both the accused Aashish and Gauri and the said witnesses were not having any axe to grind against the accused so as to falsely deposed against the accused. Thus, there may not be a municipal number displayed at the premises in question, but at the same time, both the accused failed to deny the premises in question as their own while the videography of the same Ex. CW2/3, was displayed. Hence, the said argument holds no water and is liable to be rejected outright.
18. It has been further argued on behalf of the accused that no public person was joined at the time of alleged inspection at the premises in question, to be a witness of the same. This argument is not tenable under the law because under the Electricity Act, 2003, the authorised officials of complainant company have the only power of search and seizure and they are not having the police powers such as power to arrest as mentioned u/s. 41, or to issue the notice to any person acquainted with the facts of the case as is mentioned u/s. 160, or to record the statement of the witnesses under section 161 of Cr.P.C. Moreover, when BSES Vs. Aashish & Anr., CC No. 200/10 Page no. 10 of 13 11 the other evidence on the record is cogent and reliable, non joining of a public witness in a case, does not affect the merits of the case. Hence, the said argument is also liable to be rejected outright.
19. In the said circumstances, I am of considered opinion that complainant has successfully established the case of theft of electricity against the accused Aashish and Gauri and now the onus shifted on the accused to prove their innocence as mentioned as per presumption in the 3rd proviso to section 135 of the Electricity Act,2003.
20. The accused is not supposed to prove his defence 'beyond reasonable doubt' under the law and if any economic law shifts the burden on the accused to rebut any presumption, the extent of onus to be discharged by him, has been laid down 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. Aashish & Anr., CC No. 200/10 Page no. 11 of 13 12
21. Judging in the light of the said law laid down by the Hon'ble Supreme Court, let me turn to the defence of the accused in the present case.
22. The first and foremost defence of the accused is that they were taking the electricity from one Meena and Ramesh, but said two persons had been let free and the present accused have been falsely implicated.
23. Nothing has stopped under the law for the accused to summon the said Meena and Ramesh as witnesses in their defence, but no such steps were taken in the present case. The application u/s. 319 Cr.P.C. moved on behalf of the present accused to summon said Meena and Ramesh as accused was already dismissed by my Ld. Predecessor vide his order dated 06.10.2012 and admittedly both the accused have not gone in revision / appeal against the said order passed on 06.10.2012. Surprisingly the defence that they were taking the electricity from said Meena and Ramesh, was not even suggested to PW2 and PW3 in their whole respective cross examinations. The said defence was not put up by both the accused in their respective answers to the notice framed against them u/s. 251 Cr.P.C. also. Thus, the said defence cannot be said to have been established by any stretch of imagination. BSES Vs. Aashish & Anr., CC No. 200/10 Page no. 12 of 13 13
24. DW1 also failed to establish anything in the defence of the accused when he answered in his cross examination that the accused Gauri did not disclose him as to the period when she was paying the electricity charges to Meena and Ramesh. DW1 further admitted that there was no meter installed at the premises of the accused. He further admitted that he never met said Meena and Ramesh personally. In the said circumstances, no defence of the accused has come on the record worth believing much less from the point of view of a prudent man's test.
25. In view of my said discussion, I am of considered opinion that complainant has been successful in bringing home the guilty of the accused beyond reasonable doubt and as such, both the accused are held guilty and convicted u/s. 135 of the Electricity Act, 2003. Their PB and SB are cancelled and discharged. The file be consigned to the record room.
Announced in the open ( RAKESH TEWARI )
court on 31.01.2014 ADDL. SESSIONS JUDGE
SPL. ELECTRICITY COURT
SAKET COURTS, NEW DELHI
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